Most dental cases are resolved without recourse to the courts. Having reviewed the expert opinions, our lawyers will advise us whether it will be possible to mount a successful defence or whether we should investigate settlement. Usually our lawyer's view matches the advice given to their client by the claimant's solicitors. Occasionally, when settlement is considered it becomes apparent that an out-of-court agreement will not be possible because the claimaint is unwilling to accept an appropriate sum. The matter is set down for trial to decide on quantum (amount of damages). Liability, that is whether there has been negligence, is not in question as it will have been admitted already.
Very rarely there is marked disagreement between the experts as to whether the treatment has been appropriate. The claimant's expert may suggest that the dentist has not provided an appropriate standard of care, while the expert instructed on behalf of the dentist may say that the dentist's actions were those of a reasonable dentist exercising reasonable skill and care. If this happens, we usually advise the dentist that the claim can and should be defended on the basis of our experts' reports. The member's view are paramount, as proceeding to a trial can involve unpleasant publicity. While it is important that dentists employing accepted methods of practice are defended vigorously, we would always be guided by the views of each member in each case.
A case occurred recently in which we were advised that the member had carried out treatment in a manner which conformed to the established code of practice and was in line with up-to-date teaching. The claimant's advisers would not accept the denial of liability and the case was set down for trial.
The case involved the extraction of a grossly carious ULE from a seven-year-old boy. The patient presented with severe pain arising from this tooth and it was decided to carry out the extraction under local anaesthesia. Great efforts were made to relax the apprehensive child and the treatment proceeded initially without incident. The extraction was carried out with the patient in an upright position, in line with current teaching. Unfortunately, as the tooth was being removed intact from the socket, the patient struggled and the tooth fell out of the forceps. A search for the
tooth, both extra-orally and intra-orally, was undertaken immediately. The patient appeared quite calm and relaxed. Less than a minute later the patient asked to spit out and he knelt on the dental chair, bending over the spittoon to expectorate. Almost immediately he began gasping for breath and appeared cyanosed.
It was apparent that the tooth had been inhaled and was obstructing his breathing. Attempts to retrieve the tooth by holding the patient head downwards and thumping his chest failed. A medical colleague was summoned from a neighbouring surgery and the patient was placed faced downwards and aspiration was carried out. Emergency services were called and the patient was transferred quickly by ambulance to the local accident department. An emergency tracheostomy was carried out to obtain respiratory control and an X-ray revealed that the tooth had lodged in the right main bronchus. The tooth was successfully retrieved by bronchoscopy. Subsequent recovery was uneventful.
Immediately following the incident the member contacted the DDU and sent in a full and thorough report. Two months later the member received a letter of claim from the claimant's solicitors. As the legal case evolved it became apparent that the allegations of negligence on which the claim was based related to the "failure of the dentist to protect the plaintiffs airway by using a small gauze pad, by a finger against the tooth, a suction device during the extraction of the tooth and his free hand to grasp the gum on either side of the tooth to be extracted". The expert opinions obtained by the DDU disagreed with the view that it would be normal dental practice to use a gauze pad or suction (particularly of the wide-bore type which was suggested later by the claimant's solicitors) during a local anaesthetic extraction on a young child. Indeed this was not in line with current teaching. Furthermore, based on the member's excellent records and report, supported by the statement given by his surgery assistant who was present throughout the procedure, the experts concluded that the method employed by the member represented an acceptable standard of care as, according to the dentist's account, his free hand was supporting the alveolus during the extraction.
The matter was discussed by the Dental Advisory Committee. It was felt that the member's actions could be defended. and that there were very important issues arising from this case with regard to the correct procedure in such circumstances. Unfortunately despite the considerable weight of expert opinion in our member's favour, the claimant still proceeded with the claim and the case was eventually set down for trial. The trial lasted three days and much of it hinged on the judge's acceptance of our experts' opinions about established practice when extracting teeth under local anaesthesia, and the judge's conclusion that the member had supported the alveolar bone with his free hand.
Early in the trial it was evident that both the judge and the claimaint's advisers accepted that it would be impractical, if not impossible, to use wide-bore suction in these circumstances and that it would not be normal to use any gauze pad. It was agreed that this was not in line with current teaching.
The major issue became the position of the member's free hand during the extraction. In the summing up the judge pointed out that if it were held that the member used the fingers of his free left hand in the mouth of his patient in the recognised way, the claim must fail. The patient's mother, who was present throughout the extraction, described the dentist as having the forceps in his right hand, placing his left hand on the chin to hold her son's head backwards and "yanking" the tooth downwards. A phantom head was set up in the court room and the mother demonstrated this action.
When the member, in turn, demonstrated how the tooth had, actually been removed (using the recognised technique) it was apparent that this differed greatly from what the mother claimed she had seen. The dental surgery assistant, who had assisted throughout the procedure, was able to support the member's testimony and demonstrate that the mother did not have a clear view of what had in fact taken place. Furthermore she was able to confirm that the member always used this technique when extracting upper deciduous molar teeth.
The tooth, which was retrieved trom the patient's bronchus, was available as evidence. It had long, narrow, divergent roots though one root was partly resorbed and a heavily decayed crown. The experts were able to convince the court, that, if the extraction had been carried out in the manner described by the mother, it would have been unlikely for the tooth to have been removed intact. The judge concluded that the description given by the mother was probably incorrect and that the member had behaved in the prescribed fashion. The acceptance by the judge that the member had used his free hand correctly was essential to the decision.
The trial ended successfully with the judge's dismissal of the claimant's claim. As with any such case there was considerable associated publicity and it is always unfortunate when caring dentists are exposed to this. The final reports, however, fully vindicated our member. Throughout the entire treatment he had followed the established guidelines meticulously, kept good records and properly used the services of his dental surgery assistant but still a mishap had occurred. While not wishing to detract from the serious consequences of this mishap, it was important in law to establish that the member's treatment was not negligent.
The judge did not accept counsel for the claimant's contention that the doctrine of res ipsa loquitur should apply in the case (ie the fact that a tooth had been inhaled was sufficient to suggest a lack of care). The onus was then on the claimant to demonstrate that the treatment had been carried out negligently. Because the dentist could demonstrate that his method of treatment was in line with the current practice there could not be a finding against him, even though serious consequences for the patient had ensued.
This page was correct at publication on 12/07/2002. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.