LAW REPORTS.

Dominion, Volume 2, Issue 439, 23 February 1909, Page 4

LAW REPORTS.

SUPREME COURT. ALLEGED UNSKILFUL TREATMENT. DENTIST SUED BY A PATIENT. :;,;:;; AN INTERESTING SUIT. , . The'hearing of an interesting, suit in which the plaintiff was Daisy Cook, spinster, .Wellington, and the. defendant was Henry I'earson-llawson , , dontist, of Wellington, was commenced before.Mr. Justice Cooper .and special-jury yesterday. ~.- ■ s . Mr.-; Young '. appeared on behalf of plaintiff and Mr. Skerrett,; K'.C. (with him Mr. Bunny) for the defendant, .■-The statement of'claim set forth that defendant was employed in July last by plaintiff for reward to extract her.teeth. It was 1 alleged that during the operation he so negligently and unskilfully. treated plaintiff, that"'a-^tooth was allowod to fall into her ■ hrag.. ■■ ■■ Defendant, it was .. also asserted, failed to account for all the teeth that he had extracted,' and to inform plaintiff that ono was Wherefore-,plaintiff, who had,' it was stated, suffered great pain and been put to expenso for medical attendance and comforts; claimed to recover from defendant the sum of ; £501; for damages.. > ; Defendant, by his .statement of defence, , denied that he ever received .any. reward for his services.. No tooth' ; was, he continued,' allowed;to..fall into plaintiff's lungi . It was; untrue that he had been in any respect negligent , or : unskilful.:.- .■-./'■ .. '■■ ', ;

. , y. Orounds for the Claim. .Opening the case for: the, plaintiff, Mr. Young said that the claim was bound to bo of: interest ,to~ everybody. His. client was ._ a young, employed, at. Messrs. Whitcombe nnd.Tombs, and sho : helped, to support her father- and mother! who ' also resided; in Wellington. ■ Having 'the , misfortuno.to have a>.bad lot of teeth, /.she;: con- '■ suited" defendant, Vwho' arranged to extract them.. 'When she said that she: would like Dr. ■ M'Gavin "to: administer the anaesthetic; he said: ''.'You had better'havo Dr; N Anson, arid she, acquiesced. After;the operation- dofehdant, : in reply to.a question,, said that ho was positive she had 1, not been allowed-to swallow.any of the/teeth, Next day she had severe pains in tho back, aud by. tho following Tuesday she became, so unwell that her parents/became concerned.. Her sister was sent down r to. 'defendant with a message:for. him. to: send Dr. Anson... Defendant, in reply, "was , stated -to 'have said: "There is nothing .with.her at all. She , has got/neuralgia ..or: something,"-. When., do-: fondant'stated.further that Dr.: Anson. did not .go'/out,: plaintiff's sister asked hini to send another doctor'.. Dofendant, -it was alleged,;' now. remarked: "No; I. won't send .up .any doctor.; -There is' no .'ocoasioii -to do so. 1 . , .When .the sister, took home: tho me's,<agb. it, was .decided to. summon Dr'.. ; Bower-' bank,, .who:: diagnosed hmg/• trouble, '. and treated plaintiff ■'for.'pneumonia. - A On Friday ftftornoqn ; plaintiff coughed lip a tooth./ Upon, being; informed /of-/tho incident,. defendant, it ./was-/alleged,-said: "Oh ; , npnsense. . - She could, not. liave/swallo.wod it."/ Plaintiff 'was unable:;to'go to wbrk for nine : or ten weeks.;: Defendant, had'■not: expressed any ' concern/ about 1, / the' •■■matter.' /.Tbc arrahgemeiit, was 'that : plaintiff: should pay: a deposit : of- 105.,: ■aiid/thebalarico durinp; a period covering two years'.. 1 : , Defendant had-'.not Tendered- any account for. the balance. '-.If: a/tooth had slip.ped; from .the forceps defdndant should ha\;e taken immediate. steps to; recover it.- • There ■were, two .main defences to: the. olaim.'■: The first: was that'plaintiff was an impostor; the ' second was , that'; sho .".never swallowed tho , tooth, .and ; that, this -was -an' .attempt:: to blackmail/.defendant."/./ .';•,,/ ...,.■■ : /.:

r.-.fltfi";.;. Skerrott':; : All that is contained in the: statement of defence is a denial .'of plaintiff's allegations.- '::.';'.'■■■■■ V ■ .■'.:■'■'■:'■ ■"'" .His; Honour •../.Defendant njorely "■ denies ;plainti)fs,casQ..O.. v ; : '. ,-..'' .;':;','; "j- y : ':'- : . -,Mr.' -Young," resuming, paid that Dr." Bow-, p.roank, : would ■■■ say, that: defendant'.; remarked .to -hiriv -. "Thoro is 110 truth an;, the statement .whatever. - .Tho .girl is., trying 'to . blackmail me'.", Tlio'othe'r .defence,to the .action was that .defendant.;had used'all proper, precau'.tioitjv'and had notiecu guilty of any-neuli-genco, and, further,.that he.was not liablo In the jnatter. - Thero. could be no doubt, counsel-; alleged, that, dofrindant had been 'in- • attentive .and negligent: He would impress on the. jury: the fact ,t!mt professional nien, although .quite.Honourable/' did their best to coyer: up any mistake: that might have been made by bno of their number. ! •'• - : "

■.;''! Coughed Up a/Tooth; ,, ;^ x '-. (iiv evidence) stated 'that:she ,was ,24 years ofi age':.. Sli6\vas : a printer's machinist, and received 25s..per week. ■The number, of, teeth; .'which were to be extrac'ted'.was 21. When defendant; asked, her,which doctor she wished ; to , , administer '" the anaesthetic, -she replied!-"Dr; .-JVGavin,", but-defendant perto engage. pr.Ansbn. : :Upon go-' me in to .the-operating room she noticed only defendant and :Dr. ■Anßon,.biit : she. he-: lievcd ( an-assistant was also present.' Before she went home, she':said, to 'defendant:. "I hope you-.have not allowed me to swallow a tooth.'' ;•; , Defendant., replied:. ' Oh] no,' you arei; only; joking';": Some days : later, as she hadbeon.very .unwell, Dr. Bune'rb'ank was balled^'.in: She,was in great pain, and liad frequent fits.of, coughing. .On the. following Friday she coughed.up a tootlv (which she produced), her father and. mother being present .at.;the;time."- Sho had. never, seen, defendant; again until yesterday.' ..:. ' ' , :To Mr."'Slterrett: It was five years" since ;she had previously i. consulted , .a dentist. Whilst she tfas boing'placod under the ether she, thought, of .tin possibility of. a -tooth- . getting down "her throat. -' She .felt the cfieots of the accident now, and again.',cspeoi■ally'in. cold .weather. , :'; •'■ •..-.'• : '■■■-,'■■ ;./Alice-Cook, sister of plaintiff, dotailed the 1 conversations whibh'. toolc place:, between, defendant arid-her when she vii'ted him in regard to; the matter. ■'.. ■ , -. ... : Evidenep; was then given by- plaintiff's parents.'.^, ■ ■;-,••.■..■.;.;. ■■ ■'■•.. ■■■ .■ .. ... :•■-.;■.■ : ~;,■■■

,;. Precautions in Dental Operations. .:'■',. ■"' Dr.. Bpwerbank,. Newtown, stated that when ho examined plaintiff he found iiidicationsvofvlung trouble. . Ho diagnosed .the ;Bymptpms' as..'those, of "influenza: 'pneumonia.",- When he reached the house in .response to: an urgent 1 cairon the he 'found that plaintiff, who had coughed up a tooth, was-slightly, hysterical. , As : plaintiff's parents ,were greatly annoyed,'he rang up .defendant, who said, he felt certain that a tooth;had.not been swallowed, and that it looked like an attempt .to blackmail him. Witness had had six months' experience in dentistry., in the' Royal Free Hospital, 'Loridon. His opinion was that the teeth should be counted before and after the operation. If ;a, tooth wore found to be missing, a patient's ;fripnds. ought to : be informed. In ,the' case 1 of a. dental onoration he' always asked that, the s head should be placed.'loive'r. than the body. . , : r >■' .Mr. Skerrett:'Dr.-' Hewitt, a . leading, authority, says.that the patient should- be in a vertical position? Witness: I was-taught, at Edinburgh that.the- patient -should be in a'horizontal position:' '■'[■■' .-.'. ' ■■.' Was not another patient whom you attended.' in: defendant's, surgery .placed in. as.: ..vertical ... a position as . possible in as horizontal a position as pbssiblc... ■..-'. ■ .-.; ;. . : :■; ■ ..' .■ . ;: . ■■■'■ Do you give your opinion as a doctor or as a dentist?—Aβ a doctor. : You': have 'said :that\ tlie teeth should -be counted bpforo. and. after, extraction.' Is it not- the modern and universal practice for dentists; to niako a mental, chart of ' the teeth?— Not universal practice.; ~ . Is, not tho metliod which you suggest the "counsel.;,of perfection"?—l would say tho "counsel of. care." .. , ". ■ • When you saw her, was not her condition consistent with , the ; pnoumonic condition which '.-sometimes succeeds administration of an anaesthetic?— Yes. :■ V '.•'. '

The Teeth should Always Bβ counted. ~' Dr. Fyffe deposed that ho oxaminod plaintiff in November. At that time ■ her lunß was, not quite 'well, but , it was probably all right now. . . ' ' . ■'. ■ ■' " • . '; --Which is/tho safest position in which to place a, patient -whoso tenth aro' about' to be oxtrnotea -under-'--an ' anaestheticP—Lying prone with head on ono' side. ■

Do you Know Dr. Hewitt, tho author of tho work referred to by Mr. Skerrett?— Yes, ho taught mo how toadminister anaesthetics. Wliy is the position which you have described .the safnstP—Bcoause if a tooth slips out of the forceps it will fall into the cheek. Do you think a patient's teeth should ho' counted?— Yes, before and after tho operation. - : : ... .-. '■ . ..■■■.. •'■" What danger is a patient in if a\too'th has fallen clown the throat?—ln coughing up the tooth the patient might got suffocated. Then again diseaso may follow after the tooth has been recovered. :.'■ ■ Mr. Skorrett:. Do you suggest that it" is not proper for an anaesthetist to raise a patient'sl head after tho administration of the anaesthetic?— There are two recognised "schools." For myself I ask the dentist not to raise tho head. ' ■.'■"'■"■. ■'■ ■ ■ Is not Dr ; Anson as,' experienced in the administration. of anaesthetics as any doctor practising in, /Wellington?—l should say so: ■-_' •■■■■■ ■■-. -.-■•■ .'-.-.- ■■':'■■'. ' Dr. M'Gavin, who was present when Dr. Fyffo; examined "plaintiff,'-':, said the usual practice; so far as he had observed, 'was for a dentist to. place the .'extracted, teeth oii.a towel or some other convenient place. Ho was of opinion that : if a". tooth were missed' the friends :of th? /patient should bo informed, so that if the patient became unwell the doctor who was summoned might bo told-about it. The location" of a whole tooth,- but not that, of a, small fragment, could bo determined, by means of the-X rays. Whether the tooth could .be recovered or not. would'depend, on ciroumstances. Tills closed the case for.tho prosecution.

/:' Defence to the Action. : ; : Mr. Skerrett,: in opening- the case for the defendant,,", said that if it wore found that, the tooth.:did pass into the body of plaintiff, it. was'a most unusual and accidental occurrence. - When he heard that plaintiff was. unwell., after the. operation, defendant was under; : ho obligation to send, at his own. expense, .a medical man: to examine , plaintiff. -Defendant had. no reason whatsoever to, suppose that a tooth had passed into plaintiff's lung. It hud to be remembored that - Dr.. Anson was present throughout the operation. 'Defendant- had earned theroputatioh 'of being. an .oxtremely careful and; skilful dentist. If a verdict were returned, in favour of plaintiff, no doctor or dontistvcould perform an operation without risk of an action for alleged unskilful treatment, no- matter how careful ho might bo.-. ,;.' '.■:;:■ '■•.'■....;■ "..--. -,'-. ,-;,- . ■". ,-". Testimony of the. Anaesthetist. ;: ;

.'■ Dr. Ansori, the" first witness for the :de./'stated that he had been in practice in Wellington' for 16 years, and was now residing at ;liower-Hutt; ; ; When.he, administered the/ether, the patient was nearly oreot, He; believed that' when a dental : oporation was to be' performed, and ether was to bo, used;.;the,patient should be placed as nearly as , possible erect.' Ether, had few dangers, : but it :,did . riot ."■ produce, heart failure. ''Every'tooth was accounted fot,exceptingl one. which flew out-of the-iorceps, and struck the right'lens .'of his. glasses "so hard that 'he thought that it was'broken. Curiously enough those present did not hear this tooth/fall , , to : tho. floor* His impression at the' time . was. that the":'tooth'- fell on to the. patient's dress. If the tooth had fallon 'into; the, lung, he would have "heard a cough, or observed .some other:manifester•tion.;. .It;Troii]fl;..haye;.'-beon wrong .to have stopped.the 'operation !: and searched for the ■toothy as .the; chances were n million to one that it, would not have got : back :into" the mouth; 1 -,:rv ■-.; '■■■'-.- '\ -■■;;,.:■,:..;:..;■■;;■;- Mr. : :-YoHng.: ; Should not defendant :; .have pearohed.for the tooth afterwards?—l doii'.t think that; there was any .necessity for 'him' to do: that:.;, :;V..;v-; ;\ ■:■.:■'' y...-■;.-■ : r .-,..;:■• . ; Is: it .not a .fact that;a ',' tooth! may-be swallowed ; ,without j any ; Oases, of. tho' kind-are-; recorded.-- '. : . :■ ' u ] d ■:&'■ not have• beeiv a"prudent acton •. defendant's part: to tell ■ plaintiff that a tooth' was'.-.raissingP—l do .not think so'. ; lnero. was 'nothing-to lead us .to suppose that..it had re-entered, her mouth;' : ' .'■ '. Then -. if.: tho tooth was coughed iip you can t account for how. it 'got into her lunc? -r-Mo,' ' V '■.■,•,' :;■ = ■ ":■■"■:'■:■-'. " ; .' ; " :: "■'■'.■" '■-■'■!■ '■■:■■ . ;

;•;-.■■; What- Bocama of ■ the Missing Tooth ?;; : : ; ; ; . Defendant, (sworn):'gave'evidence-.that -ho hadj been in practice- in 'Wellington. for thirty years....-.■ As far: as he: remembered, rciintiit duTnot .say■■■that,".she wishad any particular doctor. to. administer the anaesthotic. 'He followed -~ his usual. pra'oticeViu cohnectioii' witlr the bneration. It:.was his custonv to place the:patient , in,a vertical/pbsitibn with : head turoe<l. to. one side;- :v One of) the bicuspid ■teeth,was,ver,v firm. He heard, a whiz, and, turning rouiid, saw. that it had struck: Dr : Alison's, glaasos.. .Before the patient .was placed under the,anaesthetic he made a meutal map of .the ; patient's teeth.',, There was : no manifestation, throughout .the operatiaii of; anything having : passed into.tho larynx. When rumtiff's sistdr ! told'..him ■ that plaintiff was unwell,- he-saw Dr/Anspii, who said .it ..was. probably,■neuralgia. ■ This■ was ■ the' first patient', .wlio,; had asserted .that 'she "had cpughed.i.up'.'a tooth; after':an operation: per-' formed:: by.. ..him...'..' : •' -' '•.•■ -. .j.: :■; : ;

,v-To Mr, Young: His impression was that 'the.'tooth ricoclietted ; after it.■"struck Div Alison's : glass(>s.;;: He never thought' for , ' one moment that .tho tooth-re-entered plaintiff's mouth::,: There' was a vague: possibility that the tooth did 20 down her throat'; ■'When'-he' heard that she was ill he did not send word fa her .about; the tooth whichstruck; Div Anson's.glnsse's, and was not seen afterwards. .-.■{•:;: .Expert Evidence and Humour; ■:; ;:

Dr.-James said .;it was very .iniprobable that'. a tooth could enter the , larynx without some manifestation. ■'.. ■". : .'v"- ! '■■'".'■• ■'■'■■■:' ' .Mr. Young: Supposing that jn .the!'case ■of-- an. abdomenal operation a-doctor 'left a, sponge in the'body, would: that not be negligence on :his part?. ■ ' .>''. ;; :; ..■..- ' His. Honour; If suoh- a'"thing were shown ■in.■ pvidenco I would, direct a -jury "-'that the doctor had boon'negligent.: .v .. : .- : : . •'. Mr. Young (to witness): It -would:not' be satisfactory if the doctor, said .that, he saw tho sponge, hit somebody's glasses?,' ■-'-.: Mr.. SkerroU".' Or. that somebody saw him : throw',it at the-nurse?..-(Laughter.). \■; .;'-. . Witness: I .cannot: see any analogy : between the case of the sponge and the suggesition that a- dentist', should' count all the teeth. ,;--'.-;0 ■;.■.■..■., '.;,•; •;-.'-■■ ' -,-.;: .'..i:./•-:;';\.'..

. Continuing,'■ witness stated that ho ; did not profess; to''know, anything about practical dentistry. ..■': ;■■■..;;.;.. .;; - : ■.-.-....■ •■-.-. .:.Dr. Napier.'M'Lean gave evidence similar, in-effect. '(■'■-.■■■,\'-..'-..-..'■",:'.- ■■■.'•. '.'.'- -'.'.'.•:'•■ ■'■ /.■ "Dr. Jones,.doctor'of dentistry, stated that the operation; had been carried, outi j n '. the regular manner.;. It was not the. oustom-to prepare a.written chart effthe.teeth' to-be extracted. , .He always kept a check on-tho teeth as-;they- wore taken,out, .but-did notcount them,/ There was a possibility that a bicuspid, would rebound off. something into the moutfv but it was highly improbable ~*'» stage- the Court ; adjourned until 10.30 thia mbrnina: ' .' ;■: . : .....: ;. :.".':.'.:. .-'■■ ■' f < .'-. ' ..,-;. ■:. .' .-,;■■'■■ ' : :y\ .■■;;■■ ■;,':iN::BiNCQ.;i ; -.'V;'.; ; '^;; in' Banco yesterday ',Mr..' Justice Cooper heard an application brought on behalf, or the-Wellington 1 District Law Society 1 to strike the namo of Chas. Edward Harden off the roll ..of barristers ami solicitors, .011 the of alleged misappropriation of £250 moneys belonging to a client. iHarden was, it will bo remembered, tried for the allogod offence, at the sittings of the Supreme Court,- held at Palmerston North, on- September 12 last. : ,■: . ".-■■;. ;..--.. ■:-.•.-■ Mr. Gray, who appeared on behalf of the Law Society, formally moved that the rule nisi granted on December 8 be made absoluto;". •;.■.■■ • ■ .': '.-' . •:■•:■ .:-. •,•;.- ■ Mr. Skerrett, K.C. (with him Mr. Ostler), who appeared on behalf of Harden, consenteil to tho matter being referred to the Court of Appeal for consideration. His Honour reserved the matter for the decision. of, the higher Court, and ordored 'that-in .the meantime Harden should bo suspended from, practice. . .