Martin v. Earl J. Rome, Jr., D.D.S.

• Decision Date: 25 March 1986
• Docket Number: No. CA,CA
• Parties: Sara C. MARTIN v. EARL J. ROME, JR., D.D.S. (a dental corporation). 84 1502.
• Court: Court of Appeal of Louisiana — District of US

Page 213

486 So.2d 213

Sara C. MARTIN v. EARL J. ROME, JR., D.D.S. (a dental corporation).

No. CA 84 1502.

Court of Appeal of Louisiana,

First Circuit.

March 25, 1986.

Mac Trelles, Baton Rouge, for plaintiff-appellee Sara C. Martin.

Roger M. Fritchie, Baton Rouge, for defendant-appellant Earl J. Rome, Jr. D.D.S.

Before EDWARDS, LANIER and PONDER, ^* JJ.

PONDER, Judge.

This is a dental malpractice suit. The district court rendered judgment in the patient's favor and defendant suspensively appealed. We affirm.

Defendant-appellant assigns as errors by the trial court its

(1) finding that Dr. Rome's care did not measure up to the standard of care usually possessed and exercised by dentists in the same community;

(2) failing to apply the law of redhibition, thus depriving defendant the opportunity to repair the bridgework manufactured by another and bought by him for resale; and

(3) refusing to grant a new trial because defendant discovered during the trial that the bridgework had been altered or tampered with after he installed it.

Sara C. Martin employed Earl J. Rome, Jr., D.D.S., to replace a nine unit permanent upper bridge another dentist had installed because she deemed it unsightly and unacceptable. Defendant took the necessary impressions and had a third person fabricate the bridgework which was installed on November 7, 1979. She was scheduled to return to Dr. Rome December 19, 1979 but a trip she made to Texas necessitated rescheduling for January 2, 1980.

When Dr. Rome saw Ms. Martin on January 2, 1980, she demanded that he correct the unevenness of fit and unsightliness of the bridgework or, in the alternative, he refund the $1,155.00 she paid before the bridgework was done. He refused saying nothing needed to be corrected and in time she would become adjusted to the fit and the appearance. At a Peer Review Committee hearing, seven dentists who examined Ms. Martin's bridgework and mouth concluded several corrections were needed and referred her back to Dr. Rome to make those corrections. She refused to allow him to do any work, and, instead, had another dentist remove the bridgework without attempting any corrections because the new dentist agreed that they could not be done.

Two dentists testified in plaintiff's behalf that the bridgework was badly done and could not be corrected; therefore, removal was required. Both also testified the faultily constructed and installed bridgework was the cause of the gum disease and irritation which Ms. Martin experienced.

Dr. Rome testified as his own expert witness in defending the quality of his work and in support of his opinion that Ms. Martin had not given sufficient time to adjust to the fit and appearance of the bridgework.

STANDARD OF CARE

Appellant argues that: "The community standard of care exercised by his fellow dentists called for the allowance for modifications to the bridge after its initial installation, but Dr. Rome was not given the opportunity to make the needed changes. Dr. Rome was only able to partially fulfill his responsibilities to Ms. Martin because she refused to allow him to make the requisite modifications."

Dr. Rome offered only his own testimony to establish the prevailing standard of care in dentistry in the Baton Rouge area. Ms. Martin's expert witnesses, two general dentists practicing in Baton Rouge, testified that the bridgework and aftercare did not measure up to prevailing standards of dental care in the Baton Rouge area and that the bridgework was not correctible.

The record as a whole supports the decision of the trial court; because the trial court's findings are not clearly wrong, those findings of fact and conclusions of law based thereon should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Sanchez v. Viccinelli Sheet Metal & Roofing, 473 So.2d 335 (La.App. 1st Cir.), cert. denied, 477 So.2d 1124 (La.1985).

REDHIBITION

Appellant argues that the district court's failure to apply the codal law and jurisprudence on redhibition was error because the bridgework was manufactured by a third person and sold to him for resale to Ms. Martin. The bridge was constructed by using the "impressions" which Dr. Rome had taken at his office as a necessary first step in doing the bridgework he agreed to perform. Dr. Rome did not third party the maker of the bridge and Ms. Martin did not name him as a joint tortfeasor.

To determine the applicability of the law of redhibition to the facts of the instant case, we must first determine whether the bridgework, including necessary preparation prior to installation and required follow-up care, was a sale or a "contract to do." The law of redhibition would apply if the contractual arrangement between Ms. Martin and Dr. Rome was a sale but would not apply if it was a "contract to do." Litvinoff, 7 Louisiana Civil Law Treatise--Obligations, Book 2, Sec. 158 (1975); PPG Industries, Inc. v. Schega, 362 So.2d 1128 (La.App. 4th Cir.1978).

In PPG Industries, supra, plaintiff contracted to furnish and install sliding door units and windows having specified characteristics; the windows were to be delivered assembled but not installed; after the windows and doors were installed defendant discovered they did not have the characteristics they were represented to possess and resisted PPG's efforts to collect the agreed upon price on the basis that the contractual obligation of PPG had not been fulfilled. The court of appeal, in affirming the district court judgment in defendant-homeowner's favor, observed that:

The contract in this case, which involves fabrication of glass doors, glass walls, and glass windows and installation of the glass doors and glass walls, was a construction contract rather than one of sale. Installation was more than a trifling part of the agreement. ... Furthermore, the contract required fabrication in accordance with defendant's construction plans and specifications, and the fabricated units constituted approximately one-half of the exterior wall.

Plaintiff's failure to perform the construction contract in accordance with the...