Love v. . Zimmerman

Stacy, C. J. Tbe question for decision is whether the case as made, taken in its most favorable light for the plaintiff, survives the demurrer. We are disposed to think it does. The plaintiff is entitled to the benefit of every fact and inference of fact pertaining to the issues involved which may reasonably be deduced from the evidence. State Highway & Public Works Com. v. Diamond Steamship Transportation Corp., ante, 371, herewith decided; Davis v. Wilmerding, 222 N. C., 639, 24 S. E. (2d), 337; Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 355. Here, a dentist who had, on a previous occasion, broken one of plaintiff’s teeth when extracting it, was asked to be careful lest he break another in extracting it. He does break it off even with the gum. He then undertakes to remove the roots with a chisel and hammer. He fails to remove all the root and leaves some broken bone in the cavity. Two days later the defendant is notified that plaintiff’s jaw was greatly swollen and was running pus. He sends a prescription which was filled and taken without beneficial result. In about a week, the plaintiff returns to defendant’s office and his nurse packs her jaw and sends her home. Continuing to grow worse, the plaintiff again returns to defendant’s office and states that she thinks there is something in her jaw and suggests that an X-ray be taken. Defendant’s brother assures her there is nothing in it, and that an X-ray would only be a waste of money. The nurse again packs it with something and plaintiff returns home. Later the plaintiff returns, for the third time, to defendant’s office and he takes an X-ray and finds nothing but a dry socket. The plaintiff then goes to another dentist who examines her swollen jaw and removes “a little particle of the end of a root of tooth” and “a lot of little dead bone.” Viewing this evidence with that degree of liberality required on demurrer, we think the permissible inferences are such as to make the issue of liability one for the jury. Mullinax v. Hord, 174 N. C., 607, 94 S. E., 426; McCracken v. Smathers, 122 N. C., 799, 29 S. E., 354; S. c., 119 N. C., 617, 26 S. E., 157. It is true there is no allegation of incompetency on the part of the defendant to practice his profession. It is alleged, however, (1) that in the plaintiff’s ease the defendant omitted to use reasonable care and diligence in the practice of his art, or (2) that he failed to exercise his *392 best judgment in the treatment of the case. Either allegation, if supported by competent evidence, suffices to carry the case to the jury on the issue of negligence. Nash v. Royster, 189 N. C., 408, 121 S. E., 356. Under the circumstances here disclosed, it is contended that reasonable prevision and foresight would have called for more attention and better care on the part of the defendant in the treatment of plaintiff’s case. He was notified on three or four occasions and over a considerable length of time, that plaintiff’s jaw was not healing properly; that the constant and growing pain indicated to the plaintiff and should have indicated to the defendant, the presence of some deleterious substance; that a proper examination or diagnosis would have disclosed and did disclose to Dr. Adams, the presence of hurtful bacteria. These contentions apparently find support in the evidence, at least enough to raise an issue of due care. Brewer v. Ring and Valk, 177 N. C., 476, 99 S. E., 358. The ease is not like Smith v. McClung, 201 N. C., 648, 161 S. E., 91, where the dentist wanted to do more, and the patient demurred, or Scott v. Ins. Co., 208 N. C., 160, 179 S. E., 434, where the skill, competency and proper attention on the part of the dentist were all conceded. The present case, it seems to us, is controlled by the principles announced in Long v. Austin, 153 N. C., 508, 69 S. E., 500, and McCracken v. Smathers, supra. See 41 Am. Jur., 200; 48 C. J., 1121, et seq. The result is a reversal of the judgment of nonsuit. Reversed.