Opinion
Hearing Granted by Supreme Court June 23, 1927.
Appeal from Superior Court, San Bernardino County; Jesse Olney, Judge.
Action for negligent treatment by a dentist, brought by George M. Dimock and wife against Goodman A. Miller. From an adverse judgment, defendant appeals. Reversed.
COUNSEL
Swing & Wilson, of San Bernardino, for appellant.
Earle M. Daniels and Julius V. Patrosso, both of Los Angeles, for respondents.
OPINION
NOURSE, J.
Plaintiffs sued as husband and wife to recover damages alleged to have been caused by the negligent treatment of the wife by the defendant, who was a practicing dentist. The cause was tried before a jury, which rendered a general verdict in the sum of $6,000, and from the judgment following the verdict the defendant has appealed upon a typewritten record.
The charge of negligence is based upon the claim that in giving to his patient a hypodermic injection following the extraction of two of her teeth the defendant failed to sterilize the skin at the point of injection, failed to sterilize the hypodermic needle, and used impure water in the morphine solution. The facts of the case are that Mrs. Dimock had been suffering for a number of years from imperfect teeth, and that on January 23, 1923, defendant at her request performed an operation, extracting two teeth which were imbedded and one of which was badly infected. On the evening of the same day defendant called at the home of his patient and cleansed the cavities, thereafter administering a hypodermic injection to ease the pain from which she was suffering. This was repeated on the following morning and again on the following afternoon. The manner of administering this hypodermic injection on the afternoon of January 24 is the basis of plaintiffs’ charge of negligence. It is claimed that the defendant used an ordinary bulb syringe to cleanse the cavities from which the teeth had been extracted, previously having mixed in a glass a solution of warm water and salt; that after he had used the syringe in cleansing one of the cavities he immersed the syringe in the water again and cleansed the other cavity, and thereafter called for a spoon with which he dipped a small portion of the water from the glass, using this to dissolve the morphine tablet. The hypodermic needle was then filled with this solution and injected into the right forearm of the patient. A small red blot soon appeared at the point of injection, and this continued to increase in size until it was found that the patient was suffering from infection throughout the arm and incisions were made and drains inserted for the purpose of eliminating the toxins.
Some evidence was offered that the injection may have been given in this manner. The testimony of the defendant as to what actually occurred at the time complained of is:
"I called for some sterile salt solution, and George Dimock brought this to me, and I took a satchel I had carried in which I carried all my instruments to and from the office to the place I am visiting, and out of the satchel I took a clean, sterile water syringe wrapped in a sterile towel and washed out with one filling of that syringe-the syringe holds two ounces, sufficient to wash small wounds of this character. I took this sterile syringe and inserted it in the glass and washed out the wounds in Mrs. Dimock’s mouth, and she expectorated in a receptacle. In doing this she complained of extreme pain, and naturally being anxious to alleviate that pain as quickly as possible-previous to this George had brought a spoon and I went back into this satchel and undone a sterile hypodermic syringe, which had been inclosed in gauze and boiled in that gauze-and by the way, it was boiled long enough to make it sterile-and that it is never opened until I am ready to use it. The needle is attached. This is the packet the nurse prepared. This syringe has not been undone since the boiling. There is the syringe and the condition the syringe is in when used. It has a platinum wire to keep the needle from filling up. I took this needle from the sterile packet in which it had been boiled. *** I inserted the spoon into this sterile solution, took about 15 minims of the sterile solution into the spoon, dissolved the tablet in it, put the needle into the spoon and drew the solution in the syringe, expelled the air, and took this piece of sterile gauze and wiped the arm and inserted the needle into the right forearm and gave the sterile injection."
Mrs. Dimock suffered severe pain from the infection in her arm, and was unable for a considerable time thereafter to make use of it in the ordinary way in the performance of her household duties, and there was some evidence that she was not able to use the right hand in sewing, the calling from which she had been earning about $50 a month prior to the injury. The plaintiffs sued for $20,000 as personal injuries sustained by the wife, $500 as loss of her earnings as a seamstress, $1,029.95 expenses incurred for medical treatment, and $5,000 for loss of services by the wife in the performance of her household duties.
Aside from the criticism of certain instructions given the jury, the position of the defendant on this appeal is that the evidence wholly fails to sustain any charge of negligence. It is pointed out that though the respondents rely upon the charge that the appellant failed to sterilize the skin and the hypodermic needle and that he used impure water in preparing the injection, there is no proof of any character that at the time of the injection the skin was not sterile, or that the hypodermic needle was not sterilized, or that the water used in preparing the injection was impure. This challenge is not met by the respondents, and an examination of the record fails to disclose any evidence tending to prove any one of these three elements. The respondents in their brief state that all the physicians who were called as expert witnesses without exception testified that the preparation of the hypodermic solution in the manner outlined was "improper and negligent." Citations are made to the printed transcript purporting to bear out this statement, but in each and every case the testimony is not in the record. It is also stated in respondents’ brief that all these experts (with two exceptions) testified that the injuries sustained by the respondent were caused by the hypodermic injection. Here again the record does not support the statement made. The testimony of the experts in this respect was that the preparation of the hypodermic solution in the manner claimed by the respondents was not "good surgery"-a matter which does not require medical testimony to prove. When, however, they were asked to testify whether the subsequent infection of the arm came from the hypodermic injection, they all, without exception, testified that it was impossible for them to determine that upon the facts before them. Some of these witnesses testified that from the subsequent history the hypodermic may have caused the infection; other testified that from the entire history of the case it was just as probable that the infection came from germs carried from the infected teeth through the blood as it was that it came from the hypodermic injection. One witness testified that, assuming that either the hypodermic needle or the solution used was not clean, it would be far-fetched to say that the subsequent infection came from any other cause than from the hypodermic injection. All the physicians called as experts conceded that the infection might have come from either the hypodermic injection or the infected teeth, and all refused to say that in this particular case it came from either one or the other cause. One of these witnesses testified that the fact that no pus formed at the place of the hypodermic injection until the seventh day thereafter and that the patient had no fever until the fourth day thereafter was a strong indication that the infection came through the blood from the teeth and not from the local injection.
Cases of this character can be established only by the testimony of experts (Hesler v. California Hospital Co., 178 Cal. 764, 174 P. 654), but even such testimony is insufficient when it fails to prove the essential elements of negligence. The mere fact that a more scientific or more sanitary method may have been employed is not in itself sufficient to prove that the method used was negligent. Thus, evidence of what is not "good surgery" or of what is "bad technic" does not prove negligence on the part of a physician within the rule of the authorities in this state. In cases of this character it is required that the physician or surgeon in the practice of his profession shall possess and use "that degree of care and skill ordinarily possessed and used by physicians and surgeons in good standing practicing in the same locality." Markart v. Zeimer, 67 Cal.App. 363, 368, 227 P. 683, 684; Hesler v. California Hospital Co., 178 Cal. 764, 174 P. 654; Perkins v. Trueblood, 180 Cal. 437, 181 P. 642.
It was said in Leighton v. Sargent, 27 N.H. 460, 474 (59 Am. Dec. 388), which is quoted with approval in Hesler v. California Hospital Co., 178 Cal. 764, 766, 174 P. 654, 655:
"It is never enough to show that he has not treated his patient in that mode, nor used those measures, which in the opinion of others, even medical men, the case required; because such evidence tends to prove errors of judgment, for which the defendant is not responsible, as much as the want of reasonable care and skill, for which he may be responsible."
It is true that the rule of the cases just cited is not without conflict. It is, however, the accepted rule in California, New York, and many other jurisdictions, and in Hesler v California Hospital Co., supra, our Supreme Court said that "the law on the subject of care and skill required of physicians in the treatment of patients is well settled," and then quotes with approval the rule stated in Pike v. Honsinger, 155 N.Y. 201, 209, 49 N.E. 760, 63 Am. St. Rep. 655. We have not found any California case which expressly applied the rule to cases involving professional treatment by a practicing dentist, but in Robbins v. Nathan, 189 A.D. 827, 179 N.Y.S. 281, and Van Epps v. McKenny (Sup.) 189 N.Y.S. 910, the New York courts have treated dentists the same as physicians and surgeons, and have held that where negligence is claimed as a result of their professional treatment they are governed by the same rule.
With this the rule which must be applied to the case at hand, it was incumbent upon the respondents to prove that the methods used by the appellant in giving the injection did not conform to the degree of care and skill ordinarily possessed and used, under similar circumstances, by dentists in good standing practicing their profession in the locality of the city of San Bernardino. We have searched the typewritten record, but have failed to find any testimony or evidence which even remotely bears on this essential issue. Proof of what, under other circumstances, might be condemned as not "good surgery," "good medical practice," "good practice," or "poor surgical technique," does not tend to prove any of the elements of negligence necessary to be proved in a case of this kind.
As the cause must go back for a new trial, we deem it proper to add that appellants’ criticism of instructions numbered 7 and 12 is good, because in an action of this kind, where four distinct items of damage are pleaded, the jury should be told that the amount allowed for any one item could not exceed the amount demanded for that item. Such an instruction should be given even though, where special verdicts are not requested, the amount allowed under each item need not be specified in the general verdict.
Criticism is also made of instruction No. 24, which reads:
"If you shall believe from the evidence that the plaintiff Zula P. Dimock before the injuries sustained *** performed services for her husband *** and shall believe that she has been unable, since said injuries, and will be unable in the future, to perform the same services by reason of any disability resulting therefrom, then I instruct you that *** you should find for the plaintiff George M. Dimock such sum in damages as will reasonably and fairly compensate him for such losses."
The criticism is that because of the provisions of section 3283, Civil Code, authorizing an award of damages for detriment resulting after the commencement of the proceedings "or certain to result in the future," the jury should have been instructed that it was necessary for them to find from the evidence that a condition of permanent or future disability was certain to result and that this matter could not be left purely to conjecture. In Saylor v. Taylor, 42 Cal.App. 474, 183 P. 843, an instruction using the language, "but in case you find from the evidence that plaintiff is liable to continual suffering, and is liable to future mental anguish and bodily pain," was held error as not coming within the rule of section 3283 that damages for future suffering or detriment must be based upon detriment "certain to result." To the same effect are Melone v. Sierra Ry. Co., 151 Cal. 113, 91 P. 522; Pouchan v. Godeau, 167 Cal. 692, 696, 140 P. 952; Richman v. S. F., etc., Ry., 180 Cal. 454, 181 P. 769. In the Melone Case it was pointed out that the true rule was stated in another instruction, but the Supreme Court held that this merely created a conflict and required a reversal. In the same case the court quoted with approval the ruling in Pennsylvania Co. v. Files, 65 Ohio St. 403, 62 N.E. 1047, condemning an instruction advising the jury that they might award such prospective damages "as they believe plaintiff has sustained or will sustain."
Judgment reversed.
We concur: KOFORD, P. J.; STURTEVANT, J.