Nelson v. Sandell
| Decision Date | 21 June 1926 |
| Docket Number | 36912 |
| Citation | 209 N.W. 440,202 Iowa 109 |
| Parties | RUBY I. NELSON, Appellant, v. CARL L. SANDELL et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--J. S. DEWELL, Judge.
Action against a physician and a dentist jointly for malpractice. At the close of the testimony, a verdict was directed in favor of one of the defendants, and the action against the other was dismissed because not prosecuted in the county of his residence. From the judgment following, the plaintiff appeals.
Affirmed.
Robertson & Havens, for appellant.
Tinley Mitchell, Ross & Mitchell, William P. Welch, and Fred E Egan, for appellees.
VERMILION J. DE GRAFF, C. J., and STEVENS and FAVILLE, JJ., concur.
The plaintiff and appellant had been, for some time prior to the transactions in question, under the care and treatment of the appellee Walsh, a physician, for pains in her neck, side of the face, shoulder, and arm. He took an X-ray picture, which disclosed that appellant had an imbedded and impacted wisdom tooth, and told her that it should be extracted. The appellant and her mother visited the appellee Sandell, a dentist, and arranged for him to extract the tooth. It was also arranged that Dr. Walsh should give the anaesthetic. On the morning of March 13, 1924, Dr. Walsh administered an anaesthetic to appellant, and Dr. Sandell proceeded with the extraction of the imbedded tooth, first extracting an adjoining tooth that he testified it was necessary to remove. In the attempt to remove the wisdom tooth, the appellant's lower jawbone was fractured. Following this, Dr. Walsh treated the fracture until March 27, 1924, when appellant consulted another physician.
The action is against the appellees jointly. It is alleged that, while acting together and jointly, the appellees, not regarding their duties in the premises, negligently and unskillfully (1) administered the anaesthetic, (2) extracted another tooth immediately in front of the wisdom tooth, (3) extracted the wisdom tooth so as to break appellant's jawbone, (4) failed to properly set such fracture, and (5) failed to properly treat and dress the wounds and injuries of appellant so as to avoid infection, but permitted such wounds to become infected. Damages for pain and suffering and permanent disfigurement and the expense of subsequent care and treatment are claimed.
Upon the trial, at the close of all the evidence, the court directed a verdict in favor of the appellee Walsh, and thereafter dismissed the action as against the appellee Sandell, upon a showing that his residence was in Polk County.
While nearly forty errors are assigned, they may be conveniently grouped, for our consideration, into two propositions: (1) That the court erred in directing a verdict in favor of the appellee Walsh; (2) that the court erred in dismissing the action against the appellee Sandell. If the first proposition shall be determined against the contention of the appellant, it is not seriously insisted that the action as against the appellee Sandell was not properly dismissed. Section 11051, Code of 1924.
As to the alleged liability of the appellee Walsh, appellant claims that there was sufficient evidence to take the case to the jury, (1) upon the question of Walsh's negligence in administering the anaesthetic and in his subsequent treatment of appellant, and (2) upon the question of his responsibility for alleged negligence of the appellee Sandell in the extraction of appellant's teeth and the breaking of her jaw. While the ultimate questions presented are ones of fact, the facts are to be considered in the light of well established principles of law.
I. The physician is bound to bring to the service of his patient and apply to the case that degree of knowledge, skill, care, and attention ordinarily possessed and exercised by practitioners of the medical profession under like circumstances and in like localities. Smothers v. Hanks, 34 Iowa 286; Whitesell v. Hill, 101 Iowa 629, 70 N.W. 750; Ferrell v. Ellis, 129 Iowa 614, 105 N.W. 993; Haradon v. Sloan, 157 Iowa 608, 138 N.W. 556; O'Grady v. Cadwallader, 183 Iowa 178, 166 N.W. 755; Flanagan v. Smith, 197 Iowa 273, 197 N.W. 49; Furgason v. Bellaire, 197 Iowa 277, 197 N.W. 13. He does not impliedly guarantee results. Smothers v. Hanks, supra; Kline v. Nicholson, 151 Iowa 710, 130 N.W. 722. Whether the defendant exercised the degree of care and skill required of him cannot be determined from the testimony of laymen or nonexperts since it is only those learned in the profession who can say what should have been done, or that what was done ought not to have been done. Smothers v. Hanks, supra; Kline v. Nicholson, supra; Cozine v. Moore, 159 Iowa 472, 141 N.W. 424; Snearly v. McCarthy, 180 Iowa 81, 161 N.W. 108; Flanagan v. Smith, supra.
In view of the directed verdict for the appellee Walsh, we are required to view the evidence in the light most favorable to appellant. It is undisputed that the anaesthetic was administered to appellant at the dentist's office about 9 o'clock on the morning of Thursday, March 13th. Appellant did not come from under its influence until afternoon, and it was 4 o'clock before she was able to sit up. It is also undisputed that, immediately upon discovering that the jawbone was fractured, and while appellant was still unconscious, Dr. Sandell, in the presence of Dr. Walsh, cleansed the wound by wiping out the mouth and using iodine and an antiseptic spray. Dr. Walsh testified without contradiction that he then lined up the bones as best he could, and held them while Dr. Sandell applied a bandage. At 6 o'clock that evening. Dr. Walsh visited appellant, and put on a leather strap, to hold the jaw in place. He saw her either at her home or at his office each day thereafter until she dispensed with his services. The X-ray picture taken before her teeth were extracted indicated the presence of pus at the root of one of the teeth, and Dr. Sandell testified that after the extraction there was pus draining from the wound. This testimony was uncontradicted. The appellant testified that, on the Sunday following the extraction, there was a whitish discharge from her mouth, and that Dr. Walsh, on the preceding Friday, had given her a spray, to be used by the attending nurse, by which her mouth was washed out. On Monday and Wednesday, he changed the dressing, and on Thursday, he took another X-ray picture of the jaw. On Friday, he removed the chin strap and worked the jaw, to get it in place, and Dr. Sandell, under his direction, wired the upper and lower teeth together. Another X-ray picture was then taken. On Sunday, the discharge continuing, Dr. Walsh gave appellant a violet-ray treatment, and this was repeated on subsequent days. On Tuesday, Dr. Walsh used an electric spray on the wound, and washed out small pieces of bone. On Wednesday, he said that the picture showed that the jaw was not set right. The wires were taken off, and he manipulated the jaw, to get the bones in place, and Dr. Sandell again wired the teeth together, under his direction. The nurse testified that the irrigation was kept up carefully; that she kept up the drainage from the cavity, so that it would come out of the mouth, as nearly as possible; that Dr. Walsh gave the directions, and she followed them.
Appellant presented three experts, who testified at some length as to the proper methods to be pursued in reducing a fracture of the jaw and treating one in the situation of appellant. Dr. Cole testified that the usual method of treating such a fracture would be to get perfect alignment, both of the jaw and the teeth, and a fixture to hold them in place; that possibly one of the best methods would be an X-ray examination, and manipulation to get the alignment; that, if there was an open wound, some means to prevent infection should be commenced at that time--an antiseptic wash, to keep the parts clean; that the ordinary way of obtaining cleanliness of the wound would be mostly by washes, local applications, iodine, or other antiseptics, applied to the wound. He testified that a common and usual bandage employed is a piece of sole leather, formed to fit the chin, and strapped tight over the head, and that, if that did not hold, the wiring of the teeth would be proper; that for that a dentist would be called; that the doctor would first secure apposition of the bones and alignment of the jaw and hold these in place, before the dentist would tighten the wires; that, if there was not proper alignment, there should be another attempt. He also testified that it would be more than a week before there would be union of healthy bone, and in an infected bone there would be no union until the infection was cleared up. He further testified that an ordinary method of reducing inflammation and swelling would be hot or cold applications.
Dr Anderson testified to substantially the same effect. He said that, if the bandage was not holding the fracture, the general practice would be to readjust the bandage. He also testified that the usual method of using a disinfectant would be by irrigation, by a spray; that, "with a broken jaw, you would want to interfere as little as possible with any movement of the jaw in treatment," and that the usual method is to apply the wash by spray or irrigation; that ...
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