Author: admin

“something intended to disguise or draw attention away from an often embarrassing or unpleasant issue^[1]”

It’s not all that unusual for a pre-action Letter of Response, (“LOR”) to deny most or indeed all of the initial allegations intimated in Letter of Claim.  However, sometimes a pre-action LOR introduces arguments which really surprise, and it is important to analyse these to understand whether they have any relevance.

In a recent dental negligence case in which I was instructed:

1. The Defendant’s solicitors stated that the LOR was produced with the benefit of having obtained expert evidence from a General Dental Practitioner.   

The difficulty for them with this was that the Defendant was a registered dental Specialist, and had most certainly held himself out to be so to the Claimant in respect of the complex treatment which he had provided.   So, the appropriate standard against which his clinical work in this case needed to be measured was that of a reasonable registered dental Specialist in the relevant specialty.

• It was said that the Claimant had already brought regulatory proceedings against the Defendant before the dental regulator, the General Dental Council, (“GDC”), and that an Interim Orders Committee “had not taken the case forward”.  It was further said that this same Committee had “established that none of the allegations were proven” and that the Defendant’s fitness to practice was not impaired and the case had not been taken forward. 

The difficulty with this was fourfold:

1. It is not an “informant” that “brings regulatory proceedings” before the Dental Regulator.  That is the role of the regulator itself, having carried out its own investigations, with due consideration as to its statutory function (principally the protection of the public), and applying the relevant test as to “reasonable prospects” of an allegation of misconduct or poor professional performance in relation to fitness to practice being found by a Professional Conduct Committee.
   1. A fundamental misunderstanding of the role of the GDC Interim Orders Committee.  That Committee does not establish whether allegations are proven or not:

“The Interim Orders Committee (IOC), is a statutory committee of the GDC which considers if it is necessary to make an order affecting an individual’s registration for the protection of the public or otherwise in the public interest or in the interest of the individual concerned pending (emphasis added) the GDC’s investigation and if necessary, the outcome of any inquiry by a Practice Committee”^[2]. 

1. As it happened, the Claimant had, in any event, recently received correspondence from the GDC to say that they were still continuing to investigate his complaint concerning the Defendant.  It was therefore apparent that the GDC had not yet made a decision as to whether there was an issue relating to the Defendant’s fitness to practice.

1. Whatever the decision of a GDC investigation or Practice Committee that itself would not be binding upon the County Court in subsequent civil proceedings^[3].

• It was said that the Claimant had already brought a claim against the Defendant in the County Court which had been struck out, with the Claimant being ordered to pay the Defendant’s costs, and it was intimated that the Claimant was at risk of abuse of process being found if he continued to litigate on matters which had previously been determined.

The difficulty with this was that whilst the Claimant, unrepresented at the time, had indeed brought a small claim against the Defendant on the basis that the latter had refused to return and had thereby stolen dental moulds produced for him by another dentist, that claim did not involve allegations of clinical negligence and was thus wholly different.  The Costs Order had been promptly paid.

• It was said that the Defendant would have a counterclaim against the Claimant for outstanding professional fees, which would have the effect of reducing the Claimant’s claim to £nil, with costs owing, in any event.  

The difficulty with this was that the Claimant was wholly unaware of any outstanding treatment fees owed.  The Defendant had never rendered any invoices, requests for payment or indeed provided treatment cost quotes or estimates. The Defendant had been paid to carry out remedial treatment in respect of a previous dentist’s work by a finance company involved in funding the original dentist’s work.    There was no identification in the LOR of the sum allegedly owed by the Claimant, or the treatment in respect of which outstanding professional alleged fees were said to relate. 

There was, in fact, very little in the LOR that actually addressed the allegations of breach of duty within the Letter of Claim, and of that, there was plenty to challenge. The bulk of the LOR was “smoke and mirrors”.

Following conference, my instructing solicitor sent a suitably robust response, together with a pre-action part 36 Offer to settle.

The Defendant settled. 

---

^[1] Definition downloaded from https://www.merriam-webster.com/dictionary/smoke%20and%20mirrors on 20 September 2023

^[2] Definition downloaded from https://www.gdc-uk.org/docs/default-source/facing-a-concern/ioc-registrant-guidance.pdf?sfvrsn=f952bfd8_4#:~:text=The%20Interim%20Orders%20Committee%20(IOC,the%20GDC%27s%20investigation%20and%20if  on 20 September 2023

^[3] Such judgments in other proceedings/jurisdictions are not admissible evidence: see Phipson on Evidence (18^th ed.) at 43-78; Hollington v F. Hewthorn & Co. Ltd [1943] KB 587.  Although they may be “interesting”, the County Court would not be bound and would conduct its own investigation of the pleaded case.

---

I was instructed by a client under the Public Access Scheme for barristers.

This was a matter where it was pretty likely from the start that there were good prospects of establishing at least some negligence. However, there were other aspects which seemed very obvious to the client, but my background dental knowledge meant that I could foresee potential difficulties with proof even to the civil standard. As in virtually every case, there was going to be litigation risk and so it was important that this was made very clear.

This is what had happened before I was instructed:

The client had undergone extraction of a painful, vertically fractured upper molar tooth. The extraction took over an hour. Post-operatively he suffered from significant discomfort and he also noticed when following the dentist’s instructions to gargle with salt water that fluid came out of his nose. He attended the dentist on four subsequent occasions when the dentist briefly examined him and packed the socket, but the client obtained only limited and short-lived relief. Eight weeks after the extraction he was still feeling unwell, in pain and had developed an unpleasant taste in the mouth, but the dentist told him that the socket was “75% healed”.

A month further on, the client, still in pain, contacted the dental practice again to be told that the dentist had retired. He was seen by another dentist, who took an X ray, then a larger X ray, before saying that there was a foreign body in the client’s upper left jaw for which he would need to be referred to an oral surgeon.

Fortunately, the client had private health insurance and within a week, he had undergone removal of a dental bur from his left maxillary sinus under general anaesthesia via a Caldwell-Luc approach, together with his unerupted UL8 which was by then heavily involved in general inflammation within the sinus. The oro-antral oommunication was repaired.

Unfortunately, although the surgical site healed, the client developed painful post-traumatic trigeminal neuropathy which failed to respond to pharmacological and alternative treatment approaches.

The retired dentist had, not unreasonably, passed my client’s initial complaint to the major indemnifiers with whom he had been insured at the relevant time, whilst at the same time expressing the observation “I have passed all the information to XXX but they appear to be very busy and have not offered me a consultation yet. I am conscious that you would want to pay for your professional costs and I am not confident XXX will do this promptly, even though I expect them to be fair in their judgement ultimately”.

It was nearly 13 months later that I was instructed. The client remained in pain, and there had been little progress other than the dentist’s indemnifiers having sent him a copy of the pre-action protocol for resolution of clinical disputes.

This is what happened after I was instructed:

The client sent me various documents although he had not at that stage obtained all his dental records.

When I saw the X ray images and photograph of the bur in the sinus, initially I did a bit of a double take. It was an entire, friction grip tapered diamond bur. It really seemed quite extraordinary that a dentist could have “lost” this during an extraction and not realised. In the words of an expert in another case, it seemed to me that this was a matter of “basic competence”. However, it was not so clear either that an oro-antral fistula could have been avoided (although that should probably have been suspected with the history of nasal fluid reflux instead of just “jollying him along” for 4-5 months), or necessarily that the development of permanent trigeminal neuropathy had been caused by the accident or the treatment to remove the bur, or was even foreseeable. It did seem as though the coincidental timing pointed to a possible link. We obtained informal emailed simple advice to the same effect from a couple of oral surgeons. The client was reticent about instructing an expert for a formal Part 35 compliant report at this stage and incurring substantial costs to do so, given what he considered was pretty obvious, although I did advise him that it was likely to be necessary going forwards.

Once we had all the records, I was instructed to draft a pre-action Letter of Claim on the basis of the records and the informal expert opinion which we had. The client duly sent that off. The request for damages included General Damages, Special Damages including the costs of attendances at several specialists in an attempt to diagnose and resolve the ongoing neuropathy and various mediations, and the Private insurer costs incurred (subrogated claim).

Months went by. The indemnifiers wanted the client to be examined by an expert Oral Surgeon. Apparently, they struggled to find an appropriate expert but eventually, the client had an appointment somewhere in the West Country, which lasted a few minutes and took him several hours to get to. More months went by. It turns out that eventually the client, in frustration, “tweeted” the CEO of the indemnifiers, and then a Defendant’s Part 36 Offer arrived.

I advised the client that the offer was at an undervalue – he hadn’t realised that it was “all-inclusive” and thought it related only to his General Damages. A counter-offer was made and in due course rejected although a slightly improved Part 36 offer arrived from the Defendant. I discussed with the client that he might consider “picking up the phone” to the claims handler as he really did not wish to issue formal proceedings, but only if he felt able to do so, and provided him with the relevant arguments.

He duly did this, although not before having to send several e mails proposing suitable times and not receiving any response. Eventually, the claims handler said he needed to obtain “internal approval” for proposals.

That (predictably) all took rather a long time and in frustration, (and without my knowledge), the client e-mailed the social media department of the indemnifiers, which actually seemed to do the trick, because not long after that, about 15 months after the original Letter of Claim and more than two years after the original procedure which caused the injury, the client received a Part 36 Offer in the sum he had argued for on the telephone.

I then advised him about quantification of his costs, including claiming for time spent as a litigant in person (I had intimated that in the original Letter of Claim). I advised that the indemnifier would try to argue him down on those -turns out I was right on that as well, but the client by this time was a formidable litigator and stood his ground, pointing out that by arguing, they were simply increasing the hours he was spending on the matter. Eventually, they capitulated.

.

I was instructed by a solicitor to advise on next steps in in relation to meaningful enquiries that may be made of the current address of a potential Defendant dentist who had, since treating the solicitor’s client at the material time, retired as a dentist, sold the dental practice to new owners and removed herself from the Dentists Register. 

The client had managed to get hold of his dental records from the new owners of the dental practice, and interestingly, they had confirmed in e-mail correspondence that they had sought permission to disclose the records from the Defendant, but they hadn’t disclosed the contact details for the Defendant.

A pre-action Letter of Claim had been sent by my instructing solicitor, and the new practice owners had confirmed that they had forwarded it on, but there had been no response. Contact had also been made with one of the large dental indemnifiers, who had confirmed that the dentist was one of their members, but ultimately they confirmed that they had “no interest” (meaning that they also had been unable to make contact with her).

The solicitors had instructed an enquiry agent and had identified a potential “candidate” but this had subsequently proved not to be the Defendant.

Having carried out a brief internet search myself, I identified that the “new” owners of the dental practice included a registered dentist. I advised my instructing solicitors to write to that individual to ask for the Defendant’s current or last-known home address, reminding them of the GDC’s “Standards for the Dental Team”: Standard 9.4: “Cooperate with any relevant formal or informal enquiry and give full and truthful information”; and

Para 9.4.2 of the Guidance to Standard 9.4: “You must cooperate with: …any solicitor, barrister or advocate representing patients or colleagues”.

I suggested that in the alternative instructing solicitors should ask the new owner to contact the Defendant themselves, requesting permission to release her home address details so that they could deal directly with her rather than having to trouble them further. If they declined to do so, I advised explaining that the Claimant would apply to the Court for a third party disclosure order (a Norwich Pharmacal Order) that they should disclose her contact address/details. Again, I suggested reminding the new dentist owner of the practice of the GDC Standards which require her cooperation.

This recommended approach produced a response from the dentist who now owned the practice, providing the last known residential address of the Defendant.

In the meantime, I identified, applying my dental background, that the allegations of negligence in the original pre-action Letter of Claim drafted by my instructing solicitor were unlikely to have good prospects of success. However, I identified alternative likely allegations of breach of duty which had led to the Claimant avoidably losing a tooth, suffering a dry socket, requiring additional surgery to remove a bony sequestrum and also requiring future remedial treatment to replace the tooth with an implant-supported crown. These allegations were then confirmed by independent expert evidence.

Instructing solicitors instructed an enquiry agent again and searches were made of the Land Registry. This suggested that the Defendant may have been trading previously under her maiden name, but was possibly the owner of the relevant property under a married name.

Further investigation via ancestry.com followed and confirmed that this assumption was very likely correct. A copy of a marriage certificate and subsequently a death certificate of the Defendant’s husband was duly obtained which confirmed matters. Following this, a copy of the will of the Defendant’s late husband and associated grant of probate was obtained.

It appeared that there would be reasonable prospects of enforcing a judgment against the Defendant in the event she continued to ignore the claim.

A new pre-action Letter of Claim containing the updated allegations of breach and causation was sent to the Defendant’s address. No response was received. A claim was issued shortly before expiry of limitation and I was instructed to draft Particulars of Claim. I advised personal service upon the Defendant, which was duly effected by a process server.

Shortly after service of proceedings on the Defendant at her home, the indemnity organisation, with minimal explanation, made a Calderbank offer to settle the claim for £6500 together with payment of the Claimant’s reasonable costs. The offer was accepted by the Claimant, on advice.

Contact Heather Beckett:

Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers:

Telephone:  0207 7353 6802
e-mail:  civilclerks@goldsmithchambers.com
Civil clerks:   Thomas Green, Senior Civil clerk, Tel: 020 7353 6802

Heather is able to accept instructions on a direct access basis.

© Heather Beckett. Goldsmith Chambers, London EC4Y 7BL. All rights reserved. Regulated by the Bar Standards Board. This site is intended to provide helpful, initial information but it does not constitute legal advice and you should not take action based on this information without first taking advice from me, or another qualified lawyer, about the circumstances of your particular case.

Whilst most dental negligence claims settle without reaching court, negotiation can sometimes become “deadlocked”.  Mediation can, in selected cases, be a valuable ADR method to bring about a successful resolution or at the very least narrow the issues.  It can also create innovative solutions, cost savings and a speedier outcome than protracted litigation in the right case.

A party which unreasonably refuses to engage in mediation may face costs sanctions and it is now established that silence in the face of an invitation to mediate will generally be seen as an unreasonable refusal.

In Ramdhean v (1) Agedo (2) Forum Dental Practice 27 April 2020, ( a dental negligence claim), HHJ Belcher, sitting at Leeds County Court was invited by the Claimant to consider the matter of the Second Defendant’s failure adequately (or at all) to engage with mediation when making an order for costs pursuant to an earlier contested hearing.  That hearing had considered the preliminary matter of whether the Second Defendant owed the Claimant a non-delegable duty of care or was in the alternative vicariously liable for any negligence on the part of the First Defendant which might be established – (the second defendant was found to be liable on both bases – click here to see my explanation of the reasoning as to why).

In relation to the Second Defendant’s failure to engage in ADR, specifically mediation,  the judge derived assistance from the judgment of Lord Justice Briggs in the Court of Appeal decision in PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 . Lord Justice Briggs points to the ADR handbook, first published in 2013, which sets out at length in paragraph 11.56 the steps which a party faced with a request to engage in ADR, but which it believes it has reasonable grounds for refusing to participate in at that stage, should consider in order to avoid a costs sanction.  The overall summary of the steps is that what is called for is “…constructive engagement in ADR rather than flat rejection or silence.”

Finding that the Second Defendant had not engaged constructively, HHJ Belcher acceded to the Claimant’s request for payment on account of costs in respect of the preliminary hearing, despite the fact that the definitive issue of  negligence had not yet been decided.

I have recently been involved in two dental negligence cases which successfully employed mediation to resolve the claims.

In the first, the claimant was a “celebrity”.  Both parties were very keen that confidentiality be maintained at all times.  Mediation was the ideal solution for both the claimant and the defendant dentist.

In the second, a retired defendant rather unusually did not appear to have adequate “run-off” indemnity cover and was faced with the prospect of having to fund his own defence.  Understandably keen to contain costs, mediation provided the opportunity for a relatively early resolution with which the claimant was satisfied.

As a mediation advocate in this scenario, I am able to combine my expertise as a barrister with my detailed understanding of the dental issues, both clinical and practical, in order to represent my client during principled mediation negotiation.

 Contact Heather Beckett

Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers h.beckett@goldsmithchambers.com:

Telephone:  0207 353 6802
e-mail:  civilclerks@goldsmithchambers.com

I’ve come across a number of cases recently where good claims nearly didn’t get off the ground because they were screened by people who lacked sufficient niche knowledge to risk assess a potential dental claim.  Fortunately, I was able to  assist, given my dental background:

1. An ATE insurer turned down a case where a numb lip resulted from removal of a lower wisdom tooth without consent or even good reason, on the basis that the tooth was  diseased and needed to be taken out.  It was neither – it was the tooth in front which was diseased and needed to be taken out.  As I’ve said elsewhere – the numbering system(s) for teeth can cause all sorts of problems.  I was able to provide a positive prospects of success advice which enabled the case to be taken on for the claimant.
2. A panel solicitor turned down a case involving undiagnosed gum disease, where reference in the records to “apical periodontitis”, which usually describes a problem having affected  the nerve of a tooth – an endodontic problem, affecting one specific tooth –  was misunderstood as being a reference to “periodontitis” ie gum disease.  I was able to clarify the true position and the claimant subsequently achieved a very favourable  out of court settlement.
3. Solicitors consulted by an insurance company  for a client who had BTE insurance expressed the view that there would be “difficulty in proving causation” in a case where a dentist had failed to do anything about a poorly fitting complex bridge for approximately 18 months, by which time one of the supporting teeth was decayed beyond saving. The client appealed to the insurance company who said that if she obtained supportive advice from a barrister regarding foreseeable causation, they would instruct  another solicitor with the requisite “dental” expertise  to take the case, as they did not have a solicitor on their panel with this knowledge.  I was able to provide a supportive positive assessment of prospects and advise on next steps having assessed the papers, and the insurance company reimbursed the client for the cost of obtaining my advice accordingly.

A preliminary advice on merits from an experienced dental barrister can assist with investigating a potential claim and advising on next steps accordingly.

Contact Heather Beckett:

Instructing solicitors, insurers and potential direct public access clients are warmly invited to contact Heather at Goldsmith Chambers:

h.beckett@goldsmithchambers.com

Phone: 0207 353 6802, requesting to speak to one of the Civil clerks

Or e-mail my clerks on civilclerks@goldsmithchambers.com

A solicitor once said to me that they needed a barrister who “got” dentistry. They had a point.

For a start, there is the need to get your head around the nomenclature. There are at least three ways of tooth notation in common use in this country and that’s without the problem that arises when one of the molar teeth (the big ones at the back) is removed and another shifts along to take its place. What specific teeth are we looking at now – a first and second molar, a first and third molar, a second and third molar ? and anyway, which one of those was the one which had the treatment in question three years ago?

Then there’s the problem that, unlike with a person’s NHS GP records, dental records don’t usually follow a patient from practice to practice. So when investigating a dental claim, it’s sometimes necessary to trawl back in time.

The majority of dentists in general dental practices are self-employed, even if they are not the practice owner. That’s not always the case, but most of the time it is. So whereas it’s perfectly reasonable for a patient with a complaint to use the practice complaints policy first of all, when it comes to making a legal claim, it is most usually necessary to bring it against the specific dentist or dentists, not simply the practice.
And then there’s the problem which is like the one where you take your car for a service and it breaks down a week later due to something that the service simply could not have revealed or prevented. There are plenty of things that should be checked during a dental examination, but there are some things that simply can’t be found out. If nature lets you down a week after your check-up, it may just be one of those things.
A preliminary advice on merits from an experienced dental barrister can assist with investigating a potential claim and managing expectations appropriately.

Read about a recent case where the client benefitted significantly from my specialist dental input to her case here

Contact Heather Beckett

Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers:

h.beckett@goldsmithchambers.com
Phone: 0207 353 6802
e-mail: civilclerks@goldsmithchambers.com

Do Dental technicians disadvantage themselves in regulatory proceedings

 

 

It has  been reported that a Freedom of Information request by Dental Protection to the General Dental Council has illustrated an apparent significant discrepancy between the level of sanctions applied to practitioners who are legally represented and those who are not.  The general suggestion seems to be that substantially more dental professionals  whose fitness to practise is found not to be impaired are legally represented than not.  In addition, it seems that many more dentists erased from the register (and therefore unable to continue to practice) following a hearing are unrepresented.

Read more here:

Reference to the GDC “Outcomes and Appeals list” which gives details of the outcomes of FtP hearings (although does not give information about  matters concluded before reaching the stage of a hearing) tends to  bear this out.  It is apparent that the problem is not restricted to dentists, but also other dental care professionals, including  hygienists, dental nurses and quite markedly, dental technicians, who  do not seem to make up a very great proportion of those FtP hearings reported but for some reason often appear either to be unrepresented at FtP hearings or fail to attend at all.

Read my recent article on the published outcome of Dental Technician FTP hearings during 2019 here:

The information followed a Freedom of Information request by Medical Protection to the General Medical Council, reported towards the end of 2018, which confirmed a similar effect of professional legal representation at Medical Practitioners Tribunal Service hearings and also Interim Order Tribunals.  Unrepresented GPs appear to fare particularly badly.  It therefore appears that it is important for GPs to continue to have membership of a medical defence organisation, even after introduction of the new Clinical Negligence Scheme for General Practice which will only cover GPs for NHS- contracted primary medical services and not any private work or matters brought before the regulator.

I have experience of representing dentists and doctors facing regulatory proceedings, also including former registrants seeking restoration following erasure.

I am a Public Access qualified barrister. I am also a registered Specialist in Restorative Dentistry and I have extensive experience in general and hospital dental practice as well as giving evidence at FtP hearings.  

Read more about the direct Public Access here:

If you are facing FtP proceedings without any legal representation, contact me at h.beckett@goldsmithchambers.com or contact my clerk at civilclerks@goldsmithchambers.com Telephone 0207 353 6802.

 

The General Dental Council, along with all other  eight UK healthcare regulators has now published its guidance on “Duty of Candour”.  The guidance takes effect from 1st July 2016 and therefore becomes part of the “Standards for the Dental Team”, regulatory standards for dental care professionals.

The GDC has chosen to describe the duty of candour in its guidance as “Being open and honest with patients when something goes wrong”.  Quite properly, in my view, it explains that this description provides better clarity of meaning.

The GDC makes clear that telling a patient about something that has gone wrong and apologising is not the same as admitting liability.  This has long been the view of the indemnity providers also. It is important to remember that just because a dentist has said sorry to a patient this does not automatically mean that a negligence claim will be successful.

Likewise, if a dentist has breached their duty of candour, it is important to remember that breach of this regulatory standard does not necessarily lead to loss, sufficient to found a negligence claim.  As ever, all the pieces required, breach and causation, must be present. So once again, it is important to make sure the correct standard is being applied for the cause of action alleged.

You can read the GDC’s advice to accompany their guidance here  and the guidance itself here .

Contact me at h.beckett@goldsmithchambers.com or contact my clerk at civilclerks@goldsmithchambers.com Telephone 0207 353 6802.

It is possible for members of the general public seeking legal advice or representation to approach a barrister directly, without having to go through a solicitor. In an appropriate case, this can be efficient and save costs. Information about how the Public Access scheme works from the client’s perspective is available here and also here.

I am a Public Access qualified barrister. I am also a registered Specialist in Restorative Dentistry and I have extensive experience in general and hospital dental practice.  I can advise you on your potential dental claim, what you can do for yourself and the professional assistance which would be in your best interests. I can then assist you accordingly with appropriate aspects.

Fees for Direct Access Personal Injury cases

If you have had an accident which was not your fault and you wish to make a personal injury claim, or someone is claiming against you and it wasn’t your fault, I can advise and represent you, subject to the rules of the public access scheme for barristers.

Click here Public Access PI fees for more information.

Contact me at h.beckett@goldsmithchambers.com or contact my clerk at civilclerks@goldsmithchambers.com Telephone 0207 353 6802.