Dufrene v. Faget

260 So. 2d 76
CourtLouisiana Court of Appeal
DecidedMay 18, 1972
Docket4864
StatusPublished
Cited by4 cases

This text of 260 So. 2d 76 (Dufrene v. Faget) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dufrene v. Faget, 260 So. 2d 76 (La. Ct. App. 1972).

Opinion

260 So.2d 76 (1972)

Paul DUFRENE, Jr., and Mrs. Rosalie Dufrene
v.
Dr. Harold FAGET and St. Paul Fire and Marine Insurance Company.

No. 4864.

Court of Appeal of Louisiana, Fourth Circuit.

March 21, 1972.
Rehearings Denied April 18, 1972.
Writ Refused May 18, 1972.

*77 Peltier & Peltier, Thibodaux, and Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, Donald L. Peltier, Thibodaux, for plaintiffs-appellees.

Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, H. Martin Hunley, Jr., New Orleans, for defendants-appellants.

Before CHASEZ, STOULIG and BAILES, JJ.

STOULIG, Judge.

This suit was brought by plaintiffs, alleging that Dr. Harold Faget was guilty of dental malpractice which resulted in Mrs. Dufrene's swallowing a small needlelike instrument known as a root canal reamer. Surgery was subsequently necessary to remove this instrument, which measured approximately 1¼ inches in length, from the plaintiff's duodenum. After a trial on the merits before the presiding district court judge, the defendant was found to have been guilty of negligence, and plaintiffs were awarded $26,657.40 in damages, which included $1,657.40 in medical expenses. From that judgment defendants have lodged this suspensive and devolutive appeal in which they allege the trial court erred in the following respects:

1. In concluding that Dr. Faget's treatment was improper;
2. In finding that Dr. Faget was guilty of a breach of the standards of care customarily prevailing in the dental community; and
3. In concluding that Dr. Faget left the root canal reamer in plaintiff's mouth and turned away to get an instrument with which to retrieve it.

Alternatively, defendants maintained that the award was grossly excessive and should be reduced.

As this suit presents both factual and legal issues, a determination of the former must first be made in order that the latter be placed in proper perspective.

There were no witnesses to the incident leading to this suit other than the parties themselves, and their versions of precisely what took place are divergent and irreconcilable.

Mrs. Dufrene testified that on December 23, 1966, she entered Dr. Faget's office complaining of a severe toothache. Dr. Faget made an examination and advised her that although her tooth could be saved, it would required extended treatment. Mrs. Dufrene testified that he gave her no explanation of the nature of her problem. Nevertheless, she elected to save the tooth, whereupon Dr. Faget administered to her four oral injections of anesthesia, which she stated made her mouth and gums totally numb: "Everything was completely out."

*78 Dr. Faget, working alone, began his procedure, which required the use of the root canal reamer. According to Mrs. Dufrene, he turned away from her at one point in the operation, presumably to get an instrument, and when he turned back said: "My God you swallowed it." Mrs. Dufrene replied "Swallowed what?" and Dr. Faget said, "A small needle that I laid on your tongue." Mrs. Dufrene stated that she was "petrified," and asked Dr. Faget if he would like for her to try to cough it up. He replied affirmatively, but her efforts were to no avail. After requesting him to telephone her doctor, she proceeded to Browne-McHardy Clinic where she saw Dr. John T. Leckert. An X ray taken there confirmed that she had swallowed the instrument. It was hoped that the root canal reamer would be eliminated naturally, but a later examination revealed it was lodged in her duodenum from where it was surgically removed on January 16, 1967.

Dr. Faget's version of the events surrounding the ingestion of the reamer are substantially different from Mrs. Dufrene's and are, as noted, irreconcilable.

He testified that Mrs. Dufrene entered his office on December 23, 1966, complaining of a severe toothache which he diagnosed as acute pulpitis of the lower left second bicuspid tooth. He explained that he could remove the tooth or treat it through endodontic procedures, i. e., removal of the infected pulp tissue within the tooth. She chose the latter alternative. Two, three or possibly four injections of a standard local anesthetic were administered, after which Dr. Faget isolated the tooth with cotton rolls and installed a saliva ejector and began the procedure, which involves the insertion of the reamer into the root canal of the tooth. This instrument is held between the thumb and forefinger and is manipulated with a vertical circular motion, the purpose of which is to extract the infected pulp. Dr. Faget had almost completed this process when the reamer slipped from his grasp and fell laterally over the top of the patient's tongue. Mrs. Dufrene then immediately sat up and leaned over the cuspidor which was just to her left. Dr. Faget stated that he was excited and yelled, "Don't swallow anything." Mrs. Dufrene said, "What are you talking about?" He then said, "Please let me examine your mouth," whereupon he observed that the instrument was gone and informed her that she had very likely swallowed it. Dr. Faget testified that he then telephoned his father, a physician, who advised him to have Mrs. Dufrene see her personal physician immediately. What transpired thereafter has already been related and is not contradicted by Dr. Faget.

After a lengthy trial of the matter the district court made the following factual determination found in its written reasons for judgment:

"It is the opinion of the Court that it is virtually impossible for the events to have occurred as described by Dr. Faget.
"On the other hand the series of events as described by Mrs. Dufrene is logical and makes sense.
"It is the opinion of the Court that Dr. Faget took his hand away from Mrs. Dufrene's mouth and his eyes off of the canal root reamer, and reached for an instrument to remove the reamer.
"Further, Dr. Faget knew that Mrs. Dufrene's mouth would be completely numb and he failed initially to instruct her to keep her mouth open and not to swallow. In addition, at the crucial moment, he took his hand away from Mrs. Dufrene's mouth and his eyes off of the canal root reamer, and failed to protect her from swallowing the canal root reamer."

We have made a careful review of the testimony contained in the record and conclude that the findings of the trial court must be affirmed. Although we are not prepared to say that Dr. Faget's version of the unfortunate incident is "virtually impossible," we do agree that Mrs. Dufrene's statement of what occurred is certainly the *79 more logical of the two. It is particularly noteworthy that Mrs. Dufrene's mouth was heavily anesthetized and it is unlikely that the dropping of the reamer would have caused her to lunge toward the cuspidor. (Although Dr. Faget could not state whether the instrument fell over a portion of her tongue which had sensitivity, Mrs. Dufrene stated positively that she felt nothing.) Furthermore, swallowing the instrument while surging toward the expectorating bowl would seem to be extremely difficult at best.

On the other hand, logical support for Mrs. Dufrene's version and the trial court's conclusion that Dr. Faget removed his hand from her mouth and reached for an instrument to remove the reamer can be found in the statements of two of the dentists (both defense witnesses) who testified.

Dr. Jack Hudson and Dr.

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Related

Simpson v. Davis
549 P.2d 950 (Supreme Court of Kansas, 1976)
Dufrene v. Faget
262 So. 2d 35 (Supreme Court of Louisiana, 1972)

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260 So. 2d 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dufrene-v-faget-lactapp-1972.