Newport v. Hyde

• Decision Date: 03 December 1962
• Docket Number: No. 42469,42469
• Citation: 244 Miss. 870,147 So.2d 113
• Parties: Mrs. Wilma NEWPORT v. Dr. A. Lowell HYDE.
• Court: Mississippi Supreme Court

Page 113

147 So.2d 113

244 Miss. 870

Mrs. Wilma NEWPORT v. Dr. A. Lowell HYDE.

No. 42469.

Supreme Court of Mississippi.

Dec. 3, 1962.

Floyd & Holleman, Clyde O. Hurlbert, Gulfport, for appellant.

Kelly McKoin, Biloxi, for appellee.

ETHRIDGE, Justice.

This is a dental malpractice suit, from the Circuit Court of Jackson County, brought by Mrs. Wilma Newport against Dr. A. Lowell Hyde. The jury returned a verdict for defendant, but, because of material errors in an instruction, we reverse the judgment of the trial court based on that verdict.

Dr. Hyde, a registered dentist, had been treating Mrs. Newport's teeth at regular intervals for several weeks and had made an upper plate for her. On March 6, 1959, she went to him to make a final impression for a lower partial plate on the left gums. Dr. Hyde used an impression substance which he heated and placed in a metal gum mold. Before application to the gums, this substance was supposed to be cooled. Dr. Hyde placed the substance on Mrs. Newport's lower left gums and took the impression. She said it was extremely hot and burned her. He stated he had cooled it adequately, had tested it against his and her wrists, and it was not too not for application, but was cooled sufficiently.

However, it is undisputed that he placed the impression substance on plaintiff's lower left gums, and that during the next two days, March 7 and 8, her lower left gums became very sore and painful, and had all the evidences of an extreme burn. On the following Monday, March 9, Mrs. Newport went to an internal medicine specialist, Dr. J. R. Foster. The left side of the lower jaw was red, with a grayish white membrane, and an inflammation of the soft tissues in that region. Mrs. Newport was running a fever. There were lymph nodes on the left side, below the jaw and down the neck, which were enlarged and tender.

Dr. Foster said plaintiff had cellulitis of the left mandibular area, a soft tissue infection. He treated her with antibiotics for several days, during which she had chills and fever. The grayish white membrane on the lower left jaw later sloughed off and the jawbone was exposed She gave him a history of having received the burn when Dr. Hyde took an impression for a partial plate. The condition he found was consistent with that burn stated in her history. Dr. Foster knew of nothing else which could have caused that type of burn on the gums, localized to the lower left side. It could not be attributable to hot coffee or other hot liquid, because it was localized; the tongue and right side were not burned. The infection caused the lymph nodes. Toward the latter part of March, he discharged her as having received maximum benefit of treatment for the infection.

On March 10 Mrs. Newport also went to see Dr. Llewellyn J. Smith, a registered dentist. He and Dr. Eustice, also a dentist, took photographs of the lower left mandible of plaintiff. Those photographs, introduced in evidence, reflected the exposed bone of the jaw, which in his opinion could not have been caused by an extraction of teeth, and also showed the burns to the left lower gums. He testified Mrs. Newport was in continuous pain, and he could not do very much for her until the healing process terminated. He had never seen a case of this type where the gums were burned in that manner. If the impression material is properly handled and cooled, according to professional dental practice, it could not burn the gums.

Dr. Hyde and his then fourteen-year-old daughter testified that on the date in question he made the impression on Mrs. Newport's jaw for the plate, it was amply cooled and tested before use, and she did not say anything about having received and burn. Nevertheless, it is undisputed that on March 6, 1959, Dr. Hyde made an impression for a dental plate on the lower left jaw of Mrs. Newport; and after she went home that area became extremely sore and painful. On March 9 she went to see Dr. Foster, a medical doctor, who found that she had an infection, with fever and chills, of the lower left mandibular area. He could think of no way for her to get such a localized burn, and infection from it, other than the method she recounted. Dr. Smith, a dentist, testified that he saw her on March 10, and treated her for some time thereafter. He also could think of no other way in which she could have gotten the particular burn on the lower left gums. With proper professional practice, it would not be possible for a patient to receive such a burn.

In the light of this undisputed testimony, several of the judges think the verdict is against the overwhelming, credible and believable evidence. However, we do not pass on that issue, because the case must be reversed for a materially erroneous instruction granted appellee.

That instruction stated: 'The Court instructs you for the defendant, that a dentist is required only to have the degree of learning and skill ordinarily possessed by dentists of good standing practicing in the same locality, and that he shall use ordinary care in applying that learning and skill to the treatment of his patients, and if you find that plaintiff had not shown by the preponderance of the evidence that the defendant did not, at the time of the alleged incident, possess a degree of learning and skill ordinarily possessed by dentists of good standing practicing in the same locality, namely Biloxi, Mississippi, and that he did not use ordinary care in applying that learning and skill in his treatment of the plaintiff, then it is your sworn duty to return a verdict for the defendant.'

This instruction requires plaintiff to prove both lack of skill and want of care by Dr. Hyde in order to recover. The declaration did not charge any lack of skill. It averred that defendant was guilty of negligence which proximately contributed to ...