Smith v. McClung

• Decision Date: 18 November 1931
• Docket Number: 364.
• Citation: 161 S.E. 91,201 N.C. 648
• Parties: SMITH v. McCLUNG.
• Court: North Carolina Supreme Court

161 S.E. 91

201 N.C. 648

SMITH v. McCLUNG.

No. 364.

Supreme Court of North Carolina

November 18, 1931

Appeal from Superior Court, Forsyth County; Harwood, Special Judge.

Action by Luke B. Smith against Dr. J. C. McClung. From a judgment for plaintiff, defendant appeals.

Reversed.

Evidence of dentist's negligence in breaking novocaine needle off in patient's gum while extracting tooth held insufficient for jury under doctrine of res ipsa loquitur.

The plaintiff alleged and offered evidence tending to show that on Sunday, November 25, 1928, he was suffering severe pain from toothache, and had suffered from said cause all night the preceding night. About 2 o'clock on Sunday he went in search of a dentist, and found the defendant going to his office. The office assistant of defendant was not in the office, but plaintiff told the defendant that the tooth was "hurting so bad and giving me so much trouble that I wanted it out at once." Thereupon the defendant directed the plaintiff to be seated in a dental chair and undertook to extract the tooth. The tooth was a jaw tooth, and, according to the usual custom and practice, the defendant inserted a novocaine into the gum with what appeared to be a proper needle. In some way the point of the novocaine needle, about a quarter of an inch long, broke off in the gum. The defendant, however, proceeded to extract the tooth and to treat an abscess at the root of the tooth and undertook to remove the needle. After working for some time in an effort to extract the needle, the defendant told the plaintiff to come back to his office the following day at 12 o'clock. The plaintiff went to work Monday morning, and came back to defendant's office about 12:30. It seems that the defendant had taken an X-ray picture of plaintiff's tooth, and, when the plaintiff returned to the office on Monday, the defendant informed him for the first time that the point of the needle had been broken off in the gum, and that he had been unable to remove it Sunday because he had no help in his office, but that, if plaintiff would have a seat in the dental chair, he would remove the needle then and there without pain. The plaintiff refused to permit the defendant to attempt to remove the needle. Thereupon the plaintiff went to see another dentist, who treated his mouth. Plaintiff further testified when he was in the office of defendant on Monday he told the defendant he had planned to take a trip on Thanksgiving, and asked the defendant if in his opinion the trip could be made safely. The defendant informed him that there was no reason for delaying the trip. On December 11 the defendant called the plaintiff, and again insisted that he be permitted to remove the needle, and told him he had arranged with a physician who had a fluroscope to assist in removing the needle. Again the plaintiff refused to permit the defendant or any one else to remove the needle. The needle is still in plaintiff's gum, and he testified he had suffered considerable pain and inconvenience.

There was further evidence that the defendant informed the plaintiff that the reason he had not told him of breaking off the point of the needle when the tooth was extracted on Sunday was because the plaintiff was very nervous and suffering pain, and he thought it was better not to disturb him until Monday. There was no evidence of any defect in the needle or that the needle used to insert novocaine was not the usual and customary instrumentality used by dentists and surgeons for such purposes. Nor was there any evidence of negligence or want of due care in treating or extracting the tooth. Dr. Flowers, a dental surgeon, was offered as a witness for the plaintiff, and testified that he saw the plaintiff on Tuesday following the extraction of the tooth and that there was some swelling in the upper gum of plaintiff's mouth, but that "the swelling of the gum was just that which would be expected of an operation of that kind." Said physician further testified that his record showed that on December 17 he examined the plaintiff, and that "the cavity where the tooth was pulled was healing up nicely."

At the close of plaintiff's evidence, there was motion for nonsuit, which was denied, and the defendant excepted.

Issues of negligence and damages were submitted to the jury and answered in favor of plaintiff. The verdict awarded damages in the sum of $300.

From judgment upon the verdict, the defendant appealed.

Manly Hendren & Womble, of Winston-Salem, for appellant.

Parrish & Deal, of Winston-Salem, for appellee.

BROGDEN J.

Does the principle of res ipsa loquitur apply when the point of a novocaine needle breaks off in the gum or jaw of a patient when the dentist is using the needle to insert novocaine preparatory to extracting a tooth?

The evidence does not disclose any defect in the needle or that the needle was not of the type approved and in general use for the purpose of inserting novocaine. There is no evidence that the dentist did not possess the degree of skill and learning contemplated and prescribed by law; nor was there any evidence that the tooth was otherwise extracted in a careless or negligent manner or not according to the usual practice and custom of skillful dentists in performing such operations. Hence, if the principle of res ipsa loquitur does not apply, the case should have been nonsuited.

Dentists in their particular fields, are subject to the same rules of liability as physicians and surgeons. McCracken v. Smathers, 122 N.C. 799, 29 S.E. 354; Nash v. Royster, 189 N.C. 408, 127 S.E. 356. ...