Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

[2016] SC EDIN 63

Case Ref:  PD337/14

JUDGMENT OF SHERIFF P A ARTHURSON, QC

in causa

SCOTT INGLIS,

Pursuer

against

SUSAN BRAND,

Defender

Representation:

Pursuer: Murray;  Drummond Miller LLP

Defender: Reid;  MDDUS

_________

EDINBURGH, 15 September 2016

The Sheriff, having resumed consideration of the cause,

Finds the following facts to be admitted or proved:

[1]        On 9 December 2011 the pursuer attended at the Toothbox Dental Practice (“the practice”) at 536 Gilmerton Road, Edinburgh, EH17 7JD, where he was seen by the defender, a dental practitioner.  The pursuer was complaining of pain in the left side gum area.  He had not attended at that dentist since April 2009 and did so on 9 December 2011 in response to an attendance reminder card.  Prior to March 2009 he had not attended any dental surgery for about 15 years.

[2]        On the defender’s examination of the pursuer’s mouth on 9 December 2011, she observed dental decay (caries) in the lower left wisdom tooth referred to and known as LL8.  The caries affected the enamel and dentine of the tooth.  There was decay under the gum and on the back aspect of the tooth.  The defender’s clinical view on examination was that it was likely that there was also decay in the pulp chamber of the tooth.  A substantial amount of the tooth surface had been lost due to the decay in the enamel and dentine.  The defender determined that the tooth was unrestorable and recommended that the LL8 tooth be extracted under local anaesthetic on the pursuer’s next visit to the surgery.  Two bitewing x-rays were taken.  The tooth was fully erupted. 

[3]        On 9 December 2011 the defender presented the pursuer with the options of leaving the tooth in situ or extraction.  Her recommendation was extraction.  She advised that it would be a simple (non-surgical) extraction.  No periapical x-ray radiographs were taken or instructed by the defender.  In 2011-12 it was the defender’s routine practice to extract fully erupted wisdom teeth without a periapical radiograph.  With regard to risks associated with extraction, the defender on that date advised the pursuer of the risk of pain, and the lesser risk of temporary or permanent numbness of the lower lip or tongue, in the event that the procedure developed into a surgical extraction or if the root of the tooth were to put pressure on a nerve during the extraction.

[4]        Prior to attending at the practice on 9 December 2011, the pursuer had undergone four previous extraction procedures and multiple fillings.  The extraction procedures had included the upper right (8) wisdom tooth.  The pursuer advised the defender on 9 December 2011 that he had occasional short-term discomfort or pain in the LL8 tooth. 

[5]        The defender had undertaken multiple extractions on a regular basis prior to December 2011, including wisdom teeth.  She had undertaken a year working in London from 2010 to 2011 at a hospital oral surgery department during which time she assisted surgeons and carried out surgical removal of wisdom teeth.  She had qualified as a dentist in July 2008.

[6]        On 13 December 2011 the pursuer re-attended the practice.  The LL8 tooth was extracted by the defender under local anaesthetic by way of simple non-surgical extraction using a luxator and forceps.  Prior to seeing the pursuer on that date, the defender was able to review the bitewing x-rays which had been taken on 9 December 2011.  On review of the bitewing x-rays the defender observed a dark area on the back of the crown of the LL8 tooth, which was an indicator of decay.  She observed darker shading in the area of the nerve in the pulp chamber of the tooth.  This confirmed the depth of the caries which she had observed visually on examination on 9 December 2011. 

[7]        On 13 December 2011, prior to the extraction, the defender adhered to her normal practice at that time by advising the pursuer of the risks of pain, bleeding, infection, and permanent or temporary numbness to the lip or tongue.  During the 30 minute appointment the defender also administered fillings to two of the pursuer’s other teeth.  The treatment plan was recorded in form GP17, in which the treatment work undertaken was intimated to the appropriate NHS Board for payment.

[8]        The extraction undertaken by the defender on 13 December 2011 was uncomplicated.  No damage was caused to any underlying anatomical structures including the lingual nerve or inferior dental nerve during the extraction.

[9]        On 15 and 20 December 2011 the pursuer re-attended the defender at the practice complaining of pain in the socket of the tooth.  The defender administered appropriate treatment for a dry socket.  On 10 January 2012 the pursuer presented again at the surgery with a complaint of feeling something sharp inside the socket.  An x-ray taken on that date showed nothing but the defender concluded that a small piece of bone had made its way to the surface and on 17 January 2012 she undertook a procedure removing the bone by use of a slow speed drill.  The procedure was uneventful.   By 26 January 2012 a stitch was removed following that procedure and it was recorded that the pursuer’s mouth was healing but that there was still swelling. 

[10]      On 3 February 2012 the pursuer attended the practice and saw Mr Isherwood, a dental practitioner, complaining of ongoing pain and swelling. On that date a referral was made to the Edinburgh Dental Institute (“the Institute”).  On 24 February 2012 the pursuer attended the Institute and saw Ms O’Connor, a dental practitioner.  On examination a 4cm diameter soft swelling in the left submandibular area was noted.  On 28 March 2012 he re-attended the Institute and swelling was noted on the submandibular gland on eating.  It was determined that the gland would be removed under general anaesthetic.  In April 2012 the submandibular gland was removed at St John’s Hospital. 

[11]      On 30 May 2012 the pursuer re-attended the Institute where he made his first complaint of numbness and/or tingling in the left side of the tongue with some pain.  On 24 April 2013 at a review appointment at the Institute the pursuer complained of ongoing numbness and tingling in the left side of the tongue, with loss of taste on the left side of the tongue.  He reported that he bit the left side of his tongue on eating and noticed that the tongue was more towards the left side when he stuck his tongue out.  He also felt numbness along the left mandible.  He indicated that these symptoms were all present prior to removal of the submandibular gland and that he now wished to receive compensation from his dentist.

[12]      In July 2014 an investigation committee of the General Dental Council (“the GDC”) made various findings in respect of complaints made by the pursuer about his dental treatment by the defender.  The case was closed with advice.  No reference was made by the investigation committee to a practice committee.

Finds in fact and law

1          The pursuer having been warned of the material risks associated with extraction of the LL8 tooth and there being no reasonable treatment alternatives, in the whole circumstances the pursuer gave his informed consent to the extraction of the said LL8 tooth on 13 December 2011. 

2          Extraction being the only viable treatment option available for the LL8 tooth on 13 December 2011, while there was in 2011 a standard dental practice of taking a periapical radiograph prior to extraction of such a tooth, and the defender having proceeded to extraction on 13 December 2011 without the benefit of such a radiograph, it cannot be said that that her decision to extract was one which no ordinarily competent dentist, exercising ordinary skill and care, would have undertaken, having regard to the practice of many dentists at that time and to the terms of the relevant Good Practice Guidelines. 

3          The pursuer sustained no loss, injury or damage as a result of the extraction procedure undertaken by the defender on 13 December 2011. 

THEREFORE, refuses the pursuer’s crave for payment and pronounces decree of absolvitor in favour of the defender; reserves all questions of expenses and appoints parties to be heard thereon on 28 September 2016 at Edinburgh Sheriff Court, Chamber Street, Edinburgh, at 9.30 am; and sanctions the cause as suitable for the employment of junior counsel.

NOTE

Introduction: the pleadings and counsel’s joint approach to the issues at proof

[1]        Reading short the procedural history of this case, the pursuer with commendable skill and diligence proceeded with the litigation on his own behalf until he obtained the services of solicitors and counsel in May 2016.  For some time the principal focus of the pursuer’s case was an allegation that during the removal of a piece of bone in the socket on 17 January 2012 the defender’s drill had slipped causing him injury.  Although this allegation featured in the proof, as a case of fault it was not insisted upon.  Instead, the issues at proof focussed on the extraction of the LL8 tooth undertaken by the defender at the Toothbox Dental Practice (“the practice”) on 13 December 2011 and in particular on whether the defender properly consented the pursuer through that procedure and whether in all the circumstances the decision to proceed to extraction was or was not negligent.

[2]        I was very impressed with the way in which both counsel conducted the proof.  At the outset they indicated that there was to be no reference in the case to the pleadings but that instead they would join issue on an agreed statement of disputed issues, albeit they had not reached full agreement on the first issue.  I will be addressing this matter in due course but, put short, the issue which the pursuer’s counsel sought to focus, and upon which evidence was led at the proof, albeit under reservation, pertained to the question of whether an ordinarily competent dental surgeon exercising ordinary care would have actually carried out an extraction of the LL8 tooth on the basis of the bitewing x-rays and a visual inspection as were available to the defender on the date of the extraction, namely 13 December 2011.  The remaining issues formally agreed by counsel related to whether the defender obtained the informed consent of the pursuer to the extraction and in particular whether the pursuer was warned of the material risks associated with that procedure and whether there were any reasonable treatment alternatives, and of course whether the pursuer was, if so, advised of these.  Thereafter counsel joined issue on the matter of the causation of any loss, injury and relative damage relative to the extraction.  I have to say that counsel’s decision to jettison the pleadings on day one of the proof was one of the main reasons that the proof itself, covering complex issues of standard of care and causation, was completed, including submissions, within the period allocated to it and counsel deserve to be commended for their innovative and pragmatic issues–focussed approach to this case.

[3]        Nevertheless, although the pleadings were effectively cast aside by counsel, it was significant that certain admissions had been made therein, and these were of course not at any stage departed from by the defender’s counsel.  In Answer 6 the defender accepted that she had breached the duty of care which she owed to the pursuer in so far as the pre-operative x-ray did not show the root of the LL8 tooth.  Her position was, however, that that admitted breach of duty caused no loss.  The defender also admitted in Answer 6 that she had breached the duty of care which she owed to the pursuer insofar as she did not document in the dental notes the risk discussed with the pursuer prior to the extraction.  Her position on this matter in the pleadings was, however, that she did discuss those risks with him and that accordingly that admitted breach of duty also caused no loss.  This was in substance the position adopted on behalf of the defender throughout the proof and at submission by her counsel. 

The evidence adduced for the parties

[4]        The pursuer gave evidence on his own behalf and his counsel proceeded to lead further evidence from the defender, Mr Joseph Fell and Mr Craig Wales.   The defender’s counsel led evidence from one witness, Mr Garmon Bell.  As I assessed the evidence of these witnesses, I found the factual witnesses, namely the parties, to be doing their best to tell the truth and recall relevant events to the best of their ability and accordingly to that extent both were in my view credible witnesses.  For reasons that I will set out later on, however, I have decided with some reluctance that I could not characterise the evidence of the pursuer as reliable evidence.  The expert witnesses were all of course credible and reliable witnesses, although I had some difficulty in accepting Mr Fell’s evidence on certain important matters, for reasons which I will come to in due course.

[5]        The pursuer was aged 48 at the time when he gave his evidence in August 2016.  He was a patient at the practice and saw the defender for the first time on 9 December 2011.  He had not attended his dentist for the previous three year period and before that had not seen a dental practitioner for about 15 years.  He attended the practice in December 2011 in response to a card from the practice indicating that it was time that he attended for a check-up.  He indicated that when he attended on 9 December 2011 he had no symptoms, but he had told the defender that he had pain for a few seconds in the event that he ate crisps.  He said that the defender told him that the LL8 tooth required to be extracted and that he may get a drooping left lip as she would be working close to a nerve.  His position was that she did not explain why she was recommending extraction.  He denied that there was any preliminary discussion when he re-attended for the extraction on 13 December 2011, but indicated that in matters such as these he considered it best to place his trust in a medical or dental practitioner.  He elaborated upon that view in an unprompted section of evidence towards the beginning of his examination in chief.  The pursuer advised that when the local anaesthetic wore off on 13 December 2011 he experienced a sharp pain on the tip of tongue to the left-hand side, could not taste anything on the left side and had a foul taste on the right side.  He stated that he explained these symptoms to the defender when he saw her again on the 15 December when it was explained to him by her that he had an infection.  He indicated that when he got home on 13 December 2011 he had first noticed sharp pain and problems with taste together with numbness on the left side of the jaw.  He continued to suffer from these symptoms and further lisped when he spoke.  There had been no change in these symptoms from December 2011 to date.   He proceeded to describe treatment from an infection from the socket of the wisdom tooth which had cleared by 20 December.  He reiterated that on that date he discussed his symptoms with the defender, namely related to taste, numbness and sharpness.  He went over these symptoms once again with the defender on 10 January 2012 and she indicated that it would take about 12-18 months for these to go away.  He returned on 17 January 2012 to have the gum scraped out to remove root segments.  He said that the defender was using a drill.  On his account the defender slipped and the drill went under his tongue.  The defender stood back and apologised and carried on, stitching his mouth.  An hour later his neck was swollen and he was in agony.  He saw Mr Isherwood on 3 February 2012 and thereafter attended at Edinburgh Dental Institute (“the Institute”) from 24 February 2012.  He advised that he had told Mr Isherwood of the accident with the drill and, that at every appointment thereafter at the Institute he had reported his symptoms.  He was clear that he had reported his symptoms to dentists Isherwood, O’Connor and Lucas (from the Institute).  He accepted that these symptoms had not been recorded by these dentists in their contemporaneous notes.  He also accepted writing in a complaint letter dated 19 June 2013 to the General Dental Council (“the GDC”), under reference to the appointment on 9 December 2011, that “she then went straight on to tell me that as she would be working close to a nerve it may get damaged and could affect my lower lip on the bottom left side”.  He further accepted that in another letter written by him dated 7 February 2013, in which he had requested that changes be made to the terms of his dental records, under reference to the said appointment the only addition he had sought to add was that “I was not in any pain whilst attending the clinic”.  His response to these discrepancies was to state “what can I say, I am a member of the public, I can’t get everything right”.  When the absence of reference in the records to any drill accident on or following 17 January 2012 was put to him, his position was that the records were inaccurate and that Mr Lucas did not examine him nor did Mr Isherwood “go into his mouth anyway”.  It was further put to him that the first record of numbness and tingling was contained in the entry dated 30 May 2012 which was his first appointment after removal of the submandibular gland.  As I assessed the pursuer’s evidence as a whole, I concluded that he was entirely genuine in his own mind that the symptoms which he described to the court related to the LL8 extraction in December 2011.  He had pursued the case to litigation following a formal complaints procedure involving the GDC, culminating in July 2014.  He was thoroughly immersed in the detail of treatment received by him in connection with his various dental procedures.  The difficulty which I have had in accepting his evidence as reliable relates to the inconsistencies between his account of what he said had happened at these appointments and what was actually recorded by multiple dentists in the various records considered by the court.  My overall impression of the pursuer’s evidence was in sum that his immersion in the detail of his case had led perhaps to certain fixed positions or views being taken by him which were on his part entirely genuinely, but as a matter of fact wrongly, held.

[6]        The defender, aged 30, had qualified as a dentist in July 2008 and had worked from 2010 to 2011 at a hospital in London assisting surgeons and carrying out surgical removal of wisdom teeth.  She had been in dental practice since then and accepted at the outset of her evidence that her note taking was not satisfactory and that a pre-operative periapical x-ray should have been taken in this case.  Her position at the outset was also, however, that the taking of such a radiograph would not have changed her treatment in the case.  Nevertheless, she indicated that she would not now extract a molar tooth without such an x-ray and that responsible dental practice would be to do so.  Her view as she observed the tooth in situ in December 2011 was, clinically, that what was required was a simple extraction.  She had observed decay running very deeply in the tooth with decay under the gum and on the back aspect of the tooth, which was fully erupted.  In her view, based on a visual clinical examination, the tooth was unrestorable.  She had observed decay on the enamel, the dentine and below the gum line.  She observed that a lot of the surface of the tooth had been lost from the decay. In her view the decay would have proceeded into the pulp chamber, which was in her words “more than likely” to be affected by dental caries.  In making her decision and recommendation on 9 December 2011 she had no x-ray available to assist her.  She advised the pursuer on that date that the risks associated with the extraction were pain and the lesser risk of temporary or permanent numbness of the lower lip or tongue, in the event that the procedure turned into a surgical extraction, or if the root put pressure on the nerve during extraction.  With regard to the magnitude of risk on extraction in relation to nerve damage, she advised the pursuer that this was very rare.  The next appointment on 13 December 2011 lasted 30 minutes during which she carried out a simple non-surgical extraction using a luxator and forceps together with two fillings.  The items of treatment were recorded in the GP 17 which was sent to the NHS Board for payment in relation to work done once the treatment items were ticked off.  Prior to carrying out the extraction she was able to look at the bitewing x-ray of the tooth which had been taken on 9 December 2001.  She observed a dark area on the back of the crown which meant that there was decay and further observed darker shading in the nerve area of the pulp chamber.  Her viewing of the x-ray confirmed what she had previously seen visually on examination in respect of the depth of caries in the tooth.  The options which she presented to the pursuer prior to extraction were to leave the tooth in situ, and effectively do nothing, or to proceed to extraction.  She had advised that her normal practice at that time in respect of advice prior to extraction for such a tooth would be to advise of the risks of pain, bleeding, infection and permanent or temporary numbness to the lip or tongue.  Given the rate at which she was extracting wisdom teeth this would be a conversation which she had been having at that time about once every two weeks.  She told the court that she could indeed remember mentioning the risks to the pursuer.  With regard to the symptoms which the pursuer allegedly reported, she was quite clear that any mention by him, or indeed by any patient, of tongue deviation, numbness and loss of sensation would have caused her concern about the pathology involved and would have led to investigative measures beginning with an x-ray of the whole jaw.  In such circumstances she would not tell the patient that problems would settle within 12-18 months but would instead refer the matter to a consultant.  In any event, as she looked again at the x-ray taken on 10 January 2012, in her view nerve damage during extraction was effectively excluded and therefore she would be concerned to look for another explanation for the symptoms which would lead to a referral.  She denied any incident involving an accident with a drill on 17 January 2012.  The defender was a credible and reliable witness, who gave her evidence in a measured and straightforward manner.  Significantly, her narrative of events was wholly consistent with the dental records available to the court in the case.

[7]        Dr Joseph Fell, aged 65, was a retired general dental practitioner who had qualified in 1974 and retired in 2014.  He did not examine the pursuer prior to giving evidence but had had access to dental records.  He accepted that the LL8 tooth looked fully erupted and very decayed.  He was very critical of the bitewing x-ray as an inadequate x-ray to rely on prior to undertaking such an extraction or indeed in the making of any decision that a tooth was un-restorable.  He accepted that the x-ray showed some shadowing of decay, but it was not possible to say how deep that was without opening up the tooth to explore the depth of caries.  It would be routine, although more difficult, to use root canal treatment to remove a nerve and preserve the tooth.  It was of note that at the prior appointment in March 2009 the treating practitioner had noted “no obvious caries”.  In accepting that the bitewing x-ray disclosed deep decay in the tooth, his position was that one could not say definitely that the decay extended to the pulp chamber and that accordingly a periapical x-ray was essential prior to deciding that a tooth was unrestorable, which failing a reference to a specialist would be required to make that decision.  He described any routine practice of extracting an LL8 without a periapical x-ray as “appalling”.  In terms of advice that he would have given to the patient, he stated that he would advise on the risk of pain and swelling and of an increased problem concerning lower wisdom teeth with the possibility of nerve damage.  Without a periapical x-ray the defender could not properly have advised on risks and accordingly the pursuer could not in such circumstances have known of the risks.  He nevertheless indicated that he agreed with the view expressed in Dr Bell’s report that deep caries was possibly indicated in the tooth.  He then indicated that if there was indeed deep caries in the pulp of the tooth, the tooth could not simply be left alone.  He would have excavated the decay to make a visual examination and then give the patient the opportunity either to save it by root canal treatment or to take the option of extraction.  He accepted that he had not examined or treated a patient since 2014; that he had never removed a submandibular gland or consented a patient for that procedure; and that he was no longer registered with the General Dental Council and accordingly was not entitled to practice currently as a dentist.  He further accepted that during his last 15 years of practice he had undertaken part-time work in the area of dental sedation and had carried out dentistry for two sessions a week during that period.  Further, during cross examination the witness appeared rather uncertain of the appropriate test for professional negligence, to which he had referred in a shorthand fashion throughout his report.  When the proper test was put to him by counsel and he was asked whether he understood it his response was “now you put it like that, yes”.  He accepted that the recommendation of treatment was a matter for clinical judgement and that different dentists may well come to different views on the matter.  He further accepted that once it was established that there was decay, it was correct to view the position as being on a spectrum with a range of options available.  The decision letter dated 30 July 2014 from the General Dental Council Investigating Committee (“the GDCIC”), following its meeting on 25 July 2014, was one which the witness appeared to have some difficulty in accepting, in particular the view expressed by the GDCIC to the effect that extraction was the only treatment option available for the tooth and this was clinically justified.  He stated in terms that this was not a conclusion that any reasonably competent general dental practitioner would have come to and that he did not agree with that paragraph whatsoever.  In terms of obtaining formal consent, his view was that it was reasonable to put the presentation of the risk of complications in percentage terms and further that it was negligent not to do so.  With regard to the Faculty of General Dental Practitioners (UK) and The Royal College of Surgeons of England Good Practice Guidelines document “Selection Criteria for Dental Radiography” (“the Radiography Guidelines”), he appeared to disagree with the criteria set down for radiographing prior to oral surgery at paragraph 2.2.4 and in particular in the section beginning “Obviously there will be cases in which a pre-extraction radiograph would be judicious”, the witness insisting that the appropriate word in that section ought to be “mandatory” rather than “judicious”.  His position on the Radiography Guidelines in re-examination was that this section was not clear.  Finally, he accepted that he did not have the expertise to comment on matters of causation. The witness expressed genuine views in an authentic manner, but in view of the above account of the opinions expressed by the witness on the Radiography Guidelines and the position of the GDCIC, taken together, to a much lesser degree of course, with the witness’s lack of recent practice and limited general dental practice during the 15 years prior to his retirement, in the whole circumstances I have considered it prudent to regard the witness’s evidence with some caution, insofar as it departed from the other dental evidence available to the court.

[8]        Mr Craig Wales, aged 44, was a highly impressive and exceedingly well qualified witness.   He practices as a consultant maxillofacial surgeon and is a qualified dentist and doctor.  He further had the benefit of having examined the pursuer himself prior to preparing his report for the case in August 2016.  He described the position and root of the inferior dental nerve running from the base of the skull under the teeth and exiting the bone towards the chin and explained that this nerve provides sensation to the teeth and is carried in a canal running below the tips of the roots.  The lingual nerve runs on the inner aspect of the molar teeth and over the carotid artery in the neck.  Injury to the inferior dental nerve and/or lingual nerve could occur at the removal of wisdom teeth and a patient could complain of altered taste as well as sensation related to the lingual nerve.  Damage to those nerves is a known complication of the removal of wisdom teeth.  The confounding factor, as the witness put it, in this case was that no symptoms were reported at the time to the various dentists involved in the treatment of the pursuer.  The witness had considered a panoramic x-ray of the pursuer’s jaw dated 24 February 2012.  He observed that the lamina dura overlaid the inferior dental nerve and that if a tooth and its roots were to be removed, damage could be caused to the lamina dura by entering the canal housing the inferior dental nerve, if that were close by.  He could not reconstruct where the tooth would have been in respect of the inferior dental nerve looking at this x-ray.  He could not form a view as to whether there was indeed damage to the lamina dura looking at the x-ray dated 10 January 2012.  On the basis of the panoramic x-ray, the witness was asked for his opinion on the likely mechanism causing neuropraxia.  His response was that from what the pursuer had told him about sensation being impaired as soon as the local anaesthetic had worn off after the extraction the logical conclusion was that the neuropraxia had happened at the time of the extraction.  He further observed that the excision of the submandibular gland could cause injury to the lingual nerve but that such excision would be very unlikely to cause injury to the inferior dental nerve.  Any warning given in such circumstances would relate to the lingual and hypoglossal nerves, not to the interior dental nerve.  He had never warned anybody of risk of injury to the inferior dental nerve during such excision.  The most likely cause of neuropraxia related to the inferior dental nerve was the extraction of the LL8 tooth, in the words of the witness, “as that mechanism was described by the pursuer”.  He was very clear that damage to the hypoglossal nerve could not occur through wisdom tooth extraction.  A safe margin involved in a decision to proceed to extract an LL8 tooth would be a distance of 2-3mm between the tooth and the inferior dental nerve.  In his examination of the pursuer, he accepted that he had relied on the account given by the pursuer and that he had carried out tests for symptoms comprising a very basic test involving the lower jaw and tongue protrusion.  When it was put to him that if the account given by a patient was wrong, that would undermine the conclusions that he had reached, his response was simply “of course”.  He further confirmed that the pursuer told him that he had told the defender that he had occasional short-term discomfort in the LL8 tooth.  I considered Mr Wales to be well qualified to act in the case as an expert on all matters put to him.  He had had the benefit of examining the pursuer and was clear that he was heavily reliant on him for his account of the potential mechanism of injury.  He was perhaps overly cautious in expressing any view as to the distance between the inferior dental nerve and the tips of the roots of the LL8 tooth but confirmed that a safe margin for extraction would be 2-3mm, and emphasised that in considering a radiograph one is looking at a two dimensional representation of something that one has to consider in three dimensions. 

[9]        Dr Garmon Bell, aged 49, gave evidence on behalf of the defender at the proof.  He was a dentist and specialist in oral surgery registered with the General Dental Council.  He had been in his present post with Dumfries and Galloway Health Board for the last 14 years, working at Dumfries and Galloway Royal Infirmary.  He held various fellowships and in particular held an MSc in dental radiology.  His evidence was careful, measured and highly impressive.  I had no doubt, at the end of his evidence, that he had a complete grasp of all of the issues arising in the case.  He was the only expert to adopt the content of his report, and did not depart from that position throughout his evidence.  He explained that the lingual nerve related to sensation and taste in the tongue and that the inferior dental nerve (or inferior alveolar nerve) gives sensation to the lower teeth and gum and to the lip and chin.  The nerve divides approximately two-thirds of the way through the lower jaw, with one branch giving sensation to the lower front teeth and the other branch to the jaw and lip.  The hypoglossal nerve provides motor function to the tongue.  An extraction of an LL8 tooth has the potential to risk damage to the inferior dental nerve and lingual nerve but not to the hypoglossal nerve.  Removal of the submandibular gland has the potential to risk damage to the hypoglossal nerve and the lingual nerve.  There was no risk of injury to the inferior dental nerve in gland removal procedure as the nerve was encased in bone for most of its journey through the jaw.  In a procedure involving removal of the said gland the lingual nerve is in direct contact with the gland on its deep aspect and dissection of the lingual nerve from the gland is required through soft fibrous tissue to release the nerve using a dissector.  Further, the hypoglossal nerve is directly adjacent to the submandibular gland.  The witness had never heard of a case in which all three nerves were damaged at one time in the context of an LL8 extraction or removal of the submandibular gland.  In respect of the symptoms allegedly reported by the pursuer, the witness, who had ongoing teaching roles with a variety of healthcare workers including general practitioners and dentists, said that alarm bells would ring if there was any report of something such as a deviation of the tongue.  As the objective assessment of symptoms was very difficult the recognised procedure for this would involve commencing with a light touch test, followed by a sharp/blunt test, followed by a two point test.  Such tests were often used for inferior dental nerve injuries.  In any event, if there had been any traumatic injury to any of the nerves as alleged, one would expect the immediate onset of symptoms.  In the event of damage to a motor nerve, loss of motor function would be immediate.  With regard to the conclusion of the GDCIC as set out in their letter of 30 July 2014, the witness agreed that the only available treatment option was extraction of the LL8.  He had reviewed the panoramic x-ray dated 24 February 2012 spoken to by Mr Wales on a radiographic system a few days prior to giving evidence.  He stated in court that he could see the outlines where the roots of the LL8 tooth would have been and two parallel lines running east-north-east which represented the canal housing the inferior dental nerve.  There was in his view an obvious difference in distance of about 4-5mm on this radiograph between the socket and the nerve canal.  These images had an inherent 30% magnification, so taking that into account the distance was possibly, in clinical practice, one of 2.5-3mm, in terms of the pursuer’s actual anatomy, with 2.5mm being a minimum figure.  In terms of removing a wisdom tooth, this was a very safe and considerable distance.  At least 12% of wisdom teeth can be in close proximity to the nerve, that is in direct contact or within 1mm of the root of the tooth, and most of these could be removed with good operating technique.  The witness advised that he removed hundreds of wisdom teeth each year.  As the witness looked at the outline of where the roots had been on the panoramic radiograph, he concluded that there was no risk of nerve injury to the inferior dental nerve at all during removal of the pursuer’s LL8.  The lingual nerve lay entirely within soft tissues at this point and could not be imaged on the radiograph of 24 February 2012.  One would never be able to observe the lingual nerve on a plain x-ray and it was very difficult to image it even on magnetic imaging.  The risk of lingual nerve injury would only arise in the event that one was peeling back soft tissues on the inside of the lower jaw in the process of seeking to remove bone.  Accordingly, one would not warn of the risk of lingual nerve damage in a simple forceps removal as that risk simply did not exist.  On what the witnesses had seen on the panoramic image, there was no risk of injury to the inferior dental nerve in this case.  The Radiography Guidelines were regarded by the GDC as a benchmark in respect of the standard of work of dentists.  It was of note that the first record of numbness/tingling in the left side of the tongue arose in the Institute note of 30 May 2012, following upon removal of the gland in April.  The full range of complaints including what was said to be numbness of the tongue muscles was only made for the first time approximately one year later on 24 April 2013.  The reference in that note to numbness along the left mandible could relate to skin at the site of the gland removal surgery over the incision at the corner of the left jaw, but the reference to “left mandible” was an unclear term in respect of whether it was the upper chin or rear of the jaw.  The witness had only become aware of any indication of injury to the inferior dental nerve when he received a copy of Mr Wales’s report of August 2016 the week before the proof.  There was nothing in any record to suggest numbness of the upper chin.   It would be most surprising if there was injury to the inferior dental nerve not recorded in the letters and not investigated further by staff at the Institute. There were clear protocols setting out how these injuries were to be managed.  In his opinion any alleged injury to the hypoglossal nerve or lingual nerve occurred at the time of removal of the submandibular gland in April 2012.  He could offer no explanation as to how the pursuer could have sustained injury to the inferior dental nerve.  This could not have been damaged during the LL8 extraction, as the tooth was well away from the nerve, and the nerve could not have been damaged in the course of removal of the gland.  The witness described himself as being “at a complete loss” as to why the pursuer would have had numbness of the upper chin.  On matters related to standard of care, the witness agreed that the removal of any wisdom tooth required an adequate pre-operative radiograph and that he himself would never remove a fully erupted or partially erupted wisdom tooth without a periapical x-ray.  Nevertheless, he was sure that there were many dentists who would remove lower molar teeth without radiographs.  The dentist would assess whether the tooth was fully erupted and whether it could be removed without complication.  When it was put to him that no ordinarily competent practitioner exercising reasonable care would remove an LL8 tooth without a periapical x-ray, he responded that this would be his personal opinion, but it was not necessarily the opinion of those who had produced the Radiography Guidelines.  He made it clear that the lamina dura was a radiographic artefact and was in fact the outline of the ligament space around the teeth.  It was not as such a part of the patient’s anatomy.  In the case of the pursuer, in terms of the panoramic x-ray, the roots of the LL8 were well away from the position of the nerve.  He expressed his confidence that the LL8 roots were nowhere near the nerve in question and that the tips of the roots were indeed a very safe distance away from the nerve.  In terms of the state of the tooth itself, it was a wisdom tooth with deep decay, and the pulpal tissues would almost certainly have been involved.  Many dentists would question the wisdom of whether root canal treatment was required on a third molar tooth, in view of the complex pathology and very challenging access situation involved. 

Submissions for the pursuer

[10]      On the reserved issue of whether it was appropriate to carry out an extraction of the LL8 tooth on the basis of the bitewing x-rays and a visual inspection, counsel submitted that no ordinarily competent dental surgeon would have carried out an extraction on the basis of the visual inspection made on 9 December 2011 and the bitewing x-ray examined on 13 December 2011.  No such surgeon would have proceeded with an extraction of the tooth without a periapical x-ray.  Further, the defender did not obtain the informed consent of the pursuer to the extraction.  The pursuer was not warned of the risk of permanent sensory impairment.  Further, if the defender was correct, part of the warning given to him of sensory loss to the tongue would be medically unjustified.  In the absence of a periapical x-ray the defender could never have adequately advised the pursuer of the magnitude of risks.  The defender had no basis for her advice to the pursuer that the risk of injury was low.  There were alternative treatments including root canal treatment available, according to Dr Fell.  Mr Bell partially supported this alternative in so far as he would have discussed it with a patient before recommending that that course not be followed.  In the event that the only alternative treatment option was to do nothing, on the pursuer’s evidence he would indeed have chosen not to proceed on that basis.  The pursuer’s evidence of reported symptoms supported the conclusion that extraction of the tooth caused damage to the inferior dental nerve, the symptoms of that injury being numbness on the left side of the jaw.  In any event it was the opinion of Mr Wales that the pursuer had sensory impairment indicative of damage to the inferior dental nerve and the likely cause of that damage was the LL8 tooth.  The evidence of Mr Wales was that extraction could have resulted in injury to the lingual nerve and hence caused the tongue symptoms.  Counsel accepted that the tongue deviation was caused by damage or some other effect on the hypoglossal nerve and was unconnected to the allegedly negligent extraction of the LL8 tooth.  Counsel sought damages in respect of solatium only on three alternative bases: 

1. Symptoms arising from damage to the lingual and inferior dental nerves: £15,000;
2. Symptoms arising from damage to the inferior dental nerve alone: £5,000;

               and

3. Following discussion during submissions, damages for an invasive unconsented procedure on the pursuer in a nominal sum, but nevertheless sounding in damages.

[11]      Counsel addressed certain collateral matters such as the status of the GDCIC letter of 30 July 2014, under reference to the following authorities:

Preiss v General Dental Council [2001] 1WLR 1926 at paragraphs 28 and 29;

Meadow v General Medical Council [2007] QB 462 at paragraphs 200 to 201;

Sadler v General Medical Council [2003] 1WLR 2259 at paragraph 63; and

Calhaem v General Medical Council [2007] EWHC 2606 (Admin) at paragraph 39.

[12]      Counsel’s concluded position in his oral submission supplementary to his written submission was that the court should disregard the findings of the GDCIC, which was not looking to apply a test of negligence but rather consider misconduct.  In any event there was a logically incomprehensible contradiction in its findings to the effect that while it was satisfied that there was a real prospect of allegations related to the investigation and treatment planning being found proved, it was also satisfied that extraction was the only treatment option available, that this was clinically justified and that accordingly there was no real prospect of the allegation concerning whether the defender provided the pursuer with all of the treatment options and consequently extracted the LL8 tooth without clinical justification being found proved.  For completeness I should record that in taking the court through his written submission on informed consent, counsel referred to Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63 and in particular to paragraphs 77, 78, 82 to 84, 87, 89 to 93, 103, 108 and 109.  Finally, in support of his contention that the court consider the reserved first issue in the statement of issues (the issue related to the actual extraction), his averments at 9A-C were sufficient to give notice of this issue as one requiring answer from the defender at proof in the action.

Submissions for the defender

[13]      With regard to the reserved issue concerning the actual extraction of the tooth, the first time that any such criticisms had been advanced on behalf of the pursuer in respect of that matter had been on the Friday prior to the proof commencing.  The issue had not been raised at the pre-proof conference and was not foreshadowed in the pleadings.  The pursuer had been represented by agents and counsel since the beginning of May 2016.  Any amendment to make such a case on the eve of a proof would have been opposed.  The issue had not been foreshadowed in Dr Fell’s report. 

[14]      Turning to other issues, counsel submitted that the position of the GDCIC determination of 30 July 2014 was significant.  The function of the GDCIC was to consider whether there was a real prospect of an allegation being established before a practice committee rather than to seek to resolve substantial conflicts of evidence.  Indeed, any doubt as to whether there was a real prospect of success required to be resolved in favour of the matter being referred to a practice committee, when there would be a public hearing and a proper examination of the merits of the complaint.  Counsel submitted that weight should be accorded to the determination of the GDCIC, which had concluded that there was no real prospect of the pursuer’s complaints in respect of informed consent or lack of clinical justification for the extraction being established.  No referral had been made by the GDCIC to a practice committee.    Counsel referred to Mallon v General Medical Council 2007 SC 426 at paragraph 20. 

[15]      On the issue of consent, it was submitted that there were no reasonable treatment options.  This was the view reached by the GDCIC and Dr Bell.  Further, the pursuer was indeed warned of the risk of permanent nerve damage, on the evidence of the defender and under reference to the pursuer’s letter of 19 June 2013.  Given the lack of alternatives to extraction, it was questionable what weight a reasonable person in the position of the pursuer would attach to the significance of the risk of damage to the inferior dental nerve.  As a matter of fact the defender did give a proper warning of the risk and accordingly the pursuer had received the appropriate advice and thus given his informed consent.  Counsel accepted that Dr Bell had expressed the view that he would not have extracted the LL8 tooth without a periapical x-ray.  However, Dr Bell had recognised that his view was not necessarily consistent with the Radiography Guidance.  Standing the lack of expression of concern on the part of the GDCIC and the terms of the Radiography Guidance, it could not be said that the defender’s departure from the standard practice of taking such x-rays and proceeding to extraction without one could be said to be a departure which no ordinarily competent dentist would have made.  On causation, counsel submitted that damage to the lingual nerve was a recognised complication associated with the removal of the submandibular gland.  The first recording of symptoms related to that nerve post-dated removal of the gland. With regard to alleged damage to the inferior dental nerve, related to numbness along the left mandible, the only evidence in respect of such symptoms came from the pursuer.  There was no credible explanation for the mechanism of injury to the inferior dental nerve, which could not have been caused during the gland removal.  Dr Bell was, however, adamant that this could not have been caused during the LL8 extraction.  He had reached a view on the distance between the nerve canal and the LL8 root.  His evidence was clear, coherent and rational.  In all of these circumstances counsel for the defender moved for decree of absolvitor.  Finally, counsel agreed with counsel for the pursuer that there were no directly relevant cases to assist the court on quantum.  A ceiling award in this case, even at its highest for the pursuer, should fall below the sum of £5,000.

Discussion and Decision

Preliminary issues

[16]      The pursuer conducted this litigation as a party litigant until May 2016, when he obtained the services of a solicitor and counsel.  Up until a matter of days prior to the proof no case of fault had been intimated to those representing the defender in respect of the actual extraction of the pursuer’s tooth on 13 December 2011.  In any event, in my view no case of fault in respect thereof is properly advanced in the pleadings.  The passage referred to at 9A-C by counsel for the pursuer deals with the taking of an appropriate radiograph rather than the actual extraction of the tooth.  Notwithstanding the commendable approach of counsel in reducing matters to a Statement of Issues and effectively discarding the pleadings, even on the system of abbreviated pleadings operated under chapter 36, formal notice would be required of such a new case.  No motion to amend was made at any stage of or prior to the proof on this point.  Had such an amendment been proposed, I for my part would have refused such an amendment as too late and as occasioning considerable prejudice to the defender in her preparation for a proof on issues of such importance to her professional practice.  In these circumstances I have no difficulty in sustaining the objection made at the outset by counsel for the defender to this matter as an issue properly arising for consideration in the proof.

[17]      The GDCIC’s letter of 30 July 2014 is important but not by any means determinative of the remaining issues arising in the action.  Having considered multiple allegations against the defender, the case was closed by the GDCIC with advice.  No reference was made to a practice committee.  In any event, the GDCIC came to the view, having viewed the radiograph of the LL8 and under reference to the depth of caries visible in the tooth, that extraction was the only treatment option available and that it was accordingly clinically justified.  Further, the GDCIC was satisfied that the pursuer was aware of the risks of extraction, under reference to the terms of the pursuer’s letter of 19 June 2013, and further that there was no evidence that the pursuer did not have all the necessary information in order to provide informed consent to the procedure.  Finally, the GDCIC criticised the defender in respect of the failure of the 9 December 2011 radiograph in capturing the whole tooth including the roots.  The defender of course accepted this in evidence and in her pleadings in Answer 6.  The first two of these findings indicate that the “real prospect” test set out in the GDCIC Guidance Manual of November 2011 was not met.  That threshold is in terms “a genuine possibility” as opposed to “a remote or fanciful prospect or a probability” (paragraph 79).  That threshold is accordingly a low one and no reference was made by the GDCIC to a practice committee.  For these reasons I have concluded that the views expressed by the GDCIC can and should properly be taken into account by this court.  I will return to this point shortly.

Informed consent

[18]      The clinical observations made by the defender have been set out above.  She observed significant and deep decay in the LL8 tooth.  That evidence was supported by Dr Bell during his consideration of the radiographic evidence and by the GDCIC in its conclusion on the matter set out in its decision letter of 30 July 2014.  Dr Bell effectively discounted the option of root treating the tooth.  He expressly agreed that the only viable treatment option was extraction.  Mr Wales did not comment on this matter and insofar as Dr Fell expressed any view I prefer the evidence of Dr Bell for reasons which I have set out above.  Accordingly, insofar as the defender presented the options of (i) extraction, or (ii) doing nothing, to the pursuer, that presentation cannot be said to be negligent on the standard desiderated in Hunter v Hanley 1955 SC 200.  Insofar as the defender discussed recommended treatment and risks of injury with the pursuer, the duty incumbent upon the defender was “to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.  The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk” (Montgomery v Lanarkshire Health Board, supra at paragraph 87).  Dr Fell of course sought to reduce such risks to percentages, contrary to the view expressed by the Court in Montgomery at paragraph 89.  I conclude as a matter of fact and law that the defender duly consented the pursuer as expected of her in Montgomery.  In the pursuer’s letter of 19 June 2013 on his own account the defender told him on 9 December 2011 that she would be working close to a nerve which may get damaged and could affect his lower lip on the bottom left side.  The GDCIC took this letter into account in reaching its conclusion on the matter, supra.  The defender gave evidence in respect of her advice on risk to the pursuer on 9 December 2011 in examination in chief and in respect of her normal practice, having decided that the wisdom tooth was fully erupted, in cross examination, all as set out in full above.  Although Dr Bell gave clear evidence that there was no need to mention risk to the lingual nerve in a forceps extraction of an LL8 tooth because such a risk did not exist, I do not think that the defender can be criticised because she did make reference to permanent or temporary numbness of the tongue.  On the evidence before me I consider that her warning in respect of the risk of a temporary or permanent numbness of the lower lip because she was working near a nerve was in fact the correct warning to give, as reflected in the pursuer’s said letter of 19 June 2013.  On the issue of the magnitude of the risk, it is of note that the pursuer had undergone previous extractions including that of an upper wisdom tooth.  He volunteered his trust in medical professionals at the outset of his evidence.  I conclude that the pursuer himself and indeed a reasonable person in his position would have proceeded to extraction and accordingly that not only did the pursuer receive the appropriate advice but that he gave his informed consent to the procedure as a matter of law.  I am fortified in my view of the evidence before me on this point by the fact that I have come, as it happens, to the same conclusion as the GDCIC.

The diagnosis leading to extraction

[19]      I have set out above Dr Fell’s criticism of the terms of paragraph 2.2.4 of the Radiography Guidelines.  Dr Bell took a more measured approach to the Radiography Guidelines, accepting that the GDC regard these as a benchmark of standards whereas at the same time indicating that he himself would always carry out an appropriate pre-operative radiograph.  He drew a contrast of his own position with that set out in the Radiography Guidelines and observed that there were many dentists removing lower molar teeth without radiographs.  Insofar as the defender can be said to have departed from standard practice in this regard, it cannot be said in my view that she was the only ordinarily competent dentist, exercising ordinary skill and care, to have done so during the relevant period, on the evidence of Dr Bell.  It follows that the test set out in Hunter v Hanley, supra, has not been established in connection with the decision to extract the LL8 tooth. 

Causation

[20]      Counsel for the pursuer in his helpful submissions departed expressly from his case that the LL8 tooth extraction had caused injury to the hypoglossal nerve.  Mr Wales was not prepared to make an assessment of distance between the tip of the root of the tooth and the inferior dental nerve canal.  Dr Bell had the advantage of having an MSc in Dental Radiology and had himself viewed the panoramic x-ray of 24 February 2012 on a radiographic computer system a few days prior to giving evidence.  He expressed a quiet confidence in giving a professional opinion on the matter as a clinician of considerable and ongoing practical experience in the extraction of wisdom teeth such as the LL8.  For the reasons set out above, I have accepted Dr Bell’s opinion evidence.  He was clear that the anatomical difference which he estimated of 2.5-3mm was a very safe and considerable distance.  Mr Wales had himself agreed that a distance of 2-3mm between the tooth and the inferior dental nerve would be a safe margin for extraction.  Considering the radiograph and outlines therein, Dr Bell was clear that there was no risk of injury to the inferior dental nerve at all during this LL8 removal.  Further, Dr Bell gave a clear and logically reasoned view in respect of why in his view any damage to the lingual nerve must have occurred in April 2012 during the extraction of the submandibular gland.  The inferior dental nerve could not have been damaged during the removal of this gland but could also not have been damaged during the LL8 extraction.  Any symptoms arising from purported damage to the inferior dental nerve were clinically inexplicable.  Now, while Mr Wales gave supportive evidence about the relationship of the symptoms complained of by the pursuer and the extraction, he accepted “of course” that his conclusions would be undermined if the pursuer’s account was wrong.  For reasons set out above in my assessment of the pursuer’s own evidence, I cannot accept the pursuer’s account.  The records and documentation before this court simply cannot and do not permit that possibility.  For completeness, I note that the tests of symptoms undertaken by Mr Wales did not meet the rigorous testing sequence set out by Dr Bell in order to achieve any form of objective assessment.  It will be clear from the views expressed above that the pursuer’s case fails on the merits and on causation.  On the evidence before this court, I have come to the view without difficulty that the extraction by the defender of the pursuer’s LL8 tooth on 13 December 2011 caused the pursuer no loss, injury or damage. 

Quantum

[21]      On quantum, both counsel were quite frank before the court that they could find no case in point to assist on measurement of damages.  In the event that I had found the pursuer’s case on the merits established, with related symptoms on his account ongoing to the date of proof and beyond, due to damage to the lingual nerve and inferior dental nerve, I would have assessed damages in the region of £7,500.  In the event that damage was solely caused to the inferior dental nerve, with its related symptom, I would have assessed damages in the region of £2,500.  Insofar as the pursuer’s counsel argued for a nominal sum for infringement of the pursuer’s autonomy by way of unconsented surgery alone, I would have assessed damages in the sum of £1,000.

Disposal and expenses

[22]      I was invited by counsel to reserve expenses and accordingly I have appointed a hearing thereon.  Counsel agreed, as did I, that the cause was suitable for the employment of junior counsel, and I have so certified.  Standing my views on the merits and causation, of course, I meantime pronounce decree of absolvitor in favour of the defender.