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APPEAL by plaintiff from a judgment of the District Court for Harrison County (Dewell, J.) in favor of defendants in an action brought to recover damages for alleged malpractice. Affirmed.

Statement by Vermilion, J.:

Action against a physician and dentist jointly for malpractice. At the close of the testimony a verdict was directed in favor of one of the defendants, and the action against the other was dismissed because not prosecuted in the county of his residence. From the judgment following, the plaintiff appeals.

Messrs. Robertson & Havens, for appellant:

A motion to direct a verdict is in effect a demurrer to the evidence, and amounts to an admission of every fact and conclusion in favor of the other party which the evidence tends to prove, or which the jury might have inferred therefrom in her favor, and if under this rule that makes a case for the jury, she is entitled to have the same passed upon by the jury.

McLeod v. Chicago & N. W. R. Co. 104 Iowa, 139, 73 N. W. 614; Scott v. St. Louis, K. & N. W. R. Co. 112 Iowa, 54, 83 N. W. 818, 8 Am. Neg. Rep. 391; Degelau v. Wight, 114 Iowa, 52, 86 N. W. 36; Howerton v. Augustine, 130 Iowa, 389, 106 N. W. 941; Hartman v. Chicago G. W. R. Co. 132 Iowa, 582, 110 N. W. 10; Kopecky v. Hasek Bros. 180 Iowa, 45, 162 N. W. 828.

The defendants and each of them were negligent in the treatment of the plaintiff after the fracture.

Evans v. Roberts, 172 Iowa, 663, 154 N. W. 923, 11 N. C. C. A. 728; Donoghue v. Shaw, 170 Mich. 544, 136 N. W. 367, 2 N. C. C. A. 400; Shockley v. Tucker, 127 Iowa, 456, 103 N. W. 360; Reynolds v. Smith, 148 Iowa, 272, 127 N. W. 192; Van Sickle v. Doolittle, 184 Iowa, 885, 169 N. W. 141, 173 Iowa, 727, 155 N. W. 1007.

The physician, Walsh, acting together jointly and concurrently with the dentist, Sandell, is jointly liable.

6 Thomp. Neg. 469, ¶ 7435; 21 R. C. L. 393, 38; Morey v. Thybo, 42 L.R.A. (N.S.) 785, 118 C. C. A. 198, 199 Fed. 760; Harris v. Fall, 27 L.R.A. (N.S.) 1174, 100 C. C. A. 497, 177 Fed. 79, 3 N. C. C. A. 176; Overstreet v. New Nonpareil Co. 184 Iowa, 485, 167 N. W. 669; Yocum v. Husted, 185 Iowa, 119, 167 N. W. 663; 6 Thomp. Neg. 1090, 6723; Whittaker v. Collins, 34 Minn. 299, 57 Am. Rep. 55, 25

N. W. 632; Hyrne v. Erwin, 23 S. C. 226, 55 Am. Rep. 15; Reynolds v. Smith, 148 Iowa, 264, 127 N. W. 192; Haase v. Morton, 138 Iowa, 205, 115 N. W. 921, 16 Ann. Cas. 350; Boswell v. Gates, 56 Iowa, 143, 8 N. W. 809.

Messrs. James P. Murphy, Tinley, Mitchell, Ross, & Mitchell, William P. Welch, and Fred E. Eagan, for appellees:

In accepting a patient for treatment a physician or dentist obligates himself to the rendition of careful and skilful service. The law demands, in the treament of the case, the exercise of a reasonable, average, or ordinary degree of care and skill.

Bowman v. Woods, 1 G. Greene, 441; Almond v. Nugent, 34 Iowa, 300, 11 Am. Rep. 147; Smothers v. Hanks, 34 Iowa, 286, 11 Am. Rep. 141; Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511; Whitesell v. Hill, 101 Iowa, 629, 37 L.R.A. 830, 70 N. W. 750, 2 Am. Neg. Rep. 134, - Iowa, 66 N. W. 894; Dunbauld v. Thompson, 109 Iowa, 199, 80 N. W. 324; Decatur v. Sir son, 115 Iowa, 348, 88 N. W. 839; Baker v. Langan, 165 Iowa, 346, 145 N. W. 513; Van Sickle v. Doolittle, 173 Iowa, 727, 155 N. W. 1007; Vander Wal v. Abbott, Iowa, - 167 N. W. 182; O'Grady v. Cadwallader, 183 Iowa, 178, 166 N. W. 755; Furgason v. Bellaire, 197 Iowa, 277, 197 N. W. 13; Flanagan v. Smith, 197 Iowa, 273, 197 N. W. 19.

In measuring the degree of care and skill to be exercised by a physician or dentist in the performance of his service, regard is to be had to the locality or community of the practitioner and the advanced stage of his science.

-

Whitesell v. Hill, 101 Iowa, 629, 37 L.R.A. 830, 70 N. W. 750, 2 Am. Neg. Rep. 134, Iowa, -, 66 N. W. 894; Decatur v. Simpson, 115 Iowa, 348, 88 N. W. 839; Ferrell v. Ellis, 129 Iowa, 614, 105 N. W. 993; Haradon v. Sloan, 157 Iowa, 608, 138 N. W. 556; Baker v. Langan, 165 Iowa, 346, 145 N. W. 513; O'Grady v. Cadwallader, 183 Iowa, 178, 166 N. W. 755; Vander Wal v. Abbott, Iowa,, 167 N. W. 182; Furgason v. Bellaire, 197 Iowa, 277, 197 N. W. 13; Flanagan v. Smith, 197 Iowa, 273, 197 N. W. 49.

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The implied contract of the medical or dental practitioner is not to cure, nor is he a warrantor of cure, nor a guarantor that his services will be

(— Iowa, —, 209 N. W. 440.)

beneficial or helpful. His contract is to exercise care in the application of his skill.

Tomer v. Aiken, 126 Iowa, 114, 101 N. W. 769; Baker v. Langan, 165 Iowa, 346, 145 N. W. 513; O'Grady v. Cadwallader, 183 Iowa, 178, 166 N. W. 755; Furgason v. Bellaire, 197 Iowa, 277, 197 N. W. 13; Flanagan v. Smith, supra; Ewing v. Goode (C. C.) 78 Fed. 442.

The results following medical or dental treatment afford no inference of negligence, nor are such results evidence of any lack of care or skill on the part of the medical or dental practitioner.

Whitesell v. Hill, 101 Iowa, 629, 37 L.R.A. 830, 70 N. W. 750, 2 Am. Neg. Rep. 134; Thorpe v. Talbott, 197 Iowa, 95, 196 N. W. 716; Furgason v. Bellaire, 197 Iowa, 277, 197 N. W. 13; Flanagan v. Smith, supra.

Proof of medical or dental malpractice is only made by medical or dental expert evidence, and lay evidence is incompetent on the question.

Kline v. Nicholson, 151 Iowa, 710, 130 N. W. 722, 1 N. C. C. A. 290; Cozine v. Moore, 159 Iowa, 472, 141 N. W. 424; Snearly v. McCarthy, 180 Iowa, 81, 161 N. W. 108; Furgason v. Bellaire, 197 Iowa, 277, 197 N. W. 13; Flanagan v. Smith, supra; Adolay v. Miller, 60 Ind. App. 656, 111 N. E. 313.

The action of medical or dental malpractice involving, as it does, a knowledge of the care and skill of such practitioners, and a knowledge of the respective sciences, the court and jury in such action must be guided wholly and solely by the expert evidence, in so far as it relates to the question of defendant's failure to exercise care and skill and whether such failure resulted proximately in injury or damage to the plaintiff.

Kline v. Nicholson, 151 Iowa, 710, 130 N. W. 722, 1 N. C. C. A. 290; Furgason v. Bellaire, 197 Iowa, 277, 197 N. W. 13; Flanagan v. Smith, supra; McGraw v. Kerr, 23 Colo. App. 163, 128 Pac. 870; Dahl v. Wagner, 87 Wash. 492, 151 Pac. 1079; Adolay v. Miller, supra.

Where, in an action based upon medical and dental malpractice, the evidence is equally as consistent with no negligence as with negligence, then the proof is, as a matter of law, insufficient to establish the malpractice charged, and the court should direct a verdict for the defendant.

Asbach v. Chicago, B. & Q. R. Co. 74 Iowa, 248, 37 N. W. 182; Wheelan v. Chicago, M. & St. P. R. Co. 85 Iowa, 167, 52 N. W. 119; Brownfield v. Chicago, R. I. & P. R. Co. 107 Iowa, 254, 77 N. W. 1038, 5 Am. Neg. Rep. 331; Degelau v. Wight, 114 Iowa, 52, 86 N. W. 36.

A joint relation was not created, so as to make the wrong of one doctor a joint wrong, or both doctors joint tortfeasors.

Robinson v. Crotwell, 175 Ala. 194, 57 So. 23, 2 N. C. C. A. 386; Morey v. Thybo, 42 L.R.A. (N.S.) 785, 118 C. C. A. 198, 199 Fed. 760; Jett v. Linville 202 Ky. 198, 259 S. W. 43; Withington v. Jennings, 253 Mass. 484, 149 N. E. 201; Harriott v. Plimpton, 166 Mass. 585, 44 N. E. 992; Brown v. Bennett, 157 Mich. 654, 122 N. W. 305; Hitchcock v. Burgett, 38 Mich. 501; Wilkins v. Ferrell, 10 Tex. Civ. App. 231, 30 S. W. 450; Mayer v. Hipke, 183 Wis. 382, 197 N. W. 333.

Joint liability for negligence does not exist unless the acts of negligence are joint. If the acts of negligence are several that is, independent of each other-there is no joint liability.

Rice v. Whitley, 115 Iowa, 748, 87 N. W. 694; Wm. Tackaberry Co. v. Sioux City Service Co. 154 Iowa, 358, 40 L.R.A. (N.S.) 102, 132 N. W. 945, 134 N. W. 1064, Ann. Cas. 1914A, 1276; Bowman v. Humphrey, 132 Iowa, 234, 6 L.R.A. (N.S.) 1111, 109 N. W. 714, 11 Ann. Cas. 131.

Vermilion, J., delivered the opinion of the court:

The plaintiff and appellant had been for some time prior to the transactions in question under the care and treatment of the appellee Walsh, a physician, for pains in her neck, side of the face, shoulder, and arm. He took an X-ray picture which disclosed that appellant had an imbedded and impacted wisdom tooth, and told her it should be extracted. The appellant and her mother visited the appellee Sandell, a dentist, and arranged for him to extract the tooth. It was also arranged that Dr. Walsh should give the anesthetic. On the morning of March 13, 1924, Dr. Walsh administered an anesthetic to appellant, and Dr. Sandell proceeded with the extraction of the imbedded tooth,

first extracting an adjoining tooth that he testified it was necessary to remove. In attempting to remove the wisdom tooth the appellant's lower jawbone was fractured. Following this, Dr. Walsh treated the fracture until March 27, 1924, when appellant consulted another physician.

The action is against the appellees jointly. It is alleged that while acting together and jointly the appellees, not regarding their duties in the premises, negligently and unskillfully (1) administered the anesthetic; (2) extracted another tooth immediately in front of the wisdom tooth; (3) extracted the wisdom tooth so as to break appellant's jawbone; (4) failed to properly set such fracture; and (5) failed to properly treat and dress the wounds and injuries of appellant so as to avoid infection, but permitted such wounds to become infected. Damages for pain and suffering and permanent disfigurement and the expense of subsequent care and treatment are claimed.

Upon the trial, at the close of all the evidence, the court directed a verdict in favor of the appellee Walsh, and thereafter dismissed the action as against the appellee Sandell upon a showing that his residence was in Polk county.

While nearly 40 errors are assigned, they may be conveniently grouped for our consideration into two propositions: (1) That the court erred in directing a verdict in favor of the appellee Walsh. (2) That the court erred in dismissing the action against the appellee Sandell. If the first proposition shall be determined against the contention of the appellant, it is not seriously insisted that the action as against the appellee Sandell was not properly dismissed. Code, § 11051.

Directing our attention then to the alleged liability of the appellee Walsh: Appellant claims that there was sufficient evidence to take the case to the jury: (1) Upon the question of Walsh's negligence in administering the anesthetic and in

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Physicians and

physician.

I. The physician is bound to bring to the service of his patient and apply to surgeons-measthe case that degree ure of duty of of knowledge, skill, care, and attention ordinarily possessed and exercised by practitioners of the medical profession under like circumstances and in like localities. Smothers v. Hanks, 34 Iowa, 286, 11 Am. Rep. 141; Whitesell v. Hill, 101 Iowa, 629, 37 L.R.A. 830, 70 N. W. 750, 2 Am. Neg. Rep. 134; Ferrell v. Ellis, 129 Iowa, 614, 105 N. W. 993; Haradon v. Sloan, 157 Iowa, 608, 138 N. W. 556; O'Grady v. Cadwallader, 183 Iowa, 178, 166 N. W. 755; Flanagan v. Smith, 197 Iowa, 273, 197 N. W. 49; Furgason v. Bellaire, 197 Iowa, 277, 197 N. W. 13. He does not impliedly guarantee results. Smothers v. Hanks, supra; Kline v. Nicholson, 151 Iowa, 710, 130 N. W. 722, 1 N. C. C. A. 290. Whether the defendant exercised the degree of care and skill required of him

cannot be deter- Evidencenegligence of mined from the tes- physician-testimony of laytimony of laymen or

nonexperts, since it

man.

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(— Iowa, -, 209 N. W. 440.)

administered to appellant at the dentist's office about 9 o'clock on the morning of Thursday, March 13. Appellant did not come from under its influence until after noon, and it was 4 o'clock before she was able to sit up. It is also undisputed that immediately upon discovering that the jawbone was fractured, and while appellant was still unconscious, Dr. Sandell, in the presence of Dr. Walsh, cleansed the wound by wiping out the mouth and using iodine and an antiseptic spray. Dr. Walsh testified without contradiction that he then lined up the bones as best he could and held them while Dr. Sandell applied a bandage. At 6 o'clock that evening Dr. Walsh visited appellant and put on a leather strap to hold the jaw in place. He saw her either at her home or at his office each day thereafter until she dispensed with his services. The X-ray picture taken before her teeth were extracted indicated the presence of pus at the root of one of the teeth, and Dr. Sandell testified that after the extraction there was pus draining from the wound. This testimony was uncontradicted.

The

appellant testified that on Sunday following the extraction there was a whitish discharge from her mouth, and that Dr. Walsh on the preceding Friday had given her a spray to be used by the attending nurse by which her mouth was washed out. On Monday and Wednesday he changed the dressing, and on Thursday he took another X-ray picture of the jaw. On Friday he removed the chin strap and worked the jaw to get it in place, and Dr. Sandell, under his direction, wired the upper and lower teeth together. Another X-ray picture was then taken. On Sunday, the discharge continuing, Dr. Walsh gave appellant a violet ray treatment and this was repeated on subsequent days. On Tuesday Dr. Walsh used an electric spray on the wound and washed out small pieces of bone. On Wednesday he said the picture showed the jaw was not set right. The wires were taken off, and he manipulated the jaw to

get the bones in place, and Dr. Sandell again wired the teeth together under his direction. The nurse testified that the irrigation was kept up carefully; that she kept up the drainage from the cavity so it would come out of the mouth as nearly as possible; that Dr. Walsh gave the directions and she followed them.

Appellant presented three experts who testified at some length as to the proper methods to be pursued in reducing a fracture of the jaw and treating one in the situation of appellant.

Dr. Cole testified that the usual method of treating such a fracture would be to get perfect alignment both of the jaw and the teeth and a fixture to hold them in place; that possibly one of the best methods would be an X-ray examination and manipulation to get the alignment; and if there was an open wound, some means to prevent infection should be commenced at that time, and antiseptic wash to keep the parts clean; that the ordinary way of obtaining cleanliness of the wound would be mostly by washes, local applications, iodine, or other antiseptics applied to the wound. He testified a common and usual bandage employed is a piece of sole leather formed to fit the chin and strapped tight over the head, and, if that did not hold, the wiring of the teeth would be proper; that for that a dentist would be called; that the doctor would first secure apposition of the bones and alignment of the jaw and hold these in place before the dentist would tighten the wires; that if there was not proper alignment there should be another attempt. He also testified it would be more than a week before there would be union of healthy bone, and in an infected bone there would be no union until the infection was cleared up. He further testified that an ordinary method of reducing the inflammation and swelling would be hot or cold applications.

Dr. Anderson testified to substantially the same effect. He said if the bandage was not holding the

fracture the general practice would be to readjust the bandage. He also testified that the usual method of using a disinfectant would be by irrigation, by a spray; that "with a broken jaw you would want to interfere as little as possible with any movement of the jaw in treatment;" and that the usual method is to apply the wash by spray or irrigation; that "heat is not a disinfectant unless you get sufficient heat to kill the particular germ. You could not apply sufficient heat outside of the cheek covered by bandage for this purpose."

Dr. Dewell, a dentist and oral surgeon, testified that in the usual and ordinary method of treatment "the first would be the reduction of the fracture, that is, to get the fragments in as good alignment as possible. Second would be the fixation of the fragments in position until union occurred. Third would be the care of the tissues." He testified that the method of holding the fracture would depend on the particular condition of the patient; that, generally speaking, the practitioner would attempt to hold it by bandages; that very frequently the first attempt is not successful; that it is frequently found that with two or more methods that fixedness is not secured that is necessary; that wiring the teeth is a well-recognized method. There was no testimony from which it could be found that the antiseptic wash used by Dr. Walsh was not a proper one.

We have not attempted to set out all of the testimony, but sufficient of that of the expert witnesses offered by appellant, in the effort to show that the treatment given the patient by Dr. Walsh was improper, to demonstrate, as we think, that there was no evidence that would warrant a finding that the methods used by Dr. Walsh in treating appellant varied materially from those approved and used by physicians and surgeons generally.

It is claimed that Dr. Walsh did not begin the use of the antiseptic wash or spray immediately after the

fracture. He testified that he gave a prescription for the antiseptic and the device for using it on the evening of the day appellant's teeth were extracted. This is not directly contradicted, although appellant and the nurse testified that use of the spray was begun on the following day. But it is undisputed that appellant's mouth and wound were cleansed and sprayed with an antiseptic solution immediately after the jaw was fractured, and that this was done in Dr. Walsh's presence.

It is also said that there was testimony that the general and approved method of treatment required the use of hot or cold applications and that neither was used. The testimony on behalf of appellant was to the effect that hot applications such as would have been effective to prevent or overcome infection could not have been applied, and that cold applications would only have tended to relieve pain, and would have had no curative effect.

Physicians and surgeons-effect

of failure to

cure.

As we have seen, it is not the mere failure to effect a cure that determines the practititioner's liability, and whether he used the skill and care required is, of necessity, to be determined from the expert testimony of those who are competent to say what skill and care ought, according to the ordinary standards of the profession, to be used in a given case. We are clearly of the opinion the plaintiff produced no evidence tending to show that the methods used by Dr. Walsh and the care and attention given by him to appellant in any material respect fell short of those ordinarily used by practitioners in like localities in treating like injuries.

II. The appellant testified that after taking an X-ray picture of her jaw Dr. Walsh told her the imbedded wisdom tooth was causing her trouble, and that it would be best to have it extracted; that they talked of dentists, and he told her she would have to have another X-ray taken if she went to Dr. Dewell, an

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