Roark v. Greeno

• Decision Date: 06 January 1900
• Docket Number: 11,387. [*]
• Citation: 61 Kan. 299,59 P. 655
• Parties: W. S. ROARK v. L. M. GREENO
• Court: Kansas Supreme Court

59 P. 655

61 Kan. 299

W. S. ROARK v. L. M. GREENO

No. 11,387. ^[*]

Supreme Court of Kansas

January 6, 1900

Decided January, 1900.

Error from court of appeals, northern department; JOHN H. MAHAN ABIJAH WELLS, and SAM'L W. MCELROY, judges.

STATEMENT.

W. S ROARK brought an action in the district court of Geary county against L. M. Greeno to recover damages against the latter for alleged malpractice. The defendant below was a dentist. The amended petition in the cause stated, in substance:

On the 14th day of March, 1896, defendant was engaged in the practice of dentistry. Plaintiff, desiring to have a tooth extracted, applied to defendant to perform the operation in such manner as in the latter's judgment was proper and necessary. In performing the same defendant did not use reasonable care and skill. On the contrary, he negligently carelessly and unskillfully used surgical and dental instruments which were in an unclean, poisonous and septic condition, and did thereby injure, bruise, puncture, poison and infect the flesh, tissues and membranes in plaintiff's mouth, throat, and in and about the angle of the right lower jaw; and, by means of poisonous and dangerous drugs and medicines employed by defendant and injected into plaintiff's flesh, did poison and infect his blood. At the time plaintiff was strong and robust, but immediately after the operation he became violently sick and suffered intense pain, and was wholly prostrated for many months. His mouth, throat, face, lower jaw, and right ear, by reason of said injuries, became immediately diseased and impaired in their functions, and will remain permanently crippled and impaired in their natural uses; and plaintiff has become permanently injured in general health and capacity for work. In trying to effect a cure for said disease and injuries, plaintiff suffered loss of the salivary glands on the right side of the mouth, throat, and neck, and loss of a portion of the right lower jaw-bone, leaving that member permanently crippled and susceptible of accidental fractures, and causing plaintiff to be permanently disfigured about the face, jaw, and neck. He was unable to perform his ordinary employment and business for five months, and paid out for services of physicians and surgeons, nurses and medicines, the sum of $ 500, his total damage being the sum of $ 4000.

The answer of the defendant below contained, first, a general denial, and second, an allegation that if plaintiff sustained the injuries of which he complained the same arose from natural causes or pathological conditions, his own negligence, and causes other and different from those alleged in the petition.

The plaintiff below, Roark, testified that his tooth began aching a day or two before he applied to Dr. Greeno for relief; that the latter made an examination and advised that the tooth be pulled--that it was decayed to some extent. Before proceeding with its extraction the doctor took a hypodermic syringe and injected some fluid in and around the gums and root, and behind the tooth particularly. He then took hold with his forceps and made two or three efforts to extract the tooth. The pain was very great, and after he had pulled once or twice he injected more medicine. Finally the tooth broke and he extracted a piece of the crown. He then used a pair of larger forceps, upon which plaintiff noticed blood near the joint. With the latter instrument one root was taken out. The defendant then stated that he would not attempt to go further, but advised plaintiff to let the other root remain, that it would heal over and be all right. On examining the tooth it was found to be decayed slightly on the crown. After pulling the first root defendant used more medicine, which he injected through the needle, a very painful process. It seemed to the plaintiff that the needle went to the bone, especially when it was injected behind the tooth. The defendant then took a piece of cotton, upon which he placed a powder, inserting the same in the tooth, advising plaintiff to leave it there for several hours. The instruments with which defendant operated were lying on a shelf in his office, and he would pick up one and then another when using them. The witness also testified that the defendant did not sterilize his instruments, and afterward, when interrogated concerning this hypodermic syringe, defendant stated that it was a new one and had never been used on any one before. Immediately after the operation the plaintiff was taken with a chill, accompanied by headache, dizziness, and vomiting. The next morning his jaw and one side of his head were swollen. The symptoms were those of blood-poisoning. Plaintiff was in charge of physicians at his home for many weeks and suffered great pain. He afterward went to a hospital, where a surgical operation was performed, by which a large quantity of pus was liberated from his swollen jaw. He was under the doctor's care for several months. Part of his jaw-bone was removed.

The defendant, Greeno, testified that he found the tooth badly decayed. Its back or posterior shell was in place. He found the tooth sore. He used a hypodermic syringe with a curved needle, and the same was sterilized by inserting it in a solution of carbolic acid before the fluid was injected from it into the plaintiff's gum. The forceps also were first put into a solution of carbolic acid before they were applied to the tooth.

A trial by jury was had, resulting in a verdict of $ 2000 for the plaintiff. The jury returned findings as follows:

"1. Q. Did the defendant, L. M. Greeno, exercise reasonable care and skill in the extraction and treatment of the tooth of plaintiff and such as is ordinarily possessed by dentists practicing in similar localities? A. No.

"2. Q. If your answer is that he did not, then state in what manner he failed to exercise ordinary care and skill; state fully and specifically. A. In that defendant carelessly and negligently used dental instruments in an unclean condition.

"3. Q. Did the defendant, in the extraction and treatment of plaintiff's tooth, use his best judgment? A. No."

Judgment was entered accordingly, which was reversed by the court of appeals, northern department. (8 Kan.App. 390, 56 P. 329.) The case is here by virtue of an order of certification.

Judgment of court of appeals reversed and district court affirmed.

SYLLABUS

1. EVIDENCE -- Expert Opinions. Medical experts, in response to hypothetical questions, are not required to answer with certainty, but may give their opinions as to the probable result of a given treatment or operation.

2. EVIDENCE -- Questions to Experts. In propounding such questions, counsel may base the same upon testimony which is weak and inconclusive, and on testimony of one or more witnesses, or on inferences properly deducible therefrom.

3. EVIDENCE -- Objections Must be Specific. An objection that a hypothetical question assumes facts not proved ought to point out with particularity the facts which are claimed to be untruly stated.

4. EVIDENCE -- Rebuttal. Incompetent testimony, erroneously admitted, may be rebutted.

J. V. Humphrey, G. W. Hurd, and J. B. Rairden, for plaintiff in error.

Thomas Dever, and J. R. McClure, for defendant in error.

OPINION

SMITH, J.:

The testimony in the cause, beyond that given by the plaintiff and defendant, was principally confined to the opinions of experts. It is contended by defendant in error that questions like the following, calling for deductions from facts stated hypothetically, were improper, as requiring opinions upon the ultimate fact: "What would you say was the probable cause of his affliction or condition at that time?" "What, in your judgment, was the source of that infection?" "What, in your judgment, was the cause of this plaintiff's sickness and affliction?" "What, in your opinion, was the cause of the blood-poisoning from which plaintiff suffered?"

We cannot appreciate the force of this objection. The object of this expert testimony was to secure the judgment of persons skilled in medicine and its effects as to the likelihood of plaintiff's affliction being caused by the defendant's failure to sterilize his dental instruments. The witnesses merely concluded that, if the defendant was guilty of the negligence assumed in the questions propounded, plaintiff's injuries were the probable result thereof; in other words, that plaintiff's physical condition after the operation had not with certainty resulted from the septic conditions of the instruments employed, but that there was a chance or likelihood that it did, the probabilities being that such was the case. The inquiry was properly a matter for the consideration of experts, and from the hypothetical questions propounded to them they could merely give their best judgment as to the cause of the plaintiff's disability. The contention of counsel for defendant in error, that the physicians testifying should have been required to state with certainty the cause of plaintiff's condition after a hypothetical case had been submitted to them, would be supposing an exactness in medical science to which its most learned followers have not yet attained. (The State v. Baldwin, 36 Kan. 1, 12 P. 318; The State v. Asbell, 57 id. 398, 46 P. 770; Rhinehart v. Whitehead and another, 64 Wis. 42, 24 N.W. 401; Armstrong v. The Town of Ackley, 71 Iowa 76, 32 N.W. 180.)

It is objected that the hypothetical questions asked of the medical witnesses assumed facts imputing negligence to Doctor Greeno and further, that they contained statements outside the testimony introduced in the cause. The questions propounded to Doctors Stone, King, Bard and Gilbert by counsel for plaintiff below assumed that the hypodermic needle was in an unclean or septic condition at...