Engstrom v. Wise Dental Co.

JOHNS, J. 1. The defendant contends that the trial court erred in refusing to permit the physicians testify as to the reputation of Dr. Fellows in the community as a dentist, and as to his professional skill. The complaint is based upon negligence in care and treatment of the plaintiff, not upon defendant’s lack of knowledge or experience in the profession. In 5 Thompson on Negligence, Section 6712, it is said: “ Where the physician or surgeon is charged with negligence, and not with incompetency, the matter of his fitness is not an issue, and evidence to shdw competency and skill is clearly inadmissible” — citing a large number of authorities. We hold that this is the law. 2. The defendant predicates error on the court’s refusal to give the following instruction: “Where there are two or more possible causes of the condition from which plaintiff suffered, for one or more of which the defendant is not responsible, the plaintiff, in order to recover, must show by a preponderance of the evidence that the injury was wholly or partly the result of that cause which would render the defendant liable. If the evidence in this case leaves it just as probable that the condition was the result of one cause as much as the other, the plaintiff cannot recover.” This is substantially a copy of an instruction which was requested and refused in Meriam v. Hamilton, 64 Or. 476 (130 Pac. 406). It was there held that its refusal was error. But it will be noted that' that case was based upon different pleadings and another state of facts; that there a motion for nonsuit was made and overruled; and that this court reversed the ruling, held that the motion should have been sustained, and for that reason dismissed the action. As — 639 — suming that such testimony in the instant case was admissible nnder a general denial and that the above instruction should have been given, was the refusal to give it prejudicial error? The jury was clearly and fairly instructed that the plaintiff must recover, if at all, upon the cause of action alleged in her complaint. In its charge the court used the following language: “The only negligence for which the defendant can be liable in this case is the negligence in one or more of the particulars alleged in the complaint. * * Another essential to recovery is that the negligence alleged in the complaint must be the proximate cause of the injury.- The proximate cause of an injury is the cause which produces the injury and without which injury would not have been sustained. The burden of proof in this case is first upon the plaintiff to satisfy you by a preponderance of the evidence that the defendant was guilty of negligence in one or more of the particulars alleged in the complaint, and that such negligence, if any, was the proximate cause of her injury. * * And if you are not satisfied by a preponderance of the evidence that the defendant acted unsldllfully and negligently, or used unclean instruments as alleged, and further, that such use or such practice was the direct and proximate cause of an infection of plaintiff’s left lower jaw, then your deliberations will be at an end, and you must return a verdict for the defendant in this case. If, on the other hand, you are satisfied by a preponderance of the evidence that the defendant was guilty of negligence in one or more of the particulars alleged, and that such negligence was the proximate cause of the injury to plaintiff’s jaw as alleged, then you should proceed to the consideration of the other issues involved in this case.” In other words, the jury was told that the plaintiff must prove her cause of action as alleged, not only that the defendant was negligent, but that she sus — 640 — tained Iter injuries as the result of that negligence. In effect, the jury was instructed that, although it found that the defendant was guilty of negligence, before it could return a verdict for the plaintiff it must further find that such negligence was the proximate cause of her injuries, and that if the plaintiff sustained her injuries at another time or place, in a different manner, or from another cause than as alleged in her complaint, she could not recover. Under such instructions the refusal to give the requested charge was not prejudicial error. There was no error in modifying the defendant’s requested instruction No. 2. As given, it was based on the pleadings. 3. The remaining question is whether or not the motion for a nonsuit or directed verdict should have been allowed. Dr. Sabin, a reputable physician in the City of Portland, as a witness for the plaintiff testified : “Q. The evidence here, Doctor,' is that there was a probe or needle of some kind injected into that tooth about three weeks after it had been extracted. She returned to the dentist and made some complaint that the tooth was not healing, and an examination was made by a probe into the jaw. I will ask you whether or not, if that probe had been infected, it would have caused that result if it had not been properly sterilized,? “A. Surely, any instrument that might have infection on it will carry infection into the tissues, even though it were properly sterilized, if it were passed through an infected area, and all wounds in the mouth are infected. It might affect it that way surely. “Q. Doctor, if this infection had been caused by the insertion of this instrument into the jaw, how long would it have been before the patient would begin to suffer pain? — 641 — “A. Well, if the probe were passed down into the tissues that were not invaded, the pain and swelling, aside from the infection, might be almost immediate, although it might take several hours for the infection to manifest itself. “Q. Would it be noticeable if it- was used about 3 or 4 o’clock in the afternoon, would the patient begin to notice it at night? “A. Yes, might notice the effect of pain and swelling even though the active infection had not taken place. * * “Q. Would it be considered an infected field if it was in the mouth or in the jaw where a tooth had been removed about three weeks before, and which had not healed? “A. It would be invariably an infected field. “Q. Then, what would be the nature of the treatment after removing that probe? “A. Well, if I was doing it in another surgical wound, in the first place I would see that the probe was sterile, and if it had gone through uninfected tissue — that is, where the point of. difference comes in — if the probe was introduced simply into infected area it would not help it or do any harm, but if it went through into uninfected tissue there ought to be some method taken to prevent the extending of that infection. ’ ’ Dr. Fixott, a witness for the defendant, gave the following testimony: ' “Q. But you say the probing of a wound from which a tooth had been removed by an instrument which had not been properly sterilized would cause the swelling of the face and jaw and the ulceration, did you not? “A. The use of an unsterilized instrument would cause all kinds of swelling.” Dr. Fellows, who did the dental work for the plaintiff, as a witness for the defendant testified: — 642 — “Q. The judge on the bench asked you a question yesterday, if you could swear that you sterilized this instrument immediately before using it in this girl’s mouth, to which you replied that you could not. Is that correct? “A. If the testimony shows so, yes. “Q. Well, have you had occasion to change your mind over night? “A. I have not. “Q. Is that true this morning? That is, you don’t know whether you sterilized the instrument or not? “A. I did not sterilize the instrument.” The plaintiff testified as follows: “Q. Did you see the instrument the doctor had here yesterday in his hand? “A. Yes. “Q. The one that he called an explorer, which he said he used in exploring your jaw? “A. Which one do you mean? “Q. The one he had yesterday, the one I show you now; did vou see this instrument yesterday? “A. Yes' ‘ ‘ Q. Is that the kind of an instrument he -used on your jaw? “A. No. “Q. What kind of an instrument was it? “A. It was straight and sharp. ' “Q. Did it have a crook on it at all like this one? “A. No. “Q. Now, Ellen, I will ask you, did he put that instrument in your jaw in the place where he took out a tooth? “A. Yes, sir. “Q. When you first felt a pain after you went homé, where did you first feel it? “A. Right there where he struck that instrument. “Q. Did you have any trouble with your teeth that you had pulled out while you were over in Finland, back of those? “A. No, not any. — 643 — “Q. Where was this pain and seat of this trouble in yonr jaw with reference to the tooth Dr. Fellows pulled? “A. It was in the place where the tooth was pulled out. ’ ’ After verdict, we must assume this testimony to he true. The plaintiff testified that the instrument which Dr. Fellows used was not the one which was produced in court; that she first felt a pain in her jaw after she went home, “right there where he stuck that instrument”; that she liad never had any trouble with the teeth which she had had pulled out while she was in Finland; and that the seat of the pain “with, reference to the tooth Dr. Fellows pulled” was “in the place where the tooth was pulled out.” Dr. Sabin testified that, if an infected instrument was used about 3 or 4 o’clock in the afternoon, the patient would begin to notice it the same night, “even though, the active infection had not taken place.” The plaintiff was at the defendant’s office about 3 or 4 o’clock in the afternoon and testified that she had a severe pain in her jaw that same evening. Dr. Sabin’s testimony strongly corroborates that of the plaintiff as to the actual facts to which she testified. This evidence is direct and positive, and, assuming it to be true, the proximate cause of plaintiff’s injury is not speculative or uncertain. The case of Spain v. Oregon-Wash. R. & N. Co., 78 Or. 355 (153 Pac. 470, Ann. Cas. 1917E, 1104), is not in point. As we analyze it, there is ample testimony to support the verdict. Although the plaintiff could not speak or understand English and had to testify through an interpreter, the jury must have believed her evidence and that the proximate cause of her in — 644 — jury was the neglect of the defendant to use due care in her treatment. The judgment is affirmed. Affirmed. McBride, C. J., and Harris, J., concur.