Kellogg v. Gaynor

SHINN, P. J.

Defendant Edris Gaynor, as administratrix of the estate of Joseph Gaynor, deceased, appeals from a judgment entered on a verdict rendered in favor of Frank Kellogg, plaintiff, in an action for alleged malpractice of her intestate.

Kellogg sustained injury to his nose in an accident some 23 years before this action was instituted. He underwent slight corrective surgery for a deviation of the right septum, after which he experienced no difficulty in breathing. In 1949,'Joseph Gaynor, a medical doctor specializing in plastic surgery, performed corrective surgery on respondent’s nose and chin. The purpose of the operation was to narrow the nose, to remove a hump from it, and to accentuate the chin. Because of unsatisfactory results, Dr. Gaynor performed a second operation on respondent’s nose in 1951, followed by postoperative aftercare as in the first surgery. Plaintiff remained unsatisfied as to the results on his nose and chin. Dr. Gaynor did not perform a second operation on the chin, having advised plaintiff that it would resume its normal shape after a period of time. The chin was characterized by mobile pieces of cartilage, and the nose, even after the second operation, was concave with a bulbous tip, and the passage of air was impaired. Plaintiff instituted this action shortly after the death of Dr. Gaynor in 1951, his claim having been rejected by defendant.

In the first cause of action plaintiff alleged damage to his nose and in the second cause of action, damage to his chin. Defendant’s motion for nonsuit as to the first and second causes of action was denied and her motion for a new trial also was denied.

Appellant contends (1) that the court erred in denying her motion for nonsuit as to the second cause of action and (2) that it was error to refuse her requested instruction that it was to be presumed that Dr. Gaynor exercised due care in rendering his services.

Dr. McDowell, plaintiff’s expert, testified that in his opinion

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the services were not rendered in a manner consistent with the care and skill usually employed by qualified plastic surgeons in this community. He gave as his reasons for his opinion that too much tissue was removed from the nose, uneven implants had been placed in the chin, and scars placed in improper directions and locations and he stated: “The results I feel are certainly below the results that you ordinarily expect from a capable plastic surgeon.” He further testified that further surgery would be recommended, but that good results could not be assured because the condition of plaintiff’s nostrils was such that normal passage of air through them could not be guaranteed.