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BESSINGER v. DELOACH

July 16, 1956

MRS. ALMA BESSINGER, APPELLANT,
v.
DR. C.J. DE LOACH, RESPONDENT.



The opinion of the court was delivered by: Stukes, Chief Justice.

July 16, 1956.

Plaintiff brought this action for damages against the defendant, who was her dentist, and alleged injuries resulting from burns to her mouth which were caused by a substance that was applied to a denture made by the defendant for her and which he was fitting in her mouth; thereby the denture was relined and the substance hardened and became a part of it.

It was alleged in the complaint that the injuries were caused by the negligence, willfullness and wantonness of the defendant in administering the substance in her mouth for a longer period of time than necessary and by the failure of the defendant to care for the plaintiff during the time of treatment. In the answer there were denials of some of the allegations of the complaint and it was alleged that in the treatment of plaintiff as his patient the defendant, with due care, used methods and procedures which are standard in the dental profession.

Motion for nonsuit was denied at the conclusion of the evidence for plaintiff, but at the end of all of the evidence motion for directed verdict in favor of the defendant was granted. This appeal by plaintiff followed.

The defendant has challenged plaintiff's exceptions as too general and not in conformity with the pertinent rule of this court. However, upon consideration of them we conclude that they are not subject to the stated objections. They fairly raise the issue of whether the court erred in directing the jury to find verdict for the defendant.

The evidence was abundant that plaintiff suffered severe burns of her mouth. When she complained to defendant on the next day he treated her mouth with an antiseptic. Upon her subsequent complaint he recommended that she consult a physician, which she did. The physician examined and treated her for burns of her gums, plate and tongue, and finally sent her to a hospital where she was fed intravenously. She was released after a few days but later had to undergo further hospitalization. The physician testified in her behalf concerning her symptoms and the drugs which he administered.

The evidence developed a controversy between the defendant and the physician, the former and his witnesses contending that the treatment by the physician aggravated plaintiff's condition. If this should become an issue, it would be for the jury. However, the following principle may come into play upon re-trial: "The general rule is that if an injured person uses ordinary care in selecting a physician for treatment of his injury, the law regards the aggravation of the injury resulting from the negligent act of the physician as a part of the immediate and direct damages which naturally flow from the original injury." Corbett v. Clarke, 187 Va. 222, 46 S.E.2d 327, 328. See 15 Am. Jur. 437, 438, 495, Damages, secs. 38, 84, 85. Annotations: 19 Ann. Cas. 981, which is appended to our tangent case of Berry v. City of Greenville, 84 S.C. 122, 65 S.E. 1030; 21 Ann. Cas. 516; 48 L.R.A., N.S., 116, which refers to "this simple rule"; 8 A.L.R. 506; and 39 A.L.R. 1268. Restatement, Torts, sec. 457. Hardin v. Southern R. Co., 128 S.C. 216, 122 S.E. 582, is not in conflict with the foregoing because it was concerned with alleged malpractice of a physician employed by the employer of an injured employee. See, however, the comment upon such cases in 15 Am. Jur. 496, sec. 86, and 8 A.L.R. 515. Compare Easler v. Col. R. Gas & E. Co., 100 S.C. 96, 84 S.E. 417, L.R.A. 1915D, 883, where a carrier was held liable for malpractice upon a minor who was sent by the carrier to its physician over the protest of his parent.

Plaintiff's daughter testified at the trial of the case in hand that she went to defendant to inquire as to the cause of the injury and obtain information as to the nature of the substance which he had used. Defendant was quoted in part by the witness, as follows: "He told me he must have left it in too long is the only thing he knew, he neglected going back to her and must have left it too long." Plaintiff testified that it was left in her mouth for about fifteen minutes; defendant said five or ten minutes. A fellow dentist, who testified as an expert witness in behalf of the defendant, stated that his practice in such cases is to set a time clock for seven or eight minutes, quoting, "and go back and check it. * * * I would take it out if it was burning or getting that sensitive or whatever you feel."

Green v. Shaw, 136 S.C. 56, 134 S.E. 226, 227, 48 A.L.R. 243, is helpful. There the action for damages was against a prominent physician who was charged with negligence, willfullness and wantonness in failing to properly protect the finger of the plaintiff when he treated it with x-ray to remove warts, whereby it was severely burned, requiring long treatment and deforming plaintiff and partially incapacitating her. It was also alleged that the finger was subjected to the x-ray for too long a period of time, which is parallel to the complaint of the instant plaintiff. The case was submitted to the jury which found for the defendant; it was reversed for new trial because of errors in the first trial. In the course of the opinion it was said:

"This suit was based upon certain specific acts of the defendant, alleged to be negligent, willful, and wanton. No attack was made upon, nor does this action involve, his general skill, competency, ability, or reputation. A physician might be ever so skillful or competent in a general way, or might have an unexcelled reputation, and yet be guilty of the grossest negligence in his treatment of a particular case."

The foregoing quotation is applicable to the facts of this case although here the defendant is a dentist, there a physician.

In Hyrne v. Erwin, 23 S.C. 226, verdict for plaintiff was sustained on appeal in an action for malpractice against two physicians, father and son, who practiced as partners. Defendants treated the broken arm of plaintiff who alleged that they were negligent and unskilled whereby use of the arm was lost. In the report of the statement of facts it was said that the testimony for the defendants tended to show that the physician-partner who first treated plaintiff had done all that approved practice required. Nonsuit was reversed in Smith v. Baker, 172 S.C. 75, 172 S.E. 767, and the case was remanded for trial. It was a malpractice action for damages for alleged negligence, etc., in a surgical operation and subsequent treatment. None of the evidence was stated in the report of the case but it was concluded that supporting testimony had been introduced, which should have been submitted to the jury. Of opposite result to our foregoing cases are Thomas v. Register, 110 S.C. 173, 96 S.E. 517, 518, and Dillishaw v. Bell, 115 S.C. 258, 105 S.E. 410. In the former, verdict for plaintiff was reversed and nonsuit ordered upon the conclusion that no negligence of the physician-defendant was shown and it was said that the only contention of plaintiff was that persistent treatment after complaint of pain indicated negligence. "Negligence is not a reasonable inference from bare fact that pain accompanied the treatment." Dillishaw complained of a wrong diagnosis and the court found that there was no evidence to support the allegation of negligence of the defendant-physician, either in his diagnosis or in the treatment which he administered.

The evidence in the case here will not be reviewed further than it has been above. Under it the gist of plaintiff's contention is that the substance was negligently and wantonly left in her mouth too long and without due care on the part of the defendant to observe plaintiff and her suffering during the treatment and heed her complaints. Considering all of the evidence in the light most favorable to plaintiff, as we must, we think that it is susceptible of more than one reasonable inference, and the issue of defendant's liability should have been submitted to the jury.

There has been found in our reports no case involving liability for malpractice of a dentist, but it is well settled that the duty and liability of a dentist correspond to those of physicians and surgeons generally 41 Am. Jur. 206, Sec. 88. 129 A.L.R. 101. Many decisions of other courts in cases against dentists are collected in the annotations in 69 A.L.R. 1142 and 129 A.L.R. 101, from which the governing principles are deducible. A dentist is bound to use reasonable care in the performance of professional services and to act according to his best judgment in treating his patients; but is only bound to possess and exercise that degree of skill and learning which is ordinarily possessed and exercised by members of his profession in good standing in the same general neighborhood or in similar localities. Failure to perform his duty in either of these respects is malpractice. 69 A.L.R. 1143. The burden of proof of negligence and proximate cause is, of course, upon the plaintiff. In the instant case plaintiff concedes defendant's requisite skill and learning, but complains of his alleged ...


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