A version of the below article has been published in the August 2012 Edition of the Australian Health Law Bulletin.
To defend a health care negligence claim successfully, usually a number of factors need to work in favour of the defendant. A narrow factual matrix, confined allegations of breach of duty, uncertainties on cause of injury, good clinical records, convincing witnesses and cogent and supportive expert evidence can be among those necessary factors.
In Delphin v Martin,  clinical record deficiencies, the weight and cogency of the plaintiff’s own evidence and that of the plaintiff's witnesses, problems with the defendant’s evidence and clinical records, and a lack of supportive expert opinion were the key factors to the plaintiff’s success.
A problematic tooth extraction
The case, brought in the Tasmanian Supreme Court and heard by Justice Blow, involved allegations of breach of duty against a dental surgeon arising out of tooth fragment / residual tooth extraction. The patient had undergone removal of most of his lower teeth many years before and was suffering lower denture problems. The surgeon thought these problems arose out of a small residual tooth fragment, which he attempted to extract. The surgeon did not undertake pre-procedure imaging, despite having the necessary facilities available in their rooms. However, it was not a fragment, but rather a residual tooth, causing the problems. It was only during the course of the procedure that the surgeon realised it was not a tooth fragment that he was attempting to remove, but rather an impacted tooth, which needed to be removed in a different way and was a more complex procedure. Following the extraction procedure, the patient was left with facial nerve damage.
The patient alleged breach of duty and contract arising out of a lack of pre-procedure imaging, lack of pre-procedure warnings about the risk of facial nerve damage, inappropriate surgical technique and lack of expertise on the part of the surgeon in the removal of the impacted tooth. The surgeon conceded that the procedure had caused nerve damage.
The surgeon had two assistants present for the procedure. Ultimately, their evidence was unfavourable for the surgeon and important for the patient’s success in the case. Unfortunately for the surgeon, the Court found their own evidence to be “unimpressive and disturbing…strongly influenced by wishful thinking” in relation to the availability of important clinical records.  This appeared to affect the weight which the Court gave to the surgeon’s own evidence as compared with that of an oral surgeon called to give expert evidence by the patient.
No risk warning
In terms of warning of the risk of nerve damage, the patient asserted that no warning had been given. One assistant could not recall a warning being given, the other denied there was any warning given. Although the surgeon thought a warning would have been given, lacking a recollection, the Court saw this as “reconstruction” or “wishful thinking”. As the patient did not regularly wear a lower denture, with which the impacted tooth had caused problems, the Court found that he would not have risked the 1% chance of permanent nerve damage and numbness if warned of the risk.
No imaging, no extraction
On the issue of a lack of pre-procedure imaging, the patient called an oral surgeon who gave evidence that it was “completely inappropriate” to attempt tooth fragment removal without first undertaking pre-procedure imaging. He also identified the benefit of imaging in identifying nerve location. The defendant surgeon had no expert evidence to counter this. They did not dispute this opinion. On that basis, the Court considered that it was inappropriate to undertake the procedure without imaging beforehand. Although some imaging was taken intra-operatively, based on the oral surgeon’s evidence, the Court considered them to be inadequate to justify continuing with the procedure and thought that the imaging was misinterpreted by the surgeon, leading to them causing nerve damage.
Some justification, but not enough
The combined effect of evidence from the patient, one assistant and the oral surgeon was that the dental surgeon used excess force in the procedure, which although not causing significant harm, suggested a “somewhat slapdash approach”. However, the Court declined to make any further findings about alleged surgical technique inadequacies or the dental surgeon’s competency to undertake the procedure. Its findings were already sufficient for the patient to succeed in his case. The Court was also hesitant to find that such significant inadequacies occurred in light of the dental surgeon’s experience. It also acknowledged his ability to undertake extraction procedures.
The patient recovered $677,037 plus costs, having developed significant psychiatric problems posing significant problems for his work.
Balancing the ‘retrospectoscope’ and foresight
It can be easy at the end of a case to see the apparent deficiencies in either a plaintiff’s or defendant’s case. In health care negligence cases, the ‘retrospectoscope’ is a wonderful tool. Sometimes such deficiencies are not clearly apparent before they become unavoidable problems. In particular, it is often difficult to predict how one’s own witnesses, both lay and expert, will present in Court, particularly when compared with another party’s witnesses who will often be unseen until the trial. At trial, one’s own client or the witnesses they call may make unforeseen concessions or impressions in a judge’s mind. This however reinforces the need to consider carefully throughout a case the cogency of each witness’ version of events and how they may subjectively present in the witness box.
Proceeding to hearing without supportive expert opinion for one’s case is an approach which is fraught with danger. In New South Wales, a health care negligence claim cannot be brought without supportive expert opinion. Expert evidence may not be necessary for a pure ‘failure to warn’ claim where the issue is the risks the patient would likely attach significance to, but to prosecute and defend claims based on ‘treatment’ is very difficult without supporting expert evidence. A defendant, being a health care professional, could rely on their own evidence, but this will often be given less weight on grounds of objectivity, as they are the subject of the claim. It can then be difficult, without independent opinion, to convince a Court that the defendant’s treatment was reasonable or in accord with competent practice. The principal example of defending a ‘treatment’ case without supportive independent expert evidence is where there is a significant factual dispute, where a patient only succeeds if their version of events is accepted, and there is no expert criticism of the defendant on their own version of events. Even so, it can still be wise to seek supportive expert opinion in those cases, where one cannot necessarily predict whether the opinion of the patient’s expert witness will remain unchanged as the case develops.
As this case illustrates, problems with issues such as clinical records can be of greater significance for a case than they may appear at first glance. In this case, inconsistencies about the availability of clinical records led to the Court forming an adverse view of at least some aspects of the dental surgeon’s evidence. A problem in one aspect of the case, which may at first glance not seem to be of great significance, may affect another critical part of the case in a different way. Sometimes one needs to try, as far as is possible, to take a ‘step back’ approach to a case so as to be able to see how a weakness in one part of the case may have wider implications. All of these factors emphasise the need to consider carefully at each stage of a case its potential weaknesses, how they intermingle with other critical issues in the case and how to deal with them as they arise.
For more information, please contact:
Timothy Bowen | Senior Associate
T +61 2 8233 9619
F +61 2 8233 9555