# Simone v. Sabo > California Supreme Court · May 18, 1951 · 37 Cal. 2d 253 URL: https://www.frixlaw.com/law-library/cases/9553582 ## Case - **Full name:** PAUL SIMONE, Respondent, v. VICTOR O. SABO, Appellant - **Court:** California Supreme Court - **Decided:** May 18, 1951 - **Citations:** 37 Cal. 2d 253; 231 P.2d 19; 1951 Cal. LEXIS 281 - **Precedential status:** Published - **Opinion:** Dissent by Carter - **Judges:** Carter - **Cited by:** 15 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/9553582 ## Opinion text CARTER, J. — I dissent. There is ample evidence, under any one of several theories, to support the implied finding that negligence of the defendant proximately caused plaintiff’s injuries and the judgment should be affirmed. Plaintiff’s testimony alone would support the verdict and judgment. He stated that, in extracting the impacted second bicuspid, defendant held a chisel and his wife hit it with a little silver hammer; “she just kept hitting it and every time she would hit it, why, it would jar my head.” Defendant told his wife to hit harder and finally said, “Well, this is not doing any good ... go get the hammer.” Plaintiff further testified as follows: “Then she [defendant’s wife] stood on this side and she started hitting me with this regular nail hammer, and when I saw that nail hammer I said, ‘What is this?’ . . . And then he [defendant] says, ‘Hit it hard this time.’ so then . . . she had both hands on it ... so finally she hit it real hard and something cracked and he said, ‘Now *259 again.,’ and ‘again’ and each time I was just almost going way over. . . . Then all of a sudden she hit it real hard and the hammer flew off, I mean the head, and just grazed me . . . and when she hit me hard I passed out. I mean I fainted. And when I came to again there they were picking up the hammer and they were . . . putting the head hack on there. ’ ’ Mrs. Sabo was not a registered nurse, although she had had some training in the use of X-rays and had assisted defendant in his office for about seven or eight months. The majority hold that improper treatment was not shown, relying upon this proposition: ‘ ‘ The question as to whether there was proper care in the treatment of a particular ease is one to be determined by the opinions of experts. The failure to use such care can be established only by their testimony.” But this rule is subject to the exception clearly set forth in Barham v. Widing, 210 Cal. 206, at 214 [ 291 P. 173 ], as follows: “It is . . . true that cases which depend upon knowledge of the scientific effect of medicine, or the result of surgery, must ordinarily be established by expert testimony of physicians and surgeons. [Citations.] This rule, however, applies only to such facts as are peculiarly within the knowledge of such professional experts and not to facts which may he ascertained hy the ordinary use of the senses of a non-expert.” (Italics added.) This exception has been similarly stated in many cases and is well established. (Lawless v. Calaway, 24 Cal.2d 81, 86 [ 147 P.2d 604 ] [“Where, however, negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testimony is not required since scientific enlightenment is not essential for the determination of an obvious fact.”] ; Agnew v. City of Los Angeles, 82 Cal.App.2d 616, 619 [ 186 P.2d 450 ] [“. . . where the question of the propriety of the treatment is a matter of common knowledge of laymen, expert testimony is unnecessary in order to establish liability in a malpractice case.”]; Armstrong v. Wallace, 8 Cal.App.2d 429, 439 [ 47 P.2d 740 ]; Walter v. England, 133 Cal.App. 676, 685 [ 24 P.2d 930 ]; Nelson v. Painless Parker, 104 Cal.App. 770, 775-776 [ 286 P. 1078 ]; see Wires v. Litle, 27 Cal.App.2d 240, 243-244 [ 80 P.2d 1010 , 82 P.2d 388 ]; Swan, California Law of Malpractice, 33 Cal.L.Rev. 248, 272.) The stated principle should be applied to this case. It certainly does not require expert testimony to establish that an ordinary nail hammer, wielded *260 by an untrained person, is not a proper means of extracting a tooth, especially in view of' the conceded fact that the particular extraction involved was a delicate and dangerous operation. If plaintiff’s testimony were believed, the jury could reasonably conclude that defendant had not only failed to exercise the care and skill required of a specialist, but that he did not use the care and skill of a general practitioner of dentistry. The majority opinion also states: “For all that appears, Simone’s tooth was extracted with the care and skill he would have received at the hands of a specialist.” Not only does plaintiff’s testimony refute this statement, but there is expert evidence to the effect that the injury suffered by plaintiff would not have occurred in the course of proper treatment. The extraction took place in May, 1948. Plaintiff testified that his lip, chin and the side of his face were still numb at the time of the trial. Dr. Schoen, a dentist practicing in Los Angeles who was called as a witness by plaintiff, stated that a nerve “probably had been” severed where,' after the extraction of an impacted bicuspid, a man’s lip remained numb during the period in question. Dr. Felsen, an oral surgeon, testified for defendant. On direct examination, he gave this testimony: “From the X-ray that I see here there wouldn’t be any danger of severing the nerve because the nerve is not involved in the impacted tooth, but the tip of the tooth is very close or resting upon the mandibular canal in which the mandibular nerve rests, and in executing the procedure to remove that tooth, the tooth might be tipped inadvertently in such a way as the end of the root might injure it, but I doubt very much that it would sever the nerve in this particular case.” The following testimony was given on cross-examination of this witness: “Q. Therefore, isn’t it true that there would be considerable danger of either severing the mandibular nerve or the mental nerve if the tooth were to be extracted? A. Not this particular tooth, no. .. . Q. In other words, would you say that there was no danger of severing a nerve in the vicinity of this particular tooth? A. I wouldn’t say there was no danger of severing it, but I can’t see with the position of the end of the root in this particular X-ray how the nerve could be severed. It could be traumatized, as I stated before, yes.” The plain import of Dr. Felsen’s testimony is that, while the mandibular nerve might be unavoidably injured during the extraction of the particular tooth, a dentist using proper *261 care and skill would not accidentally sever the nerve. It is settled that, to establish his case, the plaintiff in a malpractice action may rely upon expert evidence introduced by the defendant. (Trindle v. Wheeler, 23 Cal.2d 330, 335 [ 143 P.2d 932 ]; Blakeslee v. Tannlund, 25 Cal.App.2d 32, 36 [ 76 P.2d 216 ].) Negligence is a reasonable inference to be drawn from the foregoing evidence, that is, that inference could be based upon the expert testimony tending to show that defendant severed the mandibular nerve in plaintiff’s mouth in removing the bicuspid and that such an injury would not ordinarily arise in the absence of negligent treatment. I cannot agree with the statement in the majority opinion that the instruction given here with respect to the duty of a general practitioner who undertakes the treatment of a case within the field of specialists is subject to the same criticism as the one given in Sinz v. Owens, 33 Cal.2d 749 [ 205 P.2d 3 , 8 A.L.R.2d 757 ]. The instruction criticized in the Sinz ease stated that if a physician or surgeon undertakes professional service “in a special branch of medical, surgical or other healing science, and if at that time and in the same locality there are members of his profession who specialize in, and limit their practice to, that particular branch of the healing profession, it is his duty to possess that degree of learning and skill ordinarily possessed by physicians and surgeons of good standing who engage in that special practice in the same locality.” Unlike that instruction, the one given in this case sufficiently sets forth the circumstances under which a general practitioner is not held to the standard of ability of a specialist and it is not substantially different in effect from the instruction suggested in Sinz v. Owens, supra, page 758. The instruction here told the jury that the standard of ability required of a general practitioner “is that set by the learning and skill ordinarily possessed by general practitioners in the same locality and of good standing” if there is an emergency or if he informs the patient of the necessity of a specialist’s services and the patient insists on the services of the general practitioner. In my opinion, such an instruction sufficiently states the elements to be considered in determining the duty of the general practitioner. Certainly the financial ability of the patient to employ a specialist is not a matter for the dentist or physician to pass upon. Moreover, it is apparent that the instruction was framed to cover the issues raised by the evidence, namely, whether it is *262 the customary practice in Los Angeles for dentists to refer patients to specialists for extractions of impacted second bicuspids, and, if so, whether plaintiff was sufficiently advised of this fact and nevertheless insisted that defendant do the extraction. Apart from the evidence tending to show negligent treatment of plaintiff, there is other evidence which would warrant a finding that defendant was negligent in undertaking the admittedly dangerous operation without sufficiently informing plaintiff of the hazards involved, thereby unreasonably exposing plaintiff to the risk of the very injury which occurred. Plaintiff’s testimony was that Dr. Sabo told him that the operation was dangerous, but did not advise him that a nerve might be severed or that his mouth might be numb or paralyzed. Dr. Sehoen testified as follows: “Q. Have you • an opinion, Doctor, as to whether or not it is customary practice for a general practitioner in dentistry in Los Angeles to ' inform a patient prior to the extraction of a tooth such as that lower left second impacted bicuspid, that there might be a serious injury to the mental nerve and the possibility is that his lip may be left numb? A. I think any dentist in Los Angeles who would do such an operation would inform the patient of the likelihood of the complication because it is a great likelihood that it would occur.” In answer to a similar question, Dr. Pelsen stated: “Well, I think that the average dentist would advise the patient that there were certain elements of risk or danger to certain other structures in the removing of the impacted tooth. It probably would vary with different practitioners to what degree they would explain that to the patient.” Dr. Pelsen also testified that dentists “usually do advise” patients of the danger of traumatizing a nerve in extracting the tooth in question and stated that the nerve is injured in about 25 per cent of such extractions. ‘ ‘ [A] ctionable negligence in cases of this kind consists in doing something which the practitioner should not have done, or in omitting to do something which he should have done. ...” (Roberts v. Painless Parker, 121 Cal.App. 264, 268 [ 8 P.2d 908 ].) Here, the jury was entitled to find that defendant, before making the extraction, failed to adequately inform plaintiff of the “great likelihood” of serious injury to the mandibular nerve, that such omission constituted a failure to exercise the care ordinarily practiced by dentists in the community, and that plaintiff would not have submitted to the operation if he had been properly warned. The situation is analogous *263 to cases where the dentist or physician performed a dangerous operation or used a dangerous method of treatment without informing the patient that other, less hazardous, treatment was available. (See Vigneault v. Dr. Hewson Dental Co., 300 Mass. 223 [ 15 N.E.2d 185 , 129 A.L.R. 95 ]; Theodore v. Ellis, 141 La. 709 [ 75 So. 655 ].) For the foregoing reasons I would affirm the judgment. Respondent’s petition for a rehearing was denied June 14, 1951. Carter, J., voted for a rehearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9553582. Public record. Not legal advice.