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Germann v. Matriss

Decided: January 19, 1970.

OSCAR GERMANN, INDIVIDUALLY AND AS ADMINISTRATOR AD PROSEQUENDUM AND GENERAL ADMINISTRATOR OF THE ESTATE OF GERDA GERMANN, DECEASED, PLAINTIFF-RESPONDENT,
v.
JOSEPH P. MATRISS, DEFENDANT-APPELLANT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.

Francis

In this action plaintiff Oscar Germann claimed damages against defendant Dr. Joseph P. Matriss, a practicing dentist of this State, alleging malpractice which caused injury and eventually death of Gerda Germann. Plaintiff, husband of decedent, was appointed general administrator of her estate and sought an award for the pain and suffering decedent endured in the interval between the allegedly negligent treatment and her death. N.J.S.A. 2 A:15-3. He sued also as administrator ad prosequendum to recover for the damages sustained by the next of kin as a result of the death. N.J.S.A. 2A:31-1, 2, 4. In a third count he sought recovery in his individual capacity as husband of decedent for the medical and hospital expenses he incurred before her death. Jury trial of the case eventuated in a verdict for the defendant. The Appellate Division reversed and remanded the action for a new trial because of errors it found the trial court had committed. Germann v. Matriss, 104 N.J. Super. 466 (App. Div. 1969). We granted defendant's petition for certification. 54 N.J. 169 (1969).

I

Since January, 1949, Dr. Joseph Matriss has been a practicing dentist and dental surgeon in East Rutherford. On December 15, 1964, Mrs. Germann visited his office to arrange for the extraction of the 11 teeth remaining in the upper part of her mouth. On that day the doctor took an impression of the upper teeth and the roof of her mouth in order to have an acrylic denture ready for insertion in her mouth upon completion of the extractions. It is undisputed that the preparation of such a denture and its immediate insertion in the patient's mouth after the extractions is a well-recognized standard practice in the profession of dental oral surgery. The denture serves a three-fold purpose: (1) functional -- to maintain a constant masticatory apparatus for the patient; (2) cosmetic -- to maintain the normal facial expression and

the normal relationship of the upper and lower jaws; (3) protective -- to supply a bandage or covering for the wounds caused by the removal of the teeth.

After Mrs. Germann's visit of December 15, Dr. Matriss ordered an acrylic denture to be fabricated in his own dental laboratory located in the same building as his office. The denture was fabricated from a mold made from the impression taken on December 15. An acrylic material in dough form was placed in the mold, boiled in water, put into a steam bath and cooked for four hours. On removal from the bath it was polished and cleansed by scouring and scrubbing with an antiseptic soap the elements of which were compatible with the composition of acrylic dentures. Immediately thereafter, it was placed in a plastic, self-sealing bag holding zephiran chloride, a disinfectant also compatible with the composition of acrylic dentures. Then the denture was taken in the sealed bag to the defendant's dental office. It was kept there until shortly before it was to be used, and as the actual time for use neared, it was removed from the plastic bag and immediately placed in a covered stainless steel tray, also containing zephiran chloride, until the moment arrived for insertion in the patient's mouth. The course described is the normal and standard practice utilized by the profession.

On December 23, Mrs. Germann returned to Dr. Matriss' office. The 11 teeth were extracted under a general anaesthesia, the wounds were looked after, the bleeding was cared for with sterile gauze pads, and the acrylic denture was inserted in the upper jaw over the sockets from which the teeth had been removed. Mrs. Germann was then told not to remove the denture and to come back on the next day, December 24, for post-operative treatment and an examination of the denture. However, the doctor testified that she did not return until December 29. Plaintiff submitted some evidence indicating a visit on December 28. In any event, Dr. Matriss said that when Mrs. Germann returned the acrylic denture was not in her mouth. He testified also that she told him she had removed it on December 25 because her mouth was sore

and the denture was too long. He cut it down, replaced it and told her to keep it in her mouth. Mrs. Germann's husband who accompanied her to defendant's office asserted that he never saw the denture out of his wife's mouth, and he denied that she told Dr. Matriss she had removed it.

In the early evening of December 29, Mrs. Germann's jaws became more painful and her speech became impaired. Upon being called, the family physician gave some medication which did not help. The next morning Mrs. Germann was taken to St. Mary's Hospital in Passaic, and shortly thereafter she was removed to Mt. Sinai Hospital in New York City for treatment in a hyperbaric chamber. Unfortunately, this treatment was unsuccessful and Mrs. Germann died two days later on January 1, 1965. The cause of death was given as tetanus.

Plaintiff's suit is predicated upon a single narrow criticism of defendant's method of treating Mrs. Germann. The sole claim is that the acrylic denture had not been properly sterilized before it was inserted in the patient's mouth and that because of that fact the denture carried a tetanus spore which somehow entered one of the open wounds left by the extractions and thus produced the disease and the resulting death. No dentist was produced to support this theory. Instead, reliance was placed upon Dr. David J. Graubard, a physician licensed in New York, who was engaged at the time in that State in general practice of medicine and very limited surgery. He testified that while in the Army in 1935 and 1936 he had extracted some teeth and wired some fractured jaws. He had last wired a fractured jaw eight years prior to the trial of this case. He said also that he did considerable traumatic surgery after he came out of service and until he had a heart attack in 1964, and that, as a surgeon, he was familiar with the sterilization procedures of oral surgeons.

Dr. Graubard admitted he did not know the practice accepted and followed in the profession of dentistry as the standard for sterilization of acrylic dentures. He agreed that the use of an acrylic denture and its insertion in the patient's mouth immediately after extraction of teeth all represented

standard practice. He said the denture enables the patient to eat after removal of teeth. It helps also to create a proper basis for healing the jaw and to prepare the mouth for the application of a permanent denture. However, in answer to a hypothetical question which incorporated the method of making, handling, sterilization and insertion of the denture in Mrs. Germann's mouth he advanced the opinion "with reasonable medical certainty" that Dr. Matriss' method of sterilization of the denture constituted a departure from the standard of care exercised by "oral surgeons" practicing in the Bergen County area. (The inquiry for the standard practice is not limited to the geographical area of the dentist's or doctor's office or community. It is broader than that. See Schueler v. Strelinger, 43 N.J. 330, 344 (1964). But no such issue is involved here.) In his opinion the proper procedure to sterilize an acrylic denture to be inserted in a patient's mouth immediately after the extraction of teeth would be first to cleanse it with carbolic acid and then to rinse it off in alcohol. That method would, in his opinion, eliminate any tetanus spores that might be on the denture, while the method defendant pursued would not. Particularizing the charge of malpractice, the doctor said "the only ground" on which it was based was Dr. Matriss' failure to sterilize the denture (by means of carbolic acid and alcohol) so as to eliminate the tetanus spore from the denture itself.

There was no specification by Dr. Graubard as to the strength or the temperature of the carbolic acid required to accomplish effective sterilization, or as to the necessity or duration of immersion required. Furthermore he did not say anything about the effect of carbolic acid or alcohol on an acrylic denture or on the mouth or gums of the patient.

There is no dispute that the tetanus spore is a minute organism common to our environment. It is everywhere around us, in the air, dust, soil, water, food and human and animal feces. It may exist in the human mouth, being introduced there through many of the environmental exposures, including of course, ordinary food and drink. The mouth is

regarded as a harbor for an immense number of pathogenic organisms including the tetanus spore. See, e.g., Mournet v. Sumner, 19 La. App. 346, 139 So. 728 (1932); Freche v. Mary, 16 So. 2d 213 (La. Ct. App. 1944); Morris v. Weene, 258 Mass. 178, 154 N.E. 860 (1927); Nevinger v. Haun, 197 Mo. App. 416, 196 S.W. 39 (1917). The spore, so long as it retains that form, can remain in the human body for years in a virile but harmless state. Only when it encounters very special conditions which convert it into a tetanus bacillus or toxin and which permit it to multiply does it result in the tetanus disease. The bacillus is an anaerobic organism and consequently will not grow in the presence of oxygen. Thus if a spore finds a portal of entry, usually a wound of some kind, into the human body, where the supply of oxygen is cut off, it becomes a bacillus and continues to grow, pouring toxin into other areas of the body and ultimately producing the dread disease. The experts in the case agree that even if a spore enters a wound, converts to a bacillus and begins to spread toxin, growth will cease upon the reappearance of oxygen and will revert to the innocent spore-form. Fortunately tetanus is a disease of rare occurrence, and it is extremely rare from oral infection. The testimony revealed that in recent years an over-all total of 250-300 cases a year from all portals of entry have been recorded in this country. No information was supplied as to whether any of these cases resulted from oral surgery. It was undisputed, however, that tetanus following tooth extraction is extremely rare. In Dr. Graubard's 35 years of medical practice he had seen only three cases of tetanus. Two of them came from gunshot wounds, and the third from a wound caused by the patient stepping on a rusty nail.

It appears without contradiction in the testimony that there is no way of sterilizing the human mouth against tetanus spores. And as indicated above, such spores may be introduced into the mouth in the course of such normal activities as breathing, eating and drinking.

In view of the foregoing discussion, plaintiff's case stands or falls on certain alleged bases: (1) that defendant departed from accepted standards of the profession of dentistry in that he did not sterilize the acrylic denture by cleansing it in some undescribed fashion through use of carbolic acid of some unspecified strength for an unspecified period of time at an unspecified temperature, and then by rinsing it off in alcohol before inserting it in Mrs. Germann's mouth after the tooth extractions; (2) that in reasonable medical certainty the failure to so sterilize the denture permitted a tetanus spore to be on the denture at the time of insertion in her mouth; and (3) in reasonable medical certainty the spore left the denture, entered a tooth-extraction wound and suffered a cut-off of oxygen there causing the spore to transform into tetanus bacillus which caused the spread of toxin in sufficient measure to produce the tetanus disease and Mrs. Germann's death.

Defendant produced three expert witnesses in support of his defense. Dr. Joseph L. Downs, who was chief oral surgeon and dental director of Jersey City Medical Center and St. Mary's Hospital, Hoboken, and also associate clinical professor of surgery at the New Jersey College of Dentistry and Medicine, had been practicing dentistry for 30 years. He specialized in extractions and oral surgery and used immediate dentures in the course of his work. Such dentures are inserted in the patient's mouth immediately after the extractions and any necessary trimming of the alveolus. Dr. Downs reviewed Dr. Matriss' procedure in making, sterilizing and inserting the acrylic denture in Mrs. Germann's mouth and testified that it was standard procedure. He described it as the "optimum standard," "the highest standard that we know of," and as the practice that was then taught in dental schools. He opined that nothing more could have been done by defendant. The doctor said that it was impossible to completely sterilize an acrylic denture against a tetanus spore and that tetanus was extremely rare in oral surgery. Boiling or autoclaving the denture after fabrication would warp it and

change its shape. Furthermore, carbolic acid and acrylic dentures are not compatible and such acid would destroy the shape, form and contour of the denture.

Dr. Stanley L. Lane, the second expert for defendant, was a physician and a dentist licensed in both professions in New York and New Jersey. He specialized in head, neck and maxillofacial surgery, and, in that capacity, he was either attending or consulting surgeon in about 22 hospitals in New York, New Jersey and Connecticut. He taught oral surgery at Columbia University School of Dentistry for five years, and was teaching at the time of the trial at Albert Einstein College of Medicine and New York Polyclinic Hospital and Medical School. Dr. Lane has written approximately 40 articles for medical journals on surgery of the head, neck, oral cavity and related areas. He was familiar with and had used immediate acrylic dentures in his work. In his opinion the use of such dentures was standard in the profession in New York and New Jersey.

The doctor was given a hypothetical question embodying the full range of procedures followed by Dr. Matriss. In response he said that the described procedure was accepted in the profession as the standard of proper dental care and that it was "exactly the way it is done at all times." He testified further that the use of alcohol on an acrylic denture would discolor it and make it milky and cloudy. Carbolic acid would destroy it, and he had never used that acid himself nor ever heard of any dentist using it on such a denture. He conceded that the standard sterilization procedure adopted by the dental profession and pursued by Dr. Matriss would not accomplish complete sterilization. He added, however, that there was no way of doing so without destroying the denture.

The third expert appearing for the defense was Dr. Edward W. Hook, a physician specializing in internal medicine and infectious diseases. He had been successively an instructor in medicine at Emory University and Johns Hopkins medical schools, and an associate and professor of ...


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