McClees v. Cohen

• Decision Date: 07 January 1930
• Docket Number: 26.
• Parties: MCCLEES ET AL. v. COHEN.
• Court: Maryland Court of Appeals

148 A. 124

158 Md. 60

MCCLEES ET AL. v. COHEN.

No. 26.

Court of Appeals of Maryland

January 7, 1930

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Action by Mary Cohen against Dr. J. Sheridan McClees, trading as the Broadway Dental Parlors, and another. Judgment for plaintiff and defendants appeal. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Frank Driscoll and William H. Marshall, both of Baltimore, for appellants.

Julius P. Robinson, of Baltimore (Jacob L. Cardin, of Baltimore, on the brief), for appellee.

SLOAN J.

This is an appeal from a judgment in favor of the plaintiff (appellee) against the defendants (appellants), in a suit brought by the appellee for the recovery of damages for the wrongful extraction of two teeth by Dr. John C. Sutherland, a dentist in the employ of Dr. J. Sheridan McClees, who traded under the name of the Broadway Dental Parlors.

There are six exceptions in the record--the first to the sustaining of the demurrer to the plea of limitations; the second to fifth, inclusive, to rulings on the evidence; and the sixth to the granting of the plaintiff's prayers and the refusal of the defendants' first, second, third, fifth sixth, eighth and tenth prayers, and the overruling of the defendants' special exception to the plaintiff's prayer.

The plaintiff's demurrer, which was sustained, was to a plea that the alleged cause of action did not occur within one year of the filing of the amended declaration as to John C Sutherland. The appellants make no mentions of the plea or demurrer in their brief; yet they do not abandon the exception. The plea could only have been entered on the theory that the averment of the declaration that the appellee had requested Dr. Sutherland to extract "two small roots, commonly called baby roots," and he had "negligently extracted two good teeth instead," amounted to an assault, for which the period of limitations is one year. Code, art. 57, § 1. This opens the question as to what kind of action this is, and the authorities are not in accord. In Throne v. Wandell, 176 Wis. 97, 186 N.W. 146, it was held to be technical assault where a dentist extracted six teeth without the plaintiff's consent. Also in Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L. R. A. (N. S.) 439, 111 Am. St. Rep. 462, 5 Ann. Cas. 303, where, after the patient had been anesthetized, preparatory to an operation on the left ear, the surgeon thought the right ear was more in need of an operation, and he operated on it and not on the left. In Sullivan v. McGraw, 118 Mich. 39, 76 N.W. 149, 150, a surgeon was sued for amputating the wrong leg. The court there said: "If there had been no consent * * * it would have been clearly trespass to have touched the plaintiff's person." In Griffin v. Norman (Sup.) 192 N.Y.S. 322, 323, in which the defendant was instructed to extract a certain tooth, he administered gas, took out a sound tooth, then discovered his mistake and removed the one indicated by the plaintiff, the court there saying it was "quite clear that the plaintiff made out a prima facie case of negligence." In Pratt v. Davis, 118 Ill.App. 161, affirmed 224 Ill. 300, 79 N.E. 562, 7 L. R. A. (N. S.) 609, 8 Ann. Cas. 197, an operation without consent was held to be trespass on the case. In Wood v. Wyeth, 106 A.D. 21, 94 N.Y.S. 360, the plaintiff was required to elect whether he would try the case as an action for performing an operation without consent, or as a suit for negligence. The confusion as to the form of the action in such cases is shown by the following quotation from 21 R. C. L. 380: "Some of the cases seem to proceed on the theory that the liability is the result of a contract implied by law in which the physician warrants that he possesses the requisite skill and will exercise the requisite care. It is also said that an action for malpractice is a tort action, but one which grows out of a contract made by the physician with the patient. Such language has always led to a correct result, and no case has been found refusing a patient in fact to recover against his physician because of the absence of a contract with the physician. * * * It seems to be good law and logic to argue that the liability of a physician for failure to exercise requisite skill and care grows out of the relation which he has entered into with his patient, and that the relation is the result of a consensual transaction which most frequently is a contract, but is not necessarily such."

In City Passenger Railway Co. v. Tanner, 90 Md. 315, 45 A. 188, which was a suit brought by the plaintiff for injuries sustained on account of his being hit by a street car, a plea of limitations of one year was filed on the theory that the declaration, though for personal injuries as a result of negligence, was in effect an assault. A demurrer to the plea was sustained, and the opinion, quoting from Baron Parke, in Sharrod v. London and Northwestern Railway Company, 4 Exchequer, 584, said: "Whenever the injury done to the plaintiff results from the immediate force of the defendant himself, whether intentionally or not, the plaintiff may bring an action of trespass. On the other hand, if the act be that of the servant and be negligent, not wilful, case is the only remedy against the master, unless the act was done by his command."

In Angulo v. Hallar, 137 Md. 227, 232, 112 A. 179, which was a suit against a dentist, this court, in applying the same rule to dentists as to physicians and surgeons, quoting from Dashiell v. Griffith, 84 Md. 363, 380, 35 A. 1094, 1096, said: "That a physician or surgeon, who holds himself out to the world to practice his profession, by so doing impliedly contracts with those who employ him that he possesses a reasonable degree of care, skill, and learning, and he is therefore bound to exercise, and is liable for the want of, reasonable care, skill, and diligence, and he is responsible in damages arising as well from want of skill as from neglect in the application of skill."

The plaintiff in the declaration says that "the said dentist (Sutherland), while acting in the scope of his employment did not treat her with due care, or reasonable diligence and skill; but treated and operated on her carelessly and unskillfully, and negligently extracted two good teeth instead of the said baby roots, as instructed by the plaintiff." There is no charge here of willfullness; only one of carelessness, unskillfullness, and negligence. The declaration says that the plaintiff went to the Broadway Dental Parlors and requested the removal of two baby roots, and, when the dentist got through with her, she still had the baby roots and was minus what she regarded as two good teeth. Whether the action be regarded as trespass, case, or contract, and it must be one of them, the period of limitations is three years, and the demurrer was properly sustained. Code, art. 57, § 1; Hahn v. Claybrook, 130 Md. 182, 100 A. 83, L. R. A. 1917D. 333.

At the conclusion of the case, the plaintiff offered one, a damage prayer, and the defendants eleven prayers. The defendants' seventh prayer does not appear from the record to have been passed upon, likely due to its being a repetition of the fourth, which was granted. The defendants specially excepted to the plaintiff's prayer on the ground that there was no evidence as to the difference in her condition before the injury and at the trial, nor as to the permanency of the injuries. The plaintiff testified that the defendant Sutherland had extracted two good teeth, and that, as a result, she had not been able to masticate food as she did before her visit to the defendant. The difference in condition and permanency of injury are both to be reckoned in the loss of two teeth. This is a fact which speaks for itself, and the special exception was properly overruled. The defendants' first, second, third, sixth, and tenth prayers all asked for instructed verdicts for lack of evidence of negligence or want of care or skill of Dr. McClees or his employé, Dr. Sutherland.

The plaintiff's testimony is that she went to the Broadway Dental Parlors to have two baby roots, one on each side of her upper jaw, removed, and that she so instructed Dr Sutherland, who operated on her; that he examined her mouth and gave her a local anæsthetic, aesthetic, which was so effective that...