Wambold v. Brock

• Decision Date: 27 July 1945
• Docket Number: 46718.
• Citation: 19 N.W.2d 582,236 Iowa 758
• Parties: WAMBOLD v. BROCK.
• Court: Iowa Supreme Court

19 N.W.2d 582

236 Iowa 758

WAMBOLD v. BROCK.

No. 46718.

Supreme Court of Iowa

July 27, 1945

Rehearing Denied Sept. 22, 1945.

Appeal from District Court, Polk County; Loy Ladd, Judge.

Carl S. Missildine and Ralph N. Lynch, both of Des Moines, for appellant.

Parrish Guthrie, Colflesh & O'Brien, of Des Moines, for appellee.

MANTZ Justice.

Nelle E Wambold, plaintiff, brought action for malpractice against H B. Brock, a dentist of Des Moines, Iowa. Division I of her petition was based upon the doctrine of res ipsa loquitur pleaded general negligence and alleged that the defendant, in extracting an impacted tooth, fractured her lower left jaw, and then negligently failed to set the jaw and reduce the fracture although he had sole control.

In Division II plaintiff pleaded specific negligence: First, in negligently and unskilfully failing to set her jaw, and second, in failing to advise plaintiff that her jaw was fractured and that the fracture should be reduced.

Defendant by answer admitted the extraction, denied the fracture and any negligence in failing to set the jaw and denied that plaintiff was free from contributory negligence.

When plaintiff rested the trial court, upon defendant's motion, directed a verdict against plaintiff, ruling that plaintiff's evidence was insufficient on both divisions of the petition, and judgment for costs was rendered against plaintiff. Plaintiff has appealed.

I. Upon the record as it now stands we find it unnecessary to pass upon the correctness of the ruling of the trial court in dismissing Division I of the petition of plaintiff relating to the application of the doctrine of res ipsa loquitur. We will dispose of the appeal upon the questions arising out of the action of that court in dismissing Division II of said petition, wherein specific acts of negligence were claimed. We hold that under the record the court erred in dismissing said Division II.

The court having directed a verdict against the appellant, the evidence introduced, under the familiar rule, is to be viewed in the most favorable light in her behalf.

We will set out the ruling of the court upon Division II of appellant's petition wherein the court directed a verdict:

'As to the motion to direct a verdict for the defendant on Division II of plaintiff's petition, it is the opinion and conclusion of the court that the evidence of plaintiff is insufficient to establish a prima facie case of negligence on the part of the defendant. To all of which plaintiff excepts.'

To pass upon the correctness of this ruling by the court it is necessary to make an examination of the evidence as shown by the record. In this connection it is to be kept in mind that in Division II, appellant relies upon two specific acts of negligence: (1) Negligently and unskilfully failing to set her jaw, and (2) failure to advise appellant that her jaw was fractured, and that the fracture should be reduced. These matters both involve fact questions.

II. We think that there is in the record competent evidence from which the jury could find that appellant, a lady of 46 years, had for 17 years been a patient of appellee, a dentist; that she had confidence in him; that on October 22, 1943, she went by appointment to his office in Des Moines, and while in his dental chair for several hours had dental work done by him, a part of which was the extraction of a molar tooth on her lower left jaw; that after its removal her jaw was fractured and she suffered pain; that appellee then took an X-ray picture of the left side where the tooth had been removed; that appellee, at the suggestion of appellant, called her family physician, Dr. Henry, who came to appellee's office and conferred with appellee; that in the presence of appellant, appellee advised Dr. Henry that he had extracted a tooth for appellant; that in his private office, when appellant was not present, he showed Dr. Henry the X-ray picture and also showed him one taken before the extraction. He pointed out to Dr. Henry a line on the X-ray picture taken following the extraction and said it was a possible fracture. Dr. Henry could see the line indicating the possible fracture. This line went diagonally but showed no displacement at that time. Dr. Henry took appellant home and treated her as directed by appellee, putting a bandage around her head to support her jaw and giving her something to relieve the pain. Appellee told Dr. Henry that it was advisable to support her jaw and stated that he regarded that as proper treatment. Dr. Henry testified that when there is a fracture the muscles will draw the fragments apart and that for proper treatment splints or wires are used to keep the fractured ends from being pulled apart.

The evidence shows that in extracting the tooth the lower jaw was fractured but that appellee never attempted to set the same by use of either wire or splints and that his only treatment over a period of several weeks was to wash out the cavity caused by the extraction; that he left town for a couple of weeks and advised appellant to see a dentist in his absence and have her wound washed out while he was going to be gone; the latter, Dr. Frick, gave the same treatment as was given by appellee. Upon appellee's return, appellant visited him on three occasions, on each of which he washed out the wound. The appellee did not suggest to appellant that her jaw had been fractured in the extraction of the tooth.

Following this appellant had some X-ray pictures taken and consulted Dr. Lanphere several times and later went to Rochester for an examination of her jaw. The X-ray pictures taken for appellant showed a jaw fracture. When she went to see Dr. Lanphere there was a noticeable swelling of the jaw in the vicinity of the fracture. Dr. Lanphere, a specialist on oral surgery of about 24 years experience, testified that he had examined appellant's jaw on November 24, 1943, and seven or eight times since that date; that the X-ray pictures show a complete fracture of the jaw; that she had some swelling, drainage and discomfort; also that in fracture cases the sooner the better to stabilize and immobilize the fracture by wire, splints, or a combination of the two, bandages and wires used together; that such is the proper and usual method pursued in such cases; that nothg of this nature had been done when appellant first came to see him. Witness testified that he could have reduced the fracture if he had seen appellant with 48 hours after the occurrence. We quote one question and the answer given by Dr. Lanphere on direct examation:

'Q. Are there any other methods known for the reduction of a fracture than the ones you have mentioned, doctor, for an angular fracture of the jaw? A. For all practical purposes there are none other than named, to reduce--splints, wiring, or other things. It makes no difference whether the practitioner is a specialist, or expert, there are just so many ways to make a reduction of a broken bone.'

There was evidence tending to show that appellee knew that in extracting the tooth for appellant her jaw was fractured, that he did not advise her of that fact, that he made no attempt to reduce the fracture, doing nothing in that direction; and that appellant at all times relied upon and followed the advice given by him as to the treatment necessary.

On the legal proposition, as to the duty of the court in case there is evidence from which the jury might find the appellee negligent in the particulars charged by appellant, we call attention to a number of holdings of this court: In re Estate of Kern, 141 Iowa 620, 118 N.W. 451; Way v. Illinois Cent. R R. Co., 35 Iowa 585; Green v....