Vigneault v. Dr. Hewson Dental Co.

• Decision Date: 24 May 1938
• Citation: 15 N.E.2d 185,300 Mass. 223
• Parties: VIGNEAULT v. DR. HEWSON DENTAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 223

15 N.E.2d 185

VIGNEAULT

v.DR. HEWSON DENTAL CO.

Supreme Judicial Court of Massachusetts, Worcester.

May 24, 1938.

Exceptions from Superior Court, Worcester County; Burns, Judge.

Action of tort by Paul Vigneault against the Dr. Hewson Dental Company, for injuries resulting from allegedly negligent treatment of plaintiff by defendant's dentists, tried in the superior court. To review a judgment for plaintiff on plaintiff's motion for judgment on an auditor's report, defendant brings exceptions.

Exceptions overruled.

J. A. Crotty, of Worcester, for plaintiff.

H. W. Sullivan, of Boston, for defendant.

FIELD, Justice.

This is an action of tort to recover compensation for personal injuries sustained as a result of alleged negligent treatment of the plaintiff by dentists employed by the defendant. The case was referred to an auditor whose findings of fact were to be final. The auditor filed a report. Both the plaintiff and the defendant filed motions for judgment on the report. The trial judge denied the motion of the defendant and allowed the motion of the plaintiff. The defendant excepted. See Pittsley v. Allen Mass., 7 N.E.2d 442.

There was no error.

Since the auditor's findings of fact were to be final his report constituted a case stated. See Marrimac Chemical Co. v. Moore, 279 Mass. 147, 151, 152, 181 N.E. 219;Brodie v. Donovan, Mass., 9 N.E.2d 386. This report contained, among others, the following findings of fact: The defendant was engaged in the dental business in Worcester, employing two licensed dentists. See G.L.,Ter.Ed., c. 112, §§ 49, 50; Bates v. Dr. King Co., 191 Mass. 585, 77 N.E. 1154;McDonald v. Dr. McKnight, Inc., 248 Mass. 43, 142 N.E. 825. In June, 1935, the plaintiff's mouth was infected. On June 24 one of these dentists extracted one of the plaintiff's teeth. The same dentist extracted another tooth on June 25 and two others on June 26. The other dentist extracted four teeth on July 2. ‘The teeth were extracted upon the advice of the two dentists who extracted them. There was pus in and about the sockets of all the teeth which were extracted. Before each of the eight extractions, novocaine was injected by a needle, which is hollow, with an opening near the end, through which the novocaine is forced by pressure. The needle part is about one-quarter of an inch long. It was sterilized before it was used, and was of a kind and size in general use by dentists. Before each extraction, the needle was inserted three times in the gum near the tooth to be extracted, twice in the gum in front of the tooth and once in the gum back of the tooth. No x-rays were taken.’ ‘The defendant did not have equipment for administering gas.’ The plaintiff paid the uniform price charged by the defendant for each extraction. On July 6 the plaintiff entered a hospital where the ‘clinical diagnosis of the patient * * * was osteomyelitis of the jaw bone.’ This diagnosis ‘was later confirmed by x-ray pictures.’ The auditor inferred from this diagnosis ‘and from what x-rays disclosed later as to the probable time when it began’ that the plaintiff had osteomyelitis on July 2. Osteomyelitis of the jaw bone ‘is an infection of the hard and soft parts of the bone caused by the staphylococcus germ getting into the bone * * * a serious and very painful disease.’ The ‘dentists in inserting the needle where they did, did not exercise the skill ordinarily exercised by Worcester dentists at that period, and * * * they were negligent in so doing.’ On ‘the whole evidence in this case’ this negligence on June 24, 25 and 26 ‘was an adequate cause of the osteomyelitis, and * * * did in fact cause it.’ The auditor found for the plaintiff in the sum of $4,450. The report contains other statements in the nature of subsidiary findings.

The defendant does not contend that the amount of the damages found was improper if there was any liability on the defendant, or that the defendant was not liable for negligence, if any, of the dentist who extracted the plaintiff's teeth on June 24, 25 and 26, causing injury to the plaintiff.The defendant's contention is that on the facts found this dentist's treatment was not negligent and was not the cause of the osteomyelitis of the plaintiff's jaw bone. But the ultimate findings that the dentists were negligent, and that this negligence of one of them on June 24, 25 and 26 was the cause of the plaintiff's osteomyelitis-which do not purport to be based solely on subsidiary findings, compare Marden v. Howard, 242 Mass. 350, 355, 136 N.E. 385;Edinburg v. Allen Squire Co., Mass., 12 N.E.2d 718, are conclusive unless vitiated by error of law apparent on the face of the report, or met or controlled by other findings or by inferences to be drawn from the facts expressly found. And they are not so vitiated or met or controlled.

The duty resting upon the dentist who extracted the plaintiff's teeth on June 24, 25 and 26-breach of which would constitute negligence-included the duty to ‘exercise the skill ordinarily exercised by Worcester dentists at that period,’ which the auditor found was not performed. See Ernen v. Crofwell, 272 Mass. 172, 175, 172 N.E. 73, 69 A.L.R. 1140;Semerjian v. Stetson, 284 Mass. 510, 512, 513, 187 N.E. 829;Bouffard v. Canby, Mass., 198 N.E. 253. Even if it be assumed that such a finding could not be made by the auditor without the benefit of expert testimony (compare Marangian v. Apelian, 286 Mass. 429, 436, 190 N.E. 729;Gabrunas v. Miniter, 289 Mass. 20, 22, 193 N.E. 551;Bouffard v. Canby, Mass., 198 N.E. 253, it appears from the report that such testimony, tending to support the finding of the auditor, was introduced in evidence. The auditor states that the ‘expert evidence was highly conflicting, not only as to which method of anesthetizing by a needle was preferable, but also as to the precentage of Worcester dentists who would use the ‘deep block’ in preference where a mouth was infected as was the plaintiff's.' The auditor's report adopts, as a description of the ‘deep block’ method of anesthetization, a method whereby the needle is inserted near one or both of the two holes into the lower jaw bone which are back of the back teeth. The mere fact that the ‘expert evidence’ was ‘highly conflicting’ does not show that the auditor's finding of negligence was wrong. It was for him to decide what expert testimony he would believe. McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 453, 117 N.E. 836.

The defendant contends that the findings that the dentist was negligent and that such negligence caused the plaintiff's osteomyelitis could not properly be made because it was not found that the needle used by this dentist was inserted in the infected area of the plaintiff's jaw bone. Even if not specifically found it is clearly a natural inference from the findings above recited that the needle was so inserted. The defendant contends further that the osteomyelitis was not so caused because, as matter of common knowledge, a needle ‘about one-quarter of an inch long’ could not have penetrated to the bone. But...