Wintersteen v. Semler

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before BRAND; LATOURETTE
• Citation: Wintersteen v. Semler, 250 P.2d 420, 197 Or. 601 (Or. 1952)
• Decision Date: 26 November 1952
• Parties: WINTERSTEEN v. SEMLER.

Page 420

250 P.2d 420

197 Or. 601

WINTERSTEEN v. SEMLER.

Supreme Court of Oregon.

Argued and Submitted Oct. 14, 1952.

Decided Nov. 26, 1952.

Norman L. Easley, Portland, argued the cause for appellant. With him on the briefs were Griffith, Phillips & Coughlin, of Portland, and Lloyd M. McCormick, Portland.

Irving Korn, Portland, argued the cause for respondent. On the brief were Krause, Evans & Korn, Portland, and Elam Amstutz, Portland.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and TOOZE, JJ.

LATOURETTE, Justice.

This is an appeal by defendant Harry Semler, a dentist, in a malpractice case, from a judgment after verdict assessing damages against him in the sum of $75,000. At the conclusion of the taking of testimony, defendant, by timely motions, moved for a directed verdict, and, after judgment, for a judgment notwithstanding the verdict, or, in the alternative, for a new trial, on the grounds that as a matter of law the evidence failed to show any negligence on the part of defendant which was the proximate cause of plaintiff's injuries, which motions were denied by the trial court. On the appeal, it is again urged that there is no substantial evidence of negligence or proximate cause warranting the submission of the case to the jury.

It is alleged in plaintiff's second amended complaint that defendant was negligent in the following particulars:

'Defendants failed to take the necessary and reasonable precautions immediately after the extraction of plaintiff's teeth to avoid foreign substances entering and passing down plaintiff's throat and trachea.

'Defendants failed, refused and neglected to secure any medical or dental or any other kind of post operative assistance or aid or counsel for plaintiff after being advised of her complaints, pains any symptoms as aforealleged.

'On or about July 19, 1948 plaintiff advised defendants that she was having repeated and violent coughing spells, that during said time she was discharging from her mouth a foul, greenish, bile-like substance, that she was unable to sleep at night because of said soughing spells and the discharging of said substance, that she was unable to keep food on her stomach except milk and anacin, and that she felt in a generally weakened physical condition, at which time defendants negligently led plaintiff to believe that her symptoms, pain, and sufferings complained of as aforesaid were commonly associated with the aftereffects of extractions.'

that as the proximate result of such negligence, plaintiff alleges that she suffered certain injuries, including an abscessed lung, which necessitated several operations, the removal of several ribs, and the placing of drainage tubes in her back to expel the purulent matter, whereby she sustained permanent injury.

The evidence discloses that plaintiff, suffering from pyorrhea over a number of years, went to defendant's office on the morning of July 10, 1948, to have her remaining 17 teeth extracted. A general anesthetic was administered to her, whereupon her teeth were extracted and false ones inserted. Oxygen was administered to her to bring her out of her coma, whereupon she was walked to an adjoining recovery room and placed on a cot. Thereafter Nurse Magner, according to the testimony of plaintiff's husband, went to the waiting room to summon him to the door of the recovery room, whereupon he entered and the nurse left. He testified that when he first saw plaintiff she was lying prone on her back with her head turned to the right. He tried to revive her by shaking her shoulder but there was no response. After remaining in the recovery room for a period of about five minutes, plaintiff regained consciousness. A nurse then brought in a card of instructions for care and a bottle of mouthwash. Plaintiff was asked to return on Monday, July 12, for examination, which she did. At that time a nurse removed her plates and asked her to rinse out her mouth, after which she was examined by Doctor Burton, who told her that everything was 'fine', and she was asked to return to the office in a week.

Late that night or early the next morning, she commenced getting a 'funny sensation' with choking, coughing and vomiting. This condition continued for the following week. She felt very weak, was unable to sleep and had no appetite. She was only able to retain milk and took many anacin tablets as these had been recommended on the instruction card in case she felt the need for medication.

Upon the following Monday, July 19, she returned to the defendant's office to have the sutures removed. A Nurse Schamel performed this act, and plaintiff informed her that she had been 'terribly ill' all week, describing her symptoms. The nurse assured her that 'that was the natural thing after the extraction of teeth.' On August 2, she again returned to the dental office but only to make a payment and did not talk to any one about her condition.

Plaintiff testified that her physical condition became worse and that she went to Doctor Tuhy, who, on October 28, 1948, operated, removed a part of one rib and found an abscess of the right lung. She was hospitalized 11 days after this operation, and around the first part of December underwent another operation for the removal of another abscess.

Turning to the alleged negligence of defendant, it is plaintiff's theory, on the first allegation of negligence, that the defendant was negligent in placing plaintiff on her back rather than on her side on the cot following the extraction of her teeth, she being in an unconscious condition, thereby causing foreign material to pass down her trachea which resulted in the lung abscesses. It is claimed that such a procedure was improper and not in conformity with the rules of the practices of the profession. Plaintiff called as a witness a qualified dentist, Kenneth R. McIntyre, who testified as follows in answer to hypothetical questions:

'Now Doctor, assuming that on or about July 10, 1948 Mrs. Wintersteen went to have 17 of her teeth extracted and that 12 of these teeth were upper teeth and five of them were lower teeth, and assuming that she had a pyorrheatic condition of the mouth and that her teeth had deposits of tartar around and between them, and that about eleven A.M. or so on that day she was administered a general anesthetic, and that about fifteen minutes or so thereafter her husband, Mr. Wintersteen, was taken into a room where Mrs Wintersteen was lying and that he found Mrs. Wintersteen lying on a cot, that she was lying on her back with her head tilted to the right, that she was in a horizontal position, in other words, and that he observed her eyes and that her eyes were closed, and that he talked to her and that there was on [sic] response, and that he shook her and there was no response, and that he watched over her while she was lying in this horizontal position with her head tilted to the right for a matter of five or more minutes, after which time she awoke. I will ask you, Doctor, under these circumstances whether or not you would say that the ordinary care, skill, and diligence used by the average, ordinary dentist under like circumstances in the locality had been used.

* * *

* * *

'A. In my opinion the patient shouldn't have been in a horizontal position on her back.

'Q. Doctor, state what under those circumstances, that is, with reference to her position, the ordinary skill, diligence, and care used by the average, ordinary dentist under like circumstances in this locality would have dictated. A. The patient is usually placed on the side so that everything can drain out of the mouth.'

We are of the opinion that Doctor McIntyre's testimony would be substantial evidence tending to show that the placing of a patient on the back and not on the side would not be in accord with the proper treatment that is ordinarily employed by members of the dental profession of good standing in the same locality. The law requires of a dentist in treating a patient that he exercise that degree of care, skill, diligence and knowledge which is ordinarily possessed by the average of the members of the profession of good standing in similar localities. Malila v. Meacham, 187 Or. 330, 335, 211 P.2d 747; Darling v. Semler, 145 Or. 259, 264, 27 P.2d 886.

We have carefully searched the record and are unable to find any evidence from which the jury could find that the plaintiff was placed on her back when put on the cot. The only evidence touching on this question is that supplied by plaintiff's husband who testified that, after the nurse had come to the waiting room to invite him to the recovery room, he went into that room and found plaintiff on her back with her head tilted to the right. Since proper practice would dictate that the patient should be placed on her side, the presumption would be that defendant did place plaintiff in that position when she was laid on the cot. This presumption was fortified by the testimony of Doctor Burton and Nurse Magner who testified that, although they had no recollection of the particulars of who placed plaintiff on the cot or of in what position she was placed, the ordinary practice which they followed was to place a patient on her side with an emesis basin under her mouth for drainage, and that a patient afterward often turned over onto her back in attempting to get into the most comfortable position, which is in harmony with the well-recognized fact that even a person in deep sleep will do this.

In passing, it is interesting to note that plaintiff's evidence discloses that, although she was lying horizontally on her back, her head was tipped to the right. In this connection, Doctor Tuhy, plaintiff's witness, testified as follows in answering questions propounded:

'Q. * * * After such an operation with the material coming out so fast, if she is unconscious the probabilities of it being aspirated are just as great in one position as another if she has her head on the right? A. I...