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Steinke v. Bell

Superior Court of New Jersey, Appellate Division
Sep 15, 1954
32 N.J. Super. 67 (App. Div. 1954)

Summary

holding that doctrine applied where dentist was supposed to remove patient's lower left molar only, but also removed her upper right lateral incisor

Summary of this case from Tentoni v. Jeffers

Opinion

Argued September 8, 1954 —

Decided September 15, 1954.

On appeal from the County District Court.

Before Judges CLAPP, JAYNE and FRANCIS.

Mr. Jack A. Skarbnik argued the cause for plaintiff-respondent.

Mr. William E. James argued the cause for defendant-appellant.


Defendant, a dentist, appeals from a judgment against him obtained in the county district court in an action for malpractice. He raises a single question, should the judgment be reversed because of plaintiff's failure to produce expert testimony on the trial.

Defendant removed plaintiff's lower left second molar, as she, the plaintiff, desired. However in the process, so the trial judge found, defendant "extracted or caused to come out" her upper right lateral incisor without her knowledge or consent. This finding of the court turned upon the credibility of the witnesses, and defendant makes little or no effort to upset it. We therefore need not stop to consider the defendant's testimony that plaintiff herself, returning to consciousness from under the gas, seized the cord attached to the mouthprop, yanking out the incisor.

Under the general rule applicable here, a dentist or physician is under a duty to exercise the care and skill normal to the average member of his profession. Ordinarily the question as to what that standard demands of him and whether he has deviated therefrom, must be established by expert testimony. Carbone v. Warburton, 22 N.J. Super. 5 ( App. Div. 1952), affirmed 11 N.J. 418 (1953); Hull v. Plume, 131 N.J.L. 511 ( E. A. 1944); Burdge v. Errickson, 132 N.J.L. 377 ( E. A. 1945). However, in the unusual case where it may be said, looking at it in the light of the common knowledge and experience of laymen, that there has been a lapse from such a standard, expert testimony is not required. Carbone v. Warburton, supra; Rogers, Expert Testimony § 165 (3 rd ed. 1941); 70 C.J.S., Physicians and Surgeons, 1009. This proposition may be illustrated by cases as to dental malpractice. Vergeldt v. Hartzell, 1 F.2d 633 ( C.C.A. 8, 1924); Barham v. Widing, 210 Cal. 206, 291 P. 173 ( Sup. Ct. 1930); Nelson v. Parker, 104 Cal.App. 770, 286 P. 1078 ( Ct. App. 1930); Ambrosi v. Monks, 85 A.2d 188 ( Mun. Ct. App. D.C. 1951); Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425 ( Sup. Ct. 1940); Ellering v. Gross, 189 Minn. 68, 248 N.W. 330 ( Sup. Ct. 1933); Griffin v. Norman, 192 N.Y.S. 322 ( Sup. 1922); Zettler v. Reich, 256 App. Div. 631, 11 N.Y.S.2d 85 ( App. Div. 1939), affirmed 281 N.Y. 729, 23 N.E.2d 548 ( Ct. App. 1939); Francis v. Brooks, 24 Ohio App. 136, 156 N.E. 609 ( Ct. App. 1926). See Note, Problems of Negligent Malpractise, 26 Va. L. Rev. 919, 925 (1940). Compare the problem arising on the application of the doctrine of res ipsa loquitur to an action of malpractice. 162 A.L.R. 1265, 1291, 1307; Arthur, Res Ipsa Loquitur as Applied in Dental Cases, 15 Rocky Mt. L. Rev. 220 (1943).

We think laymen, looking at this case in the light of their common knowledge and experience, can say that a dentist engaged to remove a lower left second molar is not acting with the care and skill normal to the average member of the profession if, in so doing, he extracts or causes to come out an upper right lateral incisor. Expert testimony was therefore not necessary under the circumstances of this case.

Affirmed.


Summaries of

Steinke v. Bell

Superior Court of New Jersey, Appellate Division
Sep 15, 1954
32 N.J. Super. 67 (App. Div. 1954)

holding that doctrine applied where dentist was supposed to remove patient's lower left molar only, but also removed her upper right lateral incisor

Summary of this case from Tentoni v. Jeffers

holding that expert evidence not required in malpractice case where dentist extracted wrong tooth

Summary of this case from Baker v. Allen

holding that expert evidence is not required in malpractice case where dentist extracted wrong tooth

Summary of this case from Hubbard v. Reed

holding that expert evidence not required in malpractice case where dentist extracted wrong tooth

Summary of this case from Chin v. St. Barnabus Med. Ctr.

holding that doctrine applied where dentist engaged to remove patient's lower left molar also extracted or caused removal of her upper right lateral incisor

Summary of this case from Lucia v. Monmouth Medical Center

holding that laypersons could determine through their common knowledge whether defendant dentist was negligent when he extracted the wrong tooth

Summary of this case from Kelly v. Berlin

applying common knowledge doctrine where a dentist extracted the wrong tooth

Summary of this case from Estate of Bobal v. JFK Med. Ctr.

In Steinke v. Bell, supra (32 N.J. Super. 67), a case completely different from ours on its facts, although not specifically referring to res ipsa loquitur as the determinative principle, the court arrived at a conclusion consistent with that theory.

Summary of this case from Toy v. Rickert
Case details for

Steinke v. Bell

Case Details

Full title:ELEANOR STEINKE, PLAINTIFF-RESPONDENT, v. ISIDORE BELL, DEFENDANT-APPELLANT

Court:Superior Court of New Jersey, Appellate Division

Date published: Sep 15, 1954

Citations

32 N.J. Super. 67 (App. Div. 1954)
107 A.2d 825

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