Simpson v. Davis

• Decision Date: 08 May 1976
• Docket Number: No. 47907,47907
• Citation: 219 Kan. 584,549 P.2d 950
• Parties: Kathleen J. SIMPSON, Appellant, v. Ronald R. DAVIS, D.D.S., Appellee.
• Court: Kansas Supreme Court

Page 950

549 P.2d 950

219 Kan. 584

Kathleen J. SIMPSON, Appellant, v. Ronald R. DAVIS, D.D.S., Appellee.

No. 47907.

Supreme Court of Kansas.

May 8, 1976.

Syllabus by the Court

1. The rules of law governing the duty and liability of dentists to their patients correspond to the rules of law applicable to physicians and surgeons generally.

2. Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is the legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff's harm. It is conduct which falls short of the standard to which a reasonable man should conform in order to protect himself from harm. (Following Guerra v. Jaeger, 204 Kan. 309, Syl. 3, 461 P.2d 737.)

3. In ruling on a motion for a directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict.

4. Admissions made by a party are the strongest kind of evidence. Admissions made by a party in his testimony while a witness in a case are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross-examination of the party.

5. In a dental malpractice action, the record on appeal is examined, and it is held: (a) The trial court erred in submitting the question of contributory negligence of the anesthetized dental patient to the jury; and (b) the trial court erred in overruling the dental patient's motion for a directed verdict on the issue of negligence.

John C. Frank, Wichita, argued the cause, and Raymond W. Baker, Wichita, was with him on the brief for the appellant.

Ronald D. Heck, or McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, argued the cause and was on the brief for the appellee.

SCHROEDER, Justice:

This is an appeal in a dental malpractice case brought by Kathleen J. Simpson against Ronald R. Davis, D.D.S., for negligence and breach of warranty in dropping a dental reamer, approximately one inch long, in her throat which she swallowed.

The issues controlling the disposition of this appeal are: (1) Whether the trial court erred in submitting the issue of contributory negligence to the jury; and (2) whether the appellant was entitled to a directed verdict on the issue of liability.

Ronald R. Davis, D.D.S. (defendant-appellee) has been a Wichita dentist since 1959 when he graduated from the University of Missouri at Kansas City with a degree of doctor of dental surgery. While at dental school he took a course in endodontics, the study of the contents of the pulp of the tooth. However, Dr. Davis is not a certified specialist in endodontics.

Kathleen J. Simpson (plaintiff-appellant) is a 32-year-old female. On January 14, 1971, she went to see Dr. Davis. He took X-rays and told her she needed a lot of work to rejuvenate her teeth. She testified he told her root canal work was a specialized field and he assured her at the time that he was most capable of doing this work.

Dr. Davis began treatment by pulling several teeth and capping others. He intended to do a complete rehabilitation. On September 22, 1972, X-rays showed deep tooth decay of 'lower left 6.' Doctor Davis began a program to open the root canal on this tooth. Doctor Davis used nitrous oxide gas to relax the patient and raise the pain threshold and then used xylocaine to numb the area he was going to work on.

On October 24, 1972, the appellant, after over eighteen months of dental work with Dr. Davis off and on, went to the doctor's office complaining of a toothache. He drilled the tooth (lower left 6) out and entry was made into the pulp chamber of the tooth to get relief from the pressure and pus building up underneath the tooth. The doctor testified he was trying to get rid of the infection causing the pressure and wanted to leave the tooth alone for as many days as it takes to get comfortable before finishing treatment.

On October 30, 1972, the appellant was again experiencing a toothache in lower left 6. The tooth had been left open from the October 24 visit except that a small piece of cotton had been left in the tooth to keep out food particles. Doctor Davis and his dental assistant administered nitrous oxide and xylocaine. The appellant testified she felt extremely uncoordinated at this time. Everything was unreal, and she was very, very relaxed. Dr. Davis began to work on the appellant. A cotton roll holder was used to isolate the area of the tooth being worked on and to prevent saliva in that area of the tooth. No rubber dam was used. A rubber dam is a piece of rubber, usually square, which the dentist punches a hole through and then places the tooth or teeth to be worked on through the small hole. The rubber dam fits around the tooth to prevent ingress of saliva, moisture from the breath or bacteria, prevent the tongue from getting into the operative area and trap or catch any instrument dropped by the dentist.

The appellant testified the doctor drilled something. Then he reached over and got something and she could feel a little bit of pressure which she knew was a reamer. The next thing she knew she felt something in the back of her throat which made her feel like she was choking. She then felt his hand down inside her mouth. She testified the doctor said, 'I dropped it, I dropped it.' She then testified she couldn't breathe, tried to get the mask off but her hands were uncoordinated and she could not get anything off, 'and they took it off,' and she sat up and said 'hit me on the back.' She said she was choking and the doctor hit her on the back 'and it must have been going down.' She could then breathe.

Doctor Davis testified as he started using the reamer with a slight rotating motion the appellant moved her head and the reamer was knocked out of his hand. He unsuccessfully tried to find the reamer with his fingers. The appellant testified she did not know whether or not she moved her head (because of the gas).

After a call by Dr. Davis for as appointment, the appellant then drove to the Wichita Clinic where she was X-rayed and it was determined the reamer was in her stomach. After three or four days the reamer poked a hole in the appellant's stomach and had to be surgically removed. While in the hospital the appellant developed a bladder infection, which the appellee blames on a catheter inserted in the bladder. The appellant testified she has continued to experience bladder difficulties and cannot eat Italian or Mexican foods now.

Jay Swartzwelter, D.D.S., testified on behalf of the appellant by deposition which was read into evidence. Doctor Swartzwelter graduated from the University of Iowa in 1964 and practiced dentistry and endodontics. He testified there is no dental school or book on endodontics in the world that teaches dentists to perform endodontic procedures without a rubber dam. It was his opinion Dr. Davis deviated from the standard of care required of him in Wichita, Kansas, and like communities, in his care and treatment of the appellant by not using a rubber dam.

J. R. Gates, Mrs. Simpson's business partner, testified Dr. Davis's nurse said a rubber dam should have been put in the mouth, but it wasn't being used on October 30, 1972.

Doctor Davis testified in his own behalf and his testimony pertinent to the disposition of this appeal will be set forth later.

The trial commenced on April 29, 1974. At the close of all the evidence, the appellant moved for a directed verdict in her favor. The court overruled the motion on the ground that questions of fact remained for the jury to determine. On May 1, 1974, the jury returned a verdict in favor of the defendant. Appeal has been duly perfected.

Both parties rely on Harris v. Exon, 161 Kan. 582, 170 P.2d 827, aff'd on rehearing, 162 Kan. 270, 176 P.2d 260, which holds the rules of law governing the duty and liability of dentists to their patients correspond to the rules of law applicable to physicians and surgeons generally. (See also, 61 Am.Jur.2d, Physicians, Surgeons, Etc., § 117, pp. 240-242; 70 C.J.S. Physicians and Surgeons §§ 1 and 41, pp. 805-806, 946-947; and Annot., 83 A.L.R.2d 7, 23 (1962).)

The record discloses the trial court had some difficulty in coming to a decision on the standard of care to be applied in giving an instruction to the jury. The trial court noted that 'a general practitioner ordinarily doesn't have the skill and knowledge of a specialist.' The trial court ultimately concluded, and correctly, by instructing the jury that the defendant in this case held himself out to the public as a general practitioner in dentistry and as such had the duty to use reasonable care and skill for the safety and well-being of the plaintiff. However, when the defendant undertook to perform the work of a specialist he had the duty to use the skill and care of a specialist. (Chubb v. Holmes, 111 Conn. 482, 150 A. 516 (1930).)

It is the generally accepted rule that a physician or surgeon or dentist who holds himself out to be a specialist is bound to bring to the discharge of his professional duties as a specialist that degree of skill, care and learning ordinarily possessed by specialists of a similar class, having regard to the existing state of knowledge in medicine, surgery and dentistry, that is, a higher degree of skill, care and learning than that of the average practitioner. (Rule v. Cheeseman, Executrix, 181 Kan. 957, 965, 317 P.2d 472; 61 Am.Jur.2d, Physicians, Surgeons, Etc., § 119, p. 244; 70 C.J.S. Physicians and Surgeons § 41, p. 949; and W. Morris, Dental...