Moore v. Webb, 23270
| Decision Date | 03 April 1961 |
| Docket Number | No. 23270,23270 |
| Citation | 345 S.W.2d 239 |
| Parties | Lucille MOORE, Plaintiff-Respondent, v. G. Farrell WEBB, DDS, and Frank E. Klee, DDS, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Roy F. Carter, Kansas City, for appellant.
Phillip L. Waisblum, Robert B. Paden, Kansas City, for respondents.
In this malpractice suit plaintiff Lucille Moore asks damages from defendants G. Farrell Webb and Frank E. Klee, dentists in partnership, caused by their extraction of eight of her teeth without her consent while she was in a state of anaesthesia. The trial resulted in a jury verdict and judgment for $5,500 in favor of plaintiff. Defendants have appealed.
Defendants first contend that plaintiff failed to make a submissible case and that the trial court should have directed a defendants' verdict. It is argued there is no evidence to show: (1) that plaintiff's eight teeth were extracted without her consent; (2) that she did not intend their extraction; (3) that defendants were not apprised tht she didn't intend the extractions; and (4) that the teeth did not need to be removed.
In determining the sufficiency of the evidence to make a case we assume as true every fact and circumstance in plaintiff's favor and resolve all reasonable inferences favorably to her. All evidence and inferences unfavorable to plaintiff we shall disregard.
There is evidence in the record to establish the following facts: Plaintiff is 43 years old, married, and the mother of five children. On November 29, 1957, she consulted Dr. George Martin, a dentist, because an upper tooth was cracked and another one had a loose filling. In past years she had lost several back teeth, some from the effects of childbearing. She had six upper teeth and ten lower teeth, all in front and adjoining, none causing any trouble. Dr. Martin 'very carefully' examined her teeth and recommended that the six upper teeth be extracted and replaced by a complete upper denture. He advised extraction of two lower teeth, second bicuspids, and the use of a partial lower denture with the remaining eight teeth. Plaintiff agreed to that plan and 'understood that Dr. Martin would make her a complete upper denture and a lower partial one to be placed in back of the eight lower teeth that were to be left intact'. Dr. Martin gave plaintiff a written quotation on the cost of the dentures. He referred plaintiff to Doctors Webb and Klee for the extraction work, and prepared a 'referral card' on which he wrote 'Remove all uppers and both lower 2nd bicuspids'.
By appointment plaintiff went to defendants' office and handed her card to the receptionist. After her teeth were X-rayed she was taken to 'a little place where they drape you and lay you lack'. A nurse appeared and plaintiff was given a 'shot', after which she felt herself 'going out'. She then inquired: 'Don't I even get to see the dentist going to do the work?' Dr. Webb appeared, briefly, but she was 'getting woozy'. They talked only about a recent bereavement of her brother-in-law, who was a friend of Dr. Webb, as 'that is all the time we had'. She was then going to sleep. There was no discussion about her teeth. She stated: 'If we had talked, I might have talked that over'.
Next, one of the girls in the office came in, put a thermometer in plaintiff's mouth, and asked her to sign a paper, stating that it was 'a formality for the doctor to do her work'. Plaintiff testified .
The reverse side of the 'paper' contained words, figures and marks which defendants term a 'chart' to indicate the teeth that had been marked for extraction. That side of the document was not shown to plaintiff at any time. The X-rays of her teeth were never shown to her. Neither dentist or any technician ever talked to plaintiff about the X-rays or about which of her teeth were to be extracted. According to the testimony of defendants' dental assistant, who was present during the extraction operation, both defendants participated in removing plaintiff's teeth, Dr. Webb being the first actor. He came into the surgery room, marked the chart for the teeth to be removed, and administered plaintiff sodium pentothal, a general anaesthetic. Then he called in Dr. Klee, turned the job over to him, and left the surgery room. Dr. Klee extracted all of plaintiff's upper teeth and proceeded to take out the lower ones. After removing one or two of the lower teeth, Dr. Klee stopped and said, out loud, 'Are these teeth to be removed?' He turned and looked at the chart and said, 'Well, they are marked'. He resumed the 'surgery' and pulled all of the teeth remaining in plaintiff's mouth.
When plaintiff regained consciousness in the recovery room, she became very distressed because all her teeth were gone, and was crying as hard as she could. She opened her mouth for her daughter to see and said, 'He pulled all my teeth.' While she was still 'crying and upset and such' she told defendants' assistant that all of her teeth were gone and that she wasn't supposed to have all of them out--that she didn't want all of them removed. 'She was very upset and there was quite a bit of commotion'. Plaintiff's daughter asked for the referral card prepared by Dr. Martin but was told that it was locked up.
Plaintiff was nervous and upset and cried all the way home. She was put to bed immediately and remained in bed for several days. Her mouth began to swell, her face turned black and her fingers became numb. She was then admitted to Trinity Lutheran Hospital where she remained four days for treatment. She now wears full dentures. Her teeth pop up when she tries to eat and move up and down when she drinks liquids. She remains in a nervous condition and is bothered with numbness in her right hand and blurring of vision.
Dr. Klee did not recall whether he had anything to do with the extractions but stated he could have done some part of it. Dr. Webb testified he had no recollection of talking to plaintiff about what teeth were to be extracted or discussing the X-rays with her. He stated there was no decay present in four of her lower teeth. Further testimony of Dr. Webb is quoted as follows:
The narrated evidence is amply sufficient to support the jury's conclusion that plaintiff did not intend the extraction of the eight teeth and that she did not consent to their removal. We do not consider here whether or not the teeth needed removal. That question was not submitted to the jury as a predicate to plaintiff's right to recover.
When plaintiff submitted herself to defendants for their services, she was not granted personal consultation. Through no fault of hers, it was not her privilege to speak to defendants in person and state what she wanted them to do. Her disappointment in this respect was shown by the question she asked when she realized she was going into narcosis: 'Don't I even get to see the dentist going to do the work?' And, when the dentist did appear, communication was limited to a brief personal exchange--ended by the hypodermic injection of sodium pentothal to induce complete anaesthesia.
Since defendants chose to receive plaintiff's instructions from the card alone, they are bound by its contents. It conferred no greater extent of consent or...
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