{ "id": 8471804, "name": "SHIMISHA HOWIE, Plaintiff v. JOHN T. WALSH, D.D.S., Defendant", "name_abbreviation": "Howie v. Walsh", "decision_date": "2005-03-01", "docket_number": "No. COA04-155", "first_page": "694", "last_page": "700", "citations": [ { "type": "official", "cite": "168 N.C. App. 694" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "314 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526880 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0202-01" ] }, { "cite": "160 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "323", "parenthetical": "quoting Restatement (Second) of Torts \u00a7 328D, at p. 157 (1965) (emphasis added)" } ], "opinion_index": 0 }, { "cite": "273 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575523 ], "year": 1968, "pin_cites": [ { "page": "443", "parenthetical": "quoting Restatement (Second) of Torts \u00a7 328D, at p. 157 (1965) (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0439-01" ] }, { "cite": "401 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2185178 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "659", "parenthetical": "approving the use of the doctrine for \"injuries resulting from surgical instruments or other foreign objects left in the body following surgery and injuries to a part of the patient's anatomy outside of the surgical field\"" } ], "opinion_index": 0, "case_paths": [ "/sc/303/0484-01" ] }, { "cite": "102 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523883 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0332-01" ] }, { "cite": "536 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "362", "parenthetical": "citation and emphasis omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127594 ], "year": 2000, "pin_cites": [ { "page": "378", "parenthetical": "citation and emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0375-01" ] }, { "cite": "336 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "118", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525060 ], "year": 1985, "pin_cites": [ { "page": "692", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0689-01" ] }, { "cite": "423 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523038 ], "year": 1992, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0145-01" ] } ], "analysis": { "cardinality": 708, "char_count": 15134, "ocr_confidence": 0.758, "pagerank": { "raw": 1.795264177864218e-07, "percentile": 0.7155814875693525 }, "sha256": "9b2d9014cbef38252faa0175d52aff6017f8da35462b843c50517f3d921a9bb0", "simhash": "1:5728c46a7e581451", "word_count": 2407 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and GEER concur." ], "parties": [ "SHIMISHA HOWIE, Plaintiff v. JOHN T. WALSH, D.D.S., Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nJohn T. Walsh, D.D.S., (\u201cdefendant\u201d) appeals a judgment entered on a jury verdict finding Shimisha Howie (\u201cplaintiff\u2019) was injured by the negligence of defendant based on the doctrine of res ipsa loquitur and awarding $300,000.00 in damages for personal injuries. We reverse and remand for a new trial.\nOn 12 March 1999, plaintiff\u2019s jaw was fractured while defendant, a licensed general dentist, was attempting to extract her lower left wisdom tooth. Plaintiffs tooth was eighty to ninety percent impacted, meaning only ten to twenty percent of the tooth protruded above the bone of the jaw, and the tooth was tilted mesially, or forward towards the midline of the body. The tooth had two roots, was not diseased and had a normal, healthy periodontal ligament attaching the roots of the tooth to the bone of the jaw. Defendant successfully extracted the first three of plaintiffs wisdom teeth before proceeding to the tooth in question.\nDefendant testified that, prior to the procedure, there was no indication that plaintiffs jaw was abnormal in any way. Because defendant did not remember the surgery until the point where plaintiffs jaw fractured, his testimony concerning that portion of the surgery consisted mainly of his normal procedure during an extraction based on plaintiffs dental history and records.\nDefendant testified that, when extracting wisdom teeth, he first incises the tissue surrounding the tooth, then uses a flat spoon perios-tio elevator to reflect the tissue and expose the tooth. The tooth is wider at the middle than at its crown; thus, the surrounding bone holds a tooth in place and must be cut away with a surgical burr. Thereafter, defendant slides a straight elevator, an instrument somewhat resembling a Phillips-head screwdriver, under the exposed tooth and attempts to rotate it to determine if there is sufficient movement. Assuming sufficient movement, defendant applies pressure on the elevator to determine if the tooth can be raised, thereby allowing the attached ligament to be separated from the roots. If the tooth does not elevate, defendant removes more bone surrounding the tooth, sections (cuts) the tooth, or both.\nSectioning is often required when the roots of the tooth are growing in different directions. When sectioning a tooth, defendant cuts the tooth into two parts, each with a root and removes one section at a time. Defendant removes each sectioned portion with a Cryers elevator, a surgical steel pick-like instrument, which uses leverage to \u201croll\u201d the section, along with the root, out of the socket. Although some force is necessary to remove the sections, a dentist relies primarily on technique to remove the section in a manner minimizing resistance. The ability of the patient to cooperate is also a factor in a successful outcome.\nIn this particular surgical procedure, defendant testified plaintiffs tooth did not elevate properly, and he opted to section it. Defendant could not recall if he removed any further bone surrounding the tooth. Defendant managed to remove the mesial section of plaintiffs tooth without incident; however, when he attempted to remove the second section of the tooth with the Cryers elevator, he heard a snap and knew plaintiff\u2019s jaw had fractured. Plaintiff sustained nerve damage and a compound fracture, which required surgical intervention to repair. Plaintiff brought this malpractice action against defendant to recover damages sustained as a result of the injury.\nPlaintiffs experts testified that plaintiffs jaw was normal and not particularly susceptible to fracture and that the force required to cause a compound fracture of plaintiffs jaw had to be significant. In the opinion of plaintiffs expert, Roger Druckman, D.D.S., defendant used improper technique in extracting the tooth; specifically, he opined that defendant used excessive force as evidenced by the fact that \u201cthe condyle was actually dislocated from its position in the joint during the fracture.\u201d He further opined \u201cthe surgical technique used by the dentist in placing the Cryer\u2019s instrument is the \u2014 one of the elevating instruments to get the last root out \u2014 was improperly placed and it was placed in as a wedge. And that is the \u2014 definitely below the standard of care.\u201d Dr. Druckman further testified that, in his opinion, \u201c[i]t\u2019s almost impossible for a Cryer\u2019s instrument to cause the jaw fracture unless there was excessive force.\u201d Defendant, however, testified that he \u201ckn[ew] that [he] was not using excessive force\u201d and that is why it was \u201csuch a surprise\u201d that plaintiff\u2019s jaw fractured.\nThe trial court presented three issues to the jury and instructed them on each:\n1. Was the plaintiff Shimisha Howie Richards injured by the negligence of the defendant John Walsh based on the doctrine of direct negligence?\n2. Was the plaintiff Shimisha Howie Richards injured by the negligence of the defendant John Walsh based on the doctrine of res ipsa loquitur?\n3. What amount is the plaintiff Shimisha Howie Richards entitled to recover for personal injuries?\nDefendant\u2019s objection to allowing the jury to consider the issue under res ipsa loquitur was overruled. Plaintiff\u2019s request that the jury be instructed with the general instruction on circumstantial evidence was also denied. The jury found plaintiff was not injured by the negligence of defendant based on the doctrine of direct negligence but was injured by defendant based on the doctrine of res ipsa loquitur. The jury found plaintiff entitled to recover $300,000.00 for personal injuries. Defendant appeals.\nIn defendant\u2019s first assignment of error, he argues that the trial court erred by \u201cinstructing the jury on the doctrine of res ipsa loquitur and submitting an issue to the jury on said doctrine.\u201d\nRes ipsa loquitur is a doctrine addressed to those situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of defendant. It is applicable when no proof of the cause of an injury is available, the instrument involved in the injury is in the exclusive control of defendant, and the injury is of a type that would not normally occur in the absence of negligence.\nBowlin v. Duke University, 108 N.C. App. 145, 149, 423 S.E.2d 320, 322 (1992). \u201cApplication of res ipsa in medical malpractice actions has received special attention, resulting in what our Supreme Court has characterized as a \u2018somewhat restrictive\u2019 application of the .doctrine.\u201d Schaffner v. Cumberland County Hosp. System, 77 N.C. App. 689, 692, 336 S.E.2d 116, 118 (1985) (citation omitted). This circumspect application is founded on two principles that \u201crender[] the average juror unfit to determine whether [a] plaintiff\u2019s injury would rarely occur in the absence of negligence[:]\u201d (1) most medical treatment involves inherent risks despite adherence to the appropriate standard of care and (2) \u201cthe scientific and technical nature of medical treatment^ ]\u201d Id. These principles contend with the basic foundation of the doctrine, which \u201cis grounded in the superior logic of ordinary human experience [and] permits a jury, on the basis of experience or common knowledge, to infer negligence from the mere occurrence of the accident itself.\u201d Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362 (2000) (citation and emphasis omitted). \u201cTherefore, in order for the doctrine to apply, not only must plaintiff have shown that [the] injury resulted from defendant\u2019s [negligent act], but plaintiff must [be] able to show \u2014 without the assistance of expert testimony \u2014 that the injury was of a type not typically occurring in absence of some negligence by defendant.\u201d Id.\nIn the instant case, plaintiff\u2019s cause of action for medical malpractice is premised upon the assertion that defendant negligently used the Cryers elevator to remove plaintiff\u2019s tooth. A layperson might be able to infer that the fracture to plaintiff\u2019s jaw resulted from the application of force by defendant with the Cryers elevator; however, without the assistance of expert testimony, the layperson would lack a basis upon which he could determine the force was excessive or improper as such matters are outside his common knowledge, experience and sense. Accord Grigg v. Lester, 102 N.C. App. 332, 401 S.E.2d 667 (1991). Such information, we are of the opinion, would necessarily have to be provided by an expert. Under the holdings of Diehl and Grigg, we are constrained to agree with defendant that instruction on the doctrine was improper and reverse the judgment. We encourage trial courts to remain vigilant and cautious about providing res ipsa loquitur as an option for liability in medical malpractice cases other than in those cases where it has been expressly approved. See, e.g., Grigg, 102 N.C. App. at 335, 401 S.E.2d at 659 (approving the use of the doctrine for \u201cinjuries resulting from surgical instruments or other foreign objects left in the body following surgery and injuries to a part of the patient\u2019s anatomy outside of the surgical field\u201d).\nIn defendant\u2019s second assignment of error, he contends no costs should have been taxed against him in the exercise of the trial court\u2019s discretion on the grounds that judgment should not have been entered against him. Plaintiff also appeals, arguing the trial court abused its discretion by denying certain additional costs requested by her. The trial court taxed costs in the amount of $2,305.00 against defendant. Having reversed the judgment, we likewise reverse the trial court\u2019s imposition of costs against defendant in this action.\nIn plaintiff\u2019s brief, she assigns error to the trial court\u2019s refusal to charge the jury with an instruction on direct and circumstantial evidence on the issue of negligence. However, plaintiff failed to include in the record an assignment of error regarding this issue as required by N.C. R. App. P. 10(a) (2004). Nonetheless, we choose to consider plaintiff\u2019s assignment of error pursuant to our discretion under N.C. R. App. P. 2 (2004). Specifically, plaintiff argues the trial court failed in instructing the jury as to circumstantial evidence as provided in N.C.P.I. \u2014 Civ. 101.45, which provides, in relevant part, as follows:\nThere are two types of evidence from which you may find the truth as to the facts of a case \u2014 direct and circumstantial evidence. Direct evidence is the testimony of one who asserts actual knowledge of a fact, such as an eyewitness; circumstantial evidence is proof of a chain or group of facts and circumstances pointing to the existence or non-existence of certain facts.\nDefendant contends res ipsa loquitur encompasses all forms of circumstantial evidence; hence, if the trial court could not instruct the jury with respect to res ipsa loquitur, it could not instruct the jury with respect to circumstantial evidence. We disagree.\nAs our Supreme Court has noted, \u201c \u2018A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant\u2019s relation to it.\u2019 \u201d Kekelis v. Machine Works, 273 N.C. 439, 443, 160 S.E.2d 320, 323 (1968) (quoting Restatement (Second) of Torts \u00a7 328D, at p. 157 (1965) (emphasis added)). Barring the use of the doctrine of res ipsa loquitur does not likewise bar the use of all circumstantial evidence in medical malpractice cases. It merely bars the jury from inferring negligence and causation from the occurrence of and defendant\u2019s relation to the event. In the instant case, the trial court\u2019s instructions improperly limited the jury\u2019s choices to utilizing direct evidence for purposes of traditional negligence and utilizing circumstantial evidence for purposes of res ipsa loquitur. We hold the trial court\u2019s failure to instruct with respect to N.C.P.I. \u2014 Civ. 101.45, the circumstantial evidence instruction, constituted prejudicial error, entitling plaintiff to a trial de novo.\nNew trial.\nJudges McCULLOUGH and GEER concur.\n. We are cognizant of this Court\u2019s holding in Parks v. Perry, 68 N.C. App. 202, 314 S.E.2d 287 (1984) in which this Court discussed the use of expert testimony in a medical malpractice case in determining the availability of the doctrine of res ipsa loquitur. However, we note that Parks involved an injured ulnar nerve in the patient\u2019s right arm during the time she was anesthetized for a vaginal hysterectomy. Accordingly, the Parks case would appropriately fit within that class of cases involving an injury outside the surgical field for which the doctrine of res ipsa loquitur has been allowed.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Gittleman, Paskel, Tashman & Walker, P.C., by Justin Haas, for plaintiff.", "Carruthers & Roth, P.A., by Kenneth L. Jones, and Womble, Carlyle, Sandridge, & Rice, P.L.L.C., by James Cooney, for defendant.", "William H. Potter, Jr., on behalf of the North Carolina Dental Society, amicus curiae." ], "corrections": "", "head_matter": "SHIMISHA HOWIE, Plaintiff v. JOHN T. WALSH, D.D.S., Defendant\nNo. COA04-155\n(Filed 1 March 2005)\n1. Dentists\u2014 malpractice \u2014 res ipsa loquitur \u2014 expert testimony required\nThe trial court erred by entering judgment on a jury verdict finding that plaintiff was injured by the negligence of defendant dentist based on the doctrine of res ipsa loquitur and by awarding $300,000 in damages for personal injuries, because: (1) in order for the doctrine to apply, not only must plaintiff have shown that the injury resulted from defendant\u2019s negligent act, but plaintiff must be able to show without the assistance of expert testimony that the injury was of a type not typically occurring in the absence of some negligence by defendant; and (2) in the instant case, without the assistance of expert testimony a layperson would lack a basis upon which he could determine the force the dentist used in removing a wisdom tooth was excessive or improper as such matters are considered outside of common knowledge, experience, and sense.\n2. Costs\u2014 improperly taxed against defendant \u2014 reversal of judgment\nThe trial court\u2019s imposition of costs against defendant in the amount of $2,305 is reversed because the Court of Appeals reversed the trial court\u2019s judgment against defendant.\n3. Medical Malpractice; Dentists\u2014 instruction \u2014 circumstantial evidence\nThe trial court erred in a medical malpractice case by failing to instruct the jury as to circumstantial evidence as provided in N.C.P.I. Civ. 101.45 and plaintiff is entitled to a trial de novo, because: (1) barring the use of the doctrine of res ipsa loquitur does not likewise bar the use of all circumstantial evidence in medical malpractice cases, but merely bars the jury from inferring negligence and causation from the occurrence of and defendant\u2019s relation to the event; and (2) the trial court\u2019s instructions improperly limited the jury\u2019s choices to utilizing direct evidence for purposes of traditional negligence and utilizing circumstantial evidence for purposes of res ipsa loquitur.\nAppeal by plaintiff and defendant from judgment entered 17 July 2003 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 September 2004.\nGittleman, Paskel, Tashman & Walker, P.C., by Justin Haas, for plaintiff.\nCarruthers & Roth, P.A., by Kenneth L. Jones, and Womble, Carlyle, Sandridge, & Rice, P.L.L.C., by James Cooney, for defendant.\nWilliam H. Potter, Jr., on behalf of the North Carolina Dental Society, amicus curiae." }, "file_name": "0694-01", "first_page_order": 724, "last_page_order": 730 }