# Donaldo C. Smith v. Dr. Joseph Reitman

> Court of Appeals for the D.C. Circuit · February 1, 1968 · 389 F.2d 303

URL: https://www.frixlaw.com/law-library/cases/9453314

## Case

- **Full name:** Donaldo C. SMITH, Appellant, v. Dr. Joseph REITMAN, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** February 1, 1968
- **Citations:** 389 F.2d 303
- **Precedential status:** Published
- **Opinion:** Dissent by Wright
- **Judges:** Wright, Burger, McGowan
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9453314

## How later opinions describe it (automated extraction)

- concluding that there must be “some basis in the record or in common experience to warrant” an inference based on res ipsa loquitur (emphasis added) (quotation and citation omitted)

## Opinion text

J. SKELLY WRIGHT, Circuit Judge
(dissenting):
The majority opinion fairly sets forth the facts of this case, including appellant’s expert’s conclusion “in view of the patient’s response and the patient’s injury that a mistake was made.” Taken together, this evidence indicates to me that where root tips are properly removed the patient is not ordinarily left with permanent numbness in his jaw. “[Wjhere the circumstances of the occurrence that has caused the injury are of a character to give ground for a reasonable inference that if due care had been employed, by the party charged with care in the premises, the thing that happened amiss would not have happened * * * it is said, res ipsa loquitur— the thing speaks for itself; that is to say, if there is nothing to explain or rebut the inference that arises from the way in which the thing happened, it may fairly be found to have been occasioned by negligence.” Sweeney v. Erving, 228 U.S. 233, 238-239 , 33 S.Ct. 416, 418 , 57 L.Ed. 815 (1913). Thus under the doctrine of res ipsa loquitur a question for the jury is presented here. See W. Prosser, Torts §§ 42, 43 (2d ed.1955). At least the defendant should have been put to proof.
I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453314. Public record. Not legal advice.