Becke v Nguyen
[2011] VCC 1200
•25 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
MEDICAL DIVISION
Case No. CI-08-00859
| STEVEN FRANCIS BECKE | Plaintiff |
| v | |
| DR DAO NGUYEN | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11, 12 and 13 April 2011 |
| DATE OF JUDGMENT: | 25 May 2011 |
| CASE MAY BE CITED AS: | Becke v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1200 |
REASONS FOR JUDGMENT
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Catchwords: Wrongs Act 1958, Division 5 – adequacy of dental treatment – adequacy of post-operative care – litigant in person
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr N Murdoch | Meridian Lawyers Ltd |
| HIS HONOUR: |
1 Dr Dao Nguyen is a dentist practising in Alfrieda Street, St Albans. On 8 December 2007, Mr Becke attended Dr Nguyen’s clinic for the purpose of obtaining treatment for a severe toothache which was present in the right upper side of his mouth. In the course of this attendance, Dr Nguyen extracted two of Mr Becke’s right upper molars (teeth numbered 1.6 and 1.7 which I will refer to in my reasons for judgment as “the teeth”). Mr Becke now brings this proceeding claiming damages against Dr Nguyen in which he alleges that Dr Nguyen:
(i) failed to provide him with appropriate advice as to the treatment alternatives available to him; (ii) failed to undertake an appropriate pre-operative assessment of Mr Becke’s mouth including the performance of pre-operative radiographs; (iii) applied excessive force in excising his two molars; and (iv) failed to provide Mr Becke with adequate follow-up treatment. 2 Mr Becke is self represented. For this reason in the course of directions hearings which were conducted in the matter:
•
an arrangement was made for Mr Becke to consult with Mr M Nightingale of Counsel to obtain pro bono advice as to the way he should conduct the proceeding. Mr Becke however declined to avail himself of this service;
•
Mr Beck was provided with written material as to the way cross- examination may be approached in the form of an article published in the Australian Bar Review; [1]
•
Directions were given which allowed the parties to rely upon the content of medical reports exchanged by them as evidence-in-chief in the trial subject to notice being given that the author of the report attend for cross-examination .
[1] Cross-examination of Expert Witnesses: A practical approach via a personal excursion (2005) 26 Aust Bar Review 219, Robert Stitt QC.
The Standard of Care
3 The standard of care which was owed by Dr Nguyen to Mr Becke was that prescribed by the provisions of s.58 of the Wrongs Act 1958 (as amended) which provides:
“In a case involving an allegation of negligence against the person (Dr Nguyen) who holds himself or herself as possessing a particular skill, the standard to be applied by a court in determining whether Dr Nguyen acted with due care is, subject to this division to be determined by reference to:
(a) what could reasonably be expected of a person possessing that skill; and (b) the relevant circumstances as at the date of the alleged negligence and not a later date.”
4 It follows that in assessing the adequacy or otherwise of the standard of the treatment provided by Dr Nguyen to Mr Becke, I must undertake that assessment in accordance with the standard which could reasonably be expected of a dentist as at 8 December 2007, both with respect to:
(i) the adequacy of the advice provided by Dr Nguyen; and (ii) the adequacy of the dental treatment provided by Dr Nguyen.
The Evidence-in-Chief of Mr Becke
5 In evidence-in-chief, Mr Becke said that:
• He consulted Dr Nguyen because he had a toothache on the right side of his mouth. He said that Dr Nguyen tapped his teeth with “like a mirror thing” and said: “That’s 90’ and on the other side she tapped and she said, ‘That’s 180’ and then she tapped another one. I didn’t give any response so she, you know just said, you know ‘It’s going to come out’ and that was it.”[2]
[2] T 9-10
Mr Becke said Dr Nguyen then administered an injection and removed the teeth.
• Mr Becke said that he had previously consulted Dr Nguyen who had taken out other teeth. He described his experience in the course of the extractions, the subject of the present complaints, as being different to his previous experience, in that Dr Nguyen’s husband held his head whilst the extraction was taking place and: “I was really freaking out because I knew something bad was happening. I’ve never experienced stuff like that off any dentist in my life. I’ve never even had a dentist hurt me except for now”.
Mr Becke continued:
“It was sort of taking too long and a lot of jerking around and that and like I had teeth taken out before and women dentists, whatever, they sort of just taken out and that was the end of the story, but this was sort of something bad happening. This wasn’t normal … there was a lot of sounds in my head after that, but anyway the tooth must have been out or whatever and then there was a lot of explosions in the middle of my head – really loud bangs because she was doing something and, and then I can’t explain it.”[3]
[3] T 14
6 Mr Becke described the following extraction of his teeth. Dr Nguyen’s husband –
“… took the teeth and he sort of ran to the kitchen, that’s what she explained to me - and he’s cleaning them – and I – are really freaked out hearing that because I mean I’ve never had a dentist run away with my tooth to a kitchen ….”[4]
[4] T 14
7 Mr Becke said that following the extraction, Dr Nguyen placed pads into his mouth and he was advised as he was discharged from the surgery by Dr Nguyen’s husband that he “should give himself twenty-four hours or so”.
8 Upon returning home, Mr Becke subsequently removed the pads from his mouth and looked at the area from which the teeth had been removed, which he described as being “just really so messed up”.[5] He said that there appeared to be a lot gum missing and that he was concerned that so much gum had been removed that it would not heal.
[5] T 16
9 Mr Becke said that on the next day he returned to Dr Nguyen’s practice but because she was not there he consulted his family doctor. He said he returned to Dr Nguyen’s practice approximately one week later and:
“She wasn’t there again and then I went back another time too and she
wasn’t there and then I sprung her and she was there … . ”
He described this attendance as being approximately four weeks after the extraction had taken place and said:
“… I went to see her because I was still in pain and my wound hadn’t healed. But this time when I walked in she was there behind the counter and she just sort of said, ‘Oh, yeah, what brings you here?’ or whatever. And I just said to her, ‘Look, I’m still in pain.’ But then she started saying, ‘No, you’re not’ and I said, ‘Yes, I am, I’m still feeling pain’. And she said, ‘No you’re not. I cleaned that out.” That stuck in my head. ‘I cleaned it’ … Then she just said sort of like, ‘Sit down and I’ll be with you in a minute.’ But I was there like for half an hour and then the little secretary/nurse lady came out and told me you know, go and have an x- ray’. … I was angry … to go and have the x-ray but there was so many people there that I just wasn’t gunna (sic) sit around … And I was in pain … so I went home. … Monday or Tuesday I went with my wife to have the x-ray. … then I went back to the dentist and gave it to the secretary, the same one that sent me for the x-ray and I was expecting to see the dentist but then, you know, she came out and just said to me, the secretary said, you know sort of like, ‘Come back in two or three days’. And I said, ‘Well, which one?’ She said, ‘Two or three days’ and then I just told her, yeah, I shouldn’t have but I did. I got nasty and I swore at her and then I just went straight from there over to Moonee Ponds to see a dentist and when I saw that dentist I made an appointment.”[6]
[6] T 20-21
10 Mr Becke said that upon consulting a dentist in Moonee Ponds, an x-ray was taken and he was referred to a specialist. He subsequently consulted the specialist but received no treatment because neither the x-ray nor the referral letter had arrived.
11 Mr Becke then went to see his general practitioner because he was at that time suffering from headaches and sinus problems in the form of leaking from his nose. Mr Becke said since that time he had suffered from recurrent sinus infections and headaches. He said that his headaches occurred very regularly and can vary in intensity.
12 Mr Becke said that he had continued to suffer from continuing symptoms of a runny nose and headaches. He described the inside of his mouth at the point at which the teeth had been removed in the following terms:
“Well, it ain’t healed, not even now. The hole sort of got thin skinned, you know, to sort of, yes, it got thin skinned over it but it’s still scarred there now and that, I mean if you take photos to have a look it’s all scarred up there. … When I touch it with my tongue I can feel it’s concave … It took like four months to close up … Whatever I was eating and drinking was going up into the bone and I was getting heaps of infections there.”[7]
[7] T 30
13 Mr Becke said that had been prescribed Tramal for his headaches and that he suffered from headaches every day. He said that he had also been prescribed Panadeine Forte but that in July last year his doctors had ceased prescribing prescription-strength medication. He described his mouth as being extremely tender at the site of the extractions and said that he could not wear a plate. He said that the appearance of his mouth had caused him to lose confidence and that he had not been able to pursue his aim of gaining further education and obtaining employment with the ambulance service.
14 Mr Becke said that he had last worked in 2006 as a cleaner for approximately six months but he had had to give up that work as he was suffering from symptoms of dizziness.
The Evidence of Mr Becke in Cross-Examination
15 In cross-examination, Mr Becke agreed that he had first consulted Dr Nguyen in August 2004 for treatment in the form of a filling and that he had paid for this treatment by means of a voucher issued by the Victorian Emergency Dental Scheme. He agreed that he next consulted Dr Nguyen in July 2005 and that thereafter, in the course of a number of consultations, Dr Nguyen undertook:
• a filling of one of his lower teeth on the right side of his mouth; • a filling to one of his lower teeth on the left side of his mouth; •
the extraction of a tooth in the middle of his left side of his mouth; (Mr Becke accepted that the extraction of his tooth was performed in about August 2005.[8])
• a filling of one of his front teeth. [8] T 50
16 Mr Becke said:
• that when he consulted Dr Nguyen in December 2007, he was suffering from a toothache which was causing a lot of pain and that he had to pay for this treatment out of his own pocket; • that when he attended Dr Nguyen’s practice on that day, he did not have an appointment but she made a time to see him; • that Dr Nguyen tapped his teeth but that she did not test the sensitivity of his teeth by placing something cold on them; • that Dr Nguyen did not advise him on that occasion that he had gum disease; that his molar, second from the back, needed root canal therapy which would be expensive and the outcome of which would be uncertain or that the adjacent tooth would require the same treatment. 17 It was put to Mr Becke that Dr Nguyen had advised him that she could send him back to I.S.I.S. to see if they could assist him with the costs associated with root canal therapy; or that alternatively, she could remove both his teeth. This was denied by Mr Becke. When it was put to Mr Becke that Dr Nguyen charged him $80 for the removal of each tooth, he denied this and said that the actual charge was $90 per tooth. He agreed however that when the teeth were extracted he took them away with him.[9]
[9] T 56-57
18 Mr Becke denied that on 8 December 2007 Dr Nguyen provided him with written instructions to take away with him.[10]
[10] T 58
19 Mr Becke said that subsequent to consulting Dr Nguyen he had been referred to see Dr Tversky, that Dr Tversky had referred him to see Mr Spencer, a surgeon, who had referred him to the Melbourne Dental Hospital. He said he attended the Surgical Unit for Oral and Maxillofacial Surgery at The Royal Melbourne Dental Hospital on 14 December 2007, where treatment by the way of a nerve block procedure was discussed; that he declined that treatment; and since that time he has had no further treatment other than that which involved the use of medication for pain control.[11]
[11] T 62-64
20 In re-examination, Mr Becke said that:
• Before consulting Dr Nguyen, he had consulted another dentist at The Esplanade, explaining the relevance of this evidence in the following way: “… I was showing you there and what I was saying was – so people think I haven’t been trying to look after my teeth, they’re wrong.”[12]
•
In 2007, he had been prescribed anti-depressants and was told that that medication may help with his pain.[13]
[12] T 85
[13] T 86
The Evidence-in-Chief of Dr Nguyen
21 Dr Nguyen gave evidence that:
•
she had qualified as a dental practitioner in 1996 when she had graduated from Melbourne University and that she had carried on practise as a general dentist since that time;
•
she had no recollection of Mr Becke presenting to her surgery and in these circumstances she could only give evidence as from the content of her notes and as her usual practice when managing a patient such as Mr Becke which it was her belief she would have adopted when treating Mr Becke.
22 On this basis, Dr Nguyen gave evidence:
•
that Mr Becke first presented to her practice in August 2004 with a Government voucher which entitled him to treatment to the value of the voucher. At that time she said she undertook two fillings to teeth 4-7 and 4-6 which were located on the lower right side of Mr Becke’s mouth;[14]
•
that Mr Becke subsequently presented to her on 6 July 2005 with a further voucher which entitled him to a general clinical examination and the performance of x-rays. She said on that occasion she took a right bite wing x-ray of Mr Becke’s right posterior teeth and a left periapical radiograph of Mr Becke’s left posterior teeth;
•
that in the course of a subsequent attendance, she undertook fillings upon two of Mr Becke’s front teeth and removed a tooth which was decayed;
•
that in July 2005, she provided Mr Becke with further treatment which involved filling his left incisor tooth and his lower left fifth tooth, and that on 10 August 2005, she extracted Mr Becke’s upper left second pre- molar.[15]
[14] T 155
[15] T 160-163
23 Dr Nguyen said that her notes that recorded that on 8 December 2007:
• Mr Becke had presented with tooth pain and on that she extracted both his 1-6 and 1-7 teeth. • Having completed the extraction, she smoothed the interradicular bone between the extracted teeth to aid in the healing process. 24 It was Dr Nguyen evidence that it was her usual practice when managing a presentation such as that by Mr Becke on 8 December 2007, to:
(i)
Undertake an oral examination after obtaining a history as to the source of the tooth pain which was the cause of the presentation;
(ii) Perform a percussion test upon the suspect teeth by tapping them; (iii)
Spray cold water on the teeth for the purpose of testing the volatility of the nerves of the teeth;
(iv)
Examine the previous x-rays which she had taken of the teeth which revealed:
ƒ decay and resorption of Tooth 1-6; and in respect of that tooth, advise Mr Becke that whilst the tooth could be treated with root canal treatment and a subsequent crown, there would be no guarantee that this would adequately deal with his pain and that the costs associated with that treatment would be approximately $2,000.[16] • that Tooth 1-7 tooth was very heavily filled with amalgam, and in respect of that tooth, advised Mr Becke that he could keep that tooth but that its prognosis would be very similar to Tooth 1-6; (iv) Advise Mr Becke that if the teeth were not removed there would no guarantee that “the pain will go away”.[17]
[16] T 169- 171
[17] T 171-172
25 Dr Nguyen said that in advising Mr Becke to have the teeth taken out, she would have taken into account that this was the lowest fee option for him and that after the removal of his teeth, he could attend the community health centre for a modification to his denture.
26 Dr Nguyen said that also she had no recollection of the extraction of the teeth but that her notes revealed that she used three cartridges of Lignocaine as an anaesthetic agent, that this was a normal amount;[18] and that her notes suggested that the extractions were simple and straightforward. She said that her charge of $80 per tooth was also consistent with the procedure being a simple one,[19] and that had a more complicated extraction been required, she would have charged a fee of $140 or $150 per tooth.[20] She said that it was her practice in 2005 to provide Mr Becke, upon his leaving her reception area, with a sterilised cotton roll and an instruction sheet explaining, “what he
needed to do after having the tooth out, and I did that since I finished school –
dental school”.[21]
[18] T 173
[19] T 174
[20] T 174
[21] T 175 – see Dr Nguyen’s Exhibit 2
27 Dr Nguyen gave evidence that on 9 December 2007, her appointment book did not suggest that Mr Becke attended her practice. She said that he had attended on that date complaining of pain after having a tooth extracted (notwithstanding that pain was quite common in these circumstances):
“At my practice I always see the patient, it doesn’t matter what.”[22]
[22] T 176
28 The evidence given by Mr Becke that upon his third attendance at her practice following the extraction of his teeth, Dr Nguyen had referred him for x-rays was put to Dr Nguyen in the following passage of evidence:
“Q: He says that you sent him off to have some x-rays performed. Is
that what happened?---A: I don’t believe so. Q: Why do you believe not?--- A:
Because if he came back with the complaint of pain there and I – if he really came back definitely I will see him. The tooth I removed was 1-6/1.7 where I can take a small x-ray that we call periapical radiograph. There is no need to send him to have – to somewhere else to obtain the x-ray in that area.”[23]
[23] T 177-178
29 Finally, Dr Nguyen gave evidence that her husband worked in her practice as an assistant and that if he were helping her with an extraction he would prepare the local anaesthetic and support the patient’s head if teeth were being extracted.
The Evidence of Dr Nguyen in Cross-Examination
30 In cross-examination, Dr Nguyen confirmed that she had no memory of Mr Becke attending her practice.[24] She agreed that if her husband was present she would have expected that he would have supported Mr Becke’s head, as this was a procedure she had learned from dental school.[25] She said that her husband had no qualifications to assist her, that “he doesn’t need to have a qualification”[26] and that part of her husband’s duties would be to assist her in cleaning tools and instruments.
[24] T 183
[25] T 184
[26] T 185
The Expert Evidence as to the Standard of Care Provided by Dr Nguyen
31 Having regard to the fact that Mr Becke is self-represented, this proceeding was the subject of a number of directions hearings in which I made orders:
•
requiring the parties to serve upon one another prior to the trial of the proceeding any expert material upon which they relied;
•
limiting the evidence-in-chief of any expert to that contained in a report so served;
•
that the parties were entitled to rely upon any evidence contained in a medical report served by them, unless the author of the report was required, by the party upon whom the report had been served, to attend for cross-examination.
The Expert Evidence Adduced by Mr Becke
32 Pursuant to my orders, Mr Becke adduced evidence from Associate Professor J A Gerschman, the head of the Oral Medical Clinic at The Royal Dental Hospital of Melbourne and an Associate Professor of the School of Dental Science in the Faculty of Medicine, Dentistry and Heath Sciences at the University of Melbourne. Associate Professor Gerschman provided a report dated 17 December 2008 and was not required to attend to be cross- examined
33 In his report, Associate Professor Gerschman said:
• that Dr Nguyen did not undertake pre-extraction radiographs in the form of a periapical radiograph or OPG and that had those radiographs been taken Dr Nguyen “may have referred” Mr Becke to an oral or maxillofacial surgeon, or the findings of those investigations “may have warranted a different course of action” to that undertaken by Dr Nguyen; • that at the time of his examination of Mr Becke, he presented with a typical trigeminal neuralgia which was responsible for his pain around the extraction site of the teeth and deeper bone pain with the presence of “excruciating acute exacerbations”; 34 In commenting upon the adequacy of Dr Nguyen’s management, Associate Professor Gerschman opined:
“I cannot specifically comment on all aspects of the standard of care in this case. I know that bitewing radiographs (to assess dental decay) were taken on 6 July 2005. No pre-extraction periapical or OPG radiographs were undertaken. Had these been taken, the dentist may have referred the patient to oral and maxillofacial if the degree of difficulty of extraction appeared to be too great for the dentist. Various anatomical considerations relating to share (sic) size of tooth, root structure, presence of hypercementosis et cetera, may have warranted a different course of the action to that adopted by the dentist.”
35 The report of Associate Professor Gerschman is the only evidence relied upon by Mr Becke upon the issue as to the adequacy or otherwise of the dental treatment provided to him by Dr Nguyen.
36 Whilst Associate Professor Gerschman comments that no pre-extraction periapical or OPG radiographs were taken by Dr Nguyen prior to the extraction of Mr Becke’s teeth, and expresses the opinion that had those extractions been undertaken, Dr Nguyen “may have referred” Mr Becke to an oral or maxillofacial surgeon, or the findings of those investigations “may have warranted a different course of action” to that undertaken by Dr Nguyen, Associate Professor Gerschman does not express the opinion that the failure by Dr Nguyen to take pre-extraction periapical or OPG radiographs constituted a failure by Dr Nguyen to apply the care which could reasonably be expected of a person possessing the skill of a Dentist in general practice; nor does he express the opinion that the management by Dr Nguyen of Mr Becke’s presentation was such that it did not comply with the standard of skill expected of such a dentist.
37 In the circumstances, the evidence of Associate Professor Gerschman does not assist Mr Becke in establishing the case he brings against Dr Nguyen.
The Expert Evidence Adduced by Dr Nguyen
38 In the course of her defence of the proceeding, Dr Nguyen relied upon the reports of Dr Peter Tomlinson dated 7 December 2009 and Dr Andrew Barnes dated 13 February 2010. Each of these witnesses attended the trial and were cross-examined by Mr Becke.
The Evidence of Dr Tomlinson
39 In his report, Dr Tomlinson expressed no criticisms of the dental treatment provided by Dr Nguyen to Mr Becke.
40 In the course of his cross-examination of Dr Tomlinson, Mr Becke provided Dr Tomlinson with three photographs of the two teeth extracted by Dr Nguyen and sought his opinion as to whether the photographs revealed that trauma had been occasioned to the roots of those teeth, to which Mr Tomlinson replied:
“The right – tooth on the right hand side, the forward left root tip may have lost a couple of millimetres and I would suggest that’s the – I’m just trying to picture the tooth. It’s the mesiobuccal root of either the 6 or the 7, I can’t tell which. But if that is a fracture, that’s the only one that looks maybe as if there’s a slight jagged edge to the end of the tooth root. The other roots are all – other – the five other roots look totally intact. And based on the fact that they all look shortish, stubbyish roots, if there was anything broken off that mesiobuccal root, then it would be a very very small piece.”[27]
[27] T 104
41 Mr Tomlinson was also asked:
[28] T 106
“Q: And also, if an x-ray had been taken, is it possible I may have
been sent to a specialist, or you can’t say?---A: As a – looking at the teeth as a general dentist for 30 years I would be embarrassed to send those teeth to a specialist for their extraction. They would look at me and say, ‘Why are you sending me this?’”[28]
42 Mr Tomlinson opined:
“I think communication with patients is important and to let the patient
know options and what they are doing at the time, yes.”[29]
[29] T 106
43 When Dr Tomlinson was questioned as to the failure of Dr Nguyen to perform periapical or OPG radiographs, he commented:
“I felt the outcome would have been exactly the same … because the teeth were peridontally involved, because they were adjacent to each other where they could be elevated or luxated against each other, loosened – basically loosened against each other, because I believed in the photos that I saw, that the teeth were in total – they were taken out in their entirety with shortish, stubby roots and by simple extraction without resorting to a surgical approach and also without the creation of a ora – antral fistula or a fracture of the mandible then I felt that they were simple extractions and whether the x-ray was taken or not they would have come out in exactly the same fashion.”
44 When Dr Tomlinson was questioned as to the information Mr Becke should have received following the extraction, he said that in his practice he provided his patients with a list of post-extraction instructions which included the necessity to rinse the mouth with warm water, avoid packing food in the area, using analgesics as the anaesthetic wore off and avoiding vigorous exercise, smoking and excessive use of alcohol. (These instructions are similar to those contained in Dr Nguyen’s written handout which is Exhibit D2 ).
45 Dr Tomlinson said that, in his opinion, it was not unusual that Dr Nguyen’s husband, who was acting as her dental nurse, had held Mr Becke’s head in order to stabilise it in the course of Dr Nguyen extracting Mr Becke’s teeth.[30]
[30] T 107
46 In response to Mr Becke’s allegation that his gum was deformed by reason of the extraction undertaken by Dr Nguyen, Mr Tomlinson examined photographs of Mr Becke’s mouth and opined that he saw the presence of normal anatomy[31] with “good healthy keratinised alveolar ridge with some scarring on it”.[32]
[31] T 144
[32] T 155
47 In re-examination, Mr Tomlinson was asked to amplify the opinion which he had expressed that Mr Becke’s teeth were saveable in December 2007 and opined that the teeth required endodontic therapy which would involve multiple visits per tooth involving costs in the vicinity of $3,500 to $4,000 per tooth in addition to the cost of the periodontal treatment which would have been necessary to treat Mr Becke’s gums.
48 The last witness to express an opinion as to the adequacy of Dr Nguyen’s dental management was Dr Andrew Barnes. In the course of his report, Dr Barnes had expressed the opinion that the bite wing radiograph of 6 July 2005 indicated that the two teeth extracted by Dr Nguyen should have been relatively easily removed; that there was no reason for Dr Nguyen to refer Mr Becke to an oral surgeon, and that there was no evidence, having regard to the appearance of the extracted teeth, that Dr Nguyen had exerted excessive pressure when removing the teeth.
49 Dr Barnes was shown[33] three photographs of the teeth extracted by Dr Nguyen and was asked to comment as to whether the photographs revealed the teeth to be undamaged.
[33] Exhibit J
50 In response, Dr Barnes opined:
“The photograph on its own is really inconclusive. The things that would run through your mind would be something like perhaps there is a tooth fragment missing, or there is a consideration that there’s been some sort of resorption of the root of the tooth. If a fragment of the extracted tooth had been retained in the jaw, the presence of the fragment should have been visible radiographically in the OPG radiographs which were taken following Dr Nguyen’s extraction.”
51 In cross-examination, Mr Barnes said:
[34] T 138
[35] T 139 – 140
(i) that he would not routinely have taken a radiograph prior to extracting teeth in 2005;[34] (ii) that while a periapical x-ray would have provided more information about the condition of the teeth to be extracted, the bitewing radiograph which was available to Dr Nguyen was more than adequate to assess the justification for her to proceed with an extraction and the additional information which would have been provided by a periapical radiograph would have been absolutely negligible.[35] 52 Dr Barnes was questioned as to the way in which he would have managed the presentation of the patient who had returned to his surgery complaining of pain after the extraction of two teeth. He replied:
“The level of pain from one person to another can be extremely variable. I would like to ascertain what the level of pain was and what you were required to take to try and manage the discomfort that you were experiencing. If it was a manageable type of pain and on clinical examination there appeared to be no other pathology, I would probably determine that it might have been just that pain that I’d expect following the traumatic removal of a tooth. Any removal of a tooth is a traumatic procedure. If you were explaining to me that the pain was such that you could not sleep, that you required opioid-based medications to control the pain, then I might consider taking an x-ray or referring you to the radiology clinic for another x-ray and what I’d be trying to identify would be whether or not there was a fragment left. … Subject to there being no further pathology showing up on any subsequent x-rays it would be an exercise of reassurance trying to alleviate an individual’s fear that the pain would be consistent continuous and won’t go away.”[36]
[36] T 146-147
53 Dr Barnes was questioned as to the information he provided to his patients after performing an extraction and said:
“I provide to my patients oral instruction on the use of the gauze for haemostasis, a description of how long to wait before you have something to eat, the expectation that you will experience some discomfort/pain and possible medications that you may avail yourself to.”
54 In re-examination, Dr Barnes expressed the opinion that at the time of the presentation to Dr Nguyen, Tooth 1-6 was terminal and that any treatment option other than extraction with respect to that tooth would be foolhardy[37] and whilst Tooth 1-7 may have been managed by a root filling and crown, he would probably not have recommended that process as the preferred option for that tooth, it being his suggestion that both teeth would need to be removed.[38]
[37] T 150
[38] T 150
Findings
55 In making findings in this matter, I make due allowance for the fact that Mr Becke was unrepresented and had little understanding of the proofs required in a claim of the type involved in this proceeding. It is appropriate to record however that prior to the commencement of the trial, Mr Becke attended a number of directions hearings, and was advised on a number of occasions that it was his obligation to establish on the balance of probabilities:
(i)
that Dr Nguyen’s medical treatment did not accord with the standard reasonably expected from a competent dentist; and
(ii)
that by reason of Dr Nguyen’s failure to provide him with treatment of an appropriate standard, he had suffered injury and associated economic loss.
The Adequacy of the Advice Given by Dr Nguyen to Mr Becke
56 There is a dispute between Dr Nguyen and Mr Becke as to the advice provided by Dr Nguyen to him. Were I to accept the evidence given by Mr Becke as to the advice given to him by Dr Nguyen as to the treatment options available to him, I would be satisfied that this advice was inadequate. I find it unlikely, however, that a conversation as brief as that in respect of which Mr Becke gave evidence, would have occurred. Were I to accept Mr Becke’s evidence on this issue, it would follow that Dr Nguyen, after the most cursory of examinations, curtly advised Mr Becke that his teeth required extraction and that virtually no other conversation took place.
57 In considering whether this is likely to have occurred, I take into account the fact that there is no issue that Mr Becke presented with gum disease; that Dr Nguyen had previously taken x-rays, bite wing x-rays of the teeth in question; that Mr Becke had been treated by Dr Nguyen on a number of occasions in the course of which his teeth were examined and their condition was charted.
58 It seems extremely unlikely to me in these circumstances that on the occasion of Mr Becke’s presentation to Dr Nguyen in December 2007, Dr Nguyen would not have examined the previous x-rays which she had taken of the teeth to be extracted; would not have discussed those x-rays with Mr Becke; or that a conversation of such brevity and containing such lack of detail, as that described by Mr Becke, would have taken place.
59 In these circumstances, I am satisfied that it is more likely that a conversation of the type described by Dr Nguyen would have taken place, and for this reason, I am not satisfied that Mr Becke has proven on the balance of probabilities that there was any deficiency in the advice provided to him by Dr Nguyen at the time of the consultation.
The Adequacy of the Dental Management Provided by Dr Nguyen
60 Mr Becke gave vivid evidence that he experienced unusual and significant pain in the course of the extractions undertaken by Dr Nguyen.
61 It is the evidence of Mr Becke, and of Dr Nguyen, that Mr Becke was anaesthetised before the extractions were undertaken.
62 Both Dr Barnes and Dr Tomlinson opined that in the presence of Mr Becke’s gum disease, it was unlikely that there would have been any difficulty associated with the extraction of the teeth; and that both the size of the teeth and the fact that the extraction was undertaken with the use of a luxator only, made it unlikely that the teeth would have been difficult to remove.
63 Whist it was asserted by Mr Becke that the photograph of his teeth revealed the presence of a fracture in one of the roots of one of the teeth which was extracted, the evidence in support of this proposition is equivocal, it being equally likely, in my opinion, that what is asserted by Mr Becke to be evidence of a fracture in the root of one of the teeth was merely the outcome of the process of resorption.
64 Whilst Mr Becke relied on the fact that his head was being held by Dr Nguyen’s husband, as supporting his allegation that excessive force was used in the course of the extraction, I accept the evidence of Dr Tomlinson that there was nothing unusual about that process, that it was a practice recognised and taught by the Dental College and that it does not support an assertion that unusual force was required to achieve the extraction.
65 For these reasons, I am not satisfied that Mr Becke has established on the balance of probabilities:
• that there was any difficulty in extracting the teeth; or •
that a fracture of any of the roots of the teeth occurred in the course of that extraction. (In making this finding, I am also cognisant of and accept the evidence of Mr Barnes that the OPG x-rays taken of Mr Becke’s mouth following the extraction would have revealed the presence of a tooth fragment had it been retained in the jaw and the absence of any suggestion of the presence of such a fragment, supports the position that the two teeth were extracted without incident.)
66 In these circumstances, given that there is a considerable body of evidence to support the proposition that Mr Becke should not have been exposed to any undue discomfort in the course of the extraction of the teeth, I do not accept Mr Becke’s evidence on this issue.
67 Accordingly, I am not satisfied that Mr Becke has made out his case that there was any failure by Dr Nguyen to employ a reasonable and appropriate technique in undertaking the extractions.
The Failure to Perform Further Bitewing, Periapical or OPG Radiographs
68 Having regard to the evidence of Dr Tomlinson expressed in the following terms:
“I’m sure the presence or absence of the films in question would have
made no bearing on the out come (sic) of the extraction.”[39]
and Dr Barnes:
“In this case the periapical radiograph would have offered negligible further diagnostic information. The bitewing radiographs of only five months prior show the pathology dental care is periodontal disease with resultant alveolar bone loss one-sixth. This is indicative investigative information required for developing a diagnosis”[40]
and absence of any criticism by Mr Tomlinson, Dr Barnes or Associate Professor Gerschman as to the failure by Dr Nguyen to take further radiographs before undertaking the extraction of Mr Becke’s teeth, I am not satisfied that Mr Becke has established, on the balance of probabilities, that the failure by Dr Nguyen to take pre-operative radiographs constituted inappropriate or unreasonable dental management on her part or that it has in any way influenced the outcome of her treatment.
[39] T 98
[40] T 126
The Failure to make a Referral to an Oral Maxillofacial Surgeon
69 As to the allegation that Dr Nguyen should have referred Mr Becke to an oral maxillofacial surgeon, no evidence was adduced in support of this allegation and, accordingly, the allegation is not made out by Mr Becke.
The Failure to Administer Adequate Follow-up Treatment
70 As to the allegation that Dr Nguyen failed to adequately follow up the complications associated with the extractions, I am not satisfied that Mr Becke has proven this aspect of his case.
71 When I take into account the fact that:
• Mr Becke had no criticism of Dr Nguyen’s management of the consultations and treatment administered by her prior to December 2007; • That at the time of Mr Becke’s presentation of 8 December 2007, notwithstanding that he attended without an appointment, he was seen and treated on that day;
I find it unlikely that Mr Becke represented on one or more occasions after the extractions complaining of pain or problems associated with the extractions that Dr Nguyen would not have seen him or that Dr Nguyen’s receptionist would have sent him away without making a firm arrangement for Mr Becke to attend at an appropriate time.
72 Further, having regard to the fact that Dr Nguyen’s surgery is equipped with the facilities which allow her to take both bitewing and periapical radiographs, I accept her evidence that, had Mr Becke consulted her after 8 December 2007, there would have been no reason for Dr Nguyen to refer Mr Becke for radiographs to be performed at a facility other than that available in her practice.
73 For these reasons, I find Mr Becke’s evidence as to:
•
Dr Nguyen’s failure to see him on the two initial occasions at which he said he attended Dr Nguyen’s practice following the extraction of his teeth; together with
•
his evidence that on the third occasion upon which he attended Dr Nguyen’s practice following the extraction of his teeth, Dr Nguyen referred him to an outside source for x-rays;
to be unconvincing.
74 Accordingly, I find that Mr Becke has failed to establish, on the balance of probabilities, a failure on the part of Dr Nguyen to provide him with appropriate follow-up treatment.
Conclusion
75 I am not satisfied that Mr Becke has established any aspect of the claim which he makes against Dr Nguyen.
76 In the circumstances, I propose to make an order dismissing this proceeding.
77 I will hear Mr Murdoch as to the precise nature of the order he seeks on behalf of Dr Nguyen in this matter and also as to costs.
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