Pollack v. Dussourd

• Decision Date: 11 February 1947
• Docket Number: No. 10303.,10303.
• Citation: 158 F.2d 969
• Parties: POLLACK v. DUSSOURD.
• Court: U.S. Court of Appeals — Sixth Circuit

158 F.2d 969 (1947)

POLLACK v. DUSSOURD.

No. 10303.

Circuit Court of Appeals, Sixth Circuit.

January 20, 1947.

As Amended on Denial of Rehearing February 11, 1947.

Jack Glenn Williams, of Cincinnati, Ohio, for appellant.

R. Howard Smith, of Newport, Ky., for appellee.

Before HICKS, ALLEN, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

The appellant, a practicing dentist, was sued for malpractice and the jury rendered a verdict against him. The single question presented here is whether the trial court should have sustained motions for directed verdict made at the close of appellee's evidence and at the conclusion of the testimony.

The appellee employed the appellant to extract twenty-four teeth. The extractions were made on four separate days, with intervals between, and are alleged to have caused serious injuries. Twelve teeth were pulled on the final day.

The sole negligence charged against the appellant was that "the extractions had not been properly made in that two (2) front lower and one (1) right upper of said teeth had been broken, allowing the roots to remain seated within the gums.

"Complainant states that the artificial teeth were fitted on and over the broken natural teeth and the roots which were allowed to remain thereby causing an infection to develop within her mouth, gums and jaw; which became infused with and in the blood stream and circulatory organs of her body spreading poison and other infection. * * *"

Under Ohio law, in order to establish malpractice, it must be shown by a preponderance of the evidence that the injury complained of was caused by the doing of some particular thing or things that a physician, surgeon, dentist or other practitioner of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such practitioners would have done under like or similar conditions and circumstances, and that the injury complained of was the direct result of such doing or failing to do some one or more of such particular things. Hier v. Stites, 91 Ohio St. 127, 130, 110 N.E. 252. Cf. Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238. The ruling in the Hier case was specifically approved in Ault v. Hall, 119 Ohio St. 422, 164 N.E. 518, 60 A.L.R. 128.

The evidence reveals that after the appellant had completed the various extractions, the appellee visited his office, complaining of the condition of her mouth. The appellant's assistant made an effort to adjust the false teeth which had been provided after the extractions. After four unsatisfactory visits to the appellant's office, at each of which the assistant ground and endeavored to refit the appellee's false teeth, the appellee consulted another dentist, who took an X-ray of the mouth. This dentist testified that several teeth had been previously extracted and...