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Grubb v. Jurgens





APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.


Plaintiff John R. Grubb brought a negligence action against defendant Emmett H. Jurgens, an oral surgeon, to recover damages for alleged injuries resulting from a tooth extraction. The trial court directed a verdict for defendant on the count of the complaint which alleged defendant's failure to warn of the risk of injury, and the jury returned a verdict for defendant on the other count which was based upon res ipsa loquitur. Plaintiff appeals, claiming that the directed verdict was erroneous and that an erroneous instruction was given to the jury.

According to plaintiff's testimony at trial, after his dentist advised him to have his lower left wisdom tooth pulled, he made an appointment with defendant for the extraction of the tooth on May 16, 1973. Plaintiff first asked defendant for a local anesthetic, but then agreed to a general anesthetic upon defendant's recommendation. Five days after the extraction, plaintiff returned to defendant's office with severe pain in his jaw and was treated for a dry socket. Plaintiff returned several times to have the packing changed, and on one such visit, he told defendant's brother, Dr. Paul Jurgens, who was treating him, about the pain and numbness in his lip, face, and tongue. Dr. Paul Jurgens said that feeling might come back "tomorrow or never." Plaintiff subsequently consulted his own dentist, his personal physician, his psychiatrist, a neurologist, and an oral surgeon from Carle Clinic in Urbana, Illinois, but he obtained no relief.

As a result of this numbness, plaintiff sometimes unknowingly chews or bites his tongue, causing it to bleed. He also experiences continuously a burning pain on the left side of his tongue and gum. Plaintiff's testimony concerning his tongue-biting episodes was corroborated by his wife, daughter, son-in-law, and a family friend.

Plaintiff also has been treated for chronic depressive neurosis by Dr. Otto Visintin, his psychiatrist, who prescribed an antidepressant (elavil) and a tranquilizer (valium). When plaintiff reported having a burning type pain, known as causalgia, Dr. Visintin referred him to his family physician to determine whether the pain was organic or psychogenic.

In November 1974, plaintiff consulted Dr. James C. Wellman, a specialist in oral surgery at Carle Clinic in Urbana, Illinois. Tests performed by Dr. Wellman indicated that plaintiff had no feeling on the left side of his tongue. When an injection for pain was given, plaintiff reported temporary relief, but the next day the pain returned. Dr. Wellman then made an incision in the gum. He found no bone or tooth fragments; the lingual nerve was not visible in an anomalous position; and he saw nothing to account for the pain and numbness. He testified that in his opinion the numbness and causalgia resulted from some sort of injury to the lingual nerve, but he had no opinion as to whether plaintiff's extraction was done carefully or not.

Dr. Wellman gave what was to be the critical testimony as to both issues raised on appeal. As to a duty to warn, he stated that, in the case of an erupted tooth, he would not warn a patient about the risk of nerve injury unless there was extreme twisting of the roots of the tooth. In the latter situation or in the case of an impacted tooth, he would tell the patient about the possibility of anesthesia, but he would not warn of causalgia. He also testified that injury to the lingual nerve was not one of the ordinary results of a careful extraction of an erupted third molar, but he said such injury can occur when the surgeon has been extremely careful; however, an injury would be more likely when there is negligence.

Defendant presented the testimony of an oral surgeon and a neurologist, both of whom had examined plaintiff and both of whom had reached the conclusion that plaintiff had no objective abnormalities. Defendant testified as to the procedure used to remove the tooth. First he tried to use forceps, but the crown fractured; so he made an incision in the gum to remove the tooth fragments. The roots of the tooth were bifurcated with one root curving to the rear. He stated that there was nothing unusual in this extraction, that he performed it in a careful manner, and that this was an "everyday procedure." The notes on his clinical record indicated that he had warned plaintiff of a possible numb lip.

Plaintiff's complaint alleged, inter alia, that defendant cut, severed, or damaged the left lingual nerve in the course of removal of a wisdom tooth; that defendant was in complete control of the operation; and that in the usual, ordinary, and customary course of such surgery, injury to the left lingual nerve was not of the ordinary risks of this operation. Plaintiff also included an alternative allegation that, if an injury of the lingual nerve is one of the ordinary risks of such an operation, then defendant negligently failed to advise plaintiff of the risk.

At the close of plaintiff's case, defendant moved for a directed verdict, and in the course of argument on that motion, plaintiff's attorney said:

"The Court please, I am not going to discuss the failure to warn because obviously the evidence at this stage does not support that charge."

The court ruled that there was failure of proof on the count charging a failure to warn and allowed defendant's motion for a directed verdict on that count, but refused to direct a verdict on the res ipsa loquitur count. At the conclusion of the trial, the jury returned a verdict in favor of defendant. Plaintiff has perfected this appeal.

• 1, 2 Plaintiff contends the trial court erred in directing a verdict on the failure-to-warn issue because, on the basis of Dr. Wellman's testimony, there was sufficient evidence to go to the jury under the Pedrick rule. Defendant responds that plaintiff confessed error as to this issue and is bound by the statement of his attorney admitting the insufficiency of the evidence. We agree with defendant. A party cannot acquiesce in a ruling of the trial court and then claim error on appeal. Fugate v. City of Peoria (3d Dist. 1976), 44 Ill. App.3d 692, 358 N.E.2d 712; Kilbride v. Kilbride (1st Dist. 1965), 64 Ill. App.2d 355, 212 N.E.2d 252.

The second error assigned is the giving of defendant's instruction No. 3 in conjunction with ...

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