
    Felice Cassano, Appellant, v. Albin R. Hagstrom, Respondent.
    Argued January 21, 1959;
    decided April 17, 1959.
    
      
      Ralph Stout and Sidney Schulman for appellant.
    I. Plaintiff made out a prima facie case; the trial court erred in dismissing the complaint at the close of plaintiff’s case. (Pollard v. Trivia Bldg. Corp., 291 N. Y. 19; Meiselman v. Crown Heights Hosp., 285 N. Y. 389; Higdon v. Carleback, 348 Mich. 363; Osipoff v. City of New York, 286 N. Y. 422; Zettler v. Reich, 256 App. Div. 631; Dictz v. Aronson, 244 App. Div. 746; Evans v. Roberts, 172 Iowa 653; Brown v. Shortlidge, 98 Cal. App. 352; Benson v. Dean, 232 N. Y. 52; Simon v. Freidrich, 163 Misc. 112.) II. The trial court’s ruling that Dr. Silverstein was not qualified to testify as an expert constitutes reversible error. (Meiselman v. Crown Heights Hosp., 285 N. Y. 389; People v. Rice, 159 N. Y. 400; Bratt v. Western Air Lines, 155 F. 2d 850.)
    
      James M. Gilleran and John J. O’Connor for respondent.
    I. Expert testimony was necessary at bar, such cases as Benson v. Dean (232 N. Y. 52) having no application. Whether Dr. Silverstein, the physician, was or was not properly qualified-by counsel to testify to alleged dental malpractice is immaterial, since defendant himself, while denying that he penetrated the lingual periosteum, admitted that to penetrate this structure (in the dental surgery at bar) would be contrary to accepted procedure. (Ales v. Ryan, 8 Cal. 2d 82; Hall v. Grosvenor, 267 Ill. App. 119; Passey v. Budge, 85 Utah 37; Tady v. Warta, 111 Neb. 521; Evans v. Roberts, 172 Iowa 653.) II. Defendant did not admit to malpractice. Therefore, such cases as Zettler v. Reich (281 N. Y. 729) have no application. (Greco v. Niditch, 2 A D 2d 762.) III. Res ipsa does not apply at bar. Assuming it could have been used, plaintiff waived it. (Holtfoth v. Rochester Gen. Hosp., 304 N. Y. 27; Bailey v. Bethlehem Steel Co., 277 App. Div. 798, 302 N. Y. 717; Scott v. City of New York, 2 A D 2d 854; Switzman v. Aperion Catering Corp., 9 Misc 2d 343; Finn v. Pennsylvania R. R. Co., 6 A D 2d 813; Swiontek v. City of New York, 283 App. Div. 949; Whitcher v. Board of Educ. of City of Rensselaer, 233 App. Div. 184; Bressler v. New York R. T. Corp., 270 N. Y. 409; Spinella v. City of New York, 278 App. Div. 847; Goodheart v. American Airlines, 252 App. Div. 660.) IV. Dr. Silverstein’s opinion that a sharp instrument penetrated the lingual periosteum and severed the lingual and chorda tympani nerves was based upon the history he procured and, therefore, since he was admittedly not a treating physician, was' inadmissible and did not prove that a sharp instrument penetrated the area and severed the nerves. (Belter v. Van Winkle, 234 App. Div. 886; Davidson v. Cornell, 132 N. Y. 228; Young v. Stevens, 132 N. J. L. 124; Devore v. Schaffer, 245 Iowa 1017.)
   Desmond, J.

The trial court correctly dismissed the complaint since there was no proof in the record that any negligent act of defendant caused the nerve injury. Plaintiff’s whole theory of action was that defendant had negligently severed the two nerves in question by improperly allowing his drill to penetrate the lingual periosteum which lies between the extracted tooth and these two nerves. However, the only testimony on this subject was given by defendant himself and he swore not only that he did not cut these nerves but that he did his work on the other side of the tooth, that is, between the gum and the cheek, and did not drill through the tooth and out the other side. There is no evidence direct or circumstantial that the instrument used by defendant came near these nerves. Thus it was beside the point to establish that it was contrary to accepted procedure to penetrate the lingual periosteum during the removal of the tooth.

On a sufficient factual showing it might in some such case be possible for a jury to draw the inference on circumstantial nondirect evidence that a defendant must have penetrated the periosteum since no other possible cause of the injury existed. However, that is not this case. Plaintiff’s expert Dr. Silver-stein did not say that .the destruction of these nerves could have resulted from surgical cutting only. His diagnosis was that plaintiff “ had a degeneration ’ ’ of these nerves. Elsewhere he said that she had suffered a degeneration or destruction of these two nerves ’ ’ and that he was certain that the condition could only come from a severance or destruction or degeneration ” of the nerves. He did not rule out (except by speculation from assumed facts not proven) the possibility that the condition of the nerves might have been caused nontraumatically. In drawing or attempting to draw the inference that the nerves had been cut by defendant, Dr. Silverstein was applying the fallacy of “ post hoc ergo propter hoc In other words, he attempted to testify in the form of an opinion to a supposed fact of which he could have no knowledge, that is, that the destruction of the nerves was caused by surgical cutting.

The Trial Justice ruled out Dr. Silverstein’s testimony that the penetration of the periosteum and destruction of these nerves was contrary to professional practice but this ruling did not prejudice plaintiff since defendant himself testified to the same thing and as we have pointed out this was beside the point because there was no proof that such surgical cutting had occurred.

It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness (Weibert v. Hanan, 202 N. Y. 328, 331; Marx v. Ontario Beach Hotel & Amusement Co., 211 N. Y. 33, 38). He cannot reach his conclusion by assuming material facts not supported by evidence (People v. Patrick, 182 N. Y. 131, 172). What the witness Silverstein tried to do was to testify, despite his lack of knowledge, as to what he assumed or believed defendant had done and then from those assumed facts draw an inference of malpractice. But the facts of the occurrence could only be determined by the jury on competent proof. In the absence of such proof there was no basis for any opinion and the attempted opinion was worthless as evidence. None of the malpractice cases cited by plaintiff dispute this rule since they all deal with instances where the facts of what the defendant did were in the record and where an expert was then allowed to state whether what the defendant had done was in accord with accepted professional practice, etc.

Actually plaintiff’s counsel, in opposing a motion to dismiss the complaint, seemed to have realized all this since he argued that this injury could have come about only through a penetration by the burr of the lingual périosteum. The difficulty was that he had not proven that it came about this way and it is evident in the record that there were other possible causes of the degeneration of these nerves. It may be highly likely that something occurring during this operation did cause this condition but it was not proven on this record.

The judgment should be affirmed, with costs.

Burke, J. (dissenting).

In this action to recover damages for personal injuries due to alleged malpractice on the part of defendant, a dentist, the complaint was dismissed at the close of the plaintiff’s case.

The principal issue on this appeal is whether the plaintiff made out a prima facie case of malpractice. Although the trial court erred in ruling that an expert witness called by the plaintiff was not qualified to express an opinion as to customary and accepted dental procedure, since defendant during his testimony supplied the information sought to be elicited from plaintiff’s expert, the plaintiff was not materially prejudiced.

In reviewing a judgment which dismisses a complaint, “ we must take the facts in a light most favorable to the plaintiff and, in determining whether the facts proved constitute a cause of action, give him the benefit of every favorable inference which may reasonably be drawn”. (Osipoff v. City of New York, 286 N. Y. 422, 425; Lubelfeld v. City of New York, 4 N Y 2d 455, 460.) Keeping in mind this axiom, a resumé of the record demonstrates that plaintiff has proven a cause of action.

Plaintiff had a bone impacted lower left third molar. There was a marked curvature which necessitated a surgical extraction. Upon the recommendation of her family dentist, she went to the office of defendant, an oral surgeon, for the operation. The defendant, after administering-a general anesthetic, made an incision over the crown of the tooth and by use of a surgical bone burr (i.e., a small drill) removed enough of the bone to allow for the removal of the tooth. The tooth was raised and removed by means of an elevator introduced into a small hole drilled in the root of the tooth.

Plaintiff, upon regaining consciousness, experienced a pain on the left side of her face in the area where the tooth had been removed. In the evening she informed her family dentist that the left side of her tongue was numb. The following day she found an absence of not only feeling, but also taste. She visited the family dentist who performed tests which convinced him that the left side of plaintiff’s tongue had no sense of feeling or taste. Five days after the extraction, defendant, according to the plaintiff, told her that “ the nerve of the tongue had been affected when the tooth was pulled and that it does happen maybe one out of a hundred cases, and there wasn’t anything that could be done for it ”. Plaintiff then consulted her family doctor who tested her reactions, established the loss of feeling on the left side of her tongue and administered a series of injections. At the date of the trial, more than six years after the extraction, plaintiff asserted she had no sense of taste or feeling on the left side of. her ■ tongue. . Her tongue, she said, reacted sensitively to touch and to flavour prior to this extraction. This testimony is corroborated by her family dentist and her family doctor. ■:

Defendant contends that .all. the surgical work was done between the left cheek and the teeth and that no instrument was used on the lingual (tongue) side... He stated that the loss of the sense of fe,eling and of taste was not expected and did not normally follow such an oral surgical procedure. He also admitted it is contrary to accepted oral. surgical procedure to penetrate the lingual periosteum during the removal of an impacted left lower molar. : ■

.On the tongue side of the lower gum area (the lingual periosteum) are two nerves, the chorda tympani, which supply the sense of taste to the tongue and the lingual nerve,, which supplies the sense of feeling. These two nerves are separated from the tooth which was'extracted by the periosteum (described as a fibrous layer,, fairly .strong,, about as . thick as two piéces of paper) and the mandibular bone.

Dr. Silverstein, a specialist in the. field of otorhinolaryngology, was called as an expert witness by plaintiff. He stated he was familiar with-the operative procedures that defendant used in extracting the: tooth, had- examined plaintiff’s mouth on two, occasions and administered tests. He said, among other things, that the two nerves which supply the sense of taste and feeling to the left side of the tongue are dead; that the condition is permanent; and that there is- nothing; that can be done medically to improve, plaintiff’s condition. He then testified that plaintiff’s condition could only have been caused by “a severance or destruction or degeneration of the chorda tympani and lingual nerves ’ ’. He further testified that in this- case it was his opinion that the condition was caused by “ The entrance of a sharp instrument, with enough force to cut the nerve ’ ’; that the instrument penetrated the lingual periosteum and cut the nerves and that such forceful penetration was a competent producing cause of plaintiff’s ¡condition. It is undisputed that the.se two nerves are always inside .of the periosteum. In order to sever these two nerves you must go through the mandibular bone, through the periosteum and into the floor of the mouth.

On the basis of this evidence, it is clear that a jury could infer that defendant, contrary to accepted oral surgical procedure, penetrated the lingual periosteum with the surgical bone burr and severed the two nerves, thereby causing a loss of the sense of taste and tactile sensation on the left side of plaintiff’s tongue.

In the usual case, the plaintiff is required to produce expert testimony that defendant has violated accepted and approved medical or dental standards (Pike v. Honsinger, 155 N. Y. 201; Bernstein v. Greenfield, 281 N. Y. 77, 80) unless the conditions are “ of such a character as to warrant the inference of want of care from the testimony of laymen or in the light of the knowledge and experience of the jurors themselves ” (Benson v. Dean, 232 N. Y. 52, 56; Meiselman v. Crown Heights Hosp., 285 N. Y. 389). In the cited cases there was direct evidence of acts or omissions by defendant and the issue was whether expert testimony was necessary to establish lack of skill or whether the jury could infer negligence. However, in this case the defendant was the only witness who could give direct evidence that the lingual periosteum was penetrated. The nerves, being below the floor of the mouth, could not be examined except upon dissection. Under such circumstances, where the defendant denies the performance of the acts which constitute admitted negligence, resort must be had, of necessity, to circumstantial evidence which may, taken together with the denial of the defendant, raise a question of fact for the jury.

The testimony of plaintiff’s witnesses, supported by the defendant’s own testimony, was sufficient to permit the jury properly to infer the commission of a specific act of malpractice or come to a conclusion that the consequences of the defendant’s operative treatment of the plaintiff was due to want of reasonable care.

Accordingly, the judgment of the Appellate Division should be reversed and a new trial granted, with costs to the appellant to abide the event.

Judges Dye, Fuld and Van Voorhis concur with Judge Desmond ; Judge Burke dissents in an opinion in which Chief Judge Conway and Judge Froessel concur.

Judgment affirmed.  