George v. Matthews

DOOLING, Acting P. J.

Plaintiff sued defendants for injuries following their alleged negligent treatment of him as a patient. The jury returned a verdict for plaintiff against both defendants and from the judgment entered thereon defendant Nixon appeals.

Nixon is a doctor of medicine and the other defendant, Matthews, is a doctor of dentistry. The first argument presented by appellant, Nixon, is that there is no substantial evidence to support the judgment against him. It is axiomatic that on appeal we cannot consider the conflicts in the evidence but must accept the evidence most favorable to respondent including every reasonable inference favorable to the judgment which can be drawn therefrom. While appellant refers to much evidence favorable to him in the statement of facts in his opening brief we will therefore content ourselves with stating that although there was substantial expert evidence which, if believed by the jury, would have amply supported a judgment for appellant, an examination of the record satisfies us that there is also substantial support in the evidence for the judgment against him.

Respondent first consulted appellant on December 29, 1952, complaining of a low back pain of several years duration. After examination appellant recommended that respondent see a dentist and respondent visited defendant Matthews. Matthews found him suffering from pyorrhea and recommended the extraction of all of his teeth. The year before respondent had consulted Matthews who had at that time made a similar recommendation. Appellant and Dr. Matthews had a common reception room and used the same office nurse and before respondent consulted Dr. Matthews appellant told him that he and Dr. Matthews had a tacit agreement that they would work together on his case. Dr. Matthews extracted all of respondent’s teeth in four visits: January 16, 21 and 28, and February 6, 1953. Some teeth broke while being extracted and Dr. Matthews left the roots of several in re

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spondent’s upper jaw. Respondent testified that Dr. Matthews did not inform him that he had left any roots in his jaw.

On January 29, 1953, respondent had a low grade fever, a rash and increased pulse rate. He called appellant to his home and appellant administered an antihistamine and an injection of penicillin. On February 6 in appellant’s office he was given another penicillin injection by Dr. Hambrick, appellant’s associate. On February 16 appellant administered another penicillin injection. There was testimony of other injections during this period but the testimony of these was in conflict. On February 20 respondent was suffering chills and fever and had a rapid pulse. Appellant placed him in the French Hospital and a diagnosis of septicemia was made. X-rays of the patient’s upper jaw were taken but not of the portion in which the broken roots were located and at no time did appellant discover the broken roots. Antibiotics were given other than penicillin and on March 5, the patient’s temperature having been normal since March 1, he was discharged from the hospital. He relieved appellant of his duties and consulted his family physician who stopped all medical treatment. His temperature went up again and on March 11 he entered a veteran’s hospital where he remained until May 20. The diagnosis was septicemia, with rheumatic arthritis, staphylococcal lobar pneumonia and staphylococcal empyema. X-rays were taken and the broken roots in his jaw discovered. Following the removal of the roots the patient’s temperature became normal and remained so, his chest cleared and the empyema disappeared. There was substantial evidence that by reason of his prolonged infection and fever respondent’s health is permanently impaired.