THE DENTAL CASE.

Dominion, Volume 2, Issue 524, 3 June 1909, Page 2

THE DENTAL CASE.

CAS IN MAJOR OPERATIONS. CLAIM TOR .£5Ol. DAMAGES. THE JURY FIND FOB THE DENTIST. After oßfiipyng two dn.va and a half, tii« hearing of the. cuso between Koso Galviu (whe was represented by Mr. Gray, with him Mr. O'Kogan) and T. E. IC. Burgess, den'M (foi whom Mr. Skerrett, K.C., with him Mr.' Stout, appeared), was concluded beforo Mr. Justice Gooper and a special jury of twelve yesterday. This was u claim for JJSOI damages in respect of alleged negligent and unskilful treatment. 11l 1' ebruary, 1907, defendant extracted twenty-eight of plaintiff's teetli under gas, J laintifl alleged that when the operation was concluded, she had a pain in her left lunp Asshe became worso slio consulted Dr. Cahili lrom time to time. Her cough gradually bo." came worse, and she was compelled to give ■ up her employment. Eight months after tile ' operation she coughed up a tootlrin the presence of her sister. Defendant replied that he exercised every caro and skill during the operation.. ■ . Kecalled 011 behalf of defendant, VV. H. Didsblirj", surgeon dentist, slated that the tooth-in ?eftn»!l,!" lS 'r'i nl t y t th, l, an t? 1 ' ior ' I ' ootof Slower RTiliioiJf ? tooth, it appeared, had been had iL ,„ Cl i roual A deoay - formally the molar ' H,. ? ts " A \ a rcsult ° f the process of , separated 100 WOuld ' iu timD ' bccome ticiiHr G tonVl, S^' V 115 lll ° P° sit '°n of that paxWtLir^ n J°H r ,°™ mouth? • (Laughter.) ° aU lluvo lost botl i of them. Counsel; And you nro a dentist tnr> I Address by Defendant's Counsel. Mr.-Skerrett said that lie would not hare addressed the jury, but for the fact that it' of" the^StoV/P^ erat « the importaaci of the case to - the defendant. • Counsel lor tin other side had referred to the fact that dc. of W ? S f a Petitioner. As a matte* Mm . , . 1 been connected with ,ie dentistry profession for nineteen yea™ had been qualified for seven years and Q boen in practice at the Hme for oVa ing°C'onfrnti " lat " mi S ohinc<! occurred duri nellicence It " Wa ?' of A tself ' " ot P™of ol %.%•** - obo removed at one sitting under gas But i. $ a o ada^ g^ p^ SLiT 8 , ~nn^ro« B than - the' nasal ill auction Tf WaS ? U ' P '-° red , on the°oocSi nlaintiff rliirin* t| 'iijury had accrued to piaintiif during the administration of tho ear httvn Bl i«.fn 5 ' ?' a iH lird assista nt should relflW T?IT n i ' I>erlla P s h"™ boen relevant.. The-fact was that all tho witnesses aSnnf i llad testified that a. third ■ assistant uas not necessary, Neod of Proof "Right Up to the Hilt" ' \i. Th , e ,W ioll , t , hat a ii n Eor or piece of cloth 1 should bo placed) at the back .of the mouth to prevent a tooth being inhaled had not been Dr PP ls?n V) f aDs i °f tllo . ~ vitnef, s es excepting Vi. i'jffo. Defendant could not deny that th tooth was inhaled,' bccnuso lie did not knot whether or not that was the case. Owing to the fact that ,no complaint was made fa seventeen months—for eight months after ■ i was coughed up—defendant was not in a nosi. u 1 tlw jury iu that respect. H< nould submit that the jury ought npt to sur. mise or to guess that the tooth had been iuhaled during the operation. The strange lliint about tho matter .was that, if the tooth enterei ' the lung, septic symptoms of a Berious naturt did not immediately arise.- In conclusion, contended that as such a grave charg< of negligence and misconduct had been levelled against defendant, judgment should not bi given against him under the circumstances un> jess it were proved, and proved right up t? the hilt. . |. . Plaintiff's Counsel Replies. Mr. Gray" said that- if defendant had suggested that the anaesthetic Bhould havo been administered by a medical man, was it' reasonable to suppose that plfiintiff would hare objected to the payment of an additional guinea? ihero was every reason Mvliy gaß "should i bo administered by a qualified assistant, when such a large number-of ,teeth were to be reJ if that had -been doue/'tkerfesponsi*' mlity.for the administration of the gas would • have rested L on the doctor,. And dofendant would ' nave had the whole of his time to extract the • teeth. The use of cas for a prolonged, operanon was undoubtedly attended good deal of risk and,trouble,~if it-were not pro. perlv administered. .It had, he submitted, been . established beyond doubt that tho tooth waa inhaled during the operation, and whqther it/ was inhaled into the lung, or, first of all, into a pouch in tho throat, was not of great importance. Influenced by tho b'elief that his practico might'bo increased, if his charges were .known to bo (is small as _ possible,' defendit was suggested, > had chosen to dispense with the attendance of nri anaesthetist. ■

"Defendant Undortook Tremendous Risk." Counsel for plaintiff pnt it to tho jury that defendant, in undertaking such a large operation, practically singlchaudod, had taken upon himself a tremendous risk! All the facts pointed to tho probability that defendant used gas alone, and that the period of unconsciousness was very muoh shorter than bad becn : admitted. Dofendant, it was contended, had not allowed him6olf sufficient timo to, draw tile teeth, and, at tho same timo, to talio precautions which would have guarded against the possibility of accident. Had defendant (as ho had stated) put his thumb and finger on either side of each tooth at tho time of removing > it from the mouth, could the' acci,dent havo happenod? under the oiroumstances the delay in bringing tho action was reasonable, and that fact oould, not havo prejudiced defendant's, position in tho slightest degree. Mr. Gray concluded by stating that it was trusted tho jury would, by their verdict, make it evident that dentists were not to bo permitted • to continue to subject patients' to the risk of accident, when, by tho adoption of precautions, which ought to bo taken, all ■danger of accident'would be avoided.

"What is "Requisite Skill and Care?" . ( His Honour, in tho course of a lengthy smis ming up, said that in a similar case at Homo, Lord Chief Justice Tindall had remarked i "What • the jury have to say, upon tho issue of negligence is whether it is satisfied wit'i tho injury sustained is attributable to tho want of.a reasonable and proper'degree'of caro and still . in defendant's trcatmont." Subsequently in tho 1 s'anio caso his Lordship had declared: "That every person who enters into a. learned pro. fession undertakes, to, bring to tlib exercise of . it a rcasonablo degree of care and skill. Ho does not undertake, if ho'is an attorney,, that at all events you shall gaiij your case, nor does a surgeon undertako that ho will perform a ■ cure; nor does ho undertake to use tho highest ' possible degree of skill. Thero may bo persons who liavo higher education and greater ad. vantages than lie lui6, but ho undertakes to bring a fair, reasonable, and contpetent degreo of ssill, and you will nay whether in this case the injury was occasioned by tho want of eucli skill in the defendant." The same principlo had (his Honour continued) been laid down by Lord , Chief Justice Erie, who had said: "A medical man (and tho same principlo applied to a dentist) ' is certainly not answerable because somo Other practitioner might possibly liavo shown greater skill and knowledge, but lie is bound to have that degree of skill which cannot, be defined, but which, in tho opinion of the jury, is a competent degree of skill and knowledge." Essentially a Question for tho Jury. What the jury had to consider was Whether, assuming that tho tooth inhaled-by plaintilt during tho operation, the accident was duo to tho want of ordinary care and skill—i.e., ■ that class of caro and 6kill which is ordinarily ' exercised bv members of tho profession, and whether ordinary skill and a reasonable 'degree of caro had been, exorcised. His Honour went on to say that tho question was essentially 0110 for tho jury to decido. • Finding of tho Jury, , Tho jury, which retired at 5.3 p.m., l®. turned at 0.27, with the following answers to tho issues which had bcon siibinitlod to it:— Question I.—Was the tooth or portion of '» tooth produced by plaintiff inhaled by plain. ' tilf during tho extraction of her teeth by defendant? Answer: Yes; and it was a portion of a tooth. ■ • Question 2.—lf so, was it through any negH. genco oil tho part of defendant? Answer: No. Mr, Skerrett:' It would bo absurd for mo to ask for costs, and I don't do so. Judgment was then entered for defendant without costs.