SIMONE v. SABO (1950)

From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for malpractice, defendant appeals.

The evidence being viewed in the light most favorable to plaintiff (respondent) the essential facts are these:

Defendant was a dentist who had been practicing for about eight months and had never removed an impacted second bicuspid tooth. He was a general practitioner and not a specialist. Plaintiff consulted defendant relative to his teeth and was informed that he had an impacted second bicuspid tooth which should be removed. Defendant removed the tooth and in doing so injured the mandibular nerve with the result that plaintiff has suffered numbness of his lower lip and jaw which condition may be permanent.

Testimony was introduced by qualified experts that a general practitioner in Los Angeles would not attempt to remove an impacted second bicuspid tooth but would refer such a case to an expert. The jury returned a verdict in favor of plaintiff in the sum of $2,000.

Questions: First: Did the evidence disclose that defendant was negligent in removing plaintiff's second bicuspid tooth which was impacted?

This question must be answered in the affirmative and is governed by this rule:

If under similar circumstances a reasonably careful, skillful general practitioner would have referred the case to an expert, defendant, in failing to do so, was negligent. (Sinz v. Owens, 33 Cal.2d 749, 758, 205 P.2d 3, 8 A.L.R.2d 757.) In the instant case the uncontradicted testimony of an expert witness was that a general practitioner would refer for extraction an impacted second bicuspid tooth to an expert, and would not undertake to remove it himself. Hence, since defendant conceded (a) that he knew plaintiff had an impacted second bicuspid, (b) that he, defendant, was not an expert, and (c) that he had removed the tooth, the jury was justified in finding that defendant's act was negligent.

Second: Was defendant's negligent act the proximate cause of plaintiff's injury?

This question must also be answered in the affirmative. One of the expert witnesses, Dr. Schoen, testified that in his opinion the mandibular nerve had been severed with the resulting numbness of the lower lip and jaw of plaintiff. This testimony together with defendant's testimony that he had extracted the tooth constituted substantial evidence to sustain the jury's implied finding that the proximate cause of plaintiff's injury was the negligent act of defendant.

In view of our conclusions it is unnecessary to discuss other questions presented by counsel.

Affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.