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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 22
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OPINION OF LADY
PATON
in the cause
MAUREEN TONER
Pursuer;
against
JOHN M McLEOD
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Springham, Advocate;
Digby Brown SSC
Defender:
Gilmore, Advocate;
Shepherd & Wedderburn
8 February
2006
Proof or jury
trial: professional negligence
[1] In
this action, the pursuer alleges negligence on the part of her dentist. He is said to have failed to advise her that
she had periodontal disease and that treatment was necessary. Ultimately, the disease progressed, causing
loss of teeth and the need for dentures.
The pursuer avers that, had she been appropriately advised, she would
have been able to undergo treatment, and would have avoided losing teeth. She seeks damages, and wishes to have a jury
trial. The defender for his part denies
any negligence. He avers that he gave
the pursuer appropriate explanations, advice and treatment. He attributes any deterioration in the pursuer's
condition to a genetic predisposition to periodontal disease, coupled with her
poor attendance at his surgery and her failure to take care of her oral
hygiene. He also contends that special
cause exists rendering the case unsuitable for jury trial. His second plea-in-law states:
"The pursuer's claim raising
difficult and complex issues of fact, and in particular medical causation,
special cause exists for withholding the action from a jury."
The pursuer's
pleadings
[2] The
pursuer makes the following averments:
"Cond. 2 The defender was the pursuer's dentist
from about September 1983 to June 1999. Throughout that time she regularly attended
the defender for assessment of her dental condition and treatment. In or about
4 October 1991 the pursuer attended at the defender's surgery. He carried out an examination of her dental
health. He identified that the pursuer
was suffering from periodontal disease.
Periodontal disease is a disease of the tissues which support the
teeth. If untreated it may lead to tooth
loss. Until at an advanced stage, it is
often symptom free. The defender did not
advise the pursuer of his diagnosis of periodontal disease. He did not advise the pursuer of treatment
that ought to be carried out. The
pursuer attended the defender for dental treatment in or about 21 January 1992, 18 May 1993, 1 February 1994 and 15 November 1994. The pursuer attended the defender's surgery
again in or about 1 December 1995. The defender ascertained that the periodontal
disease had deteriorated significantly.
He considered that extractions and the provision of dentures were
necessary. He decided not to implement
any such treatment. He did not advise
the pursuer of his diagnosis or what treatment could be given. In or about 21 May
1999 the pursuer attended the defender's surgery. The defender indicated that dentures would be
required. The pursuer sought a second
opinion and was referred to the Glasgow Dental Hospital & School, 378 Sauchiehall
Street, Glasgow. She attended
there on 4 October 1999. She was informed by them that she was
suffering from periodontal disease. The
pursuer was not aware that she was suffering from such a condition until then. When the pursuer had queried the defender about
the condition of her teeth and gums, he reassured [her] that everything was
fine. Throughout the period when she
attended the defender, he did not advise the pursuer that she was suffering
from periodontal disease. He did not
assess the extent of the periodontal disease by regular use of x-rays and
probing. He did not instruct the pursuer
in oral hygiene and monitor her compliance with those instructions. He did not carry out supra and subgingival
scaling. As a result of the defender's
actions and failures to act the pursuer has sustained the loss, injury and
damage hereinafter condescended upon.
With reference to the defender's averments in answer,
admitted that the pursuer was prescribed Corsodyl under explanation that
according to the defender's records it was prescribed on 16/3/90 and on 22/4/94. The pursuer had requested that it be
prescribed. Quoad ultra the defender's averments in answer are denied except
insofar as coinciding herewith.
Cond. 3 The pursuer's loss, injury and damage were caused by the
fault and negligence of the defender. It
was the duty of the defender to exercise the care and skill of a reasonably
competent dentist. In the exercise of the
appropriate care and skill, it was the defender's duty to advise the pursuer
in 1991 and again in 1995 that she was suffering from periodontal
disease. It was the defender's duty to
take reasonable care to explain to the pursuer at that time what treatment
ought to be undertaken. It was his duty
to take reasonable care to give oral hygiene instruction to the pursuer and to
monitor her compliance. It was his duty
to take reasonable care to carry out supra and subgingival scaling. It was his duty to take reasonable care to
ascertain the spread of the disease. It
was his duty to take reasonable care to assess the extent of periodontal
disease by regular use of x-rays and probing.
It was his duty to take reasonable care to refer the pursuer for
specialist treatment. In each and all of
these duties the defender failed. But
for his breaches of duty the pursuer's loss, injury and damage would not have
occurred. With reference to the defender's
averments in answer, admitted that the pursuer had a
duty to take reasonable care for her own dental health under explanation that
she did so. The pursuer relied on the
defender to advise her of any problems with her oral hygiene, and to warn her
of the consequences of not following any advice given to her. The defender gave no such advice or warning. Quoad
ultra the defender's averments in answer are denied except insofar as
coinciding herewith.
Cond. 4 As a result of the defender's fault and negligence, the
pursuer has sustained loss, injury and damage.
Had the pursuer been advised by the defender of the diagnosis of
periodontal disease in 1991 et separatim
in 1995 she would have been able to seek treatment. Such treatment would have included oral
hygiene instruction and regular scaling.
Had such treatment been carried out, following her consultation with the
defender in 1991, it is likely that the pursuer would not have suffered
the loss of any of her teeth due to periodontal disease. Had the pursuer received treatment for
periodontal disease following her consultation with the defender in 1995,
although by that time the chances of the pursuer losing teeth had increased, it
remained likely that she would not have suffered the loss of any of her teeth
due to periodontal disease. She has
undergone treatment at the Glasgow Dental Hospital & School. Her initial treatment extended over 8 visits. During treatment acute problems developed
with two teeth in the upper right front part of her mouth. These required to be extracted in
April 2000. Permanent restoration
of the two missing teeth was complicated by the teeth on either side having lost
a significant amount of periodontal support and become mobile as a result of
the disease process. She was provided
with extensive bridgework in the upper jaw to replace the missing teeth and
splint together the mobile teeth on either side. This required a further 12 visits. The pursuer attends the Dental Hospital every three months. She receives a scale and polish and a check
up. She also attends her own dentist in
Wishaw for other treatment. Her dental
regime includes using dental floss and special dental brushes. She requires to brush
and/or floss her teeth at least three times a day. She will require to
continue regular periodontal maintenance for the rest of her life. It is likely that she will require a
removable prosthesis in the future. The
destruction of her alveolar bone precludes the option of dental implants
without bone grafting. The pursuer is
distressed at having lost teeth. She is
embarrassed about the condition of her teeth and gums. She stopped sign reading because of her embarrassment. She tends to keep her hand over her mouth to
cover the sight of her teeth and gums. In
the circumstances, the sum sued for is reasonable. The defender's averments in answer are denied
except insofar as coinciding herewith."
Submissions on
behalf of the defender
[3] Counsel
for the defender accepted that the fact that the case involved allegations of
professional negligence did not in itself amount to special cause such that the
case should not go to a jury: cf. Hunter
v Hanley, 1955
S.C. 200. However special cause
arose in the circumstances of this particular case: cf. Graham v Paterson & Son, 1938 S.C. 119, the Lord
Justice-Clerk at page 127; Graham
v AEI Ltd., 1968
S.L.T. 81. The following factors,
taken individually or cumulatively, constituted special cause:
Liability and contributory negligence
[4] The
pursuer alleged that professional negligence had occurred on two distinct
occasions in 1991 and 1995, in that she had not been advised of
either the diagnosis or the appropriate treatment. The defender's position was that the pursuer
had been given appropriate explanations and advice, and that the pursuer had
been contributorily negligent by failing to look after her oral hygiene. The case was therefore a rare phenomenon in
the context of professional negligence, in that there were allegations of
contributory negligence on the part of the patient. In those circumstances, a jury would face
difficult questions relating to primary liability and contributory
negligence. There would be expert
evidence relating to proper practice in dentistry. There might be conflicting evidence about
what comprised acceptable treatment on one occasion, but unacceptable treatment
on the other occasion. Accordingly a
number of permutations might emerge. Furthermore
as it was the defender's contention that the pursuer had been a poor attender
at the dental surgery, the jury would have to be taken through her dental
records from 1983. Evidence would
be required about what constituted good attendance and good oral hygiene on the
part of a patient, and to what extent such matters were expected to be
voluntary, or prompted by the dentist.
Causation
[5] Perhaps
the most difficult task facing the jury would be causation. The pursuer had identified two episodes, more
than four years apart. She did not
differentiate between the duties owed to her on each occasion. It was accordingly not clear whether the
pursuer claimed that she should have been referred to a specialist
in 1991, or in 1995, or at some time between those dates, or after 1995. It was not clear what treatment the pursuer
maintained she would have undergone had she been appropriately advised. The pursuer's situation in 1991 was not
the same as her situation in 1995.
Yet there were no clear averments about the extent to which her chance
of losing teeth had increased by 1995.
Difficulties could therefore arise when the judge sought to give the
jury directions, and when the jury attempted to tease out the two tangled
skeins of fact.
[6] The
issue of causation was further complicated by the reference to the pursuer's
genetic predisposition. Expert evidence
would be required. There would be
reference to examination findings; X-rays; text-books;
learned articles; and other
scientific material. The pursuer's
expert was expected to challenge much of the evidence led on behalf of the
defender. The jury would have to assess
not only the extent of the pursuer's co-operation with dental advice, but also
the expert evidence about the extent to which she would have responded
physiologically to treatment.
The pursuer's actual and future remedial treatment
[7] The
final area of complexity related to the pursuer's actual and future remedial
treatment, described at page 9A-D of the record. There would be evidence from those involved
in her treatment. The defender would
lead evidence about the nature of the pursuer's genetic predisposition. That evidence would affect not merely the
past, but also the future (both prognosis and treatment). The pursuer offered to prove that dental
implants were not possible without bone-grafting, and that a
prosthesis might be necessary.
The defender would challenge those matters, and in addition, would seek
to prove that the pursuer's difficulties would have occurred in any event
because of her degenerative condition.
Conclusion
[8] Counsel
submitted that the above matters, taken individually or cumulatively, amounted
to special cause rendering the case unsuitable for a jury. Reference was made to McKechnie's C.B. v Gribben, 1996
S.L.T. 136, at page 139F; McInnes
v Kirkforthar Brick Co., 1998
S.L.T. 568, at page 570G-H; McKenna
v Chief Constable, Strathclyde Police, 1998
S.L.T. 1161. The pursuer's case,
viewed as a whole, was not straightforward.
There were difficult questions of medical fact. There were allegations of professional
negligence, and also (unusually in such a context) allegations of contributory
negligence on the part of the patient.
That was a rare combination, which added to the difficulties and intricacies
facing the jury. In all the
circumstances, the defender's second plea-in-law should be sustained and the
case sent to a proof before answer.
Submissions on
behalf of the pursuer
[9] Counsel
for the pursuer argued that the case was suitable for jury trial. The fact that the claim involved professional
negligence was not a bar to jury trial: Hunter
v Hanley, cit. sup.; Graham v Paterson & Son, cit. sup.; Murray v
Lanarkshire Acute Hospitals NHS Trust, 2003 Rep.L.R. 32.
Nor did competing or complex medical evidence necessarily make a case
unsuitable for a jury: Irvine v
Balmoral Hotel Edinburgh Ltd, 1999 Rep.L.R. 41.
The question was whether there was real concern that a jury might not
understand, or that a judge would have difficulty directing the jury.
[10] In
response to the defender's specific arguments, counsel for the pursuer made the
following submissions:
Liability and contributory negligence
[11] It had
been suggested that there might be conflicting expert evidence about whether
treatment on a particular occasion had been appropriate. However competing evidence of such a nature
was a common feature in jury trials. The
pursuer was alleged to have been a poor attender, and it was pointed out that
dental records would have to be examined. But the dental records were not in fact
voluminous. They amounted to some ten to
fourteen pages. Counsel submitted that
the jury would have little difficulty following the evidence relating to the
pursuer's attendances since 1983.
The jury would be able to form a view about the pursuer's attendances, and about any failures on her part. In so doing, they would be guided to some
extent by their own experience, and to some extent by
the views of expert witnesses about what constituted good attendance on the
part of an average patient.
Causation
[12] It was
said that the pursuer had not differentiated between the duties of care owed
in 1991 and in 1995. However
the pursuer offered to prove that the same duties arose on each occasion. The pursuer offered to prove that: (i) had she been told of the diagnosis
of periodontal disease in 1991, she would have been able to seek treatment
(such as oral hygiene and regular scaling), and in those circumstances she
would have been unlikely to suffer any loss of teeth as a result of periodontal
disease; and (ii) had she been told
of the diagnosis of periodontal disease in 1995, while her chances of
losing teeth had by that time increased, it was still likely on a balance of
probabilities that she would not suffer any loss of teeth as a result of
periodontal disease. In other words,
by 1995 the pursuer's prospects were less good, but had she undergone regular
scaling and appropriate oral hygiene, she would not, on a balance of
probabilities, have lost any teeth.
[13] The
pursuer accordingly offered to prove that, had the alleged negligence not
occurred (in either 1991 or 1995), she would
have been unlikely to have suffered loss of teeth. Counsel submitted that the jury were unlikely
to have any difficulty understanding that proposition. Nor would the judge have difficulty directing
a jury. The jury would have to assess
medical evidence about the pursuer's genetic predisposition. But there was nothing so complex that the
jury would be unable to understand.
The pursuer's actual and future remedial treatment
[14] The
jury would also hear evidence about treatment which the pursuer had received
and might receive in the future. That
sort of evidence was not uncommon in jury trials.
[15] In all
the circumstances, issues should be allowed.
Discussion
[16] I deal
first with the arguments relating to causation and the pursuer's treatment, and
then with the submissions relating to liability and contributory negligence.
Causation
[17] The
jury may have to hear expert evidence about the pursuer's genetic
predisposition, and the effect of that predisposition; evidence on the question whether the
pursuer would have avoided any loss of teeth had she received appropriate
treatment at earlier stages; and evidence
about whether and to what extent any lack of such treatment caused or
contributed to the deterioration in her dental condition. There may be conflicting evidence, and
matters of degree: but juries are well
able to deal with such issues. I have
not been persuaded that the question of causation makes this case unsuitable
for a jury.
The pursuer's actual and future remedial treatment
[18] In my
view, a jury would be able to understand and assess evidence about treatment; the effect of the
pursuer's genetic predisposition; dental
implants and whether such implants would be feasible without
bone-grafting; and the necessity or
otherwise for a dental prosthesis. I do
not accept that such matters raise real difficulties for a jury.
Liability and contributory negligence
[19] The
present action does not proceed under the new rules in Chapter 43 of the
Rules of the Court of Session, as substituted by Act of Sederunt (Rules of the
Court of Session Amendment No. 2) (Personal Injuries Actions) 2002
(SSI 2002/570) and Act of Sederunt (Rules of the Court of Session
Amendment No. 4) (Personal Injuries Actions) 2004 (SSI 2004/291). Accordingly this is not a case where brevity
of pleading can be attributed to compliance with those rules.
[20] Against
that background, having had an opportunity to study the pursuer's pleadings
while the case was at avizandum, it
appears to me that those pleadings lack any averment that what the defender is
alleged to have done or omitted to do was something which no ordinarily
competent dentist acting with reasonable skill and care would have done or
failed to do. It might be suggested that
the absence of such an averment is a purely formal or technical matter. I am not of that view. An expert opinion (based on certain assumed
facts) that the defender's treatment of the pursuer was in some way
sub-standard, or unacceptable, or that it represented a failure in duty on the
part of someone expected to exercise the care and skill of a reasonably
competent dentist, would not in my opinion be sufficient to set up a relevant
case of professional negligence. As was
explained by Lord President Clyde in Hunter v Hanley, 1955 S.C. 200, at pages 204 to 206:
"To succeed in an action
based on negligence, whether against a doctor or against anyone else, it is of
course necessary to establish a breach of that duty to take care which the law
requires, and the degree of want of care which constitutes negligence must vary
with the circumstances - Caswell v
Powell Duffy Associated Collieries,
per Lord Wright at pp.175-175. But
where the conduct of a doctor, or indeed of any professional man, is concerned,
the circumstances are not so precise and clear cut as in the normal case. In the realm of diagnosis and treatment there
is ample scope for genuine difference of opinion and one man clearly is not
negligent merely because his conclusion differs from that of other professional
men, nor because he has displayed less skill or knowledge than others would
have shown. The true test for establishing
negligence in diagnosis or treatment on the part of a doctor is whether he has
been proved to be guilty of such failure as no doctor of ordinary skill would
be guilty of if acting with ordinary care - Glegg, Reparation (3rd ed.)
p.509 ... It follows from what I have
said that in regard to allegations of deviation from ordinary professional
practice - and this is the matter with which the present note is
concerned - such a deviation is not necessarily evidence of
negligence. Indeed it would be
disastrous if this were so, for all inducement to progress in medical science
would then be destroyed. Even a
substantial deviation from normal practice may be warranted by the particular
circumstances. To establish liability by
a doctor where deviation from normal practice is alleged, three facts require
to be established. First of all it must
be proved that there is a usual and normal practice; secondly it must be proved that the
defender has not adopted that practice;
and thirdly (and this is of crucial importance) it must be established
that the course the doctor adopted is one which no professional man of ordinary
skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on a pursuer to
establish these three facts, and without all three his case will fail. If this is the test, then it matters nothing
how far or how little he deviates from the ordinary practice. For the extent of deviation is not the test. The deviation must be of a kind which
satisfies the third of the requirements just stated ..."
[21] Applying
the test as set out in Hunter v
Hanley, cit. sup., it appears to me that
the pursuer's pleadings as they presently stand are of doubtful relevancy. Pleadings of doubtful relevancy should not be
sent to jury trial, for, as was pointed out by Lord Justice-Clerk Thomson in Boyle
v Glasgow Corporation, 1949
S.C. 254, at page 261:
"When a
case is to go to proof before a judge there is perhaps no great necessity for
over-strictness [in relation to pleadings]. The judge can always allow a
certain latitude, and when his patience is exhausted he can indicate
that an amendment is desirable and, if the amendment is of a substantial
character, there is room for adjournment or for facilities for allowing further
evidence. But [in a] jury trial, very
different considerations obtain. A
properly drawn record is essential for jury trial, and the points at issue
ought to be clearly focused. One wants
to avoid wrangling as to the admissibility of evidence. That is undesirable in itself
and sometimes operates prejudicially against the party taking objection. In jury trials there is little scope for
amendment and none for adjournment.
Mistakes may be fatal. It seems
to me that it is in the interests of all parties that the relevant and
substantial points should be stated and clearly stated in the record, and that
the facts relied on, the grounds of action and the pleas in law should be
adequately presented ... The function of a record is to convey what the case
is about and to make the legal issues clear, and it is really intolerable that
it should be left to the court, with the assistance of counsel, to try to
extricate from the averments what the points in the case are."
Decision
[22] As the
question of doubtful relevancy was not discussed at the debate, I shall put the
case out By Order to enable parties to consider their positions and to make
such further submissions or applications to the court as may seem
necessary. Meantime I reserve my opinion
on the arguments already presented in the context of liability and contributory
negligence. I also reserve any question
of expenses.
