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Dental Protection achieved a dismissal of a civil claim for compensation involving allegations of negligence against Dr P (a general dental practitioner with a special interest in oral surgery) when performing an extraction which led to permanent injury to the claimant’s inferior alveolar nerve.
The claimant initially attended her usual general dental practitioner complaining of swelling and throbbing to her lower left quadrant. The general dental practitioner took a periapical radiograph which showed the LL6 region with a retained root. Antibiotics were prescribed and the claimant was referred to Dr P for surgical extraction of the retained root.
The referral included a radiograph showing the retained root. Dr P explained the to the claimant who signed a consent form. The consent form included the risk of facial nerve damage with pain and altered sensation, which might be temporary or permanent.
Given the choice of either intravenous local anaesthetic or general anaesthesia, the claimant opted for local anaesthetic.
Dr P used a scalpel to cut a two-sided flap of gum above the area where the tooth root was buried and used round and fissure burs to follow the sinus tract to remove sufficient amount of bone to access the tooth root. The root was then cut into pieces and elevated separately.
On application with the elevators/luxators, the more coronal portion of the root fractured and continued to do so. Dr P stopped the procedure and took a radiograph to check how much root was left. The radiograph helpfully also showed the position of the inferior dental nerve.
After the procedure, the claimant described feeling completely numb to the left side of her lower lip, chin, and jaw. The next day, her symptoms included what she described as electric shocks to the same area. At a review appointment three weeks after the procedure, the claimant described having no sensation when touching the left side of her lip and chin region with some tenderness on touching the lower part of the mandible. Dr P explained that the sensation might take up to 18 months to gradually return. The claimant attended a further two review appointments and the symptoms were slowly improving but had not resolved altogether.
Approximately six months after the procedure, the claimant was referred to the hospital for further review and possible treatment. A CBCT scan was inconclusive, and it wasn’t clear whether the injury was as a result of local anaesthetic injection or the surgical procedure itself. As there was no evidence of disruption to the canal, there was no real surgical intervention possible to improve the claimant’s symptoms.
Approximately one year after the procedure, the claimant instructed a solicitor to pursue a claim for compensation for the permanent nerve injury she sustained. Proceedings were eventually served against Dr P.
The main allegations made against Dr P were:
Failure to recognise the proximity of the inferior dental canal relative to the retained root
Removal of an excessive amount of bone during the procedure and slicing through the root fragment thereby cutting into the inferior dental canal
Failure to refer the claimant to secondary care earlier
To succeed in such a claim for compensation, the claimant must prove (a) that the practitioner was in breach of his duty; (b) that the practitioner caused the injury as a result of a breach of duty; (c) that the claimant suffered a loss as a result of (a) and (b).
Dental Protection assisted Dr P throughout the litigation process. This involved taking a witness statement, setting out his technique when carrying out surgical extractions. A prominent expert in nerve injuries was also instructed whom also examined the claimant. A critical part of his opinion was that he found evidence of injury to the lingual nerve as well which could not have been injured with a dental instrument. Despite our attempts to persuade the claimant that on balance the nerve damage was caused by a non-negligent act, the claim proceeded to trial.
A full defence was filed at court denying that Dr P was negligent. In that defence, Dr P stated that he was fully aware of the proximity of the nerve and indeed took a radiograph during the procedure. In response to the excessive bone removal, it was denied that the radiograph the claimant was relying upon to prove this allegation showed excessive bone removal, as a radiograph naturally is a two-dimensional image of a 3D object so cannot be a reliable indicator of the amount of bone removed. Finally, it was denied that an earlier referral was required as the symptoms at the review appointments were improving.
An alternative causative defence was also pleaded in that the nerve damage was caused by the local anaesthetic injection, an unfortunate but non-negligent act.
The judge found Dr P to be a reliable witness and accepted that his technique as described in his witness statement was in accordance with what a reasonable body of practitioners would have carried out. The judge also accepted our expert’s evidence that there was no excessive removal of bone by Dr P, and the symptoms the claimant experienced were consistent with a needle-stick injury rather than direct trauma to a nerve. As a result, the claim was dismissed and no compensation was payable.
It is always distressing when a patient suffers an injury following dental treatment. However, as this case demonstrates, there are instances when injury can occur through no negligence by a practitioner. Any litigation that follows is likely to extract an emotional toll on the practitioner, but can be successfully defended through the presentation of factual and expert evidence.
