Carpenter v. Blancheri

BARNARD, P. J. This is a malpractice action, the defendant being a dentist. So far as material here, the complaint alleged that the plaintiff employed the defendant to extract twenty-two teeth; that after twelve teeth had been extracted an infection developed in plaintiff’s jaw; that on October 7, 1940, “the defendant injected into the plaintiff’s right arm on the inside of the elbow with a hypodermic needle, a poisonous substance, the character and quantity of which was at said time, and still is, unknown to plaintiff”; that immediately thereafter said arm became very painful and began to swell, causing the plaintiff to become very sick; that plaintiff was compelled to and did call a physician to treat his arm; that on November 9, 1940, the plaintiff was compelled to undergo a surgical operation on his arm “to remove tissue, which surgical operation was made necessary by reason of the said defendant’s injecting said poisonous substance in the plaintiff’s said arm”; and that “the said treatment administered to the plaintiff by the defendant as above described was negligent and not in accordance with the usual and ordinary practice of dentistry in San Diego County.” In his answer, the defendant admitted that on October 7, 1940, “he administered to plaintiff an intravenous injection for the purpose of counteracting and controlling infection in plaintiff’s system,” but denied all allegations relating to negligence on his part.

[186]The action was tried before a jury. In his opening statement plaintiff’s counsel stated, among other things, that he would prove that the defendant undertook to give the plaintiff an intravenous injection and that, “he missed the vein.” The defendant’s counsel then stated-that he would object to the introduction of any evidence to the effect that the defendant had negligently or unskillfully made this injection or that he had missed the vein. Briefly stated, it was contended that no such negligence was alleged in the complaint, that the complaint merely alleged an improper diagnosis and the giving of a treatment not recognized as proper by the profession, and that no evidence for the purpose of showing that the treatment was improperly administered was admissible. The court agreed with the defendant’s theory and throughout the trial sustained objections to all questions designed to show that in making this injection the defendant had missed the vein or that his manner of making the injection was in any way negligent or improper. Moreover, the court refused to permit the plaintiff to amend his complaint by alleging that the defendant had missed the vein and that the injection administered by him had been negligently and unskillfully performed. This amendment was refused on the ground that it would set up an entirely new cause of action and that the request therefor came too late, more than one year having elapsed since the cause of action accrued.