DENTISTS.
The need of dentists existed long before dentistry. The Preacher knew
of the inconveniences which arise when the grinders are few. Marcellus,
about B. C. 380, gave two receipts for toothache. One is, “Say,
‘argidam, margidam, sturgidam;’” the other is, “Spit in a frog’s mouth
and request him to make off with the complaint.” These are given in
Glenn’s “Laws affecting Medical Men.”
In England, in the tenth and eleventh centuries, priests and monks
were the dentists of the day. Afterwards, a decree of the Council of
Tours having forbad clergymen undertaking or engaging in any bloody
operation, all surgical practice fell into the hands of blacksmiths and
barbers. The latter soon became the more important class, and in 1461
(as we have seen already), Edward IV. incorporated them as “The Freeman
of the Mystery or Faculty of Surgery.” By degrees other persons assumed
to practise pure surgery, and these two bodies, in 1560, were united by
Act of Parliament, and became “The Masters or Governors of the Mystery
and Commonalty of the Barbers and Surgeons of London.” By the third
section of this Act [433], because of fear of the spread of contagious
diseases, any one in the City of London using barbery or shaving, was
forbidden to |161| occupy any surgery, letting of blood, or any other
thing belonging to surgery, drawing of teeth only excepted. In those
days one wishing to find a drawer of teeth had to resort to one of
those shops where was exhibited the bandaged pole as a sign or symbol
that “all the King’s liege people there passing by might know at all
times whither to resort in time of necessity.”
Something more than a sign is now required of dental surgeons. The
Royal College of Surgeons in England has now the power to appoint
examiners for testing the fitness of persons to practise as dentists,
and to grant certificates of such fitness. To become a Licentiate of
Dental Surgery in England, it is necessary to be engaged for four years
in the acquirement of professional knowledge; to attend at a recognized
school one course of lectures, at least, in anatomy, physiology,
surgery, medicine, chemistry, and materia medica, and a second course
on the anatomy of the head and neck; one course on metallurgy, and
two on dental surgery and anatomy, dental physiology and mechanics;
to have dissected for nine months; to have taken a course of chemical
manipulation; to have attended a hospital for two or more sessions;
and to have spent three years in acquiring practical familiarity in
mechanical dentistry under a competent practitioner; and then to pass
the examination required by the board.
In Ontario, “The Royal College of Dental Surgeons” has power to appoint
a Board of Directors, who have authority to fix the curriculum of
studies to be pursued by students, to determine the period during which
they must be employed under a practitioner, to appoint the examiners,
and arrange the examinations, for those who desire to obtain a license
to practise dental surgery in the province. The Board may also confer
the title of “Master of Dental Surgery” upon any licentiate who passes
certain examinations and |162| conforms with certain regulations. The
College is composed of all those entitled to practise in the Province;
and no one who is not a member of the College can practise dentistry
for hire, gain or hope of reward, or pretend to hold, or take, or use
any name, title, addition or description, implying that he holds a
license to practise, or that he is a member of the College, or shall
falsely represent, or use any title representing that he is a graduate
of any dental college, under a penalty of $20 and costs for every
offence, to be recovered in a summary way before a magistrate, or in a
Division Court by suit. Persons contravening the Act cannot recover for
work done or materials provided. Of course, the Act does not interfere
with legally qualified medical practitioners [434].
Dentists are subject to the same rules, as to negligence, as are
physicians or surgeons [435], and if by a culpable want of attention and
care, or by the absence of a competent degree of skill and knowledge,
a D.D.S. causes injury to a patient, he is liable to a civil action
for damages, unless, indeed, such injury be the immediate result of
intervening negligence on the part of the patient himself, or unless
such patient has by his own carelessness directly conduced to the
injury [436]. The law is ever reasonable; so it only requires of a
dentist a reasonable degree of care and skill in his professional
operations, and will not hold him answerable for injuries arising
from his want of the highest attainments in his profession. The rule
is, that the least amount of skill with which a fair proportion of
the practitioners of a given locality are endowed, is the criterion
by which to judge of the professional man’s ability or skill [437].
As far as the liability is concerned, no distinction is made |163|
between those who are regular practitioners and those who are not so;
the latter are equally bound with the former to have and to employ
competent skill and attention.
A patient must exercise ordinary care and prudence [438]; so that, if
one tells the dentist to pull out a tooth, but does not say which one
is to go, and the wrong one is taken out, the sufferer has no legal
ground of complaint, unless, indeed, it is quite apparent which is
the offending member. A patient may have been a little careless and
negligent; still, if the dentist has been so very neglectful of his
duty that no ordinary care on the part of the patient would have
prevented the mistake or injury complained of, the injured party will
recover, _i.e._, recover damages for the injury received [439].
The fact that one has taken chloroform will not affect his rights
or remedies against the tooth-puller for any mistake or negligence.
The maxim _vigilantibus, non somnientibus jura subveniunt_, has
no reference to people put to sleep by anæsthetics. In New York,
two dentists undertook to extract a tooth from a patient while the
latter was under the influence of laughing gas. During the operation
the forceps slipped, and part of the tooth went down the patient’s
throat, causing coughing and vomiting for four weeks, when—in a fit
of coughing—the tooth came up, and relief followed. The patient sued
for damages, and when the case came before it, the Court said, “The
defendants (the dentists) knew that the plaintiff (the patient)
while under the influence of the anæsthetic, had no control of his
faculties, that they were powerless to act, and that he was unable to
exert the slightest effort to protect himself from any of the probable
or possible consequences of the operation which they had undertaken
to perform. He was in their |164| charge and under their control
to such an extent that they were required to exercise the highest
professional skill and diligence to avoid every possible danger;
for the law imposes duties upon men according to the circumstances
in which they are called to act. In this case, skill and diligence
must be considered as indissolubly associated. The professional man,
no matter how skilful, who leaves an essential link wanting, or a
danger unguarded in the continuous chain of treatment, is guilty of
negligence, and if the omission results in injury to the patient, the
practitioner is answerable. The quantum of evidence necessary to make
out a _primâ facie_ case of negligence is very slight in some cases,
while in others a more strict proof is required. Often the injury
itself affords sufficient _primâ facie_ evidence of negligence. * * *
There was evidence offered by the plaintiff showing, that while the
defendant drew the tooth, the forceps slipped. This fact, combined with
the unusual circumstance that the tooth went down instead of coming
up, was sufficient to carry the case to the jury upon the question
of negligence. The trial Judge held that while the affirmative was
upon the plaintiff to prove negligence, the fact that the defendants,
instead of taking the plaintiff’s tooth out, let it go down his
throat, was sufficient evidence to carry the question of negligence
to the jury, to the end that they might determine whether, in the
light of all the circumstances, the defendants had exercised the skill
and care which the exigencies of the case required. This ruling was
correct” [440].
Boyle’s case is an interesting one on the subject of the use of
chloroform. He was a street-car driver; a vicious horse by a kick threw
him from his platform, so that he hit his head against a tree-box.
He was picked up insensible and carried into a surgery; this he was
enabled to leave |165| in a couple of hours, and the following day
went to work again. In course of time he had a toothache, and went to
a Dr. Winslow’s to have it extracted, intending to take chloroform.
The chloroform was administered, but did not operate as soon as usual,
exciting rather than tranquilizing B. Insensibility, however, having
been finally obtained, the teeth were taken out, the doctor giving
the anæsthetic from time to time during the operation, as symptoms of
returning consciousness appeared. Boyle walked home shortly afterwards,
feeling, however, dizzy, and being uncertain in his gait; these
unpleasant symptoms continued even after reaching his house. The next
day, thickness of speech and numbness of one arm and side came on,
with partial paralysis. From this he was still suffering, when a jury
was called upon to say whether his state was due to the neglect of the
dentist or not. The Judge told the jury that, even if they doubted
the safety of the agent employed (chloroform), there was still a
consideration of the highest reason which they ought not to disregard.
He remarked, “All science is the result of a voyage of exploration,
and the science of medicine can hardly be said to have yet reached
the shore. Men must be guided therefore by what is probably true, and
are not responsible for their ignorance of the absolute truth which
is not known. If a medical practitioner resorts to the acknowledged
proper sources of information—if he sits at the feet of masters of high
reputation and does as they have taught him—he has done his duty, and
should not be made answerable for the evils that may result from errors
in the instruction which he has received. * * * He who acts according
to the best known authority is a skilful practitioner, although
that authority should lead him in some respects wrong. * * * If the
plaintiff was from previous circumstances predisposed to paralysis,
it might well happen that the extraction of his teeth, |166| without
the chloroform, or the use of the chloroform without the extraction,
would bring on a paralytic attack. Even if this was the case, still it
would not be just to make the defendant answerable for consequences
which he could not foresee, which were not the ordinary or probable
result of what he did. He was only bound to look to what was natural
and probable, to what might reasonably be anticipated. Unless such
guard is thrown around the physician his judgment may be clouded, or
his confidence shaken by the dread of responsibility, at those critical
moments when it is all important that he should retain the free and
undisturbed enjoyment of his faculties, in order to use them for the
benefit of the patient” [441].
In the olden time, front teeth were considered very valuable. Our
ancestors appear to have used them in fighting, and the hurting of a
man so as to render him less able in fighting to defend himself or
annoy his adversary, was considered a misdemeanor of the highest kind,
and spoken of by my Lord Coke as the greatest offence under felony. To
cut off an ear or strike off a nose was nothing to the knocking out of
a fore-tooth, for a nose or an ear is useless in a fight—doubtless they
are in the way [442]. According to that system of punishment introduced
into England by the Engles, which compensated every injury by a money
payment, a front tooth was valued highly, and one who deprived another
of such a member had to pay six shillings, while breaking a rib only
cost half as much, and shattering a thigh only twelve shillings [443].
The fact that a dentist extracts teeth for love and not for money
does not relieve him of his liability for failure to perform his
work properly [444]; and if one is foolish enough |167| to allow an
ignorant apprentice to practise on his teeth, he can still recover from
the dentist for any injuries [445]. It is a good answer to an action
brought by a dentist to recover payment for his work and labor, that
the defendant has been injured instead of benefited by the plaintiff’s
treatment, either because of his want of skill or his negligence. So,
when Mr. Gilpin went to Mr. Wainwright to have a tooth extracted, and
Wainwright gave him chloroform, and then pulled out the wrong tooth,
and Gilpin declined to pay for the performance, alleging a want of
consideration, the dentist sued for his account, but the Court gave
judgment against him [446]. If the dentist’s bill has been increased
owing to his own mistake or wrong doing—as where being employed to pull
out one tooth and insert a false one, he pulled out two, and so had to
put in two; he cannot recover for this additional amount of work. Lord
Kenyon well put this when he said: “If a man is sent for to extract a
thorn which might be pulled out with a pair of nippers, and through his
misconduct it becomes necessary to amputate the limb, shall it be said,
that he may come into a court of justice to recover fee for the cure
of the wound which he himself has caused?” [447]. To put the question
is to give the answer. In fact, in such a case as the one put, it
would appear that not only could no recovery be had for the additional
services rendered necessary by the dentist’s own want of proper care,
but the man whose grinders were thus made few would be entitled to a
further deduction from the bill for the bodily suffering and damage he
had sustained [448].
One cannot reasonably expect to have teeth as well fitted to the mouth
by art as nature. Mrs. Henry got a set of artificial ones from Dr.
Simonds; when put into her |168| mouth, she complained that they felt
odd and pained her. The plate was somewhat filed, but she was still
dissatisfied, and declined to pay the bill. It was then agreed that she
should take them away and try them for a day or two; this was done,
and again she returned them, declining to pay. The doctor then sued,
and the evidence as to whether the teeth fitted was conflicting. One
testified that they were a good piece of work; another, that they were
a fair average piece of work; while a third said that they were nothing
extra. The Judge instructed the jury that if Simonds had used all the
knowledge and skill to which the art had at the time advanced, that
would be all that could be required of him. The verdict was for the
defendant. On an application for a new trial the court considered the
instructions erroneous and granted a new trial, saying: “that surgeons
are held responsible for injuries resulting from a want of ordinary
care and skill. The highest degree of skill is not to be expected,
nor can it reasonably be required, of all. The instruction given was
* * * * undoubtedly correct, and no more would be required of him. But,
upon legal principles, could so much be required of him? We think not.
If it could, then every professional man would be bound to possess
the highest attainment, and to exercise the greatest skill in his
profession. Such a requirement would be unreasonable” [449].
It is a dangerous thing for both parties for the dentist to try a new
instrument or a new _modus operandi_ for the first time—doing so the
Court once said was a rash act, and he who acts rashly acts ignorantly.
Using a new instrument is acting contrary to the known rule and usage
of the profession [450]. One cannot become an experimentalist except at
his own peril. |169|
A dentist, at a lady’s request, prepared a model of her mouth, and
made two sets of artificial teeth for her. In response to a letter
notifying her that they were ready, and asking when he could come and
put them in, the dentist received the following note: “My dear Sir, I
regret, after your kind effort to oblige me, my health will prevent my
taking advantage of the early day. I fear I may not be able for some
days. Yours, etc., Frances P.” Very shortly the lady died. The dentist
sued her executors for £21, but he failed to recover. The court held
that a contract to make a set of teeth is a contract for the sale of
goods, wares or merchandise within the meaning of the seventeenth
section of the Statute of Frauds; and that as by the terms of the
contract the teeth were to be fitted to the lady’s mouth, and as this,
through no default on her part, was never done, her executors were not
liable to the dentist for work done and materials provided; nor was the
letter a sufficient memorandum within the meaning of the Act referred
to. Counsel for the plaintiff and the Court seemed to differ widely
in their opinions of the artistic nature of tooth-making. The former,
arguing that the deceased had in truth contracted for the skill of the
dentist, and that the materials were merely auxiliary to the work and
labour, said this case was not to be distinguished from that of an
artist employed to paint a picture; the ivory used was of insignificant
value as compared to the skill employed. Judge Crompton, however, said:
“Here the subject matter of the contract was the supply of goods.
The case bears a strong resemblance to that of a tailor supplying a
coat, the measurement of the mouth and the fitting of the teeth being
analogous to the measurement and fitting of the garment” [451].
A similar view of the standing of a dentist was taken by the Court in
Michigan, when it held that he was a “mechanic.” The Court observed,
“A dentist, in one sense, is |170| a professional man, but, in another
sense, his calling is mainly mechanical, and the tools which he employs
are used in mechanical operations. Indeed, dentistry was formerly
purely mechanical, and instruction in it scarcely went beyond manual
dexterity in the use of tools; and a knowledge of the human system
generally, and of the diseases which might affect the teeth and render
an operation important, was by no means considered necessary. Of late,
however, as the physiology of the human system has become better
understood, and the relations of the various parts and their mutual
dependence become more clearly recognized, dentistry has made great
progress as a science, and its practitioners claim, with much justice,
to be classed among the learned professions. It is nevertheless true
that the operations of the dentist are, for the most part, mechanical,
and so far as tools are employed, they are purely so, and we could not
exclude these tools from the exemption which the statute makes, without
confining the construction of the statute within limits not justified
by the words employed” [452]. On the other hand, in Mississippi, the
Court said, “A dentist cannot be properly denominated a ‘mechanic.’ It
is true that the practice of his art requires the use of instruments
for manual operations, and that much of it consists in manual
operations; but it also involves a knowledge of the physiology of the
teeth, which cannot be acquired but by a proper course of study, and
this is taught by learned treatises upon the subject, and as a distinct
though limited part of the medical art, in institutions established for
the purpose. It requires both science and skill, and if such persons
should be included in the denomination of ‘mechanics,’ because their
pursuit required the use of mechanical instruments and skill in manual
operation, the same reason would include general surgeons under the
same denomination, because the |171| practice of their profession
depends in a great degree upon similar instruments and operative skill;
nor could such a pursuit properly be said to be a trade” [453].
False teeth have been considered necessaries for a wife. One Andrews
had a conversation with Gilman, a dentist, as to the latter furnishing
the former’s wife with a plate of mineral teeth, and he agreed to pay
for certain other dental services rendered to Mrs. A. The plate was
furnished while Mr. and Mrs. A. were living together, and it was quite
suitable to the former’s circumstances and station in life; he saw it,
knew whence it came, raised no objection to it, still he declined to
pay for it. The Court, however, held him liable, not only because the
wife being permitted to retain the plate, and the other circumstances,
showed her authority to make the purchase, but also on the ground that
the teeth were some of those necessaries wherewith a husband is bound
to furnish his wife [454].
A dentist must not take any unfair advantage of his patient. Some
thirty years ago, one Captain Simpson, a very old seaman and a
pensioner in Greenwich Hospital, gave a bill of exchange, payable
eight months after date, for £262 10s. to one Davis, a London dentist,
purporting to be for value received. Davis said, the real bargain was
that he should during the whole of the Captain’s life attend to his
teeth, and supply him with new ones from time to time. He also said
that a new set of teeth would cost from £30 to £50. The bill was in the
handwriting of D.; it was given in his house when no third person was
by, and it was never heard of until after the captain’s death, which
took place before it was due. There was no writing as to the teeth.
The executors of Simpson declined to pay, whereupon Davis handed the
note over to a creditor of his own, |172| who sued both parties.
The executors filed a bill in chancery, impeaching the document for
fraud, and asking that it might be delivered up to them. The Court
thought that it was quite impossible for any reasonable being to draw
any inference from the materials before it, but that it was a case of
fraud—nay, a gross fraud, and the decree was made as asked [455]. Sir
Launcelot Shadwell thought that the case had points of resemblance to
that of _Dent_ v. _Bennett_ [456], in which a medical man bargained for
a very large sum of money to attend a person of advanced years until
death; but in that case the doctor had to attend to the whole human
body, not merely to a particular part of it.
One dentist must not imitate too closely the sign or card of a fellow
practitioner. One Colton alleged that he had purchased from a Dr. G.
Q. Colton the right to use the name “Colton Dental Association” in
connection with the use of nitrous-oxide gas to alleviate pain in
the extraction of teeth, and that he used the same in advertisements
and prominently displayed it on signs; that the defendant, who had
been in his employment, left him, opened dental rooms in the same
street, issued cards announcing that he was “formerly operator at the
Colton Dental Rooms,” and extracted teeth without pain by the use of
nitrous-oxide gas, and put a sign to the same purport over his door,
but the words “formerly operator at the,” upon cards and sign, were
in small and almost illegible letters, while the words “Colton Dental
Rooms” were very conspicuous; the signs were very similar in shape,
size, &c., and were hung on the same side of the street, in the same
manner, and might readily be mistaken the one for the other, especially
by suffering patients impatient for relief. An injunction against the
defendant’s cards and signs was granted [457]. |173|
And where Morgan and Schuyler, two dentists, dissolved partnership,
S. bought M.’s interest in the fixtures and in the lease of the
room, and continued business therein. M. removed his name from the
sign, but S. replaced it, and put above, in letters so small as to
be nearly imperceptible, his own name with the words “successor to.”
The agreement of dissolution did not prohibit M. from engaging in the
business, so he opened an office therefor in another part of the city.
He then applied to the Court to restrain his late partner from the
use of his name as mentioned. He was successful in his action. But
the Court thought that S. would have kept within his rights if he had
merely described himself as “late of” the firm [458].
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