Adenoma surgery leads to claim

Suzanne Tate, Litigation Solicitor at Dental Protection recounts a case of recurrence that spanned 15 years post-surgery. 

Dr N, a consultant oral and maxillofacial surgeon, undertook surgery successfully on 12-year-old Miss K’s pleomorphic adenoma. Regretfully, 15 years later, Miss K started to suffer numerous recurrences that led to left sided facial palsy, reduced jaw opening, incomplete closing of left eye, loss of taste, Frey’s syndrome, ongoing headaches and neck pain. All of these were under investigation, as was the risk of Sjogren’s syndrome and the potential future risk to her sight.

A claim was made against Dr N, alleging the surgery was inappropriate because it potentially allowed the spillage of tumour cells and as such had created an increased risk of recurrence. It was alleged the surgery should never have been performed intraorally and if a proper external approach had been utilised then Miss K would not have suffered a recurrence.

How Dental Protection assisted

The significant passage of time led to some difficulty defending this claim. Dr N’s account was that Miss K and her mother were properly consented. The risk of a pleomorphic adenoma was exceedingly rare in a child of her age and so an intraoral approach to remove the mass was determined best in order to avoid the certainty of a significant and permanent facial scar for the young girl. Histology indicated clear margins were achieved and Dr N did not consider any increased risk of cell spillage had occurred as a result of the approach taken. Cell seeding, on the other hand, can occur at any time. It cannot be seen or avoided and could have caused the recurrence.

In view of the passage of time and the litigation risk to Dr N due to the factual dispute between Miss K and Dr N, he agreed steps could be taken to resolve the claim. However, this was not possible for some time because of the erratic manner in which it was pursued on Miss K’s behalf by her solicitors. The claim was pleaded at various stages throughout the litigation of having a claim value exceeding £1 million (approximately AUD1,850,000), in addition to provisional damages. 

At an early Round Table Meeting, Dental Protection made an opening offer, which Miss K’s legal team declined to respond to until further expert evidence was obtained. It was alleged Dr N’s negligence and the avoidable recurrence had prevented her from receiving her treatment of choice for an unrelated giant cell tumour in her tibia. This was investigated with the help of independent expert evidence and it was determined the radiotherapy given for her recurrences had not impacted in any way on the treatment options for her giant cell tumour, which later led to a below knee amputation.

Once this discreet issue had been investigated with expert evidence, Dental Protection invited a second Round Table Meeting and reasonable opening offers were made. These were forcefully rejected by Miss K’s representatives. Miss K’s solicitors advised she would recover a substantially higher award at court. The court approved the instruction of ten different independent experts in total to provide advice on Miss K’s causation, condition and prognosis.

Numerous offers were made and subsequently withdrawn by Miss K’s solicitors, who advised our view on a settlement figure was plainly wrong and Miss K would recover an award far in excess of £575,000 (approximately AUD1,065,000), despite an absence of supportive documentary evidence of her pre-incident earnings and a failure to take into account the impact of her unrelated amputation.

A year later, Miss K suffered more recurrences and expert evidence was updated. Dental Protection eventually invited a mediation and finally settled the claim for £450,000 (approximately AUD831,700) plus costs. This is without doubt the best possible outcome we could hope to have achieved.