Tanner v. Sanders
| Decision Date | 24 January 1933 |
| Citation | 247 Ky. 90,56 S.W.2d 718 |
| Parties | TANNER v. SANDERS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.
Action by L. R. Tanner against Dr. H. E. Sanders. From a judgment for defendant, plaintiff appeals.
Affirmed.
Trabue Doolan, Helm & Helm, of Louisville, for appellant.
Carroll & McElwain and L. R. Curtis, all of Louisville, for appellee.
The appellant, L. R. Tanner, asked a large sum in damages of the appellee, Dr. H. E. Sanders, for alleged malpractice. The verdict was for the defendant.
The appellee is a dentist in Louisville, specializing and engaging principally in the extraction of teeth, and is known as an exodontist. The evidence is, in short, that the plaintiff developed pyorrhea and it became necessary to remove a tooth. He was sent or taken to Dr. Sanders by his regular dentist, Dr. Pfingst, and Dr. Sanders extracted the tooth. The plaintiff's claim is that he was thereafter neglected, and the postoperative treatment was not the proper one. A serious condition did arise from infection in and around the cavity, and the plaintiff certainly suffered the most excruciating pain for weeks and months. He testified that he returned to the defendant's office seeking relief every day for four days, but received none, and progressively grew worse. He then went under the care of physicians and surgeons, and spent about two months in a hospital, during which he came close to death's door. He underwent several surgical operations in which portions of his jawbone were removed, and he was left permanently scarred. He spent about $2,000 for surgeons' services, hospital expenses, etc and lost time from work of the value of a little over $1,000.
In his suffering, he felt that the doctor was neglectful, and his testimony does indicate an indifference and unsympathetic consideration on his part. But as measured by legal standards, the evidence of neglect and improper treatment on the part of the defendant was not strong; nor was the evidence tending to show that the subsequent condition was the proximate result of the tooth extraction. The defendant and a number of other skilled dentists and general surgeons testified that approved methods had been used and the proper care had been given the patient, and that his serious infection probably came from other causes.
As we approach the consideration of the legal questions, it may be pointed out that in the performance of services within their own profession, dentists, as being of a kindred branch of the healing art, are subject to the same rules that govern the duties and liabilities of the general physicians and surgeons. Donoho v. Rawleigh, 230 Ky. 11, 18 S.W.(2d) 311, 69 A. L. R. 1135; 21 R. C. L. 386; 48 C.J. 1116. And the skill and prudence of one who holds himself out as a specialist in a particular branch of his profession are to be measured by those of a similar class. 21 R. C. L. 387. Annotations, 59 A. L. R. 1071.
1. It is submitted as a ground for reversal of the judgment that the court erred in instructing the jury that:
In the respect that the standard of duty of physicians and surgeons depends upon the locality of practice, the authorities in other jurisdictions are by no means in accord. There appears also some lack of uniformity in our own opinions. Some foreign authorities hold that the skill and care required is that of those engaged in the same locality, vicinity, community, or neighborhood, or the same general neighborhood. Others set up the standard as that care exercised in similar localities or neighborhoods; while others use both expressions "same or similar localities." 48 C.J. 1117. In 5 Thompson on Negligence, page 1081, after referring to the statements in the opinions that the skill required is that ordinarily possessed by medical men in the locality where the particular physician is engaged in practice as being "loosely said," and discussing the unsoundness of that rule, the author concludes: "The better and more generally accepted rule requires the physician, surgeon, or dentist to possess the skill, learning and experience ordinarily possessed by members of his profession at the time in similar localities and with similar opportunities for practice." See, also, 3 Shearman & Redfield on Negligence, § 608.
This court condemned an instruction, similar to that given in this case, which defined the degree of care and skill required of a physician in attending a broken arm to that which "ordinarily skillful and prudent physicians and surgeons in the vicinity" would have exercised in treating a like injury. Burk v. Foster, 114 Ky. 20, 69 S.W. 1096, 24 Ky. Law Rep. 791, 59 L. R. A. 277, 1 Ann. Cas. 304. "We think," said the court then, "the sounder rule is, not that the physician's skill and degree of attention should be measured by those of his community, but by such as is exercised generally by physicians of ordinary care and skill in similar communities." In the case at bar the plaintiff offered, and the court refused, an instruction in accord with that rule.
In reasoning to the conclusion of the Burk Case, a premise was that the place where the operation was performed by a local physician was a small village, isolated in a rural community, where there were insufficient comparative standards by which to measure the degree of skill. There are convincing reasons for requiring the skill generally exercised in similar communities instead of a particular locality as are stated in that opinion and given in 21 R. C. L. 385, and elsewhere.
There is no disposition to depart from the rule laid down in Burk v. Foster, supra, where the conditions or locality are similar to those involved in that case. The question is whether the same standard and same rule should obtain where the particular locality is a city of some 350,000 inhabitants, and where there are many skillful practitioners of the profession.
The rule in the Burk Case was followed in Dorris v. Warford, 124 Ky. 768, 30 Ky. Law Rep. 963, 100 S.W. 312, 9 L. R. A. (N. S.) 1090, 14 Ann. Cas. 602, where the alleged malpractice was in a rural community, and the expression in the instruction "same or similar community" was condemned.
In several of our opinions it has been observed generally that the duty of physicians and surgeons is to be measured by the skill possessed and exercised by others similarly engaged in "like communities" or "a similar community," without any special reference to the instructions or the particular localities. Kirby's Adm'r v. Berea College, 196 Ky. 353, 244 S.W. 775; Stevenson v. Yates, 183 Ky. 196, 208 S.W. 820; Elam's Adm'r v. Botkin, 227 Ky. 517, 13 S.W.(2d) 507; Prewitt v. Higgins, 231 Ky. 678, 22 S.W.(2d) 115. In those cases the operations or services upon which the suits were based appear to have been in small cities or rural communities, except the Stevenson Case, which involved a Cincinnati doctor.
But the term "in the vicinity" was used in writing generally in Knopp v. Thornton, 199 Ky. 216, 250 S.W. 853, where the physician lived in Marion county. The case was reversed upon the ground that a directed verdict had been erroneously given, and the expression was used without regard for the specific point.
In Van Meter v. Crews, 149 Ky. 335, 148 S.W. 40, 41, which is a malpractice case coming out of Lexington, in criticising the instructions that were given and in outlining those to be given upon another trial, that part of the instruction which localized the standard of skill and care as that "usually possessed by the profession of surgeons...
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