{ "id": 8620101, "name": "THELMA L. LOVE v. T. R. ZIMMERMAN", "name_abbreviation": "Love v. Zimmerman", "decision_date": "1946-05-22", "docket_number": "", "first_page": "389", "last_page": "392", "citations": [ { "type": "official", "cite": "226 N.C. 389" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "69 S. E., 500", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N. C., 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273133 ], "opinion_index": 0, "case_paths": [ "/nc/153/0508-01" ] }, { "cite": "179 S. E., 434", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N. C., 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597858 ], "opinion_index": 0, "case_paths": [ "/nc/208/0160-01" ] }, { "cite": "161 S. E., 91", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N. C., 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627350 ], "opinion_index": 0, "case_paths": [ "/nc/201/0648-01" ] }, { "cite": "99 S. E., 358", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "177 N. C., 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654733 ], "opinion_index": 0, "case_paths": [ "/nc/177/0476-01" ] }, { "cite": "121 S. E., 356", "category": "reporters:state_regional", "reporter": "S.E.", "case_ids": [ 1980892 ], "opinion_index": 0, "case_paths": [ "/sc/127/0493-01" ] }, { "cite": "189 N. C., 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654346 ], "opinion_index": 0, "case_paths": [ "/nc/189/0408-01" ] }, { "cite": "26 S. E., 157", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "119 N. C., 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655837 ], "opinion_index": 0, "case_paths": [ "/nc/119/0617-01" ] }, { "cite": "29 S. E., 354", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "122 N. C., 799", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662244 ], "opinion_index": 0, "case_paths": [ "/nc/122/0799-01" ] }, { "cite": "94 S. E., 426", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N. C., 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255012 ], "opinion_index": 0, "case_paths": [ "/nc/174/0607-01" ] }, { "cite": "191 S. E., 355", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N. C., 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628393 ], "opinion_index": 0, "case_paths": [ "/nc/211/0632-01" ] }, { "cite": "222 N. C., 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631882 ], "opinion_index": 0, "case_paths": [ "/nc/222/0639-01" ] } ], "analysis": { "cardinality": 538, "char_count": 9624, "ocr_confidence": 0.471, "pagerank": { "raw": 7.918488320489868e-08, "percentile": 0.4615153238663721 }, "sha256": "b2fc9b5af14007d4b59e43af7035289e12cdd6e1938355b475d4138b3657b52b", "simhash": "1:1764e4b806821ff9", "word_count": 1722 }, "last_updated": "2023-07-14T21:52:42.041183+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THELMA L. LOVE v. T. R. ZIMMERMAN." ], "opinions": [ { "text": "Stacy, C. J.\nTbe question for decision is whether the case as made, taken in its most favorable light for the plaintiff, survives the demurrer. We are disposed to think it does.\nThe plaintiff is entitled to the benefit of every fact and inference of fact pertaining to the issues involved which may reasonably be deduced from the evidence. State Highway & Public Works Com. v. Diamond Steamship Transportation Corp., ante, 371, herewith decided; Davis v. Wilmerding, 222 N. C., 639, 24 S. E. (2d), 337; Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 355.\nHere, a dentist who had, on a previous occasion, broken one of plaintiff\u2019s teeth when extracting it, was asked to be careful lest he break another in extracting it. He does break it off even with the gum. He then undertakes to remove the roots with a chisel and hammer. He fails to remove all the root and leaves some broken bone in the cavity. Two days later the defendant is notified that plaintiff\u2019s jaw was greatly swollen and was running pus. He sends a prescription which was filled and taken without beneficial result. In about a week, the plaintiff returns to defendant\u2019s office and his nurse packs her jaw and sends her home. Continuing to grow worse, the plaintiff again returns to defendant\u2019s office and states that she thinks there is something in her jaw and suggests that an X-ray be taken. Defendant\u2019s brother assures her there is nothing in it, and that an X-ray would only be a waste of money. The nurse again packs it with something and plaintiff returns home. Later the plaintiff returns, for the third time, to defendant\u2019s office and he takes an X-ray and finds nothing but a dry socket.\nThe plaintiff then goes to another dentist who examines her swollen jaw and removes \u201ca little particle of the end of a root of tooth\u201d and \u201ca lot of little dead bone.\u201d\nViewing this evidence with that degree of liberality required on demurrer, we think the permissible inferences are such as to make the issue of liability one for the jury. Mullinax v. Hord, 174 N. C., 607, 94 S. E., 426; McCracken v. Smathers, 122 N. C., 799, 29 S. E., 354; S. c., 119 N. C., 617, 26 S. E., 157.\nIt is true there is no allegation of incompetency on the part of the defendant to practice his profession. It is alleged, however, (1) that in the plaintiff\u2019s ease the defendant omitted to use reasonable care and diligence in the practice of his art, or (2) that he failed to exercise his best judgment in the treatment of the case. Either allegation, if supported by competent evidence, suffices to carry the case to the jury on the issue of negligence. Nash v. Royster, 189 N. C., 408, 121 S. E., 356.\nUnder the circumstances here disclosed, it is contended that reasonable prevision and foresight would have called for more attention and better care on the part of the defendant in the treatment of plaintiff\u2019s case. He was notified on three or four occasions and over a considerable length of time, that plaintiff\u2019s jaw was not healing properly; that the constant and growing pain indicated to the plaintiff and should have indicated to the defendant, the presence of some deleterious substance; that a proper examination or diagnosis would have disclosed and did disclose to Dr. Adams, the presence of hurtful bacteria. These contentions apparently find support in the evidence, at least enough to raise an issue of due care. Brewer v. Ring and Valk, 177 N. C., 476, 99 S. E., 358.\nThe ease is not like Smith v. McClung, 201 N. C., 648, 161 S. E., 91, where the dentist wanted to do more, and the patient demurred, or Scott v. Ins. Co., 208 N. C., 160, 179 S. E., 434, where the skill, competency and proper attention on the part of the dentist were all conceded. The present case, it seems to us, is controlled by the principles announced in Long v. Austin, 153 N. C., 508, 69 S. E., 500, and McCracken v. Smathers, supra. See 41 Am. Jur., 200; 48 C. J., 1121, et seq.\nThe result is a reversal of the judgment of nonsuit.\nReversed.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "Walser & Wright and C. N. Cox for plaintiff, appellant.", "Sapp & Moore for defendant, appellee." ], "corrections": "", "head_matter": "THELMA L. LOVE v. T. R. ZIMMERMAN.\n(Filed 22 May, 1946.)\n1. Trial \u00a7 22a\u2014\nOn motion to nonsuit plaintiff is entitled to tlie benefit of every fact and inference of fact pertaining to the issues involved which may he' reasonably deduced from the evidence.\n2. Physicians and Surgeons \u00a7 18\u2014\nWhere, in an action for malpractice, plaintiff alleges that defendant failed to use reasonable care and diligence in the practice of his profession and alleges that he failed to use his best judgment in the treatment of the case, either allegation, when supported by competent evidence, is sufficient to carry the case to the jury on the issue of negligence, and allegation of incompetency on the part of the defendant to practice his profession is not necessary.\n3. Physicians and Surgeons \u00a7 20 \u2014 Evidence of negligence of dentist in treatment of case after tooth extraction held sufficient for jury.\nPlaintiff\u2019s evidence tended to show the following circumstances. Defendant dentist, in attempting to extract a tooth, broke it off even with the gum and then attempted to remove the roots. Thereafter, he was notified on three or four occasions and over a considerable time that plaintiff\u2019s jaw was not healing properly. On plaintiff\u2019s third visit defendant took an X-ray but found nothing but a dry socket. Plaintiff then went to another dentist who took another X-ray and removed a particle of root and a \u201clot of little dead bone.\u201d JSelcl: The evidence was sufficient to be submitted to the jury on the issue of negligence and the granting of defendant\u2019s motion to nonsuit was error.\nAppeal by plaintiff from Bone, J., at February Term, 1946, of Guilford.\nCivil action to recover damages for alleged negligence on the part of the defendant in extracting one of plaintiff\u2019s teeth and in the subsequent treatment of the case.\nThe defendant is a dentist in the City of High Point. On 27 August, 1945, the plaintiff went to the office of the defendant, told him she had a tooth that was paining her very much and that she \u201cwanted it pulled.\u201d The defendant said, \u201call right\u201d; whereupon the plaintiff asked the defendant \u201cto be careful,\u201d as he had extracted a tooth for her about a year before and \u201chad broken it off.\u201d The defendant deadened the gum with novocaine, and in about five minutes he extracted the upper left bicuspid. He seemed very nervous and exclaimed, \u201cMy goodness.\u201d The plaintiff remarked, \u201cYou broke it.\u201d He said \u201cYes\u201d and then went to getting the pieces out. The tooth was broken even with the gum. The defendant tried to remove the roots with \u201ca chisel and hammer.\u201d He got out two little pieces of root and told the plaintiff to come back if it continued to hurt her. Two days later plaintiff\u2019s husband called the defendant and informed him that his wife\u2019s jaw was greatly swollen, looked red and was running pus. Defendant sent a prescription which was filled and taken without any beneficial results. The plaintiff continued to get \u201cworse and worse every day.\u201d In about a week she returned to the defendant\u2019s office and asked to see him. + The nurse said, \u201cI can pack your jaw as good as he can,\u201d which she did and the plaintiff went home. The plaintiff then kept getting worse and went back to see the defendant. She said to tho nurse, \u201cI believe there is something in my jaw.\u201d Whereupon defendant\u2019s brother came in and looked at it. The nurse acquainted him with the plaintiff\u2019s fears. He said, \u201cDid we tell you we got it all out?\u201d The plaintiff replied, \u201cYes,\u201d and he said, \u201cIf we said we got it out, we got it out.\u201d Plaintiff then said she would like to have an X-ray; whereupon he said, \u201cIf you got money to throw away, we will X-ray it.\u201d Plaintiff replied that she had no money to throw away; the nurse again packed it with something and the plaintiff returned to her home.\nLater the plaintiff went back to the defendant\u2019s office and he X-rayed it. The nurse developed it and said, \u201cThere is nothing in it.\u201d She packed it with cotton gauze or something before the defendant took the X-ray. The defendant said, \u201cIt is just a dry socket\u201d and did nothing more.\nPlaintiff testifies that she \u201cwas nearly crazy\u201d from her suffering. '^She had Dr. Hester to take an X-ray, and then she went to Dr. Adams who also took an X-ray. \u201cHe went to work down in there and brought'^out bone and stuff and brought out flesh. . . . He got four or five pieces of bone out.\u201d\nThe plaintiff then went to the hospital. After leaving the hospital she had the two adjacent teeth \u2014 the eye tooth and the second bicuspid \u2014 also removed. The defendant told Dr. Adams that he was going to see the plaintiff while she was in the hospital, but he never did.\nDr. Hester testified that the X-ray he made showed \u201ca suspicious looking area where that mark is \u2014 it looks to me like that particular tooth is one of the particular teeth in the mouth that has two roots on it and it looks like there might be a little piece of root \u2014 I couldn\u2019t say definitely about that, but it leads me to believe, since I marked it, that there possibly is a little piece of root there \u2014 that is just my opinion.\u201d\nDr. Adams testified that when the plaintiff came to see him she was in great pain. \u201cI deadened the jaw with novocaine and took my little elevators and lifted out just a little particle of the end of a root of tooth. I didn\u2019t do that so easy. It took quite a while. ... In the meantime I saw a lot of little dead bone, you call that necrotic, and I curated that out too.\u201d\nFrom judgment of nonsuit entered at the close of plaintiff's evidence, sbe appeals, assigning error.\nWalser & Wright and C. N. Cox for plaintiff, appellant.\nSapp & Moore for defendant, appellee." }, "file_name": "0389-01", "first_page_order": 437, "last_page_order": 440 }