Appeal from judgment of Court of Common Pleas of Northampton County, Sept. T., 1962, No. 186, in case of Patricia Ann Lambert v. Stephen S. Soltis.
Martin Greitzer, with him Gene Locks, and Takiff & Bolger, for appellant.
Stanley E. Stettz, with him Fackenthal, Teel & McGiffert, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno dissents.
Patricia Ann Lambert, plaintiff instituted an action of trespass against Stephen S. Soltis. Soltis is a dentist, who treated plaintiff's teeth. Plaintiff contends that Dr. Soltis's treatment was negligent and constituted malpractice, and as a result of such treatment she suffered serious injuries. The Court ordered plaintiff to try only the issue of liability. At the conclusion of the plaintiff's case the Court entered a compulsory non-suit, which the Court en banc refused to take off. Plaintiff thereafter appealed to this Court.
Plaintiff's brief states the evidence produced at the trial and the inferences therefrom in the light most favorable to the plaintiff. It is by now hornbook law that this is the applicable and correct principle of law. That portion of the brief pertinently states: The defendant, during the period of June to September, 1960, was a practicing dentist in Bethlehem, Pennsylvania.
The plaintiff first went to see him in June, 1960, to have some work done on a chipped tooth. On the occasion of this particular visit, the plaintiff was accompanied by her father and the defendant indicated to them that the plaintiff had two or three cavities which should be filled and the plaintiff and her father agreed that the defendant could go ahead and fill the cavities. Plaintiff thereafter saw defendant on at least twelve occasions through the months of July, August, and September, 1960. According to the testimony of the plaintiff, the defendant never took any X-rays of her teeth notwithstanding the fact that he was requested to do so by both her and her father. On each occasion when plaintiff was treated by defendant he injected an anesthetic, Xylocaine, into her gums with a needle. On each of these occasions no unusual result followed the injection of the Xylocaine. In September, 1960, plaintiff came to defendant's office and complained of pain in a tooth which had previously been filled. Defendant advised a "root canal".*fn1 He testified at the trial as follows: "Q. And then you came in and said to her, 'You need a root canal because there is a slight thickening of this pulp,' is that correct? A. Yes. Q. You explained to her what had to be done? A. Yes, sir. Q. And she agreed that you do it? A. Yes, sir."
He then injected a needle which plaintiff indicated "he stuck in too far",*fn2 and immediately plaintiff screamed out in pain, felt faint, and subsequently her entire face swelled up. Following this injection, the plaintiff was in constant pain and all of her teeth hurt and subsequently had to be removed.*fn3
Plaintiff did not present any dental or medical or any other expert testimony. However, plaintiff did call the defendant as on cross-examination, but Dr. Soltis's testimony did not relate to the standard of care employed by practicing dentists.*fn4
The applicable principle of law is aptly stated in Demchuk v. Bralow, 404 Pa. 100, 170 A.2d 868, where the Court said (pages 103-105): "The instant case is ruled directly and unquestionably by Robinson v. Wirts, supra, where this Court speaking by Chief Justice Stern affirmed the entry of an involuntary non-suit and said (pages 294, 296): 'Plaintiff contends that the jury should have been allowed to infer negligence on his part from the mere ...