For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
[34 NJ Page 131] This is a death action involving a claim of dental malpractice. The specific act of negligence stressed
at the trial by the plaintiff, administrator ad pros and general administrator of the estate of Violet Sanzari, was that the defendant, Dr. Philip J. Rosenfeld, failed either to take a medical history or an adequate history from Mrs. Sanzari before administering anesthesia. The trial court granted defendants' motion for dismissal at the end of plaintiff's case. We certified plaintiff's appeal before hearing in the Appellate Division.
When ruling upon a motion for judgment of dismissal, the court must view plaintiff's evidence as true, and draw therefrom every legitimate inference of fact favorable to the plaintiff. Applying that standard to the present case, we find that the evidence discloses the following:
The defendants, Drs. Rosenfeld and Shepard, were partners in the practice of dentistry at Hackensack, Bergen County. On August 27, 1958 Mrs. Sanzari visited Dr. Rosenfeld (hereinafter called defendant) to have a filling replaced. After the defendant injected an anesthetic solution into Mrs. Sanzari's gums, she asked him to wait a few minutes because she was "very nervous." He waited three to five minutes, began work, and completed filling the tooth in about twenty minutes. Mrs. Sanzari then rose from the chair, prepared to leave the room, and fell, having suffered a cerebral hemorrhage or stroke, as a result of which she died three days later.
The anesthetic solution injected into Mrs. Sanzari's gums was Xylocaine in combination with Epinephrine, a compound manufactured by Astra Pharmaceutical Products, Inc. A brochure prepared by the manufacturer and accompanying each container of Xylocaine describes the nature of the solution and states that it is prepared in three ways: with two strengths of Epinephrine and without Epinephrine. The brochure further states that Xylocaine without Epinephrine is "adequate in those cases where vasopressor drugs are contraindicated." Xylocaine is an anesthetic. Epinephrine is a vasoconstricting drug, i.e., one which compresses the diameter of the blood vessels. It is administered in combination
with Xylocaine to contain the latter in the injected area so as to extend the duration of the anesthetic effect. A consequence of administering Epinephrine is to increase the patient's blood pressure. It is for this reason that the use of Epinephrine is contraindicated in cases where the patient suffers from hypertension (high blood pressure). In a hypertensive patient the bursting point of the blood vessels is reached very quickly upon elevation of the blood pressure. Only a minute amount of Epinephrine is required to raise the pressure. A stroke is the cerebral hemorrhage which results from the bursting of the vessels.
Mrs. Sanzari suffered from high blood pressure. From June 16, 1947 to November 2, 1956, she was treated by her physician, Dr. Arthur Greenfield, for high blood pressure, an old systolic heart murmur, chronic myocarditis and overweight. She first visited the defendant for dental work on June 25, 1956, when she was still being actively treated by Dr. Greenfield. Medical testimony showed that the Epinephrine-bearing compound injected by defendant aggravated Mrs. Sanzari's already hypertensive condition, causing the cerebral hemorrhage and ensuing death.
The foregoing is a resume of what a jury could find on the basis of the testimony presented.
There was also testimony that at the time the defendant injected the Xylocaine with Epinephrine into Mrs. Sanzari, he was unaware that she suffered from hypertension. His dental records contain no mention of any medical history. However, in his deposition, admitted in evidence, he stated that it was his practice to ask all patients upon the occasion of their first visit how their "general health" was. Only if the patient told him of some condition would he make any notation upon his chart. He said that to the best of his recollection, it was his "guess" that he asked Mrs. Sanzari how her general health was, and that since he made no notation on his chart, she must not have told him anything about her hypertension. If he had known Mrs. Sanzari was hypertensive, he would have consulted her physician before
administering the solution. On the other hand, he also stated that to his knowledge Xylocaine with Epinephrine was not contraindicated in cases of patients suffering from hypertension.
The trial court granted defendants' motion for dismissal at the close of plaintiff's case on the grounds that (1) there was no expert testimony as to the method of treatment approved by dentists administering anesthesia, and (2) there was no evidence that defendant failed to obtain a history from the patient. Plaintiff urges reversal of the judgment below on the grounds that (1) if he did not establish the applicable standard of care, it was because the trial court erroneously prohibited his expert from testifying thereto, (2) he in fact did establish a standard of care, and (3) it was unnecessary to establish a standard of care in this case.
Was plaintiff's expert qualified to testify to the applicable standard of care ?
Negligence is conduct which falls below a standard recognized by the law as essential to the protection of others from unreasonable risks of harm. In the usual negligence case, it is not necessary for the plaintiff to prove the standard of conduct violated by the defendant. It is sufficient for plaintiff to show what the defendant did and what the circumstances were. The applicable standard of conduct is then supplied by the jury which is competent to determine what precautions a reasonably prudent man in the position of the defendant would have taken. 2 Harper & James, Torts, § 17.1, pp. 963-964 (1956). "[T]he jury [thus] must formulate an unformulated community standard of conduct and match the defendant's acts against it." Morris, "The Relation of Criminal Statutes to ...