Opinion
May 11, 1971
Judgment, Supreme Court, New York County, entered on June 16, 1970, upon jury verdict, reversed on the law and the facts, the judgment vacated and a new trial ordered, with costs to abide the event. The defendants are dentists who are charged by plaintiff with malpractice causing certain injury to her for which she seeks damages. Plaintiff, a patient of Dr. Weber, charges that he failed to supervise Dr. Wolfe in the performance of certain root canal work which, plaintiff alleges, was improperly and negligently performed. The incident of which plaintiff complains occurred during the course of the work when a reamer became detached and lodged in plaintiff's bronchus from which it was recovered sometime later on the same date. It was claimed that use of a rubber dam, which plaintiff's expert testified was the accepted practice, would have prevented the occurrence. Dr. Weber was not present at the time of the incident though, earlier, he had performed some drill work on the tooth involved. The jury expressly found that Dr. Weber was not required to supervise Dr. Wolfe, a trained dentist, but found instead that Dr. Weber was required to place a rubber dam in the mouth of plaintiff prior to the performance of any operative procedure by Dr. Wolfe. While the charge permitted such a finding, there was error in so charging. The jury's finding was contrary to the theory on which plaintiff proceeded against Dr. Weber, and in direct opposition to the proof. In fact plaintiff's expert acknowledged, on cross-examination, that a person with Dr. Wolfe's qualifications did not require supervision, and that Dr. Weber's conduct in leaving the room and permitting Dr. Wolfe to handle plaintiff was not a deviation from custom and practice. Dr. Wolfe testified that the decision not to use a dam was his own. Plaintiff claims to have developed a phobic anxiety by reason of the occurrence and four years elapsed before she received any dental treatment, at which time 10 teeth were removed. In our view, causation for the deteriorated condition, flowing as a consequence from the unfortunate occurrence, was not sufficiently established. Plaintiff had a past history of neglect of her teeth over a period of years prior to the occurrence here involved. It is not sufficiently established that the alleged malpractice proximately caused the pain and suffering claimed, and the subsequent loss of 10 teeth. Moreover, in the view we take, the verdict was clearly excessive. If Dr. Weber had no obligation with respect to the dam, any liability on his part would be purely derivative as an employer.
I agree with the majority in ordering a new trial as regards defendant Wolfe, but instead of ordering a new trial I would dismiss as against defendant Weber. The liability of this defendant was predicated on two grounds: that he did not properly supervise the work of his employee, Dr. Wolfe, and, secondly, that he himself did not insert a rubber dam in plaintiff's mouth. As to the first, the jury found that he was not negligent in that regard. As to the second, there was absolutely no proof that would base a claim for negligence. As explained by plaintiff's expert, the rubber dam is a device designed to procure the maximum aseptic condition of a tooth being subjected to root canal procedure. According to the uncontradicted testimony, Dr. Weber's work on the tooth was preparatory only, and when he saw that root canal work was indicated he stopped and turned the patient over to Dr. Wolfe. No expert testified that a rubber dam at that stage was required or even advisable. Moreover, the absence of the dam was not the proximate cause of the accident. Plaintiff's condition did not result from a septic condition but because Dr. Wolfe dropped an instrument which went down her throat. True, had the dam been used its presence might well have checked the instrument, but that was neither its purpose nor a reasonably foreseeable consequence of its absence.