Smith v. . McClung

Beogdbk, J. Does the principle of res ipsa loquitur apply when the point of a novocaine needle breaks off in the gum or jaw of a patient when the dentist is using the needle to insert novocaine preparatory to extracting a tooth? The evidence does not disclose any defect in the needle or that the needle was not of the type approved and in general use for the purpose of inserting novocaine. There is no evidence that the dentist did not possess the degree of skill and learning contemplated and prescribed by law, nor was there any evidence that the tooth was otherwise extracted in a careless or negligent manner or not according to the usual *651 practice and custom of skillful dentists in performing sucb operations. Hence, if the principle of res ipsa loquitur does not apply, tbe case should have been nonsuited. Dentists, in tbeir particular fields, are subject to the same rules of liability as physicians and surgeons. McCracken v. Smathers, 122 N. C., 799, 29 S. E., 354; Nash v. Royster, 189 N. C., 408, 127 S. E., 356. Nevertheless, neither dentists nor physicians or surgeons have been held to be insurers. This idea was expressed many years ago by Judge Taft, afterwards President of the United States and Chief Justice of the Supreme Court of the United States, in Ewing v. Goode, 78 Fed., 442. In that case he wrote: “A physician is not a warrantor of cures. If the maxim, eres ipsa loquitur/ were applicable to a case like this, and a failure to cure were held to be -evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the fills that flesh is heir to.’ ” The Iowa Court, in Evans v. Roberts, 172 Iowa, 653, discussing the liability of a surgeon who cut off a portion of plaintiff’s tongue in performing an operation for adenoids, said: “If a surgeon, undertaking to remove a tumor from a person’s scalp, lets his knife slip and cuts off his patient’s ear, or, if he undertakes to stitch a wound on the patient’s cheek, and, by an awkward move, thrusts his needle into the patient’s eye, or if a dentist, in his haste, leaves a decayed tooth in the jaw of his patient and removes one which is perfectly sound and serviceable, the charitable presumptions which ordinarily protect the practitioner against legal blame where his treatment is unsuccessful, are not here available. It is a matter of common knowledge and observation that such things do not ordinarily attend the service of one possessing ordinary skill and experience in the delicate work of surgery.” The Virginia Court discussed the question in Henley v. Mason, 153 S. E., 653. The doctrine of res ipsa loquitur was held inapplicable upon the facts as disclosed by the record, even though the surgeon in performing a tonsil operation knocked out two of plaintiff’s front teeth. The same question was considered in Hill v. Jackson, 265 S. W., 859. In this case the Missouri Court held that the principle did not apply, although the dentist had dislocated the jaw in extracting a tooth. These cases do not deny the application of the principle where the facts warrant it, but merely hold that the facts of the particular cases do not justify, the application. There are two cases directly in point. The first is Ernen v. Crofwell, 172 N. E., 73. In this case a dentist inserted a novocaine needle into *652 a patient’s gum in order to deaden pain and tbe needle broke. Tbe dentist made no effort to remove tbe needle and did not inform tbe patient of tbe fact tbat a portion of tbe needle bad broken off in administering tbe novocaine. Tbe Supreme Judicial Court of Massachusetts said: “It is plain tbat tbe mere breaking of tbe needle inserted in tbe plaintiff’s jaw was not evidence of negligence. We are of tbe opinion, however, tbat tbe jury would have been warranted in finding tbat, if the defendant bad exercised tbat degree of skill and care reasonably to be expected tbat be possessed, be would have discovered tbat tbe needle bad been broken; and tbat be should either have removed tbe part remaining in tbe plaintiff’s jaw or have informed her of its presence there so tbat she could have bad it removed.” Tbe other case is Alonzo v. Rogers, 283 Pac., 709. In this case tbe Supreme Court of Washington held tbat tbe principle of res ipsa loqui-tur applied and carried tbe case to tbe jury. Tbe general proposition of law, together with tbe authorities upon various aspects of tbe question, appears in a note in Illinois Law Review of November, 1931, page 350, and also, in tbe United States Law Review of November, 1930, page 609. Irrespective of tbe theories of application of tbe principle held by tbe courts in other jurisdictions, this Court has held tbat tbe principle does not apply: (1) Where more than one inference can be drawn from tbe evidence as to tbe cause of tbe injury; (2) where tbe existence of negligent default is not tbe more reasonable probability, and where tbe proof of tbe occurrence, without more, leaves tbe matter resting only in conjecture; (3) where tbe injury results from accident as defined and contemplated by law. Springs v. Doll, 197 N. C., 240, 148 S. E., 251. In tbe case at bar, tbe defendant did not manufacture tbe needle which broke. There is nothing tending to indicate there was any defect in the needle or tbat if any defect existed tbe same could have been discovered by tbe most rigid inspection. There is no evidence tbat tbe needle was used in a careless or negligent manner or by an unskilled or incompetent dentist. Indeed, tbe dentist discovered tbe broken needle and undertook to remove it with all facilities available to him at tbe time. He requested tbe plaintiff to return to bis office next day and assured him tbat be could remove tbe needle readily and without pain, but tbe plaintiff refused not only on tbat occasion but on subsequent occasions to permit either tbe defendant or any other surgeon, physician or dentist to remove tbe needle. He was at work next day, and so far as tbe record discloses never lost an hour from bis accustomed duties. Therefore, to bold that tbe doctrine of res ipsa loquitur applies to tbe *653 facts of this case, is to all practical purposes, to impose the liability of insurer upon a dentist, physician or surgeon, and no court has ever gone that far. Manifestly, there may be particular states of fact which warrant the application of the principle in determining the liability of dentists, physicians and surgeons, but the court is of the opinion and so holds that the facts in this case do not warrant the application of the principle, and the motion for nonsuit should have been allowed. Reversed.