A bur in the maxillary sinus

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.