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 prim 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 prim 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).