Opinion
Ordinarily, where the exercise of proper professional skill or care on the part of a physician, surgeon, dentist, or other similar practitioner is in issue, expert testimony tending to establish want of such skill or care is essential to a recovery, the only exception being in cases where there is manifest such obvious gross want of care or skill as to dispense with the necessity for expert testimony. The charge of the trial court, concerning an alleged failure of the defendant dentist to use due and proper care and skill in disinfecting a wound inflicted on the plaintiff's tongue and in failing to clean out an infected tooth socket, that "knowledge of disinfection of wounds has become so common and universal that a jury should be able, when what has been done has been fully described, to say whether or not it was done carefully or negligently" was erroneous, as the jury could not judge, without the benefit of expert testimony, whether the defendant's treatment measured up to professional standards. The rule that a person of a profession which involves and implies a reasonable amount of technical skill, knowledge and probity is entitled to the presumption that he has discharged his duty, whether legal or moral, until the contrary is shown, is not applicable, to its full extent, as a means of defense in cases of alleged malpractice. The fact that an operation or treatment has resulted unfavorably does not, of itself, raise any presumption of want of proper care or skill. It is the duty of a patient to reasonably conform to the necessary prescriptions and treatment and follow reasonable and proper instructions given, and failure to do so which directly and materially contributes to his injury will prevent a recovery in an action for malpractice.
Argued April 9th, 1930
Decided June 2d 1930.
ACTION to recover damages for personal injuries, alleged to have been caused by the defendant's negligence in extracting the plaintiff's tooth, brought to the Superior Court in New Haven County and tried to the jury before Peasley, J.; verdict and judgment for the plaintiff and appeal by the defendant. Error and new trial ordered.
The plaintiff offered evidence that he employed the defendant dentist to extract a crowned lower left molar; that the defendant examined it and noted that symptoms indicated that it was infected, as after the extraction it was found to be. The defendant administered a local anesthetic, and first used a pair of forceps, but the crown broke off leaving only the two roots. The defendant then used an instrument called an elevator and applying considerable pressure endeavored to remove these roots. In that operation something gave away and the elevator went through the tooth space and cut the tongue of the plaintiff, causing a deep wound in the lower rear portion on its left side. The defendant looked in the general area but did not observe the puncture, gave the plaintiff water with which to rinse his mouth and a slip of paper on which was printed the name of a mouth-wash, and told him to return in a couple of days. The mouth-wash specified could not be obtained at the drug store in Cheshire where the plaintiff lived and on the recommendation of the druggist he purchased a bottle of lavoris, a good germicidal mouth-wash proper for use after extraction of teeth, and used it repeatedly. Within two hours after plaintiff left defendant's office the tongue commenced to swell, and soon became badly swollen and so continued, causing pain, loss of sleep, and inability to engage in his work of teaching for ten days.
The defendant's evidence was that when the plaintiff's tooth broke off, even with the gum line, he inserted the index finger of his left hand between the tongue and the tooth for the twofold purpose of counter pressure and of protecting the plaintiff from slips of the elevator, an instrument resembling a nut pick, which he used to remove the embedded roots. At the exercise of pressure and leverage, a piece of the tooth or bone let go and the instrument went through the opening. The defendant did not know of or see any wound in the plaintiff's tongue. He painted the area around the tongue and tooth socket with Churchill's iodine, a standard product, and applied an antiseptic mouth-wash, gave the plaintiff a printed slip on which was the name of a standard antiseptic mouth-wash with instructions to buy it and use it, and instructed him to return two days later. Later on the day of the operation the defendant, while working on a patient, received a telephone call from plaintiff's wife and the defendant's nurse assistant communicated to her the defendant's instructions to continue the use of the mouth-wash and recommended an anodyne if the pain persisted. The defendant also introduced expert opinion based upon a hypothetical question embodying the facts as claimed by the defendant, that the performance of the operation and the post-operative treatment accorded with that of a dentist using ordinary care, skill, and diligence.
No expert evidence was introduced by the plaintiff that the defendant was negligent in extracting the tooth or in attending the same, or in disinfecting the tongue, the tooth socket and the surrounding area, or in instructing the plaintiff as to subsequent care and treatment.
Lawrence A. Howard and Cyril Coleman, for the appellant (defendant). Frederick C. Hesselmeyer, with whom was John D. McHugh, for the appellee (plaintiff).
The assignment of error pertaining to the denial of the defendant's motion to set aside the verdict, and two of those relating to the charge to the jury concern the effect of the lack of expert evidence supporting the allegations of the defendant's failure to exercise the required professional skill and care, with reference to post-operative treatment following the extraction of the plaintiff's tooth. While the plaintiff produced a physician and surgeon who testified as to the matter of infection of the tongue from an infected tooth, both the finding and the printed testimony disclose that no expert evidence was introduced that the defendant was negligent or failed to exercise suitable professional skill in performing the operation of extracting the tooth or in disinfection or other treatment following such operation.
The court withdrew from the consideration of the jury the (first) allegation that the defendant was negligent in cutting the plaintiff's tongue. The fourth specification, alleging negligent failure to remove all of the tooth, and the fifth, charging failure to properly instruct the plaintiff as to subsequent care and treatment, were also virtually removed from consideration of the jury, and the charge in these respects affords the defendant no ground for complaint.
The second allegation was that the defendant failed to use due and proper care and skill "in that he carelessly and negligently failed to disinfect the wound in the tongue." As to this the court charged, in substance, that if the plaintiff's tongue was cut, even if the wound was caused by the defendant while operating with due care, yet if the defendant knew of the wound or in the exercise of due care should have known of it, "it was his duty to properly treat it, and if the defendant failed to do so and the proof of his failure meets the requirements of the rule as to preponderance, and such failure was the proximate cause of the plaintiff's suffering, the plaintiff could still recover damages for such failure." The court then reviewed the conflicting evidence as to what was done in the way of disinfection following the extraction of the tooth and the injury to the tongue, and continued: "No evidence has been offered tending to show that what the defendant claimed to have done could have been done better or with greater skill, and if you find that he did what he claims to have done, it is for you to decide, upon the evidence, whether there was negligence in respect to the matter of disinfection. . . . Was there negligence on the part of the defendant in this second claim of the plaintiff's, that was the proximate cause of the plaintiff's suffering the pain? If there was, the defendant is liable in damages for it."
Ordinarily, where the exercise of proper professional skill or care on the part of a physician, surgeon, dentist, or other similar practitioner is in issue, expert testimony tending to establish want of such skill or care is essential to a recovery. Slimak v. Foster, 106 Conn. 366, 368, 138 A. 153, and cases cited; 48 Corpus Juris, p. 1150. The reason, briefly stated, is that in most such cases a layman does not and cannot have the requisite knowledge as to whether the proper treatment was given, procedure followed, or care used. Evans v. Roberts, 172 Iowa 653, 660, 154 N.W. 923. The only exception to this rule is afforded by cases "where there is manifest such obvious gross want of care or skill as to afford, of itself, an almost conclusive inference [of lack of skill or care] and dispense with the necessity of testimony by expert witnesses." Slimak v. Foster, supra, p. 370.
It appears from the charge, and is confirmed by the memorandum of decision on the motion to set aside the verdict, that the trial court held the rule rather than the exception to be applicable to the question of the infliction of the wound in the tongue, and applied it by charging that there could be no recovery therefore, but considered that "knowledge of disinfection of wounds has become so common and universal that a jury should be able, when what has been done has been fully described, to say whether or not it was done carefully or negligently" and so submitted to them the question as to whether there was negligence in that respect.
We are unable to agree, however, that the jury, without the benefit of the opinion of those having special knowledge as to the requirements of proper skill and care in post-operative treatment in such a case, could judge whether such protective measures as they found to have been adopted by the defendant so fell short of measuring up to the professional standards as to render the defendant negligent and liable. Leighton v. Sargent, 31 N. H. 119, 133; Rochester v. Chester, 3 N. H. 349, 365; Coleman v. Wilson, 85 N.J.L. 203, 88 A. 1059; Flanagan v. Smith, 197 Iowa 273, 197 N.W. 49; Snearly v. McCarthy, 180 Iowa 81, 161 N.W. 108; McCarthy v. Harvard Dental Parlors, 121 N.Y.S. 343. The same considerations apply to the allegation of negligent failure to clean out the infected tooth socket. In these respects the charge was erroneous.
Error is assigned in the failure to charge, as requested, that a person of a profession "which involves and implies a reasonable amount of technical skill, knowledge, and probity is entitled to the benefit of a presumption that he has discharged his duty, whether legal or moral, until the contrary is shown." We have held this rule to be available to the plaintiff in actions by physicians and attorneys to recover for professional services ( Slade v. Harris, 105 Conn. 436, 440, 135 A. 570; Styles v. Tyler, 64 Conn. 432, 464, 30 A. 165), but we do not deem it applicable, at least to its full extent, as a means of defense in cases of alleged malpractice. The defendant was entitled, however, to the instruction, also requested, to the effect that the fact that an operation or treatment has resulted unfavorably does not, of itself, raise any presumption of want of proper care or skill. Ewing v. Goode, 78 F. 442, 443; 21 R. C. L. p. 392. The defendant was entitled to have given, in substance, the requested instruction that it is the duty of a patient to reasonably conform to the necessary prescriptions and treatment and follow reasonable and proper instructions given, and that failure to do so which directly and materially contributes to his injury will prevent a recovery in an action for malpractice. Carey v. Mercer, 239 Mass. 599, 132 N.E. 353; Merrill v. Odiorne, 113 Me. 424, 94 A. 753; 48 Corpus Juris, p. 1134. The charge given relating to proximate cause was not adapted to afford to the defendant the full benefit of the rule above referred to.
Such of the other requested instructions as the defendant was entitled to have given were covered by the charge to an extent sufficient to the requirements of the case presented by the evidence recited in the finding.
The plaintiff, by bill of exceptions, assigns error in the charge in two respects. He requested a charge that "one who holds himself out as a specialist is bound to bring to the aid of the one who employs him as such, that degree of skill and knowledge which is ordinarily possessed by those who devote special study and attention to that particular organ, task, injury or disease, its diagnosis and its treatment, in the same general locality, having regard to the state of scientific knowledge at the time." Rann v. Twitchell, 82 Vt. 79, 71 A. 1045, 20 L.R.A. (N.S.) 1030. The finding, to resort to which we are limited in determining the adequacy of the charge, states that the plaintiff offered evidence "that the defendant was a dentist specializing in exodontia" (extraction of teeth) and practiced as such. If so, the court was in error in instructing the jury to disregard the attempted distinction between a general practitioner and such a specialist and should have charged that if they found that the defendant was within the scope of the principle stated by the request his duty was to be measured accordingly.
The other exception is to the instruction that proof of the specifications of negligent cutting of the plaintiff's tongue failed for lack of expert evidence that the extraction had been so unskillfully performed as to charge the defendant with negligence. The finding as to the evidence offered as to the manner in which the cut was inflicted, already recited in the statement of facts, in our opinion does not manifest "such obvious gross want of care or skill" as to dispense with the necessity of expert testimony. Slimak v. Foster, supra. Although, as we have noted, in exceptional cases the facts relating to an operation or treatment may be such as to warrant an inference of negligence, the great preponderance of authority is that the doctrine of res ipsa loquitur, as such, is not applicable to cases of this kind. Sweeney v. Erving, 35 App. D.C. 57, 43 L.R.A. (N.S.) 734; Ewing v. Goode, supra, p. 443.