Patterson v. Howe

• Court: Oregon Supreme Court
• Writing for the Court: RAND, J. (after stating the facts as above).
• Citation: Patterson v. Howe, 102 Or. 275, 202 P. 225 (Or. 1921)
• Decision Date: 06 December 1921
• Parties: PATTERSON et ux. v. HOWE.

202 P. 225

102 Or. 275

PATTERSON et ux. v. HOWE.

Supreme Court of Oregon, En Banc.

December 6, 1921

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Action by J.M. Patterson and wife against W.G. Howe. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

This is an action for damages resulting to Anna Patterson, one of the plaintiffs, from the alleged negligence of the defendant W.G. Howe, a dentist, in extracting one of her teeth and in subsequently treating the wound caused by the operation. The plaintiffs are husband and wife. The complaint in substance alleges that Mrs. Patterson employed the defendant to extract her left bicuspid tooth, which had not penetrated through the gum; that the defendant, after taking an X-ray radiograph extracted the tooth, and subsequently treated the case in a negligent and unskillful manner; and that in extracting the tooth the bone at the floor or base of the antrum was broken producing an open passage between the mouth and the antrum which became and remained infected for months, resulting in necrosis of the surrounding bones and an atrophied condition of plaintiff's optic nerve in the left eye, and in the impairment of health and eyesight. The answer denied the allegations of the complaint, and alleged, in substance, that the tooth was extracted and the case subsequently treated in a skillful and careful manner; that the infection complained of resulted wholly from abscessed teeth and the diseased condition existing before the operation; that the infection was negligently and carelessly treated by the plaintiff; that the plaintiff disregarded the instructions given her by the defendant; and that her negligence alone produced the results complained of. These allegations were denied by the reply. It appears from the testimony that the tooth which was extracted is what is known as an impacted or an unerupted tooth.

Upon the trial, the plaintiff produced Dr. Whitney, their family physician, who testified over the objection and exception of the defendant, as follows:

"Q. Now, you may answer, Doctor, as to whether or not in your judgment as a physician and surgeon the operation performed by Dr. Howe on the patient there was a skillful dental operation. A. Well, it is a very leading question. * * *

"Q. Just give your best judgment, Doctor, as to whether or not it was skillful and effective, or whether it was unskillful and ineffective. A. In my judgment I consider that operation was misdirected.

"Q. By that do you mean it was unskillful? A. Not directed to the right spot. * * *

"Q. * * * You say he didn't direct his efforts toward the place where the tooth was; then would you say it was a skillful or unskillful operation? A. Well, I would be obliged to say that in that case I could not call it skillful."

The defendant moved to strike out the foregoing testimony on the ground that the same was incompetent, irrelevant, and immaterial; but the motion was denied, to which ruling the defendant excepted, and assigned the same as error. Other facts material to the questions involved will be referred to later in the opinion.

From a judgment in favor of plaintiffs, defendant has appealed, and he assigns numerous errors in the record, and also contends that the complaint does not state facts sufficient to constitute a cause of action.

W.W Wood, of Ontario, for appellant.

P.J. Gallagher, of Ontario (W.E. Lees and W.H. Brooke, both of Ontario, on the brief), for respondents.

When real evidence is produced merely for the purpose of arousing feeling, it is error to admit it.

RAND, J. (after stating the facts as above).

The objection raised to the sufficiency of the complaint is that because it is alleged in the complaint that the plaintiff employed the defendant to do the dental work the action is on contract, and therefore, in order to state a cause of action on contract, it is necessary to allege the terms of the contract and the consideration.

This is an action for malpractice, and the cause of action alleged in the complaint is tort. The defendant was a dentist, and in the practice of his profession the law imposed upon him, in common with physicians and surgeons in the practice of their profession, the duty of exercising such reasonable and ordinary care, skill, and diligence as other members of their respective professions in the same general neighborhood and in the same general line of business ordinarily have and exercise in a like case. The cause of action alleged in the complaint is that the defendant, who was employed to extract plaintiff's tooth and who undertook to do the work, performed it in a negligent and unskillful manner, resulting in an injury to the plaintiff. The wrong complained of is his alleged failure to exercise the care and skill which the law required him to exercise on account of his having undertaken to perform the work, and this wrong, in conjunction with the damages sustained, constitute a tort. The action being in tort, an allegation of employment is a mere matter of inducement to show the relation between the parties out of which the duty arose. De Hart v. Haun, 126 Ind. 378, 26 N.E. 61. In numerous classes of cases, torts arise in consequence of a disregard of duty in relations which have been formed by express or implied contract. 1 Cooley on Torts (3d Ed.) p. 3, footnote.

"Where the declaration is for the breach of an express or implied contract, and proceeds for nonfeasance, the consideration of the contract must be stated either in terms or in substance; but when it is for a misfeasance or malfeasance, no consideration need be stated." 1 Chit.Pl. p. 383.

"The action against a physician for malpractice need not be based upon a contract, though it may be, and usually is. It is sufficient if based upon his legal obligation. The action for malpractice is essentially in tort, and hence it is immaterial by whom the physician is employed." Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann.Cas. 1912D, 863, and authorities there cited.

All the elements essential to a cause of action in tort are alleged in the complaint, and it was not necessary for the pleader to allege, either in terms or in substance, the consideration of the contract under which the services were performed.

The defendant excepted to each of the following instructions given by the court, and to the refusal of the court to give two instructions requested by the defendant. The instructions given and excepted are as follows:

"It is incumbent therefore on the plaintiff to establish by a preponderance of the evidence: First, that the defendant was negligent; second, that his negligence was the proximate cause of the injury; and, third, that plaintiff sustained some damages thereby. If the plaintiff should establish these facts to your satisfaction by a preponderance of the evidence, then you should find for the plaintiff in such damages as you may determine from the instructions which I shall give you and the evidence in the case the plaintiff is entitled to."

"By the 'proximate cause' of the injury is meant that cause without which the injury or damage would not have occurred. It is not every case where an injury takes place that the defendant is liable. It must appear that the injury was the result of negligence on defendant's part."

"The damages sought in this case are: $100 doctor's fee for attention upon the plaintiff's injuries; $60 for employment of an eye specialist. I instruct you, if you find that the plaintiff is entitled to recover under the instructions and the evidence, and further find that plaintiff has employed a physician and specialist as alleged in that paragraph, then you would allow for such damages such sum as you may deem reasonable for such services. It is further alleged that plaintiff has suffered damages in the sum of $5,000 by way of great physical suffering and anguish and impairment of her eyesight and disfiguration of her face as a result thereof. In reference to this item, gentlemen, I instruct you that the purpose of the law is to furnish compensation in such a case, if you find that the plaintiff is entitled to recover at all, and you must determine from the evidence that has been introduced to you here what, if any, sum would answer as compensation for such physical pain and injuries, if you find that she suffered such pain and injuries and is entitled to recover for the same under the instructions as given and the evidence in this case."

The instructions requested and refused are as follows:

"If you find from the testimony in this case that the plaintiff Anna Patterson did sustain injuries from the operation performed upon her by defendant, and that said injuries were caused wholly or in part by her own acts or negligence, then she cannot recover in this action. In order to recover she must not have contributed to her injury in any degree. It was the duty of said plaintiff to faithfully follow the reasonable directions of the defendant. If the plaintiff, on leaving defendant's office, was instructed to return for further...