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Barbire v. Wry

Decided: June 26, 1962.


Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.


In a medical malpractice action plaintiff seeks to reverse a judgment entered on the verdict of a jury in favor of defendant in the Superior Court, Law Division.

Defendant is a physician licensed to practice his profession in this State since 1926. He testified that he engaged in "general practice" and "general surgery." Plaintiff was under professional treatment by defendant at the latter's office on May 26, 1959 when, plaintiff alleges, he was injured as the result of defendant's negligence. It was not disputed that plaintiff's injury had occurred when the metallic end of an irrigating syringe, used by defendant while treating plaintiff, became "separated" and forcibly struck the "middle" area of plaintiff's right ear.

Preliminarily, we desire to note that in order that we might properly assess the factual situation we have examined the entire transcript of trial, many portions of which were omitted from the appendix. The basic circumstances surrounding the happening of the accident are clearly revealed by the record before us.

Plaintiff's ears required irrigation for the removal of "impacted wax in his ear canals," and defendant on the aforesaid date undertook to so treat him. In the course of such treatment defendant prepared a solution of soap and water in a receptacle and filled a syringe with the solution. Defendant had used the same syringe (which was received as an exhibit at the trial) "three to six times a week" for over 30 years. The syringe had a metal tip, handle and plunger and a pyrex barrel. The syringe had been repaired on December 12, 1957. However, defendant testified that he was unable to recall "whether the whole barrel" had been broken at that time but thought that the break was "in the glass portion, the exact nature" of which he was unable to describe.

We return to a description of the circumstances surrounding the happening of the accident. Defendant placed the end of the syringe in plaintiff's right ear and injected the solution. During the course of that procedure and after approximately one-half of the contents of the syringe had been so injected, the syringe broke and the metal tip forcibly struck the inner area of plaintiff's ear, causing physical injury for which he sought compensation. Defendant's personally dictated description of the accident as set forth in the records of the hospital, to which plaintiff was taken on defendant's advice, was as follows:

"Patient presented himself at the office stating that he was having difficulty in hearing out of both ears. Upon examination of the ears it was found that he had some soft, impacted wax in the right ear, completely obstructing the ear canal. And in the left ear it was less so. During the process of irrigating this ear, the right ear, an irrigating syringe separated itself, the finger portion releasing

itself from the barrel portion and the metallic end crashed into the middle ear. The patient immediately became vertigous [vertiginous], nurse grabbing him and laying him upon the floor. He was in a sitting position preceding this. He had pronounced vertigo, nausea and vomiting at least his entire supper. This process went on for about one hour at which time the patient appeared pale and sweaty. He did not go into any shock. It was thought best to remove him to the hospital for over-night observation." (Emphasis supplied)

Numerous reasons are assigned by plaintiff's counsel in support of his contention that the judgment entered on the aforesaid verdict of the jury should be reversed and a new trial granted. We find it unnecessary to recite them as the judgment herein must be set aside and a new trial granted because of error in the court's charge. A significant error, not raised by plaintiff, but which we deem so grave as to require the application of the "plain error" rule (R.R. 1:5-3(c)), is initially considered.

The trial court charged the jury in part as follows:

"Originally this was a combination malpractice and negligence action but the malpractice phase was not proved and was withdrawn, so you don't take into consideration at all any matter of malpractice, lack of a doctor exercising a degree of care, the standard of care that other doctors of similar training and circumstance would exercise. The medical phase of it has nothing to do with this case at all now, the malpractice item. It is purely a negligence action and plaintiff contends solely that Dr. Wry was negligent in the irrigation of his ear, in his conduct in irrigating and using that syringe and as a result of his negligence the plaintiff was injured. Dr. Wry, the defendant, denies that he was negligent and denies that he was the cause of that occurrence and the cause of that happening and the cause of the plaintiff's damages.

Therefore, the gist of this action and the law governing and controlling this action is the law of negligence and you have to know and understand what is negligence at law and what is the negligence that is applicable in a case of this type to determine that issue of liability in this case.

Now, generally speaking, in our relations with one another, each of us is obligated at all times to conduct ourselves with that degree of care under the circumstances then existing which an ordinary prudent person would exercise to avoid injury to ourselves and to avoid injury to others, and out of the general principle comes the law of negligence. So at law, as we are ...

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