Extraction of teeth 37 and 38

A patient brought proceedings against a general dentist in the District Court of New South Wales following extraction of teeth 37 and 38 in November 2004.

The Facts

The patient presented as an emergency patient in a distressed state complaining that she had constant severe pain radiating from the lower left teeth, was unable to eat, sleep or function and that pain relief medication was ineffective. A periapical radiograph was taken of the affected region which confirmed grossly decayed 37 and 38 teeth. The dentist's diagnosis was that tooth 37 was obviously grossly decayed, infected and broken down and had been left untreated to deteriorate and there was pericoronitis of tooth 38. The dentist showed the teeth to the patient with a hand mirror and also showed her the radiograph to indicate the problem teeth, their shape and their location and explained the possible risk of root or tooth fracture and possible risks of damage to the nerves in the region and jaw if extracted. In the clinical notes was recorded "Risk of damage to the nerve and to the jaw". She says she also discussed the option of root canal treatment and post core crown however explained that this would be of limited success long term. In any event the cost of this treatment was not acceptable to the patient. The patient said that she was in pain and wanted immediate treatment, namely extraction.

The extractions apparently proceeded uneventfully. No gum bone removal, tooth sectioning or bur was used. Post operative instructions were given verbally and printed. The risk of dry socket was explained to the patient who was a smoker. A prescription for antibiotics and Panadeine Forte was provided. The patient returned for review the following day. She reported that she had presented to the emergency department of her local hospital the previous night because she was vomiting and still bleeding. The dentist explained that the swelling was normal and that the nausea may be due to the Panadeine Forte, especially as she was feeling run down and had not eaten for a few days before the treatment and had an existing infection in the tooth. The patient was advised to continue on the antibiotics, eat, drink and rest. She was advised to return if she had any further concerns. The dentist did not hear from the patient again until she received a letter from her solicitors requesting copies of her clinical records. A Statement of Claim then followed.

It subsequently became apparent that the patient went on to suffer from paraesthesia and allodynia in the region corresponding to the distribution of the mandibular nerve. Her lower lip was numb and movement of her face such as pursing of her lips forward and stretching the lips into a grin or grimace was accompanied by pain. The anterior two thirds of the left side of the tongue from the tip back along the tongue was numb. She was unable to taste food and also was biting her tongue and the inside of her left cheek on a regular basis. Reports from pain management specialists was to the effect that the patient's life had been severely compromised in terms of quality and that she was now on an invalid pension. The pain management measures which had been attempted have been of little benefit and the patient had resorted to strong pain medication which left her incapacitated for work.

The Allegations

The allegations of negligence against the general dentist were both with respect to failure to warn or adequately warn of the risks of the procedure, performing the procedure negligently and failing to refer to an appropriate specialist. The patient also alleged that the dentist should not have proceeded with the extractions given the nerves could not be fully viewed on the radiograph.

The Defence

Although we obtained supportive evidence from a general dentist and oral surgeon there were several potential difficulties with respect to our defence of this claim.

Although the dentist recorded the warning about nerve damage in her clinical notes the entry was recorded next to the date following the procedure rather than on the date itself. This lead to a suggestion from the patient's experts that it was not a contemporaneous record and that she had recorded it only once she was aware that there was a potential issue.

The dentist said that she made handwritten notes on the day of the procedure which she then transferred to a computer record the following day when she had more time. Although this issue would probably have been decided in the dentists favour (because she fortunately still had the hand written notes from the day of the procedure) it is important that clinical notes are recorded next to the correct corresponding date to avoid any implication that they are not contemporaneous.

Although the warning was recorded and the patient did recount to various experts that she remembered a discussion about 'nerves' she said she did not understand what the dentist was referring to and did not appreciate the risk. This left the dentist open to a finding that she had not adequately explained the risks to the patient. In evidence the patient no doubt would have said that had she appreciated the risk she would have elected to have the procedure performed by an oral surgeon. If the procedure had been performed by an oral surgeon the evidence was that the patient would have had a better chance of a more favourable outcome. A consent form clearly outlining the risks and signed by the patient would have been of assistance in defending this issue.

The experts were divided on whether the pre-procedure x-ray was sufficiently diagnostic for this type of extraction. Probably not unexpectedly the oral surgeon experts were of the view that the x-ray was not sufficient and that the patient should have been referred to a specialist. The general dentist expert thought that the x-ray suggested that the extraction would be straightforward and uncomplicated. In his view, knowing the outcome of treatment and the possibility of nerve damage it was easy in retrospect to assume that the dentist failed to assess the complexity of the treatment adequately however many general dentists would have considered the x-ray sufficient for the purposes of this extraction and proceeded.

The claim for damages in this matter was very significant. The patient suffered from a chronic pain syndrome which had severely impacted on her life and the condition was permanent. She had ceased work as a result of her disabilities and at the age of 47 the economic loss claim was substantial. In other words, when weighing up the above risks on liability along with the potential of the damages that would likely have been awarded, it was decided that it was preferable to attempt a compromise resolution of the matter.

An initial attempt at resolution by way of an informal settlement conference was unsuccessful and the hearing commenced. The matter did ultimately resolve on the first day of hearing after some lengthy legal arguments about the late service of some reports on the patient's behalf. It is often said that a good settlement is one that neither party is happy with but both can live with. I think the settlement achieved in this matter falls squarely into that category. Hopefully there are some lessons that other practitioners can extract from the circumstances surrounding this unfortunate case.

Key learnings:

• Whilst the dentist took due care to show the patient the radiograph indicating the problem teeth, their shape and location, and also explained the possible risk of root or tooth fracture and possible risk of damage to the nerves in the region and jaw if extracted, a consent form clearly outlining the risks and signed by the patient would have been of assistance in defending this issue.
• Although there was supportive evidence from a general dentist and oral surgeon there were several potential difficulties with respect to the defence of this claim. Whilst the dentist recorded the warning about nerve damage in her clinical notes "Risk of damage to the nerve and to the jaw", the entry was recorded next to the date following the procedure rather than on the date itself. This lead to a suggestion from the patient's experts that it was not a contemporaneous record and that she had recorded it only once she was aware that there was a potential issue. Although this issue would probably have been decided in the dentists favour (because she fortunately still had the hand written notes from the day of the procedure) it is important that clinical notes are recorded next to the correct corresponding date to avoid any implication that they are not contemporaneous.

Kate Hickey

Principal Solicitor, Meridian Lawyers

AUTHOR SUMMARY

Kate was admitted to practice in 1996 and has over 10 years experience in the area of general insurance. Prior to joining Meridian Lawyers, Kate worked at a medical negligence Sydney law firm where she acted for medical practitioners in professional indemnity and disciplinary proceedings. She has also acted on occasion in criminal proceedings brought against health practitioners. With extensive health law experience, Kate is a regular presenter of risk management seminars and has been a key adviser to the Australian Dental Association in several states.