“Claimant attended for teeth to be removed on 08.11.2016 and the treating dentist reviewed an old X-Ray and failed to remove the correctly identified teeth for treatment and removal, leaving the damaged tooth and causing the need for the Claimant to attend again for the damage tooth to be removed which has caused increase in pain and suffering and also the Claimant has a severe phobia of the denist (sic)”
“6. The failure to remove the upper left 2nd molar was caused by the negligence of the Defendant, Its servants or agents. Specifically: a. Failed to review the Claimant's dental records adequately or at all; b. Failed to take any, or any proper, account of the Claimant's consent form signed on the date of the surgery; c. Erroneously relied on out of date radiographs; d. Incorrectly identified upper left 2nd molar as being the upper left 1 " 1 molar; e. Failed to remove the upper left 2nd molar.”
“4 On5th November 2016 Miss Robinson had been referred to Aintree Hospital to have three teeth removed. Two teeth were planned for the lower right hand side, and one on the upper left hand side. On the day of the appointment, the appointment was cancelled and Miss Robinson was advised to attend the following day. When she attended the following day she was examined by the dentist who was due to remove her teeth. Miss Robinson was planned for a general anaesthesia extraction and she identified the three teeth to the treating dentist prior to the anaesthetic being administered. 5 When Miss Robinson came round following her general anaesthetic she realised very quickly that only two lower teeth had been removed and that the upper left molar had been left in place. While in recovery Miss Robinson advised the surgeon that the upper left tooth that had been left in place. The surgeon re-checked the x-ray and advised Miss Robinson that he had not realised that the x-ray that he had been using was a couple of years old. As such he had not identified the tooth that had required removal. He apologised to Miss Robinson and advised her that she had no other option to make a new appointment.”
“There is no evidence in the clinical records that an examination was, or, was not, carried out by the treating clinicians prior to the consent being completed. Both experts agree that a reasonable body of practitioners would carry out and record the results of an examination prior to the consent being completed.”
“Q. Looking at this OPG do you accept (and leave aside what people have named them for a moment) two teeth are present of UL6, UL7 and UL8? A. Yes. Q. Okay, so why having looked in her mouth and saw only one was present and she is saying, “Take this one out”, you turn and look at the X-ray and see there are two present on the Xray, do you not do something about it and say to her, “Oh wait a moment, what’s gone on here? There’s two teeth on your X-ray; one tooth in your mouth?”
“Peter Smith J in Phillips v Symes set the threshold test for an applicant to surmount as a high one and said that a high level of proof would be needed to establish gross dereliction of duty or recklessness. I agree with him. Experts can sometimes breach their duties to the court and can also be criticised by the court. But if every time either occurred, the test was, “no more than outside the ordinary run of cases” then that has the potential to lead to satellite litigation and perhaps a plethora of applications for joinder for section 51 costs. That cannot, in my opinion, be right or what was intended by the use of the word, “exceptional”.”
“The application before me is predicated on the specific assertion that it should have been obvious to Dr. Mercier at the outset, and at various stages throughout the proceedings, that he was not the appropriate expert to opine on the management, and treatment afforded to the Claimant on8th November 2016 . In the circumstances of this application therefore I confine myself to the nature of Dr. Mercier’s expertise.”
“In that document he refers to the failure to adequately assess Ms. Robinson on the8th November 2016 . He thereafter notes the inconsistency between all of the documentation, but for some unfathomable reason concludes that Mr. Bajwa should have accepted the unsupportable consent form of the8th November 2016 which he is said to have created without proper review or examination, over the other documentation prepared properly previously.”
“It is right that he acknowledged in his evidence that on the information available to Mr. Bajwa in surgery he would have been entitled to conclude that the tooth was restorable. It is unclear to me why if he would be entitled to conclude that it was restorable with that information, he would not have been entitled to conclude that it was restorable after an additional chat with Ms. Robinson, particularly if she did not complain of pain”
“Dr. Mercier for the Claimant argued that no reasonable dental surgeon could have concluded that the UL7 was restorable as at that date (although he accepted in oral evidence that it did not match the written description given). Mr. Webster for the Defendant disagreed as to restorability. He argued that in fact the tooth would have been restorable as at the date of surgery and it would have been negligent to have removed it. Neither expert having met Ms. Robinson prior to 2018, the dispute therefore came down to what could be determined from the image taken in September 2015 and what I made of the evidence of Mr. Bajwa.”