Malone v. Bianchi
| Decision Date | 03 May 1945 |
| Citation | 318 Mass. 179,61 N.E.2d 1 |
| Parties | MALONE v. BIANCHI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Greenhalge, Judge.
Action by Ida Malone against A. F. Bianchi to recover for the alleged negligence of defendant, a dentist, in permitting a tooth to fall down plaintiff's throat while extracting plaintiff's teeth. Directed verdict for defendant, and plaintiff brings exceptions.
Exceptions sustained.
Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.
G. W. Boland, of Boston, and M. A. Kerwin, of Somerville, for plaintiff.
A. R. Kingston, of Boston, and C. J. Muldoon, Jr., of Somerville, for defendant.
The plaintiff brings this action of tort against the defendant, a dentist, to recover for his alleged negligence in permitting a tooth to fall down her throat while he was extracting some of her teeth. The questions for decision are whether the judge erred in directing a verdict for the defendant and in discharging a stipulation entered into by the parties.
These facts could have been found: The plaintiff, aged thirty-six, on April 5, 1940, consulted the defendant at a hospital in Somerville for the purpose of having her teeth examined. After an examination the defendant advised her that she ought ‘to have quite a few teeth out.’ She agreed to this and to the administration of gas and ether. The defendant thereupon extracted sixteen of the plaintiff's teeth. When the plaintiff ‘came out of the ether’ she was nauseated and bled profusely. Upon returning to her home she went to bed, where she remained for several days. She had a bad cough, suffered ‘a lot of pain in the chest,’ and had difficulty in breathing deeply. The pain in her chest was constant and was unlike anything she had ever experienced. Early in May, at the advice of her physician, the plaintiff went to a hospital 1 for an examination and the taking of X-rays. For the next fifteen months the plaintiff's chest was sore and she ‘suffered dry coughing spells and raising of blood.’ During this period she continued to go to the hospital for examination, treatment and the taking of X-rays.
On or about July 18, 1941, slightly more than fifteen months after her teeth were extracted by the defendant, the plaintiff during a coughing spell disgorged a tooth. Thereafter the plaintiff's health immediately improved and the pain in her chest cleared up. The plaintiff informed the doctor who had been treating her at the hospital of the fact that she had coughed up a tooth, and further study was made of the X-rays which had previously been taken. The X-ray record, which was in evidence at the trial, under date of August 1, 1941, contained the following notation: ‘Review of the previous films shows that the tooth fragment was in the left lower bronchus.’ No dental work was done on the plaintiff's mouth between the date of the extractions and July, 1941. The defendant rested at the close of the plaintiff's case and presented a motion for a directed verdict, which was allowed subject to the plaintiff's exception.
1. We think that this was error. The case at bar is governed by Toy v. Mackintosh, 222 Mass. 430, 110 N.E. 1034, Ann.Cas.1918C, 1188, where on facts very similar to those here it was held that the plaintiff was entitled to go to the jury. The jury were warranted in finding that one of the plaintiff's teeth became lodged in her bronchus and that it got there through the negligence of the defendant while operating on her. This is not a case where a finding of negligence must rest on mere conjecture. Bates v. Dr. King Co., 191 Mass. 585, 77 N.E. 1154;Drakes v. Tulloch, 220 Mass. 256, 107 N.E. 916;Traverse v. Wing, 256 Mass. 320, 152 N.E. 354;Butler v. Layton, 266 Mass. 117, 164 N.E. 920;Langis v. Danforth, 308 Mass. 508, 33 N.E.2d 287. We have not overlooked the fact that the plaintiff offered no expert evidence on the issue of the defendant's negligence. Ordinarily a jury are not permitted without the aid of expert evidence to determine whether the conduct of a dentist or physician is a breach of the duty owed to a patient. Bouffard v. Canby, 292 Mass. 305, 309, 198 N.E. 253;Vartanian v. Berman, 311 Mass. 249, 40 N.E.2d 867. But, although exceptional, the facts in a malpractice case may be such that jurymen out of their common knowledge and experience are able to pass on this question. Gabrunas v. Miniter, 289 Mass. 20, 22, 23, 193 N.E. 551;Ernen v. Crofwell, 272 Mass. 172, 172 N.E. 73, 69 A.L.R. 1140;Toy v. Mackintosh, 222 Mass. 430, 431, 110 N.E. 1034, Ann.Cas.1918C, 1188. See Tallon v. Spellman, 302 Mass. 179, 183, 19 N.E.2d 33. See also cases collected in note 141 Am.L.R. 5, 12 et seq. We think that the case at bar comes within this class.
2. The judge did not err in discharging the stipulation....
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