Negaard v. Feda's Estate, 11484

Docket NºNo. 11484
Citation152 Mont. 47, 446 P.2d 436, 25 St.Rep. 632
Case DateNovember 20, 1968
CourtUnited States State Supreme Court of Montana

Baxter Larson, Wolf Point, Habedank, Cumming & Best, Sidney, Otto T. Habedank argued, Sidney, Montana, for appellant.

Tipp, Hoven & Brault, Missoula, Vernon B. Hoven argued, Missoula, Montana. Amicus Curiae Jardine, Stephenson, Blewett & Weaver, Great Falls, Alex Blewett argued, Great Falls, Montana, for respondent.

HASWELL, Justice.

This is an appeal by defendant from a judgment in the amount of $9,470.57, in favor of a dental patient in a malpractice action. The case was tried to the court without a jury in the district court of Roosevelt County.

Plaintiff is Emma Negaard, a dental patient of Dr. P. M. Feda, the original defendant. Dr. Feda died prior to trial of this case and the executrix of his estate has been substituted as party defendant. For simplicity, Dr. Feda will be referred to as the defendant.

This case does not involve any fundamental factual dispute. In the spring of 1960 plaintiff, a 47 year old married woman who had been wearing a full set of dentures for 3 or 4 years, consulted her family doctor about a soreness in her mouth under her lower plate that was causing swelling and drainage. Her doctor advised her to see her dentist and have a wisdom tooth pulled.

On January 24, 1961, plaintiff went to see defendant at his dental office in Wolf Point. At that time defendant took five x-rays of the affected area. Two or three days later, plaintiff returned to defendant's office where she was shown the x-rays, told that she had an imbedded wisdom tooth but was not showing any irritation from her plates, and was advised by defendant that he could not see any reason for extracting the tooth. Defendant advised her to try it for awhile to see if the problem wouldn't clear up and the seepage disappear.

On May 22, 1961, plaintiff returned to defendant's office at which time the extraction was performed. Defendant testified that he anaesthetized her locally and opened up the gum to expose the tooth. He found the tooth imbedded in the bone. He was unable to loosen the tooth from the bone by use of an elevator so he laid about a third of the buccal bone away down to the bifurcation of the crown. After doing this, he was able to loosen the tooth with the elevator and wiggle it out with a small-tipped forcep. At some time during the extraction, plaintiff's mandible was broken. As a result plaintiff was hospitalized and ultimately underwent two operations to repair the fracture.

Subsequently suit was filed, the case was tried to the court without a jury, and plaintiff was awarded judgment. This judgment was reversed on procedural grounds and remanded to the district court for further proceedings. See Negaard v. Feda, 149 Mont. 190, 425 P.2d 79.

Prior to retrial in the instant case, a pretrial order was entered superseding the pleadings. It provided for litigation of three issues at the trial which can be paraphrased in the following manner: (1) Did defendant specially contract with plaintiff to warrant the success of the extraction? (2) Was any negligence on the part of defendant the proximate cause of breaking plaintiff's mandible? (3) Did defendant breach any duty on his part to inform plaintiff of the risks and hazards involved in the extraction of plaintiff's tooth to enable plaintiff to make 'an informed consent' to the extraction?

Additionally, the court entered an order in advance of trial that the doctrine of res ipsa loquitur was applicable to the instant case.

By stipulation, this case was submitted to the trial judge for decision on the basis of the transcript and exhibits in the first trial plus the deposition of Dr. Eugene J. P. Drouillard.

The trial court subsequently entered findings of fact, conclusions of law, and judgment for plaintiff. The findings of fact which are basic to this appeal can be summarized as follows: (1) that plaintiff's fractured mandible was not a consequence that would ordinarily have occurred if due care had been exercised by defendant in extracting plaintiff's tooth, (2) that defendant failed to inform plaintiff prior to the extraction that her mandible was extremely porous, atrophic and brittle or that there was insufficient buccal plate left that was thick enough to withstand the pressure that was needed to extract the tooth.

The two underlying legal issues assigned for review upon this appeal can be summarized as follows: (1) Is the doctrine of res ipsa loquitur applicable to establish negligence on the part of defendant? (2) Is the doctrine of 'informed consent' available to establish liability on defendant's part?

At the outset, we note that there is no issue upon this appeal based upon breach of contract warranting success in the extraction. Although this was denominated an issue in the pre-trial order, no proof of such a contract was introduced at the trial, the judgment is not based thereon, and plaintiff concedes in her brief that this is not an issue upon this appeal.

We proceed to the first underlying issue assigned for review, viz. the applicability of res ipsa loquitur under the facts of the instant case. It is clear that absent its applicability, plaintiff has no evidence of any negligence on the part of defendant in the extraction of plaintiff's tooth. It is equally clear that the trial court based its finding of negligence in the extraction by applying the doctrine of res ipsa loquitur. Finding of fact V is quoted verbatim as follows:

'That the fracture of the right mandible of the plaintiff was not a consequence that ordinarily would have occurred or followed if due care in the extraction of the tooth had been exercised by Dr. P. M. Feda.'

This finding of fact finds no support in the evidence in this case. All expert opinion evidence by dental witnesses at the trial is to the contrary. All four dentists called as witnesses at the trial testified that in their opinion, based upon the deposition of defendant, plaintiff, Dr. Listerud, Dr. Karleen, and their examination of plaintiff's x-rays, the procedures used by Dr. Feda on plaintiff in the extraction conformed to standard acceptable dental practice in the Wolf Point area at that time. All four further testified that the fact plaintiff's mandible was fractured in the extraction was no indication of negligence on defendant's part.

Expert dental testimony at the trial did establish that ordinarily speaking, a fracture of the mandible is not to be anticipated in pulling a wisdom tooth if proper procedure and reasonable care is exercised, but that each case presents its own situation. In plaintiff's case, a fracture was a definite possibility. Other expert opinion evidence established that although fractured mandibles do occur from the extraction of teeth, they are not common.

The gist of a malpractice action is negligence on the part of the defendant. Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A.L.R. 1487. The mere happening of an accident, in itself, is no evidence of negligence in the ordinary negligence action. Jackson v. William Dingwall Co., 145 Mont. 127, 399 P.2d 236; State v. Bast, 116 Mont. 329, 151 P.2d 1009; Baatz v. Noble, 105 Mont. 59, 69 P.2d 579. Neither is the mere fact of injury or the occurrence of a bad result, standing alone, any proof of negligence in the ordinary malpractice action. Loudon v. Scott, supra. The law does not require that for every injury there must be a recovery of damages, but only imposes liability for a breach of legal duty by defendant proximately causing injury to plaintiff. Loudon v. Scott, supra.

What is the legal duty that defendant owed plaintiff in the instant case? A dentist who undertakes to treat a patient assumes a duty to that patient to exercise such reasonable care and skill as is usually exercised by a dentist in good standing in the community in which he resides. Donathan v. McConnell, 121 Mont. 230, 193 P.2d 819. If a dentist possesses and uses that degree of care and skill in ministering to a patient in a given case, he is not liable to his patient even though a bad result occurs causing injury to the patient.

The doctrine of res ipsa loquitur is relied upon to furnish proof that defendant was negligent in the instant case. That doctrine has been defined by this Court previously in the following terms: 'That when an instrumentality which...

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