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Neal v. Wilmoth

February 3, 1961

JAMES R. NEAL, APPELLANT,
v.
DR. LAWRENCE V. WILMOTH, APPELLEE.



Palmore

PALMORE, Judge.

This is a malpractice suit against a dentist in which a verdict for the defendant was directed at the close of the plaintiff's evidence. The only question on appeal is whether the circumstances disclosed by the testimony were sufficient to bring the case within the exception to the rule that expert testimony is necessary to support a cause of action for malpractice. The exception applies "where the common knowledge or experience of laymen is extensive enough to recognize or to infer negligence from the facts." Butts v. Watts, Ky.1956, 290 S.W.2d 777, 779. We have concluded that this is such a case.

The injury occurred while the defendant was drilling on one of the plaintiff's lower left molars. The drill slipped off the tooth, whereupon the defendant lost his balance and fell bodily into the plaintiff's lap, jamming the drill deeply into the underside of the patient's tongue. According to the plaintiff, the drill went through the tongue and into his throat, becoming so involved with the soft tissue that the defendant had considerable difficulty in extricating it. There was profuse and prolonged bleeding, sutures were required, and the plaintiff claims to have been rendered generally hors de combat for several weeks. He suffered injury to one of the nerves of his tongue and, at the time of the trial a year later, still felt pain in his neck and had no taste or sensation in the left side of the tongue. Obviously still horrified by this stark experience, the plaintiff may have tended to dramatize it, but even so it is clear that the wound he received was more than superficial.

It is said in the appellee's brief that in directing a verdict the trial court relied on Vale v. Noe, 1920, 172 Wis. 421, 179 N.W. 572, a very similar case where a patient sustained an "extensive cut and severe injuries" to her mouth and tongue when the dentist's instrument slipped from a tooth. In each case the main situs of the injuries was at the juncture of the tongue with the bottom of the mouth, which circumstances, according to the Wisconsin court, "indicates that the tongue was moved in some way from the position occupied just before the accident." A verdict for the plaintiff in the Vale case was reversed on the ground that she had not sustained the burden of specifically eliminating or negating the possibility that the accident resulted from some involuntary motion on her part. The decision was cited with approval by this court in Donoho v. Rawleigh, 1929, 230 Ky. 11, 18 S.W.2d 311, 69 A.L.R. 1135.

In the instant case the patient testified positively that he did not move his head, and he thought also, but was not quite so sure, that he had not swallowed. But as we view the matter, whether or not he did swallow, thereby causing the drill to slip, is immaterial. In this respect we cannot accede to the contention that the plaintiff's case must fall unless we ...


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