Mitchell v. Atkins

• Decision Date: 07 May 1935
• Citation: 178 A. 593,36 Del. 451
• Court: Delaware Superior Court
• Parties: HELEN M. MITCHELL, widow, v. WILLIAM B. ATKINS

178 A. 593

36 Del. 451

HELEN M. MITCHELL, widow, v. WILLIAM B. ATKINS

Superior Court of Delaware, New Castle County

May 7, 1935

Superior Court for New Castle County, No. 42, November Term 1933.

This was an action for malpractice brought by the plaintiff against the defendant, a dentist. It was alleged that the plaintiff's deceased husband engaged the defendant to extract a tooth; that nitrous oxide gas was administered as an anaesthetic and that the patient died under its influence. The declaration consisted of four counts.

Demurrers were filed to counts 1, 2 and 4. The demurrers to counts 1 and 2 were sustained as to matters of form.

The demurrer is sustained.

James R. Morford (of Marvel, Morford, Ward and Logan) and Howard W Bramhall for plaintiff.

H. H Ward, Jr., and William S. Potter (of Ward & Gray) for defendant.

RODNEY J., sitting.

OPINION

RODNEY, J.

The fourth count is based entirely on the principle of res ipsa loquitur. It is unnecessary to state the count in extenso, but generally the plaintiff contends therein that her deceased husband retained and employed the defendant, a practicing dentist, to extract a tooth; that, in the course of the extraction, nitrous oxide gas was administered and the patient died; that the deceased had been in good health prior to the extraction; that the plaintiff is unable to aver the specific cause or negligence on the part of the defendant but avers that the death could not have occurred except for the defendant's negligence and the lack on the part of the defendant of that professional care and skill requisite in the matter.

There is thus raised by the demurrer the narrow question as to whether the doctrine of res ipsa loquitur, operating on the facts disclosed by the count, is a sufficient statement of the cause of action.

The ordinary rules governing the duties and liabilities of physicians and surgeons are equally applicable to other and kindred branches of the healing profession and so we find most of the pertinent authorities listed under the title of "Physicians and Surgeons."

It is an elementary rule that the law holds a physician, surgeon or dentist answerable for an injury to a patient resulting from want of requisite knowledge or skill or from the omission to use reasonable care and diligence in the application of such knowledge or skill. The more difficult question has always been as to just what constitutes "requisite knowledge or skill."

Along with the general principle of liability for injury due to want of requisite knowledge or skill, there exists the cognate principle that where the possession of requisite knowledge and skill has been shown, together with the use of such qualities with reasonable care and diligence, that then the practitioner is not responsible for the results that follow the treatment administered by him. The law does not make a doctor an insurer of the best result of the treatment.

The great weight of authority is to the effect that in malpractice cases the skill and care of the dentist or physician will be presumed in the absence of any evidence to the contrary. In 21 R. C. L. 406, it is said:

"The law accords the medical practitioner the presumption that he has done his duty, and in a suit for injury caused by alleged malpractice the burden is on the plaintiff to prove the want of reasonable or ordinary care or skill. * * * The burden of proof is not shifted by showing an unsuccessful result has attended the treatment of the patient by the physician. Nor does the unsuccessful result of the case shift from the plaintiff to the defendant the burden of going forward." Moore v. Smith, 215 Ala. 592, 111 So. 918.

The application of the doctrine of res ipsa loquitur to cases of malpractice by dentists has been considered in a number of cases. Most of these cases are cited in the note in 69 A. L. R. 1142 and in the annotations thereto. See, also, notes, 27 N.C C. A. 756, 35 N.C. C. A. 144. In a few jurisdictions it has been held, that where in a suit against a dentist for malpractice it was shown that the defendant was negligent in the use of an instrumentality such as an electric drill, that the rule of res ipsa loquitur is not excluded. A typical case is Vergeldt v. Hartzell (C. C. A.), 1 F. (2d) 633, which is much relied on by the plaintiff, where recovery was sought on the following allegation of negligence:--"(5) Negligence while and in the manner of handling and operating the instrument." There the Court drew the clear distinction between the possession of skill or knowledge on the one hand and the negligent performance of an operation on the other. There the Court considered res ipsa loquitur as a rule of evidence. The Court held, that where it appeared that a machine or instrumentality was, as to user and inspection in the control of the party charged and was of such a nature that no injurious consequence would ordinarily flow except from careless construction, inspection or user and that the injurious occurrence must have happened irrespective of any voluntary action of the injured party, that then in such case the rule of res ipsa loquitur would apply. It is not entirely clear to me, that, properly speaking, the doctrine of res ipsa loquitur was there involved at all, for, ordinarily, res ipsa loquitur does not apply where there is evidence of specific negligence. The cited case, however, is clearly distinguishable from the present one. In the cited case the defendant was polishing an inlay with a sandpaper disc attached to an electric drill, operated at high speed. The attention of the operator being momentarily diverted, the drill and disc slipped from the...