Expert Testimony vs. Lay Testimony in Dental Negligence Actions

Expert Testimony vs. Lay Testimony in Dental Negligence Actions

T h e Journal o f the Am erican D en ta l Association 624 COMMITTEE ON LEGISLATION EXPERT TESTIMONY vs. LAY TESTIMONY IN DENTAL NEGLIGENCE ACTIONS B...

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T h e Journal o f the Am erican D en ta l Association

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COMMITTEE ON LEGISLATION EXPERT TESTIMONY vs. LAY TESTIMONY IN DENTAL NEGLIGENCE ACTIONS B y L e s l i e C h i l d s , Indianapolis, Ind. N actions for damages against den­ tists, based upon charges o f negli­ gence, the question o f the character o f the testimony essential to a recovery, whether expert or lay, m ay be o f great importance. A nd here we find, as a general rule, that this w ill depend on the nature, scope and character o f the acts claimed to have resulted in the injury. Where such acts involve the science of diagnosis or methods o f treatment, the merits o f which could be passed upon only by medical men, expert testimony will usually be required to establish a charge o f negligence. O n the other hand, when the alleged acts do not in­ volve questions of professional skill or knowledge, lay testimony m ay be ample to sustain a judgment rendered upon the facts. As illustrations of judicial reason­ ing in applying the “ expert evidence” rule, the following cases are in point.

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D EN TIST B R E A K S N E E D LE

In Capolupo vs. Wills, 116 Conn. 13, 163 Atl. 454, the plaintiff requested the defendant, a dentist, to extract a tooth. A hypodermic needle inserted to anes­ thetize the jaw broke. The defendant attempted to locate the broken point both by taking x-ray pictures and by probing, but was unsuccessful, and the after-treatment failed to give the plain­ tiff relief. Thereafter, the plaintiff went to a hos­ pital, where a surgical operation was performed for the purpose of locating and extracting the needle. This too was unsuccessful, and when the plaintiff

brought the instant action against the de­ fendant for damages, based upon allega­ tions of negligence, the needle still re­ mained in his jaw. O n trial, the plaintiff’s medical evi­ dence tended to indicate that he had a partial paralysis o f the right side of the tongue. W hen water was held in his mouth, he drooled somewhat. In speak­ ing, there was a pulling o f the lips. The plaintiff’s medical evidence described his condition as a “ traumatic injury to the inferior dental nerve.” However, the plaintiff, it appears, failed to show by expert testimony that the defendant had been negligent either in extracting the tooth or in postoperative treatment. T h e trial court instructed the jury that there was no evidence of negligence in extracting the tooth. T h e court, however, permitted the jury to pass upon the question of whether the defendant had been negli­ gent in the postoperative treatment. T h e jury gave the plaintiff a verdict for $1,100 on this phase o f the case. The defendant appealed from this judgment and the higher court, in reviewing the record and in holding there was error for want o f expert evidence, in part, sa id : If we adopt the view of the trial court that the allegations of the complaint furnish a sufficient basis on which to rest a verdict upon this phase of the case [postoperative treatment], there still- remains the question whether the evidence was such that the jury could reasonably have found that the defendant was negligent and thereby injured the inferior dental nerve by what was done following the breaking of the needle.

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Reading the entire evidence, we are unable to find any evidence which can be fairly said to remove this question from the realm of speculation. There is no evidence that the attempt to take x-ray pictures and the probing and cutting were negligently done. The surgical operations at the hospital are at least possible sources of this nerve injury and there is nothing in the evidence to ex­ clude this as the cause. If there were such, evidence, the fair con­ clusion would be that the injury was caused by the attempts of the defendant to remove the needle the night of the operation. Even so, it would not follow without expert med­ ical evidence upon that point that such in­ jury was caused by the negligence or un­ skilfulness of the defendant, and there is no evidence of this character in the present record. We have heretofore had occasion to con­ sider the necessity for expert medical evi­ dence to establish negligence, whereas, in malpractice cases, professional conduct is involved. “When a topic requiring special experience of an expert forms a main issue in the case, the evidence on that issue must contain expert testimony or it will not suf­ fice.” . . . We consider the record evidence insuffi­ cient to establish negligence in this respect and are unable to sustain the action of the trial court in refusing to set aside the verdict. There is error, and a new trial is ordered. In Lindloff vs. Ross, 208 Wis. 482, 243 N.W . 403, the court reached a like con­ clusion. T he facts were m any and in­ volved, but, as far as material to the question under discussion here, m ay be summarized as follows. P A T IE N T S U F F E R S B R O K E N JAW

T h e plaintiff applied to the defendant, a dentist, for treatment. T h e defendant extracted a horizontally impacted third molar tooth. This was in August. Sep­ tember 9, the plaintiff returned and, after taking an x-ray picture, the defendant discovered and extracted another im­ pacted third molar tooth. Some infection followed this, for which the defendant treated the plaintiff.

About this time, the plaintiff devel­ oped other physical disabilities, for which he was attended by physicians and sur­ geons. December 3, after the second dental operation, the plaintiff said that, while on an automobile trip, his jaw seemed to “ pop” and blood flowed from his gum. Examination disclosed a broken jaw. T he defendant treated this and wired the jaws, and, after about six weeks, when the wires were removed, the result was pronounced excellent by the physician who examined the plaintiff at that time. Thereafter, the plaintiff brought the instant action against the defendant for damages on the theory that his jaw had been broken September 9, when the second impacted tooth had been ex­ tracted, and that the defendant had been negligent in not discovering the condi­ tion. O n trial, the defendant offered ex­ pert testimony tending to show that the fracture was pathologic and that' it had not occurred when the tooth was ex­ tracted. The plaintiff offered no expert testi­ mony that in any w ay indicated a lack of care or skill on the part of the defend­ ant in treating him. O n this state of the record, the trial court rendered judgment for the defendant. T h e plaintiff ap­ pealed, and the higher court, in review­ ing the record and in affirming the judgment, reasoned, in part, as follows. E X P E R T T E S T IM O N Y H E LD E S S E N T IA L

In order to hold a dentist liable, the bur­ den rests upon a plaintiff to show that the dentist failed in the requisite degree of care and skill. . . . The degree of care and skill which must be exercised can only be proved by the testimony of experts. Without such testimony, the jury has no standard which enables it to determine whether the de­ fendant failed to exercise the degree of care and skill required of him. . . . The plaintiff claims that his jaw was broken on September 9 as a result of the operation; in other words, that it was a traumatic fracture. The defendant, on the

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T h e Journal o f the Am erican D en tal Association

other hand, claims that the plaintiff’s jaw was not broken at that time; that the frac­ ture was not traumatic but pathologic, and that it resulted from the disease condition due to infection. The defendant and several experts testified that the fracture was patho­ logic. No attempt was made by the plaintiff to deny or contradict such testimony. It appears that a fracture may result from disease with­ out a blow, strain or force. All of the evi­ dence is obviously as consistent with that of a pathologic fracture as that of a traumatic fracture. In this situation, the jury ought not to be permitted to speculate or con­ jecture as to the cause of plaintiff’s frac­ ture. . . . [We] think the trial court was right . . . in rendering judgment for the defendant. . . . Judgment affirmed.

which the existence of expert testimony is essential to enable a jury to determine whether a physician, surgeon or dentist has been guilty of malpractice, but it is not true that such testimony is necessary in all cases. If a violation of the defendant’s duty to his patient appears from other competent evi­ dence in the case, the plaintiff might cer­ tainly refrain with safety from calling expert witnesses.

So much for the foregoing, and now let us examine some of the authorities on the other side of the question; i.e., where lay testimony was held proper in proving negligence on the part o f dentists. Here, Francis vs. Brooks, 24 O hio App. 136, 156 N .E. 609, is in point. T h e circum ­ stances that culminated in the action were, briefly stated, as follow s:

It will be noticed from this testimony that [the defendant] removed a portion of the jaw bone surrounding the tooth to the ex­ tent of one or more strips three-sixteenths inch wide, and that this was continued to the bottom of the tooth socket, which prac­ tically extended to the lower margin of the jaw. This unerupted tooth, situated in the lower jaw, appears to have grown down­ ward instead of upward through the gum, so that, according to the testimony of [the defendant], the process of removing the bone surrounding the tooth was continued until he had proceeded nearly through the jaw bone. With this testimony and that coming from other witnesses, we cannot say that the gen­ eral verdict for the plaintiff is clearly and manifestly against the weight of the evidence, nor can we accede to the contention that such a verdict could not be rendered, unless supported by expert testimony. . . . Judg­ ment affirmed.

F A C T S IN T H E CASE

T h e defendant, a dentist, undertook to extract an impacted, unerupted bi­ cuspid tooth on the right side o f the plaintiff’s jaw. T h e record showed that this tooth was so large as to involve nearly the entire jaw bone. T h e de­ fendant enlarged the socket by using a small drill. H e then extracted the tooth, but, as he did so, the root tips broke off, and in the attempt to loosen up the tips, the jaw was broken. In the suit for damages that followed, the plaintiff recovered a judgment, based, it appears, upon lay testimony. O n ap­ peal, the defendant stressed this point and contended that the judgment should not be allowed to stand in view o f the absence of expert testimony in support o f the plaintiff’s case. In passing upon this, the court first observed: It is quite conceivable that cases arise in

A fter the foregoing, the court re­ viewed the record in detail in respect to how the defendant proceeded in extract­ ing the tooth. Then, in passing upon this evidence, as to whether it would sustain the verdict, in the absence of expert testi­ mony, the court, among other things, sa id :

Another case o f this class was Ellering vs. Gross, 189 M inn. 68, 248 N .W . 330. Here, the defendant, a dentist, was fitting a bridge in the plaintiff’s lower right jaw. W hile he was polishing the bridge with an electrically operated revolving disk, the latter slipped off the bridge and cut the base of the plaintiff’s tongue. Suit for damages followed, based upon the claimed negligence o f the defendant.

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T h e latter countered with the statement that the accident resulted from the act of plaintiff in suddenly moving her head. In proving her case, the plaintiff did not introduce any expert testimony, but ap­ pears to have relied upon her version of the circumstances. This was contra­ dicted by the defendant, as far as it im ­ puted negligence on his part. T h e jury, however, gave the plaintiff a verdict for $1,500. From judgment thereon, the de­ fendant appealed and, among other things, contended that the award should not be upheld, because of the lack of expert evidence o f negligence on his part. In passing upon this, the higher court in part reasoned: The cause of the movement of the dental instrument from the bridge to the tissues of the mouth was not a scientific question. . .. It is to be borne in mind that the injury was not produced by any intended treat­ ment, so that proper practice is not directly involved. Nor is there any claim that the defendant did not use proper practice in the treatment of the wound inflicted. Re­ covery depended on proof that the wound in the plaintiff’s mouth was caused by the care­ lessness or negligence of the defendant while using the instrument mentioned. . . . Cases are cited by the defendant involv­ ing the method and skill of a dentist in extracting teeth where unlooked for injuries resulted. O f course, as a rule, it is then necessary to a recovery to prove by experts

that the method pursued by the dentist was not good practice. . . . But, as before stated, neither the instrument used nor the method of fitting the bridge is questioned, but the lack of ordinary care and skill in applying the instrument so that it entered and injured tissues not intended to be treated. In conclusion, the court affirmed the judgment on the condition that the plain­ tiff consent to its reduction to $1,000; the case otherwise to go back for a new trial. From the foregoing, it is clear that the nature of, and circumstances culminat­ ing in, a dental practice accident will be determinative o f whether expert testi­ mony will be required to prove negli­ gence on the part o f the dentist. I f the accident is such as to raise a question of whether the dentist employed proper skill, methods or care, as viewed from a scientific standpoint, expert evidence will, as a general rule, be necessary. O n the other hand, if the accident results from acts of commission or omis­ sion on the part of the dentist that are susceptible to laym an judgment, in re­ spect to whether they constitute negli­ gence, expert testimony m ay be dis­ pensed with. And, under such circum­ stances, lay testimony m ay be sufficient to uphold the findings o f a jury on questions of fact thereon. 1520 East Tenth Street.

PROSECUTION FOR SALE OF MAIL ORDER DENTURE T h e outcome of the most recent Illi­ nois case on mail order dentures indicates the use of a new and effective procedure for the prosecution o f persons engaged in the sale of dentures by mail. December 12, 1939, the federal grand jury in C h i­ cago returned criminal indictments against John and Josephine Alger, charg­ ing them with violation o f the postal laws in conducting the sale o f m ail order false teeth.

T h e evidence indicated that the Algers did a thriving business in the rural areas with the aid of a $1,000 a month ad­ vertising campaign, in which they prom ised: You can laugh with Alger teeth. You can eat corn on the cob. Alger teeth do not ache. In 1936, the year after the Algers went into business, they had receipts of