Paula Conwell, Litigation Solicitor at Dental Protection explains how a specialist expert assisted in a case concerning a delayed extraction.
Miss O attended her dental practice and an x-ray was taken that showed a periapical radiolucency (likely to be an infection) above both a premolar tooth and a first molar tooth. She was diagnosed with an abscess and given antibiotics. Treatment options, root canal treatment and extraction were discussed and Miss O opted for root canal treatment in the premolar and extraction of the molar. Antibiotics were again prescribed five days later.
Nine days later, root canal treatment in the premolar was completed. Miss O was again reminded of the radiolucency in the molar root area and that this would most likely be due to a necrotic pulp. This time Miss O decided to postpone the extraction and would return as and when the tooth required attention due to pain or swelling. Almost a year later at a routine check-up, Miss O was again reminded the problem molar tooth required attention and was offered the option of root canal treatment or an extraction. As before she declined treatment on the basis that the tooth was not causing her any problem. After a further year, Miss O complained of pain and swelling in the upper left quadrant. Her first molar (#26) was noted to be tender to percussion and there was some swelling and inflammation in the gum. A new radiograph again confirmed the radiolucency around the root apex area and she was again given the option of root canal treatment or extraction.
Miss O had seen Dr Q at this appointment and it was his radiograph that confirmed a very close relationship between the roots of #26 and the maxillary antrum. The radiograph also seemed to confirm that there was sclerosis within two of the root canals and so he advised against a root canal procedure on that basis. Miss O then opted for the extraction of #26 and during a difficult extraction the palatal root was displaced into the sinus.
Miss O was then referred to an oral surgeon for removal of the root and she underwent a Caldwell Luc procedure.
The patient makes a claim
Miss O made a claim against Dr Q, who immediately contacted Dental Protection for assistance. The claim was investigated by instructing an expert of the same discipline as Dr Q.
In summary it was alleged that:
• There was a failure to advise Miss O that she could opt for surgical extraction of the molar on referral at the outset.
In our expert’s opinion a surgical extraction referral on the NHS would have been rejected. Miss O’s expert agreed that it is uncertain whether it would have been accepted. Therefore, Miss O’s expert did not support this allegation.
• Once the tooth fractured, she should have been advised she needed a surgical procedure to recover the remaining tooth and palatal root.
The experts agreed that a root being displaced into the sinus is a risk of extraction. However, in Miss O’s expert’s opinion, a dental surgeon should never attempt to apply forceps to a maxillary molar tooth or root unless a sufficient amount of both its buccal and palatal surfaces are exposed.
Dr Q’s evidence was that a sufficient amount of root was visible, otherwise he would not have attempted the extraction. In our expert’s opinion the extraction of the palatal root following fracture was reasonable and is routinely carried out by many general dental practitioners.
Miss O’s expert accepted that the root could be seen.
In respect of causation Miss O alleged:
• She suffered severe pain around the molar area for four to five weeks following the extraction.
The experts agreed that there was no evidence of Miss O suffering with severe pain.
• A continuous feeling of discomfort until the root was surgically removed.
Both experts pointed out that Miss O was asymptomatic at her examination at hospital eight weeks following the extraction.
• She underwent two procedures instead of one.
The experts agreed that once the root ended up in the sinus a surgical extraction would always have been required.
Miss O would have had to succeed with her first allegation (that she should have been offered a surgical extraction of the molar in the first instance), but her claim was going to fail because there was no causative effect from the second allegation irrespective of breach. Her own evidence, and that of her expert, was that she should have undergone a surgical extraction of the root. Therefore, on her own evidence she would always have had two procedures.
Miss O attempted to amend her claim three weeks before trial. The amended case amounted to a withdrawal of the current pleaded case and an entirely new claim against Dr Q.
The amended pleaded case sought to criticise the technique that had been adopted by Dr Q in extracting the tooth. This had not previously been pleaded and therefore Dr Q’s evidence, already disclosed, did not deal with the extraction technique in the detail that would have been required to respond to the allegation.
Miss O’s new case on causation was that she underwent a more invasive procedure. This allegation had not been investigated by the parties and discussed by the experts.
The Dental Protection legal team pointed out to Miss O that if she was permitted to amend her pleaded case we would be seeking an adjournment to the trial so that we could file an amended defence, a supplemental witness statement on behalf of Dr Q, updated expert evidence, and input from an expert in oral and maxillofacial surgery to comment on Miss O’s case on causation.
We also pointed out that we would be seeking the wasted costs by these amendments from Miss O and the costs would far outweigh any damages awarded to her. Miss O eventually saw sense and agreed to discontinue the claim the day before the trial.
Learning points
It is important that dental records are sufficiently detailed – they should set out what was discussed with the patient. These discussions should include treatment options and the risks and benefits of the treatment, so that the patient can make an informed decision and give consent at all stages of the treatment.