The opinion of the court was delivered by
This is а death action involving a claim of dental malpractice. The specific act of negligence stressed
When ruling upon a motion for judgment of dismissal, the court must view plaintiff’s evidence as true, and draw therefrom every legitimate inference of fact favorable to the plaintiff. Applying that standard to the present case, we find that the evidence discloses the following:
The defendants, Drs. Rosenfeld and Shepard, were partners in the practice of dentistry at Hackensack, Bergen County. On August 27, 1958 Mrs. Sanzari visited Dr. Rosenfeld (hereinafter called defendant) to have a filling rеplaced. After the defendant injected an anesthetic solution into Mrs. Sanzari’s gums, she asked him to wait a few minutes because she was “very nervous.” He waited three to five minutes, began work, and completed filling the tooth in about twenty minutes. Mrs. Sanzari then rose from the chair, prepared to leave the room, and fell, having suffered a cerebral hemorrhage or stroke, as a result of which she died three days later.
The anesthetic solution injected into Mrs. Sanzari’s gums was Xylocaine in combination with Epinephrine, a compound manufactured by Astra Pharmaceutical Products, Inc. A brochure prepared by the manufacturer and accompanying each container of Xylocaine describes the nature of the solution and states that it is prepared in three ways: with two strengths of Epinephrine and without Epinephrine. The brochure further states that Xylocaine without Epinephrine is “adequate in those cases where vasopressor drugs are cоntraindicated.” Xylocaine is an anesthetic. Epinephrine is a vasoconstricting drug,
i. e.,
one which compresses the diameter of the blood vessels. It is administered in com
Mrs. Sanzari suffered from high blood pressure. From June 16, 1947 to November 2, 1956, she was treated by her physician, Dr. Arthur Greenfield, for high blood pressure, an old systolic heart murmer, chronic myocarditis and overweight. She first visited the defendant for dental work on June 25, 1956, when she was still being actively treated by Dr. Greenfield. Medical testimony showed that the Epinephrine-bearing compound injected by defendant aggravated Mrs. Sanzari’s already hypertensive condition, causing the cerebral hemorrhage and ensuing death.
The foregoing is a resume of what a jury could find on the basis of the testimony presented.
There was also testimony that at the time the defendant injeсted the Xylocaine with Epinephrine into Mrs. Sanzari, he was unaware that she suffered from hypertension. His dental records contain no mention of any medical history. However, in his deposition, admitted in evidence, he stated that it was his practice to ask all patients upon the occasion of their first visit how their “general health” was. Only if the patient told him of some condition would he make any notation upon his chart. He said that to the best of his recollection, it was his “guess” that hе asked Mrs. Sanzari how her general health was, and that since he made no notation on his chart, she must not have told him anything about her hypertension. If he had known Mrs. Sanzari was hypertensive, he would have consulted her physician before
The trial court granted defendants’ motion for dismissal at the close of plaintiff’s case on the grounds that (1) there was no expert testimony as to the method of treatment approved by dentists administering anesthesia, and (2) there was no evidence that defendant failed to obtain a history from the patient. Plaintiff urges reversal of the judgment below on the grounds that (1) if he did not establish the applicable standard of care, it was because the trial court erroneously prohibited his expert from testifying thereto, (2) he in fact did establish a standard of care, аnd (3) it was unnecessary to establish a standard of care in this case.
I.
Was plaintiff’s expert qualified to testify to the applicable standard of care?
Negligence is conduct which falls below a standard recognized by the law as essential to the protection of others from unreasonable risks of harm. In the usual negligence case, it is not necessary for the plaintiff to prove the standard of conduct violated by the defendant. It is sufficient for plaintiff to show what the defеndant did and what the circumstances were. The applicable standard of conduct is then supplied by the jury which is competent to determine what precautions a reasonably prudent man in the position of the defendant would have taken. 2
Harper & James, Torts,
§ 17.1,
pp.
963-964 (1956). “[T]he jury [thus] must formulate an unformulated community standard of conduct and match the defendant’s acts against it.” Morris, “The Relation of Criminal Statutes to Tort Liability,” 46
Harv. L. Rev.
453, 454 (1933). In the ordinary dental or medical malpractice case, however, the jury is not competent to supply the standard by which to measure the de
Plaintiff’s expert witness was a physician, Dr. Isaac M. Kaplan. After testifying as to his medical and dental anesthesiological experience, the nature and function of Xylocaine and Epinephrine, and the effect of Epinеphrine on a hypertensive person, Dr. Kaplan was asked the following questions:
“Q. Doctor, are you familiar with the general accepted practice among dentists in this area, the Bergen County area, with reference to the use of anesthetics in dental cases?
Q. Doctor, in your experience as an anesthesiologist, both in the medical and dental anesthesiology fields, is it proper practice for either the dentist or the doctor prior to administеring an anesthesia to take a history from a patient?
Q. Doctor, do you know from your own knowledge and' experience what standard of care is used by dentists in the Bergen County area with reference to the use of anesthetics?”
The trial court did not permit Dr. Kaplan to answer the above-quoted questions because, in its view, since he was not a dentist, he was not qualified to testify to the proper standard of care applicable to the dental profession.
The test of whether a particular witness is competent to testify as an expert in a malpractice action is whether he has sufficient knowledge of professional standards applicable to the situation under investigation to justify his expression of an opinion relative thereto. Carbone v. Warburton, supra, 11 N. J., at p. 425. It is generally held that the witness must be a licensed member of the profession whose standards he professes to know. See, e. g., Hull v. Plume, supra, 113 N. J. L., at p. 515; Rawleigh v. Donoho, 238 Ky. 480, 38 S. W. 2d 227 (Ct. App. 1931). The reason for this requirement is that when the subject matter testified to falls distinctly within the province of a particular profession, the license to practice imports the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion. But some facets of professional practice fall within the province of more than one prоfession. Medicine and dentistry overlap, for example, in the fields of diseases of the mouth, oral surgery, and the administration of anesthesia. See N. J. 8. A. 45:6-19, 3d par., (1) (permitting physicians to treat diseases of the mouth and perform oral surgery); N. J. 8. A. 45:6-19, 1st par., (7) (making the administration of local or general anesthetics in conjunction with a dental operation the practice of dentistiy). The above-cited statutory provisions indicate that there is a degree of mutual competenсe in some areas of medical and dental practice—of significance to the present case, specifically in the field of dental anesthesia.
It seems to us that in these areas where the medical and dental professions overlap, a physician familiar with the situation in issue is competent to testify to the accepted practice among dentists. Indeed, at least two courts have so held.
Hazelwood v. Adams,
245
N. C.
398, 95
S. E. 2d
Upon direct and cross-examination of Dr. Kaplan, the following picture of his professional background emerged: He is a licensed physician and surgeon of the State of New Jersey, maintaining his office in Teaneck, Bergen County, and a founding member of the New Jersey State Society of Anesthesiologists. From about 1941 to 1954, he specialized in dental anesthesiology. After 1954, he engaged in the general practice of medicine but continued an active practice in dental anesthesiology. In his capacity as a dental anesthesiologist, he administers anesthetics in dental operations, and consults with dentists about their administration of anesthesia. Among other things, he examines dental patients and advises dentists as to what particular anesthetic is most suitable for a particular patient. He is familiar with Xylocaine and Epinephrine; and he has administered Xylocaine with or without Epinephrine not less than five hundred times in ten years, but never in a dental case. It is his
We think that the above-outlined evidence shows that Dr. Kaplan was qualified to testify as to the applicable standard of care in the prеsent case. The facts that he is not a licensed dentist, did not attend dental school, and is unfamiliar with the curriculum pertaining to anesthesiology in the ordinary dental school, go to the weight to be accorded his opinion and not to his competency to testify. His training and experience show sufficient qualifications to allow him to state his opinion, leaving to the jury the determination of its worth. Carbone v. Warburton, supra, 11 N. J., at p: 426; Young v. Stevens, 132 N. J. L. 124, 126 (E. & A. 1944). Accordingly, we hold that Dr. Kaplan was competent to testify and that the trial court mistakеnly exercised its discretion by refusing to allow him to answer the questions pertaining to the proper standard of care to be used by dentists administering anesthesia.
II.
Did plaintiff in fact establish a standard of care without testimony by his expert?
Plaintiff also urges reversal of the judgment below on the ground that the brochure accompanying each container of Xylocaine, and admitted in evidence, was proof of the applicable standard of care among dentists. In support оf his argument, plaintiff cites
Julien v. Barker,
75
Idaho
413, 272 P.
2d
718
(Sup. Ct.
1954);
Salgo v. Leland Stanford, Jr., University Bd. of Trustees,
154
Cal. App. 2d
560, 317
P. 2d
170
(D. Ct. App.
1957);
Marchese v. Monaco,
52
N. J. Super.
474
(App. Div.
1958), certification denied 28
N. J.
If the brochure is inadmissible as proving a standard of care, is it admissible for any other purpose? Defendant denies that it is, and cites the rule in New Jersey that a technical treatise is inadmissible as evidence of the truth of statements contained therein. It has been stated that the reason for exclusion is that such evidence falls within the ban of the hearsay rule as statements made out of court by a person not subject to cross-examination.
Kingsley v.
Delaware,
L. &
W.
R. R.
Co., 81
N. J. L. 536 (E. & A.
III.
Was it necessary for plaintiff to prove a standard of care?
Plaintiff next argues that either res ipsa loquitur or the doctrine of common knowledge applies to the facts of this case and thаt, therefore, he did not have to prove a standard of care to avoid a dismissal.
The doctrine of
res ipsa loquitur
applies when it is reasonable to say that, under the circumstances, the injury to the plaintiff would not have occurred in the absence of the defendant’s negligence.
Prosser, Torts
§ 42,
p.
201 (1955); Annotation 162
A. L. R.
1265 (1946) (collecting cases). Whether the
res ipsa
doctrine applies to a given case therefore depends upon the probabilities. Where, for example, a surgical sponge is left inside a patient after an operation, it is reasonable to say the probability is that someone has been negligent.
E. g., Funk v. Bonham,
204
Ind.
170, 183
N. E.
312
(Sup. Ct.
1932);
Ault v. Hall,
119
Ohio St.
422, 164
N. E.
518, 60
A. L. R.
128
(Sup. Ct.
1928).
The doctrine of “common knowledge” is related to
res ipsa loquitur,
but there is a distinction between the two. In
res ipsa
cases, plaintiff need only prove his injury, and need not prove a standard of care or a specific act or omission. Ordinarily, the common knowledge doctrine is applied in a malpractice case after the plaintiff proves his injury and a causally related act or omission by the defendant. The effect of applying this doctrine is to allow the jury to supply the applicable standard of care and thus to obviate the necessity for expert testimony relative thereto. In other words, application of the doctrine transforms the case into an ordinary negligence case where, as mentioned above,
“We think laymen, looking at this case in the light of their common knowledge and еxperience, can say that a dentist engaged to remove a lower left second molar is not acting with the care and skill normal to the average member of the profession if, in so doing, he extracts or causes to come out an upper right lateral incisor. Expert testimony was therefore not necessary under the circumstances of this case.” Id., 32 N. J. Super., at p. 70.
Similarly, in Becker v. Eisenstodt, 60 N. J. Super. 240 (App. Div. 1960), plaintiff proved defendant-doctor must have inserted a caustic solution in her nose. The Appellate Division held that expert testimony as to standard of care in such situations is not necessary. It said, a[I]t is the type of negligence which lay jurors can appreciate without the testimony of medical experts to describe the applicable standard of care.” Id., 60 N. J. Super., at p. 246. See also Terhune v. Margaret Hague Maternity Hospital, 63 N. J. Super. 106, 115 (App. Div. 1960).
Plaintiff argues that the jury in the present case could properly have made a determination based upon their common knowledge that defendant was negligent. There was proof in the case that Epinеphrine is a form of adrenalin.
We believe that the doctrine of common knowledge combined with the manufacturer’s brochure admitted in evidence was sufficient to avoid a dismissal, espeсially in the light of defendant’s testimony that he was unaware that the drug was contraindicated for patients suffering from hypertension. The brochure stated that Epinephrine is administered with Xylocaine to prolong the anesthetic effect of the latter drug; that to achieve greater constriction of the blood vessels (haemostasis) the concentration of Epinephrine should be increased; and that in eases where vasopressor drugs (Epinephrine) are contraindicаted (dangerous) Xylocaine can be used alone. From this evidence the jury could reasonably conclude that defendant knew or should have known that it was dangerous to administer Epinephrine to a hypertensive patient. We believe that it is within the common knowledge of laymen that a reasonable man, including a dentist, who knows a drug is potentially harmful to a certain type of patient should take adequate precaution before administering the drug or deciding whether to administer it. The jury could reasonably conclude from the evidence that defendant took no precautions or inadequate precautions before injecting Xylocaine with Epinephrine into Mrs. Sanzari. Defendant said it was his “guess” that he asked her how her general health was. But his chart con
The judgment below is reversed and the case is remanded because (1) the trial court erroneously refused to allow the plaintiff's expert to testify to the standard of care accepted by dentists administering anesthesia, and (2) even in the absence of expert testimony as to standard of care, the plaintiff submitted sufficient proof to avoid a dismissal at the end of his case.
For reversal—Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Haneman—6.
For affirmance—-None.