(dissenting). If the case is to be viewed only in the light of the majority opinion, it is futile, it seems to me, to order a new trial. The plaintiffs then will have no cause of action and their complaint should be dismissed.
But the cause of action of the plaintiff wife is predicated not upon malpractice but upon the breach of a special contract resulting in a trespass. Her complaint pleads, and her evidence established prima facie, this special contract. True, negligence is charged, but is relied on only in so far as it resulted in the breach of defendant’s obligation under his contract.
Pursuant to advice and instructions of Dr. Herschfeld, the dentist *27who had been treating her, plaintiff wife visited the defendant for the sole purpose of having a particular tooth, the lower first left molar, extracted. She indicated this tooth and no other. In violation of specific instructions, the defendant extracted the second lower left molar. The plaintiff wife, upon recovering from the effects of the gas administered, discovered that her instructions had been ignored and made immediate complaint. The defendant thereupon talked to Dr. Herschfeld on the telephone, informed him of plaintiff’s grievance and expressed regret that he had made a mistake. Dr. Herschfeld suggested that the defendant “ replant ” the tooth but the latter stated that this was impossible as he had thrown it away.
Dr. Herschfeld corroborated plaintiff with respect to his diagnosis and his instructions to her to have the first molar extracted. The trier of the facts accepted plaintiff’s testimony, as was his right. In so doing he saw fit to disregard defendant’s claim that the plaintiff submitted herself to his supervision for diagnosis and treatment. This being so, his testimony and that of his experts offered to show that he had adopted proper practice and used commensurate skill was beside the point.
In the circumstances the defendant was not at liberty to use bis own judgment and was required instead to follow plaintiff’s wishes. If he disagreed with the diagnosis of Dr. Herschfeld and reached the conclusion that it was the second and not the first molar that should be extracted, he should have so advised the plaintiff and obtained her consent before proceeding to act contrary to instructions. By not so doing he was guilty of a trespass and liable to respond in damages. (Schloendorff v. New York Hospital, 211 N. Y. 125, 129; Mohr v. Williams, 95 Minn. 261; Pratt v. Davis, 224 Ill. 300; Brothers Dental Jurisprudence, 69, 70.)
In Schloendorff v. New York Hospital (supra) the court, speaking through Judge Cardozo, said: “ In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.”
A proper diagnosis and skillful and effective treatment is no defense. (Mohr v. Williams, supra.) Because defendant’s treatment relieved the patient of pain and rendered unnecessary the extraction of the tooth which he contracted to remove, is not destructive of plaintiff’s cause of action, though a proper element to be considered in connection with her damages. Here, plaintiff’s damages are predicated largely upon the additional expense she *28would be required to incur for contemplated bridge work by reason of the absence of the tooth extracted by the defendant.
I am of opinion, therefore, that the trial justice was fully warranted in finding in favor of the plaintiffs upon the issue submitted and that the judgment should be affirmed.
Untermyer, J., concurs.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.