Simone v. Sabo

• Decision Date: 18 May 1951
• Citation: 231 P.2d 19,37 Cal.2d 253
• Court: California Supreme Court
• Parties: SIMONE v. SABO. L. A. 21854.

Page 19

231 P.2d 19

37 Cal.2d 253

SIMONE v. SABO.

L. A. 21854.

Supreme Court of California, in Bank.

May 18, 1951.

Rehearing Denied June 14, 1951.

Gibson, Dunn & Crutcher and Sherman Welpton, Jr., and of Los Angeles, for appellant. Welpton, Jr., all of Los Angeles, for appellant. J. Crowley, Los Angeles, for respondent.

EDMONDS, Justice.

A jury awarded Paul Simone damages for the asserted malpractice of Dr. Victor O. Sabo in removing an impacted tooth. The appeal from the judgment entered upon the verdict principally concerns the question as to whether it was a breach of duty for Dr. Sabo, as a general practitioner, to have undertaken such an extraction.

According to the testimony of Simone, when he consulted Dr. Sabo, his teeth were examined and x-rays taken. He was told that several of his teeth should be removed, one of which was the impacted left lower second bicuspid. Dr. Sabo said that the extraction of the impacted tooth would be 'quite an operation' and 'we may have to call in another surgeon on it, a man who is well known, who knows these things well'. He was not told that a nerve might be severed as a result of the operation. Dr. Sabo 'just said it was a dangerous operation and I should consult the other dentist; some name, I can't think of it'.

Simone described the operation, which he said he could see by looking at the reflection in Dr. Sabo's glasses. He told the jury that he saw the dentist cut a 'hole' in the gum, and cut around the tooth. Dr. Sabo then held a chisel against the bone or tooth while his wife, who was his dental assistant, struck the chisel with 'a little silver hammer'. Dr. Sabo told her that she was not hitting 'hard enough', and finally said, 'Go get the other hammer. That ought to knock it out'. She then struck the chisel with a 'regular nail hammer', using both hands. 'She didn't dare to hit too hard and he was telling her to hit harder so finally she hit it real hard and something cracked and he said, 'Now, again,' and 'again,' and each time I was just almost going way over. * * * Then all of a sudden she hit it real hard and the hammer flew off, I mean the head, and just grazed me like that and hit me here (indicating), and when she hit me hard I passed out'. When Simone recovered consciousness, Dr. Sabo Continued using a hammer and chisel and removed the remaining pieces of the tooth. He then applied a packing.

Dr. Sabo, called as a witness under the provisions of section 2055 of the Code of Civil Procedure, testified that he had been engaged in the general practice of dentistry for eight months. His experience included the extraction of approximately one thousand teeth, none of which was an impacted lower second bicuspid. However, he had extracted 40 or 50 other impacted teeth.

The procedure followed in extracting Simone's tooth was related for the jury in considerable detail. After placing Simone in the dental chair, he said, he sterilized his instruments. He then gave Simone three injections of novocaine. After ascertaining, by probing, that there was complete anesthesia of the left side of the face, he incised the tissue over the impacted tooth. Employing another instrument, he pulled the tissue from the bone, and began cutting into the bone with a chisel and surgical hammer.

At this point in the operation, said Dr. Sabo, he cut a window in the bone and located the crown of the tooth. Using an elevator, he attempted to dislodge the tooth. Being unable to do so, he used a surgical hammer and chisel, and broke the tooth into small pieces which he removed. After removing all parts of the tooth, he placed five sutures and treated the gum with sulfa paste and iodaform gauze. He then smoothed over the area to prevent pain, took additional x-rays, and checked the patient for infection.

Upon cross-examination, Dr. Sabo admitted that, during a part of the operation, he held the chisel while his wife struck it with a surgical hammer. He specifically declared that only surgical hammers of different sizes were used in making the extraction. Mrs. Sabo was not a registered nurse, but had acted as his dental assistant for approximately seven months.

In regard to his conversations with Simone, Dr. Sabo admitted that he did not warn his patient of the danger of injury to the mandibular nerve, other than to tell him that it was a dangerous operation. But he told Simone he had consulted with Dr. Huenergardt, an oral surgeon, and said that this man might be called upon to perform the extraction. However, according to Dr. Sabo, 'I made mention of the fact too, that it would be more expensive and, therefore, between us we decided that I would do it'.

It appears that, in the removal of the tooth, the mandibular nerve was bruised or severed. As a result, at the time of the trial, Simone had a numbness of a portion of the lower lip and jaw which may be permanent.

Simone presented the testimony of an expert tending to prove that it is customary for a general practitioner to refer the extraction of impacted lower bicuspids to an exodontist or oral surgeon. Such a tooth, the testimony shows, is invariably in close proximity of a branch of the mandibular nerve, and the extraction constitutes 'considerable danger to the mental nerve'. The expert was asked whether it is customary practice for a general practitioner in dentistry in Los Angeles to inform a patient prior to the extraction of a tooth such as a lower left second impacted bicuspid, that there may be a serious injury to the mental nerve and the possibility of a resulting numbness of his lip. The doctor replied, 'I think any dentist in Los Angeles who does such an operation would inform the patient of the likelihood of the complication because it is a great likelihood that it would occur'.

An oral surgeon, testifying on behalf of Dr. Sabo, stated that it was customary and proper for general practitioners of dentistry in the locality, observing required standards of care, to extract impacted teeth. He explained that such practitioners are licensed to perform surgery in the area of the mouth. Upon cross-examination, he gave several reasons why a dentist may refer his patient to a specialist, but he specifically stated that it is not the customary practice for a general practitioner to refer a person with a completely impacted left lower second bicuspid to an exodontist for extraction. As he put it, 'many men do their own extractions. As I stated before, it all depends on how the man feels about his ability'. Concerning the likelihood of injury in the removal of an impacted tooth, the expert told the jury that the danger of traumatization is present whether an exodontist or general practitioner performs the extraction. Traumatization of the mandibular nerve, he said, occurs in approximately 25 per cent of extractions such as that performed by Dr. Sabo. However, he did not know in what percentage of cases the nerve was severed. His opinion, based upon an examination of Simone, was that the nerve had been traumatized, but not severed.

Among other grounds presented in requiring a reversal of the judgment entered upon the verdict of the jury which heard this evidence, Dr. Sabo argues that the failure of a general practitioner to refer a patient to a specialist is not actionable in the absence of proof that, in the treatment of the patient, there was a failure to exercise the degree of skill and learning employed by specialists practicing in the same locality. He also takes the position that neither his failure to refer Simone to an exodontist, or the fact that he did not warn his patient of a possible injury to the mandibular nerve, supports the verdict and judgment because neither was the proximate cause of any injury.

The following instruction was given at the request of Simone: 'When a general practitioner is confronted by a case that comes within the field of specialists practicing in the same locality, if the case presents an emergency when no practitioner more highly qualified than he for the service is available, or if he informs the patient of the need or advisibility of employing the services of a specialist and of his own lack of special ability for the case, and the patient insists on his personal services, and if he undertakes diagnosis and treatment of the case, the standard of ability required of him is that set by the learning and skill ordinarily possessed by general practitioners in the same locality and of good standing.

'In all other circumstances, if a general practitioner undertakes the treatment of such a case, and if at that time and in the same locality there are specialists of good standing practicing in, and limiting their practice to, the special field that embraces the case in question, it is the duty of that general practitioner to possess that degree of learning and skill ordinarily possessed by such specialists.'

This instruction is subject to the same criticism as the one given in Sinz v. Owens, 33 Cal.2d 749, 205 P.2d 3, 8 A.L.R.2d 757. Each of them failed to state that there is a duty to refer a patient to a specialist only if, under the same circumstances, a reasonably careful and skillful general practitioner would have done so. The general practitioner's duty must always be measured in relation to the facts in the particular case. In determining a course of action, he may and should consider such elements as the patient's mental and emotional condition, his known financial situation, and the many other variants which a physician meets in treating human ailments.

However, assuming that, under the evidence, Dr. Sabo should have referred Simone to a dental surgeon, there is an entire failure of proof that in extracting the tooth he did not use the skill and care of such a specialist. The question as to whether there was proper care in the treatment of a particular case is one to be determined by the opinions of experts. The failure to use such care can be established only by their...