S.R v BCH NHS Foundation Trust (2020) – failure to provide appropriate consultation, advice and treatment within the secondary care NHS dental service
The Claimant was referred by her general dental practitioner to the Department of Restorative Dentistry at the Defendant Dental Hospital with complaints of difficulty in eating and her bite being incorrect. She attributed this to bridgework which had been provided some years earlier. The dentist had provided an occlusal splint in an attempt to assist, but with no resolution of symptoms. She was seen by a consultant at the defendant hospital for assessment. The consultant felt that there was nothing wrong with the historic bridgework and that there was no dental treatment which would assist with the claimant’s complaints. He did note that there was right sided jaw joint dysfunction. He did not have the opportunity to examine the existing lower occlusal splint provided by the dentist but advised that the dentist provide an upper occlusal splint of the “Michigan” variety. The consultation did not go smoothly and the consultant eventually felt the need to ask the claimant to leave.
The Claimant returned to her general dental practice and was seen by two dentists who both felt that her dental needs were too complex for them to manage. A re-referral to the consultant previously seen at the Defendant was made. However, the consultant wrote back to say that as the Claimant had recently been assessed he saw no reason for a re-assessment and he maintained his advice that a new occlusal splint be provided in general dental practice. The referral letter was also internally annotated at the Defendant to note that the consultant refused to see the Claimant again because of her behaviour towards him during the initial consultation, although this was not, at the time, known to either the Claimant or her general dentist.
The general dental practitioner attempted to make the suggested upper occlusal splint. The Claimant did not get on with it at all and requested another referral to the Defendant. A further referral was duly made, confirming that the advised splint had been constructed, that the Claimant was still experiencing difficulties eating due to the problems with her bite and also had pain in her right ear. This in turn was affecting her mental wellbeing. Although the re-referral letter was received by the Defendant and both the Claimant herself and her dentist chased for an appointment, it was not until 12 weeks later that a letter was typed at the Defendant from the original consultant, expressing his opinion that the Claimant had not had sufficient time to reap the benefit of splint therapy and that he was returning the referral. The Claimant’s dentist attempted to request a change of this decision via the consultant’s secretary without success and the Claimant then asked whether it would be possible to see a different restorative consultant, either under the NHS or even privately. The secretary indicated that this would be possible, but that the Claimant would have to start at the beginning of the “New patient” wait pathway again, and it would take up to 3 months for an appointment.
Five months later, the Claimant learned that she was not going to be offered an appointment at the Defendant, although no reason was given for this. She therefore set about trying to find another practitioner who could assist her and was eventually referred to a private Specialist in Prosthodontics, (who coincidentally also worked part-time as an Honorary Senior Lecturer at the School of Dentistry).
Having examined the Claimant and both previous occlusal splints provided for her, the Specialist determined that neither was appropriate. He provided a further occlusal splint and thereafter carried out a lengthy process of splint therapy and adjustments, from which the Claimant derived substantial improvement in terms of her symptoms. The next stage would then have been to commence rehabilitation of the Claimant’s bite with removal and suitable replacement of the existing crown and bridgework. However, by then the Claimant felt that she would be unable to afford the ongoing treatment, as to continue would mean remortgaging her house, and instead requested extraction of all her teeth. The Specialist and also her GP felt that this would not be in her best interests.
A pre-action letter of claim was at this stage sent to the Defendant alleging multiple failures of administration and provision of accurate information within the Defendant Hospital and also breach of duty on the part of the consultant, for whom the Defendant was vicariously liable, in failing to examine the splints with which the Claimant had been provided and failing to recognise that the Claimant’s history, symptoms and overall presentation was such as to be beyond the scope of management which would be expected of a general dental practitioner. It was alleged that as a result the Claimant had experienced avoidable pain suffering, loss of amenity and adverse effects on her mental health and well-being over an extended period during which she was reasonably waiting for an anticipated consultation appointment which did not materialise. Further, whilst it was acknowledged that the Claimant would have required complex treatment (along the lines of that by now already undertaken and further proposed by the private Specialist) it was alleged that absent breach, she would have been offered and would have undergone the relevant treatment under the NHS at the Defendant. As it was, she was still in need of the prosthetic rehabilitation phase of her treatment.
Approximately a month after sending the pre-action Letter of Claim, the Claimant somehow managed to obtain an appointment thereafter underwent a joint examination by two different consultants in Restorative Dentistry at the Defendant Hospital. A member of the Patient Experience team was also in attendance at that examination . The consultation lasted of the order of 4 hours. The two consultants produced a 9 page report, importantly including their opinion that the extensive occlusal adjustments necessary and the use of splints to try to stabilise the occlusion prior to definitive reconstruction as seen in the Claimant’s case was not treatment that they would suggest could easily be carried out by a general dental practitioner. The jaw relationship was unstable and complicated and ideally the Claimant should be managed by an experienced dentist in this field, or a specialist in restorative dentistry with experience in managing occlusal problems.
Despite the existence and content of this report by two of the Defendant’s own consultants, the initial pre-action Letter of Response from NHS Resolution on behalf of the Defendant constituted a full denial.
A full and robust challenge to the denial was sent. Heather’s previous career experience as a Consultant in Restorative Dentistry herself was of great assistance in framing this challenge which then resulted in some limited admissions of breach of duty in respect of the administrative delay and an initial Part 36 Offer to settle of £2000.
Supportive expert evidence of breach, causation, treatment needs and private costs going forwards was obtained from an independent Specialist in Prosthodontics together with supportive expert opinion evidence in respect of the psychological effects of the delay and stress upon the Claimant.
Following protracted negotiations, which included several offers to mediate on the Claimant’s part which were not taken up by the Defendant, the matter was eventually compromised for £48,000, without the need to issue proceedings. This represented compensation for pain suffering and loss of amenity of the delay in commencing treatment and the resultant psychological stress caused to the Claimant, as well as the private costs of treatment which she had already incurred and would now incur, when she could have received the majority of the treatment at no cost through the NHS secondary care service.
P.B. v (1) M.B. (2) A Ltd (2020)- incomplete and negligent orthodontic treatment – Vicarious liability/non-delegable duty of care of a dental practice trading as a limited company
The Claimant, an adult, attended a dental practice, (A Ltd), seeking orthodontic treatment in order to improve her smile. She was initially examined by the practice principal. A costed private treatment plan was provided, signed by the practice principal, explaining when and how payments were to be made to the Practice and the Claimant signed to indicate her agreement. The Claimant was then “allocated” for treatment to the First Defendant, who extracted a tooth and commenced a course of fixed orthodontics. A few months later the First Defendant was erased from the dental register.
The practice principal saw the Claimant again and indicated that she would need to be referred to another practice/dentist for completion of the orthodontic treatment, there being no other dentist at the practice that could carry out orthodontics. Upon referral, the new orthodontist opined that if the current line of treatment were continued, the Claimant’s smile would be asymmetrical and she would have a centre line discrepancy at the end of treatment. He suggested that further tooth extractions would be required in order fully to align the teeth and correct the bite. All the fixed braces would need to be removed and rebonded in any event.
The Claimant had not been made aware prior to agreeing to undergo the treatment that the outcome would be sub-ideal, nor that her treatment was being provided by a non-specialist orthodontist. It was alleged that her informed consent to the treatment had not been obtained, and that the treatment provided was also below the standard that she was entitled to expect.
M.B. (the First Defendant) did not respond to any pre-action correspondence. However, it was also alleged that the Practice (a limited Company) was vicariously liable for his acts and omissions, given the specific facts of the case. It was also alleged in the alternative that the Company owed a non-delegable duty of care to the Claimant, pursuant to the test established in Woodland v Swimming Teachers Association & Others [2013] UKSC 66, it being fair just and reasonable to impose such a non-delegable duty of care upon the Company. (The arguments were similar to those successfully advanced in the case of Ramdhean v (1) Agedo (2) Forum Dental Practice Ltd. (2020) – click the link to see my explanation of this case).
It was further alleged that there had been a breach of the common law and statutory implied terms to carry out the service with reasonable skill and care.
The matter was settled pre-action by the indemnifiers of the practice principal on behalf of the Company for £3000, without need to issue proceedings.
LH v JJ (2019) – untreated periodontal and endodontic disease – client turned down by insurer “panel” solicitors
The Claimant had attended the same dentist since she was a teenager. She developed an abscess whilst on holiday and saw a different dentist, who advised her that she had bone loss on her upper jaw. The Claimant raised this concern with her usual dentist who noted it and provided generic advice about hygiene, but failed to take appropriate action to deal with what was now (upon review) clearly established periodontal disease. Later that year, she developed a second abscess and had to have another tooth removed. Only when the Claimant asked about implants to replace the missing teeth was she seen by a different dentist, who finally told her, in terms, that she had periodontal (gum) disease.
As a consequence of this untreated condition over an eight-year period, the Claimant lost teeth, required lengthy and invasive gum surgery and expensive dental implant treatment. She had to remortgage her house to fund the treatment. Although her response to the gum treatment was very good (providing evidence that it would likely have been also very good had it been implemented significantly earlier), she is at risk of losing further teeth in the future and now requires avoidable lifelong treatment.
The Claimant complained to her original dentist who offered her £4600 with no admission of liability. This was very much less than the remedial treatment had cost her. She then approached a firm of solicitors who asked Heather for an opinion. Heather identified multiple breaches of duty of care in relation to the periodontal condition and also an additional breach in relation to management of a loose crown and endodontic infection at another tooth. She advised that the prospects of a claim were good and the dentist’s offer represented a significant undervalue.
The Claimant then approached panel solicitors offered to her via her home contents insurance, who displayed a significant lack of understanding of the dental issues involved and advised that the claim would not be successful.
The Claimant therefore returned to the original solicitors, who instructed Heather in the matter.
Shortly after issuing court proceedings, the case settled for £29,000.
RA v Dr CG (2019) – facial scar sustained during routine dental treatment
The Claimant, a 21 year old university student, visited her dentist for a routine composite (tooth coloured) filling on an upper molar tooth. When the dentist attempted to remove the metal matrix band from around the tooth after the filling had been placed, it proved somewhat difficult to remove and he used a small artery clamp for better grip. As the band came free, it caught the Claimant on the lower lip and she sustained a vertical laceration through the lower lip, extending across the muco-cutaneous junction and into the skin below the lip.
The Defendant referred the Claimant to the Oral Surgery department of the local hospital where the laceration was sutured.
The injury healed well but the Claimant was left with a linear vertical residual scar which although not strikingly obvious was nevertheless permanent and she tended to wear concealer and lip make-up on the area to camouflage it, whereas she had not been in the habit of wearing make-up on this area all the time previously.
The Defendant took the view in pre-action correspondence that the injury had been caused by the Claimant closing her mouth suddenly and without warning during the removal of the matrix band, and his representatives described the suggestion of increased make-up use as “frankly farcical”.
With the benefit of her dental background, Heather was able to advise the Claimant’s solicitors that, put simply, when a client goes to the dentist to have a filling there is no reasonable expectation that a 2cm laceration across the lower lip onto the skin of the face requiring stitches to be inserted in a specialist hospital department will result. When a dentist is working they use instruments but also their fingers to retract and protect the soft tissues so that they do not become traumatised by instruments. Hence the Defendant would have been expected to have a protective “finger retraction” of the lips, for example, with the other hand, until the matrix band was removed completely from the mouth. Accordingly, it would be most unlikely that a Judge would accept that negligence was not made out in this matter and further that there was any contributory negligence on the part of the Claimant.
Good quality photographs of the injury immediately after suturing and after full healing were available, and Heather advised that in this case these really should be sufficient to enable the matter to be settled by negotiation pre-action, without the need to incur the cost of having to obtain formal expert evidence on either breach or condition and prognosis. She advised on quantum and appropriate argument in support accordingly.
The matter was settled shortly thereafter for £5500 without the need to obtain formal expert evidence or issue proceedings.
GDC Restoration Hearing – GDC v Mr Arfan Zia Dad (June 2019)
Mr Dad applied to be restored to the Dental Register having been erased in 2010 as a result of a conviction for fraud and admitting dishonestly misleading the Regulator in 2007, so this was always going to be a difficult restoration case in which to succeed.
Heather was instructed by Mr Dad under the Direct Public Access rules in mid 2018, advised him in relation to the preparation of his case and represented him at his two-day hearing.
The GDC robustly opposed his restoration, particularly on the grounds of the “overarching objective” protection of the public test, as articulated in GMC v Chandra [2018] EWCA Civ 1898, and especially with respect to promoting and maintaining confidence in the profession and promoting and maintaining proper professional standards and conduct of the members of the profession.
There are few recent successful restorations to the Dental Register on record where erasure followed very significant dishonesty, but Heather successfully argued that not only was Mr Dad now to be regarded as being of “good character” for the purpose of restoration to the Register but that then standing back and considering the overarching objective which the Committee is required to do pursuant to Chandra, and with the imposition of relevant proportionate, workable and measurable conditions on Mr Dad’s practice, the requirements of fitness to practice and the overarching objective were also met.
Key to the success was effective representation of Mr Dad’s insight into his own behaviour and how he had dealt with it to turn his life around.
A.A (deceased) v Dr A.G and others (2018)
This was a sad case in which Heather represented a young woman, the mother of 2 young children, whose clinical negligence claim was continued after her death by the administrators of her estate. It involved allegations of inadequate examination and failure to refer by several GPs, resulting in approximately 8 months’ delayed referral and hence delayed diagnosis of rectal cancer. The Claimant died 8 months after diagnosis.
Expert opinion obtained on behalf of the Claimant confirmed that the histology of the tumour was that of a relatively rare type of cancer, for which the prognosis for survival was always poor. In addition, the Claimant had suffered from relatively few symptoms other than persistent rectal bleeding during the period of delay in referral and diagnosis. However, the expert also confirmed, as did the medical records, that had the Claimant been referred at the appropriate time, she would have been offered surgery, whereas this was no longer a realistic possibility because of spread of the cancer by the time of late diagnosis.
Because of the poor prognosis, there was no prospect of bringing a claim for “loss of chance” of successful treatment and because of the relative lack of symptoms during the delay before diagnosis, there was really no good prospect of recovering damages for PSLA during the delay. This was because if the Claimant had undergone an operation when she could have done, she would have suffered significant PSLA as a result, which in the absence of an operation, she did not suffer.
However, under s.1(1)(b) of the Administration of Justice Act 1982:
“if the injured person’s expectation of life has been reduced by the injuries, the court, in assessing damages in respect of pain and suffering caused by the injuries, shall take account of any suffering caused or likely to be caused to him by awareness that his expectation of life has been so reduced”.
The facts and available evidence were sufficiently similar to those of the case of Kadir v Mistry & Ors [2014] EWCA (Civ) 1177 , where some limited damages were recovered under s.1.(1) (b), for it to be possible to allege in our case that the Claimant had suffered additional avoidable mental anguish over and above that which she would have suffered in any event, (having been diagnosed with cancer), as a result of having a “good objective reason to fear that her life had been or may have been curtailed” by the alleged breach of duty of care on the part of the GPs. It was argued on behalf of the Claimant that any reasonable person who had attended their GP on numerous occasions with relevant symptoms, only to discover when eventually referred 8 months later, that they were suffering from cancer would ask “what if?” or think “if only”, when told that they would have been offered surgery but this was no longer a feasible treatment option because the cancer had spread too far. The delay in access to treatment therefore constituted a “good objective reason” for the Claimant herself to fear that her life had been or may have been avoidably curtailed.
The JC Guidelines Fourteenth edition Chapter 1 (E) gives a guideline figure of £4100 in relation to “Mental Anguish due to fear of impending death/reduction in expectation of life for the parent of young children suffering such mental anguish for a period of around 3 months“. Here it was argued that the Claimant suffered such mental anguish from the time of learning of her diagnosis until her death approximately 8 months later.
The matter was settled at the pre-action stage following robust exchange of pre-action correspondence. On behalf of the GPs, their indemnifiers, without admission of liability, made an initial offer of £1000, then increased to £5000, and eventually the claim was settled for £7500, reflecting the greater period of mental anguish suffered by the Claimant than that in Kadir.
T.B v (1) Dr G (2) Dr J (2018)
In this dental negligence claim, the Claimant had four retained deciduous molar teeth after age 14 which the Defendants failed to investigate or inform her about. Although only one of the successional teeth was actually congenitally absent, by the time the problem was correctly investigated the Claimant was nearly 18, the other three permanent teeth had become displaced and all retained deciduous teeth were submerging. Heather acted for the Claimant whose claim was based on loss of chance to undergo timely extraction of the retained deciduous teeth to enable space closure and/or timely orthodontic treatment to bring the permanent teeth into the correct position. As a result, the Claimant would now require a protracted course of treatment including surgery to remove the displaced permanent teeth, bone grafting in the areas of deciduous tooth submergence and implant replacement of all four teeth.
The Particulars of Claim and Schedule of Loss were served, and before the Defendants entered a Defence, they agreed to settle the claim for £52,000.
M.S. v Z.G. (2018)
Heather acted for the Claimant in this personal injury RTA claim which involved multiple severe orthopaedic injuries in a young man. The Defendant initially made an offer to settle in the sum of £150,000. The claim was eventually settled for £555,000.
B v Dr G (2018)
Heather acted for the Claimant in this dental negligence claim where the Defendant had failed to diagnose, treat adequately, monitor adequately and maintain adequately the Claimant’s periodontal condition. The result was that the Claimant would lose all her upper teeth and would require complex remedial treatment involving bone grafting and implants. She also suffered psychological injury. Shortly after serving the Particulars of Claim and Schedule of Loss, and before the Defendant entered a Defence, the Defendant agreed to settle the claim for £80,000.
A v Metropolitan Police and another (2018)
Heather represented A and another family member, where it had been discovered that the Met Police had ordered a second post-mortem on the body of A’s husband in 2001. Evidence was available that a specific police office had informed a coroner’s officer that the pathologist had indicated that he would need to retain the deceased’s heart, The police officer undertook to approach the family to obtain their non-objection to this. This had not happened. The pathologist who carried out the second post-mortem also failed personally to establish that there was non-objection, pursuant to the now-repealed Human Tissue Act 1961. A was unaware that the heart had been retained until in 2015, it was discovered following an audit at the hospital where it had been stored for 14 years. For religious reasons, the grave had to be reopened in order for the heart to be buried together with the body. A suffered psychological harm as a consequence of discovering what had occurred as well as having to go through the trauma of a second burial.
It was argued that having specifically undertaken to approach the family to establish non-objection prior to the second post-mortem on the matter of the identified need to retain the heart, the police had actively assumed a duty of care to the Claimants. They could not then rely on applying the principles set out by the Supreme Court in the recent case of Robinson v CC West Yorkshire 2018 UKSC 4 – that when exercising their core functions police are not normally under a duty of care to protect individuals from a danger of injury which the police themselves have not created. It would be foreseeable that the Claimants would likely have indicated non-objection to temporary retention of organs for the purpose of establishing cause of death, but if, as here, for religious reasons, it was necessary for the organs to be returned to the body prior to burial, they would have postponed the burial until that had been accomplished. In consequence, it was foreseeable that a close relative discovering 14 years later that the body had been buried without the heart would suffer psychological harm.
The Met Police accepted the Claimants’ Part 36 Offers and settled the claim without admission of liability.
Panunzio v Santodomingo Rubido (2017)
The claimant was an 85 year old man who sustained permanent left sided inferior alveolar nerve injury following dental implant treatment.
Permanent injuries to the inferior alveolar and/or lingual nerves are often associated with at least some element of psychological injury and following an initial Part 36 offer of £7500 from the Defendant, Heather advised that formal expert evidence from a clinical psychologist appeared to be appropriate in this case, as the dental expert had also raised his concerns regarding this possibility. The expert psychologist confirmed a formal diagnosis of psychological injury associated with the dental injury.
An Out of Court settlement of £15000 was subsequently negotiated with the dentist’s insurers without need to issue proceedings.
This case appears on Lawtel, Document No. AM0203288