208 A.D. 171 | N.Y. App. Div. | 1924
This action was brought to recover damages for alleged malpractice on the part of the defendant, a dentist. It appears from the record that there was a space between two of plaintiff’s lower front teeth to the extent of about one-sixteenth of an inch. Believing that this condition was detrimental to her appearance, she called upon the defendant with a view to having it corrected. ITe informed her that, to accomplish what she desired, it would be necessary to remove the tops of the two teeth referred to and insert pivot teeth. That was done, but it was found that the pivot teeth would not remain in place. Defendant then informed plaintiff that it would be necessary to remove the roots of the original teeth and insert a bridge. Thereafter a bridge was placed in plaintiff’s mouth. Later it became necessary to replace the first bridge with another, a stationary bridge. Before this was accomplished plaintiff was compelled to submit to treatment of the gums for a long period of time, after which the impression for the stationary bridge was made. She thereafter experienced considerable pain in the gums and jaw. Defendant then removed the cusps and enamel from four teeth in the upper jaw, in order to make the spacing between the upper and lower jaw correct. Apparently this became necessary because the bridge interfered with the closing of the jaws.
Finally plaintiff went to another dentist who testified that he examined the plaintiff’s mouth and found an inflamed condition
In Pike v. Honsinger (155 N. Y. 201, 209, 210) the court said: “ The rule in relation to learning and skill does not require the surgeon to possess that extraordinary learning and skill which belong only to a few men of rare endowments, but such as is possessed by the average member of the medical profession in good standing. Still, he is bound to keep abreast of the times, and a departure from approved methods in general use, if it injures the patient, will render him Hable, however good his intentions may have been.”
In Robbins v. Nathan (189 App. Div. 827, 830) Mr. Justice Jay cox, writing for the court, said: “ I am not unmindful of the fact that in some cases the lack of skill or want of care is so obvious that expert testimony is unnecessary.” (See, also, Benson v. Dean, 232 N. Y. 52.)
In addition to her testimony, plaintiff offered that of the second dentist. His testimony alone was sufficient to warrant the submission of the case to the jury.
During the course of the trial a witness called by plaintiff refused to testify as an expert) although he evidently had been a very material witness on a former trial. It is apparent that the attorney for plaintiff was surprised by the attitude of this witness and was compelled to rely on other witnesses. The counsel for plaintiff informed the court that an expert witness was on his way to the court house from Forty-eighth street and Broadway and would in all probabihty be present in a few minutes. The court stated he would not wait for the witness and dismissed the complaint.
It may be that plaintiff was in a position to produce additional important testimony.
Considering the entire situation, we beheve that the request of counsel should have been given some consideration. While it is important that there should be no delay in the trial of cases, the pecuhar circumstances here would seem to have warranted some indulgence. However, we are of the opinion that, without the additional evidence, there was sufficient to warrant the submission of the question of malpractice to the jury.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Clarke, P. J., Dowling, Finch and McAvoy, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
