Smith v. Reitman, 20759.

• Decision Date: 18 December 1967
• Docket Number: No. 20759.,20759.
• Citation: 389 F.2d 303,128 US App. DC 352
• Parties: Donaldo C. SMITH, Appellant, v. Dr. Joseph REITMAN, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 352, 389 F.2d 303 (1967)

Donaldo C. SMITH, Appellant, v. Dr. Joseph REITMAN, Appellee.

No. 20759.

United States Court of Appeals District of Columbia Circuit.

Argued November 7, 1967.

Decided December 18, 1967.

Petition for Rehearing Denied February 1, 1968.

Mr. John A. Shorter, Jr., Washington, D. C., for appellant.

Mr. Richard W. Galiher, Washington, D. C., with whom Messrs. William E. Stewart, Jr., and William H. Clarke, Washington, D. C., were on the brief, for appellee.

Before BURGER, WRIGHT and McGOWAN, Circuit Judges.

Petition for Rehearing En Banc Denied February 1, 1968.

BURGER, Circuit Judge:

In this malpractice suit, the District Court directed a verdict for Appellee dentist at the end of Appellant's case. This appeal raises the question of the sufficiency of Appellant's evidence.

Appellant testified about an operation on his mouth by Appellee to remove root tips left after another dentist had extracted a tooth. He testified that Appellee was rough, used a hammer and chisel, and twice walked out of the operating room apparently in reaction to Appellant's complaints of pain. Appellant also testified that the numbness in his jaw was much greater and more severe after this operation than it had been after the incomplete extraction, although it began with the initial removal of his tooth. Appellant's only other evidence was the testimony of his expert who confirmed that Appellant was suffering from a lack of feeling in one side of his mouth and concluded "in view of the patient's response and the patient's injury that a mistake was made." The expert also testified that "a mistake can be made in using the proper methods," that he could not state whether the dentist performing the operation was guilty of negligence and that he could not give an opinion as to the correctness of the Appellee's methods because he did not know what methods were used.

In order to make out a case of malpractice, which is a species of negligence, the plaintiff must show that his injury was a result of the failure to use "`that degree of care and skill ordinarily exercised by the profession in his own or similar localities.'" Rodgers v. Lawson, 83 U.S.App.D.C. 281, 282, 170 F.2d 157, 158 (1948). He can do this by direct evidence about the standard in his locality and the procedure used in his case, in order to demonstrate that it fell short of that standard. Brown v. Keaveny, 117 U.S.App.D.C. 117, 326 F.2d 660 (1963); Quick v. Thurston, 110 U.S. App.D.C. 169, 290 F.2d 360, 88 A.L.R. 2d 299 (1961). However, Appellant's expert testified that he could not tell whether proper methods were employed and Appellant offered no testimony as to the standards in this locality. The testimony that a "mistake" must have been made must be read in the context of the expert's further testimony that he could not say what kind of a mistake and that "a mistake can be made in using the proper methods." On this state of the record there is no evidence of specific negligence or that the Appellee failed to exercise the necessary care and skill. See Brown v. Keaveny, supra.

A plaintiff can also make out a case of negligence without direct testimony of a failure to meet the requisite standards of care and skill if the evidence makes out a case under the doctrine of res ipsa loquitur. This doctrine "is a common sense rule which allows an inference of negligence where the occurrence complained of ordinarily would not happen in the absence of negligence." Quick v. Thurston, 110 U.S.App.D.C. 169, 172, 290 F.2d 360, 363 (1961); Prosser, Torts § 42 (1955). For this doctrine to be invoked, however, there must be some basis "in the record or in common experience" to warrant the inference that the result would not have occurred without some negligent act. Ibid. Common experience does not teach that removal of root tips will ordinarily produce numbness in the jaw only as a result of a negligent act. This is a medical question on which the generality of experience is no...