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Brumberger v. Burke

February 11, 1932


Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.

Author: Woolley

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

Alfred Brumberger is a dentist. Burke, his patient, sued him, averring negligence in attempting, unsuccessfully, to extract a tooth, in failing thereafter properly to treat the wound and in not immediately extracting the tooth himself or advising its extraction by another. Infection set in (either before or after the operations), followed by the disease of osteomyelitis. Burke had a verdict and judgment; Brumberger appealed.

On appeal the case was argued mainly on the merits as though we had power to correct errors of the jury on controverted issues of fact. We must, of course, on the errors assigned in refusing a nonsuit and later in refusing the motion for a directed verdict, limit our review to the sufficiency of the evidence, first, to submit the case, and next, to sustain the verdict, and to the correctness of the court's rulings on the evidence and instructions on the law.

The plaintiff, according to his testimony, had been suffering from toothache. He consulted the defendant who, without taking an X-ray and after administering nitrous oxide, undertook to extract the tooth. The attempt proving unsuccessful, the defendant took an X-ray, which was of little help. He readministered nitrous oxide and tried again, and again did not succeed. The defendant then administered ether and on the third attempt failed to extract the tooth. As the plaintiff had by this time been in the defendant's office about four hours, was suffering much pain, and was not in condition to stand further operations, the defendant, without prescribing further treatment, told him to go home and that within four or five days the pain would subside and, being loosened, the tooth would in time "amoliate," that is, "come out by itself." The pain growing worse, the plaintiff in three days returned to the defendant who arranged to have the tooth extracted by a specialist. This was done on the fourth day.

A later diagnosis disclosed osteomyelitis of the jaw from which the tooth had been extracted.

Osteomyelitis is a disease which is caused by invasion of the bone by germs, mainly from the mouth. A tough fibrous membrane -- the periosteum -- immediately under the gum covers the bone and normally prevents such invasion. If the periosteum is cut or broken down from some cause or other, as by a loose tooth or contact with dental instruments, and not properly treated, the bone is exposed to osteomyelitic germs, invasion of the bone sets in and osteomyelitis may follow.

Points One and Two. That the plaintiff had osteomyelitis is certain, but there were sharp issues of fact as to whether he already had it before he consulted the defendant, which was possible, or whether it was occasioned by the unsuccessful operations of the defendant, his alleged lack of post-treatment of the wound, his failure to prescribe home treatment or to advice the immediate removal of the tooth conformably with sound practice.

The defendant, by his testimony, contradicted the plaintiff on all points imputing negligence. What were the exact facts we do not know nor have we power to decide. That was the sole function of the jury, and their decision is final if based on sufficient evidence. The jury could, if they saw proper, reject the evidence of prior infection, and they could find, as they did, that the disease was occasioned by negligence of the defendant in the operations and treatment if the evidence was sufficient. That evidence need not be direct; it need only be circumstantial and is enough if it develops permissible inferences of the fact. Of course no one, doubtless not even the defendant, saw the periosteum, and consequently no one knows certainly whether it was injured by the dental instruments; but from the obstinacy of the tooth, the difficulty of extraction, the repeated attempts to extract it, the power applied, the injury to the hand of the operator, the consequent pain and pus in the jaw, there was enough evidence to support a finding that the periosteum had been injured during the operations; and upon the contention that the wound was not properly treated and the offending tooth not promptly removed, there was enough evidence to justify the jury in finding that osteomyelitis developed after the operations, that it was the sole and proximate result of an injury to the periosteum and that the injury to the periosteum was proximately caused by negligence in the extraction of the tooth and in lack of treatment of the wound.

We find no error in the court's refusal of the defendant's motion for a nonsuit or in its refusal of his motion for a directed verdict.

Point Three. The defendant assigns error in the court's refusal to charge his fifth request as follows:

"In addition to proving negligence on the part of Doctor Brumberger, the plaintiff in order to recover must establish to your satisfaction that the negligent act was the proximate cause of the plaintiff's injury, and unless the result is connected with the alleged cause as a reasonable probability, your verdict must be for the defendant regardless of whether or not the plaintiff has proven some negligent act."

The learned trial judge refused this request without comment, in the belief, we surmise, that he had covered the point in his charge. He had instructed the jury in regard to the plaintiff's burden of proof by preponderance of evidence, adverted to the plaintiff's contention that the disease "was caused proximately by the acts of the defendant" and submitted the issue not only whether the defendant failed to exercise due care but whether the disease "was caused proximately by his act" under an instruction that if they found negligence and that "the disease was a proximate ...

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