Jones v Braund (No. 2)

[2020] NSWDC 54

District Court

New South Wales

Medium Neutral Citation:

Jones v Braund (No. 2) [2020] NSWDC 54

Hearing dates:

24-28 February 2020, 2-4 March 2020

Date of orders:

19 March 2020

Decision date:

19 March 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs 506-510

Catchwords:

TORTS – Negligence – dental negligence – advice and treatment concerning ‘All-on-4’ implant procedure – whether negligence in failing to inquire of patient’s previous practitioner – whether negligence in failure to consult patient’s cardiologist before procedure – whether negligence in failing to disclose material risks of procedure – whether negligence in determining that patient was suitable candidate for ‘All-on-4’ implant procedure – whether negligence in failing to advise – relevance of ‘informed consent’ to action in negligence – whether negligence in administration of implant procedure – whether s 5O standard applicable to alleged breaches of duty – identification of risk of harm – whether breach of duty of care established

 

DAMAGES – causation – nature of damage – non-economic loss – past and future out of pocket expenses

  EVIDENCE – admissibility of histories given by patient to treating doctors

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5E, 5O
Evidence Act 1995 (NSW) ss 60, 136

Cases Cited:

Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440
Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
F v R (1983) 33 SASR 189
Guthrie v Spence (2009) 78 NSWLR 225
Jones v Braund [2020] NSWDC 32
McKenna v Hunter & New England Local Health District [2013] NSWCA 476
Neal v Ambulance Service (NSW) [2008] NSWCA 346
Papakosmas v The Queen (1999) 196 CLR 297
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Seltsam v Ghaleb [2005] NSWCA 208
South Western Sydney Local District v Gould [2018] NSWCA 69
Sparks v Hobson; Gray v Hobson [2018] NSWCA 29
Strong v Woolworths Ltd (2012) 246 CLR 182
Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752
Wallace v Kam (2013) 250 CLR 375
Zhang v Hardas (No.2) [2018] NSWSC 432

Texts Cited:

Walmsley, Abadee, Zipser, Sirtes, Professional Liability in Australia (3rd ed, 2016, Thomson Reuters) [2.405]

Category:

Principal judgment

Parties:

Mr RM Jones (Plaintiff)
Mr M Braund (Defendant)

Representation:

Counsel:
Plaintiff appeared in person
Mr R O’Keefe for the Defendant

    Solicitors:
Mills Oakley for the Defendant

File Number(s):

2018/135378

Publication restriction:

Nil

TABLE OF CONTENTS

NATURE OF THE CASE

Dr Braund’s Defence

FACTUAL BACKGROUND

NATURE OF THE ALL-ON-4 IMPLANT PROCEDURE

Dr Benge’s Evidence

The defendant’s explanation of features of the All-On-4 procedure

ISSUES TO BE DETERMINED

MR JONES’ PRE-EXISTING DENTAL HISTORY

Submissions

Dr Braund’s Submissions

Mr Jones’ Submissions

Determination

MR JONES’ CONSULTATIONS WITH DR BRAUND

Consultation on 22 April 2015

Mr Jones’ Account

Ms Jones’ Account

Dr Braund’s Account

Dr Braund’s View of Root Canal Therapy (RCT)

Dr Braund’s Pre-Consultation Protocol

Ms Ward’s Account

The CBCT Radiograph

Clinical Notes

Consultation on 24 April 2015

Procedure on 30 April 2015

Mr Jones’ Account

Ms Jones’ Account

Dr Braund’s Account

Follow up through early May 2015

Consultation on 7 July 2015

Procedure on 22 September 2015

Later consultations with other health care professionals

Dr Willey’s first and second reports

Dr Zoud’s reports

EXPERT EVIDENCE

Dr Howe’s Opinion

Dr Benge’s Opinion

Dr Nichols’ Opinion

Dr Willey’s opinion

The joint report

Concurrent evidence

Experts’ Qualifications

Was the All-On-4 procedure widely accepted in Australia?

Is the procedure ‘widely accepted’ for someone with treatable teeth?

Were there lesions in teeth 21, 16, 27 & 26?

Were RCT and extraction appropriate alternative treatments for Mr Jones?

Was ‘informed consent’ obtained from Mr Jones prior to 30 April 2015?

Adequacy of the explanation

Desirability of consulting a cardiologist before administering treatment on 30 April

Should the surgery have been performed in a hospital-like environment?

Was Mr Jones a ‘high risk’ patient for the procedure?

Following up – period between 30 April and 4 May 2015

Causes for implant failure – April 2015

Management of INR prior to removal of implant on 22 September 2015

Causal connection between procedure on 22 September 2015 and subsequent bleeding

Consideration

Dr Braund’s Submissions

April 2015 Consultation

Treatment on 30 April 2015

Procedure on 22 September 2015

Mr Jones’ Submissions

Determination

General Impressions of the Experts

Credit of Lay Witnesses

Mr Jones

Ms Jones

Dr Braund

Ms Ward

SECTION 5O DEFENCE

Statutory Provisions and Relevant Principles

Dr Braund’s Submissions on Section 5O

Mr Jones’ Submissions

Determination

Mr Jones’ complaint about the absence of ‘informed consent’

BREACH OF DUTY

Section 5B

Risk(s) of Harm

Whether it was appropriate to offer this procedure to Mr Jones

Failure to inquire or consult other practitioners

Omissions to review dental history – April 2015

Omission to consult Dr Davis – April 2015

Failure to consult endodontist – April 2015

Failure to consult cardiologist prior to 22 September 2015

Mr Jones’ Negligent Advice Case – April 2015

Principles

Mr Jones’ submissions

Was it reasonable to expect the disclosure of the advice/information or risks identified by Mr Jones?

Whether there was a negligent failure to inform or disclose material risks?

Whether the treatment was administered with reasonable care and skill

30 April 2015 Procedure

September 2015 procedure

CAUSATION

The non-disclosure/advice case

What would Mr Jones have done if advised as he says he should have been advised?

The negligent treatment case

30 April 2015 treatment

Causes of implant failure

Failure to consult Dr Davis – September 2015

Failure to Consult an Endodontist

Summary

DAMAGES

Damage sustained by Mr Jones

Medical evidence

Non-economic loss

Submissions

Dr Braund’s submissions

Mr Jones’ submissions

Determination

Past Out-Of-Pocket Expenses

Dr Braund’s Submissions on Past Out of Pocket Expenses

Determination

Future Out Of Pocket Expenses

Experts’ evidence

Submissions on Future Out of Pocket Expenses

Dr Braund’s submissions

Mr Jones’ submissions

Determination

Interest

Award for Damages

ORDERS

judgment

NATURE OF THE CASE

1. This case concerns a failed dental procedure affecting the plaintiff, Mr Richard Jones, in 2015. Mr Jones, who was in his mid-50s at the time of the procedure, had had a history of problems with his teeth. He also had a heart condition. In early 2015, he saw a newspaper advertisement for an ‘All-on-4’ dental implant procedure, which involved the insertion of 4 implants and a prosthesis. The advertisement impressed him as suggesting a potential solution to his dental problems.

2. Mr Jones first saw the defendant, Dr Braund, on 22 April 2015 and just over a week later, on 30 April, he received treatment from Dr Braund for the removal of all of his maxillary teeth (on the upper jaw) and the administration of the ‘All-on-4’ implant procedure to replace those teeth. Unfortunately, the treatment was not successful. One implant failed and over a period of some months, and notwithstanding a further procedure with Dr Braund in September 2015 to replace the failed implant with a new one and reline the prosthesis, Mr Jones says he continued to experience excruciating pain and profuse bleeding in his mouth and nasal region.

3. By this proceeding, Mr Jones sues Dr Braund for damages for professional negligence. He seeks relief for non-economic loss and makes claims for past and future out of pocket expenses. By his amended statement of particulars, Mr Brand has identified his injury and disabilities caused by the alleged negligence of Dr Braund, which may be summarised as comprising:

• failed dental implants;

• severe and large haematomas;

• destruction of the bone on the right maxilla;

• difficulties in eating;

• a fractured prosthetic bridge and exposed implants;

• difficulties with speech, chewing and phonetics; and

• anxiety, distress, irritability, bouts of anger; loss of self-esteem

Dr Braund’s Defence

4. Dr Braund does not dispute that he owed Mr Jones a duty of care.

5. Dr Braund invokes the statutory standard of care (which, in practice is a defence) in s 5O of the Civil Liability Act 2002 (NSW). He says that the administration of the All-on-4 procedure was undertaken in accordance with widely accepted professional practice.

6. In his Defence, Dr Braund denied that he breached his duty of care (a position slightly modified during the trial). Dr Braund takes issue with each of the three bases of liability which he understands Mr Jones to rely upon: that this form of treatment was not appropriate for Mr Jones; that Dr Braund did not provide adequate information or warning to Mr Burns; and that Dr Braund negligently administered the replacement of the implant. Dr Braund contends that it was reasonable for him to proceed with the ‘All-on-4’ procedure and that he provided Mr Burns with reasonable advice.

7. Dr Braund also asserts that Mr Jones has not discharged his onus that any negligence by him caused the damage or loss about which Mr Jones complains as per the requirements of causation in s 5D of the Civil Liability Act. He says that he warned Mr Jones of the risk of failure of the implants but, notwithstanding that advice, Mr Jones took the risk.

8. A cross-claim filed by Dr Braund against his indemnity insurer, MIPS, was resolved during the trial and orders were subsequently made by me (by consent) in Chambers to dispose of that claim.

FACTUAL BACKGROUND

9. The following part of these reasons concerns essentially uncontentious facts taken from the chronology (Exhibit 1D-1) supplied to the court by Dr Braund. I invited Mr Jones, who was unrepresented at trial, to supplement Dr Braund’s chronology if he saw fit. That did not occur.

10. Mr Jones was born in 1963. At the time of the impugned dental treatment he was 52 years of age. He has been a builder for about 35 years.

11. In 1999, Mr Jones had undergone atrial heart valve replacement surgery and was prescribed Warfarin to prevent intra-vascular blood clotting.

12. Mr Jones has experienced financial trouble. In 2009 he was bankrupted. Mr Jones cited the effects of the GFC and a failed property development when he gave evidence. He said he was discharged from bankruptcy in 2012.

13. On 3 November 2014, one of Mr Jones’ teeth (number 11) was given a hopeless prognosis (by Dr Little). Three weeks later, Dr Little removed that tooth.

14. In January 2015, Mr Jones underwent periodontal access surgery and bone regeneration at tooth 11.

15. After reading the advertisement about the ‘All-on-4’ dental implant procedure in the newspaper, on 21 April 2015 Mr Jones attended a consultation with Dr Fadi Yassmin at Bupa Dental Broadway, to discuss that procedure. Mr Jones was informed by Dr Yassmin that he was an ‘All-on-4’ candidate following certain scans. Mr Jones had abscesses at teeth 26 and 16 that had already had Root Canal Therapy (RCT). He received an estimate of $50,000 for the ‘All-on-4’ procedure for both the upper and lower jaws.

16. On 22 April 2015, Mr Jones sent an email to Dr Do-Vuong advising that “I have decided once and for all to have them removed and an All-on-4 procedure applied to the top and bottom set of teeth installed.”

17. Subsequently, on the same day, Mr Jones consulted Dr Braund at the latter’s practice in Macquarie Street, Sydney. Dr Braund says that Mr Jones completed a patient information form. Dr Braund completed a patient risk assessment form, took CBCT scans and photographs, and gave a consent form to Mr Jones and a letter setting out the treatment breakdown.

18. The next day, Mr Jones sent an email to Dr Braund thanking him for the appointment of the prior day and asking questions about the procedure.

19. On 30 April 2015, Dr Braund performed the ‘All-on-4’ dental implant procedure on Mr Jones at his Macquarie Street clinic.

20. On 1 May 2015, Mr Jones advised Dr Braund that he had (no) post-operative pain, although the left side of the bridge was loose and arranged to come in on the following Monday to have the bridge refitted. On the same day, he sent an email to Dr Do-Vuong indicating that the procedure had ‘went well’ whilst reporting that Dr Braund had identified another 2 areas of infection seeping through the gums.

21. On 2 May 2015, Mr Jones attended a Hunters Hill clinic and consulted a dentist colleague of Dr Braund.

22. On 3 May 2015, Mr Jones sent several emails to Dr Braund. Very early in the morning (12:33am) he complained that his denture felt like it was almost coming off and was scared of choking if it came loose. At 12:34pm, he advised Dr Braund that screws had come loose and he sought a full explanation as to his situation.

23. On 4 May 2015 he consulted with Dr Braund at the latter’s Macquarie Street practice. Dr Braund re-attached the prosthetic denture.

24. On 7 May 2015, Mr Jones rang Dr Braund’s Macquarie Street clinic advising that he was having ulcerations. A booking was made for a further appointment.

25. On 13 May 2015, Mr Jones again consulted Dr Braund regarding the procedure. Dr Braund provided oral hygiene instructions.

26. On 21 June 2015, Mr Jones sent a further email to Dr Braund at 1:38 PM, requesting the cost for a final denture.

27. On 24 June 2015, Dr Braund sent an email to Mr Jones recommending a titanium bridge and providing a cost breakdown.

28. On 5 July 2015, there was a chain of emails between Mr Jones and Dr Braund concerning Mr Jones’ problems with his teeth on one side. Mr Jones reported that he could not chew hard and favoured his opposite side; as well as experiencing a dull ache in the implant when he bit down. This had been happening for about 4 weeks. Dr Braund responded that he needed to examine the teeth in his surgery. A further appointment was arranged.

29. On 7 July 2015, Mr Jones attended a consultation with Dr Braund at the latter’s Hunters Hill clinic regarding the procedure.

30. Further email correspondence was exchanged between Mr Jones and Dr Braund between 8 August and 5 September 2015. Aside from some less than serious banter, the upshot of it was that the problem with the single implant was to be addressed at the time of the reline of the prosthesis.

31. This occurred on 22 September 2015, when Mr Jones saw Dr Braund at the latter’s Balmain clinic, in order to have the right maxillary posterior implant removed and the replaced and the bridge relined. In the afternoon, after having left the clinic (in contentious circumstances), Mr Jones returned to the clinic in the afternoon following the replacement of the implants, complaining of bleeding.

32. On 29 September 2015, Mr Jones consulted Dr Chowdhury at FDM. Dr Chowdhury provided PSA results and recorded patient notes concerning Mr Jones’ recent dental work and noted mild swelling and tenderness.

33. On 30 September 2015, Mr Jones called Dr Braund’s Macquarie Street clinic requesting clinical notes and records and a disc with the CBCT scan.

34. On 9 October 2015, Mr Jones complained of pain around the right eye and right lateral nose.

35. On 12 October 2015, Mr Jones consulted Dr Zoud, an oral and maxillofacial surgeon, complaining of tenderness when touching the right lateral nose and Mr Jones reported a constant and dull pain. Dr Zoud did not see any obvious signs of infection.

36. On 30 October 2015, Dr Zoud wrote a letter to Dr Willey regarding his examination of Mr Jones conducted on 12 October. Dr Zoud said that upon examination, he reviewed Mr Jones’ current CBCT and this demonstrated significant thickening of the mucosal lining within the right maxillary sinus. The angulated implant at the 16 site was in close proximity to the right anterior maxillary sinus wall and the apex of the implant just perforated the right lateral nasal wall. He thought it was “possible” that the lump and tenderness in the region of the right alar base of the nose could be related to the apex of the angulated implant at the 16 site.

37. On 30 November 2015, Mr Zoud again wrote to Dr Willey regarding a discussion with Mr Jones about proposed steps to remove failed angulated implant in the right posterior maxilla and treatment steps.

38. On 17 December 2015, Mr Jones was admitted to Westmead Hospital where, under a general anaesthetic, Dr Zoud removed the failed dental implant in the right posterior maxilla, curetted the resultant bone cavity at the failed implant site, augmented the right posterior alveolar ridge and assessed the implant at the 22/23 site. He reported upon the procedure in his letter to Dr Willey dated 23 December 2015.

39. Other matters of significance that Dr Zoud noted were:

1. at the resultant bone cavity, he noted significant reactive bone formation lateral to the maxilla related to the apical portion of the failed angulated implant. After this had been removed, Dr Zoud noted a defect on the lateral aspect of the cavity at the explanted implant site towards the apical 10mm of the implant. At the apex of the cavity at the explanted implant site, there was no bone separating the cavity from the nasal mucosa; and

2. he assessed the implant at the 22/23 site and noted that 3.5mm of the crestal portion of the implant threads were exposed without any bone coverage. Although it was firm, the moderate amount of granulation would require monitoring for possible further loss of the bone.

40. On 12 May 2016, Dr Zoud and Dr Willey conducted dental implant surgery on Mr Jones at the hospital. In his letter to Dr Willey reporting on the procedure, Dr Zoud noted that he found a discharge from the gingival sulcus associated with the implant at the 12 site and found that the implant at that site had significant granulation tissue. It had a hopeless prognosis. He prepared an osteotomy for a conventional implant at the 12 site in order to replace the failed implant at that site.

41. On 1 December 2016, Mr Jones sent an email to Dr Braund complaining of negligent treatment.

42. On 24 January 2017, Mr Jones consulted Dr Howe who conducted an examination.

43. On 7 December 2017, Mr Jones was admitted to Westmead Hospital for removal of failed zygomatic implants, bilateral sinus lists, three implants and augmentation of maxillary sinus floor. He was discharged from hospital three days later.

44. On 30 April 2018, Mr Jones commenced this proceeding. He filed a statement of particulars on 29 June 2018.

NATURE OF THE ALL-ON-4 IMPLANT PROCEDURE

45. It is central to a consideration of the evidence to grasp the nature and features of the ‘All-on-4’ procedure. This was the subject of evidence of Dr Benge, an expert called by Dr Braund, and Dr Braund himself.

Dr Benge’s Evidence

46. An account of this was supplied by Dr Larry Benge, one of the expert witnesses, in his report dated 26 April 2019. Dr Benge has been a dentist for nearly 40 years. Most significantly, he is currently the clinical director of the Malo Clinic, in South Yarra, Victoria. The All-on-4 procedure was pioneered in 1995 by Professor Paulo Malo, from Lisbon in Portugal. Dr Benge received training from Prof Malo over many years and has performed thousands of such procedures since 2007 (and prior to that in 2005 in Victoria). Dr Benge regularly runs teaching courses for dentists, oral surgeons and periodontists in respect to this particular procedure. It emerged in evidence that he taught or trained Dr Braund and Dr Yassmin in this procedure.

47. Dr Benge was not challenged on his account of the development of this particular procedure and I accept it. What follows is a summary of that part of his report.

48. Dr Benge indicated that the problem with the then current treatment modalities before this procedure emerged was that many rehabilitation cases required multiple operations because of the need for patients to have enough bone in their mouth prior to the placement of implants and the construction of final teeth. The process could take up to 12 months and the cost was expensive.

49. Dr Benge explained that what Prof Malo proposed was to utilise the patient’s own remaining bone in the anterior region of the maxilla (the upper jaw) or mandible (lower jaw) which enabled implants to be immediately placed after extraction of teeth (if the patient was dentate) or immediately if the patient was edentulous. ‘All-on-4’ enabled practitioners to immediately load the teeth on day one of the procedure, so long as the insertion torques of the implants were adequate to support the desired torque. The Malo protocol allowed for only acrylic teeth to be placed in the first three months, while osseointegration occurs, and the teeth should not have any cantilevers as that placed more load on the healing implants.

46. The basic premise of the procedure is that the front implants are parallel and the posterior implants are angulated at 45 degrees due to the anatomical structures. In the maxilla (the upper jaw), the implants (posterior) are angulated to avoid the maxillary sinus and allow for longer implants than parallel placed implants. Angulating the implant enables the practitioner to place it across the alveolar ridge. Multi-unit abutments are the intermediate connection between the implant and provide a platform to screw in the final prosthetic teeth.

47. The most important characteristic of the implant is that it has a 2mm tip and there are threads on the implant, from the very tip to the head of the implant. It is designed like this so that the small tip allows dentists or dental surgeons to place implants into the cortical bone, either at the crest of the ridge, or the nasal floor, and thus achieve desired torque for the immediate loading of the implants. The threads at the top of the implants provide for more implant stability at initial insertion and this contributes to the ability to achieve immediate loading. The implants are available in the range of 7mm to 25mm in length. This provides more range than any other implant system available today. It is imperative that if the implants are loaded they need the required torque.

48. When asked to identify the risks of this procedure, Dr Benge noted that dental implants do not have 100% success rates (he instanced dental literature which revealed a success rate of 94-98%) and the expectation is that all patients are warned of the risks prior to surgery so they can provide informed consent. The specific risks that he considered needed to be disclosed to patients were:

1. failure of the implant to integrate into the bone, either due to infection, overload of the fixture, bruising of the bone on implant placement, lack of implant stability at insertion and the implant being then placed in the wrong position (maxillary sinus);

2. bleeding, bruising, although not strictly ‘risks’, are a product of surgical intervention; and

3. medical history: for all patients over the age of 50, they are required to have preliminary blood tests and ECG screening prior surgery, to determine their suitability for surgery of this kind. For patients with extensive medical issues, practitioners are expected to contact the relevant medical GP and specialists to ask their advice on management. For those patients who present medical risks, that is to be managed in hospital.

53. The initial bridge is made of acrylic on temporary cylinders during the healing phase of the treatment and is inserted on the same day of surgery. Dr Benge explained that several issues can arise in a patient adapting to the bridge inserted. This can include: speech and phonetics; chewing and the patient feeling a gap between the initial prosthesis and their gum as healing occurs; as well as fracture of the prosthesis. In the last respect, acrylic teeth can fracture, or pop off the bridge, if the inclusion is not correct or if the patient para-functions. Some patients experience tension in the prosthesis after initial insertion; although that dissipates with time.

The defendant’s explanation of features of the All-On-4 procedure

54. Dr Braund started training in the All-on-4 procedure when he attended a week long course in Melbourne in 2011. He started to perform this procedure in 2011. He received training from Dr Benge.

55. He recounted that this procedure developed from a recognition of a lack of bone on the posterior (back) part of the upper (and/or lower) jaw; the idea was to use the bone from the nasal floor downward to place an entire set of teeth and by utilising four implants, creating a ‘bridge’ of 12 teeth (all joined together). The process involved the following steps.

56. First, all the teeth would be removed from the jaw (upper and/or lower).

57. Secondly, the implants were to be placed; preferably in the front part of the teeth.

58. Thirdly, following teeth removal, the maxilla was flattened (by using pliers). Thereafter, the implants would be placed. For this purpose, a drill was used. The insertion of the implants would be controlled by torqueing (the force required to insert the implant to a certain level, being 35mm maximum). Ideally, the implants were to be implanted at the floor of the nose, where the bone was most solid. If it could not be implanted there, then they would be implanted in the zygoma (cheek bone). The screws would be held by connectors (an ‘abutment’).

59. Fourthly, an ‘impression’, or mould of the abutment would be taken and sent to a technician who would prepare the model bridge.

60. Fifthly, after the patient was sent to the recovery room, and hydrated, the bridge would be screwed into abutments (again through torque control).

61. Sixthly, the patient’s bite would be checked and the patient would be given post-operative instructions. This included wearing a guard at night and regular check-ups with the hygienist.

62. Arrangements would be made to see the patient 3-6 months later, to reline and remove the gaps under the first bridge that had been created. If the mouth had stabilised a new bridge (of better quality, such as porcelain) might be obtained.

63. Dr Braund identified that the main criteria for the suitability of All-on-4 procedure was the patient’s general medical health; his or her needs, the pattern and distribution of tooth loss, the health of the existing dentition and how much bone was in the sinuses.

64. In his evidence, Dr Braund gave evidence of a procedure he usually used to assess a patient’s suitability to receive this form of treatment. He would check the patient’s medical history. He would speak to the patient about his or her objectives and the desired outcome. He would conduct a CBCT. This is a 3D picture of the bones which is used to detect any pathology (contrasting with an OPG, which is like a 2D frontal picture). He would explain to the patient the results of the CBCT.

65. He said that as part of his general procedure would give patients a ‘warts and all’ description of the procedure, from start to finish, and explain what could go wrong. The main concerns were swelling, bruising and the sense of feeling ‘beaten up’ in the head, and a need for painkillers. There were risks: the bridge was thicker than the natural teeth; and patients would have to ‘re-learn’ speech and chewing; there was a 2-5% risk of implant failure. This could occur because of germs or the bite (if the titanium moved). The bridge could fracture.

ISSUES TO BE DETERMINED

66. Dr Braund supplied to the Court a schedule of issues. Mr Jones accepted that these issues arose and did not add to them. The issues are:

1. the condition of Mr Jones’ dentition prior to seeing Dr Braund;

2. what occurred during Mr Jones’ consultations with Dr Braund throughout 2015;

3. whether Dr Braund arranged appropriate investigations into Mr Jones’ dentition when assessing Mr Jones;

4. whether Dr Braund provided appropriate information to Mr Jones concerning various dental treatments available for his dental conditions;

5. whether Mr Jones was warned of material risks relating to the All-on-4 procedure;

6. whether Dr Braund acted in a manner that (at the time the service was relevantly provided) was widely accepted in Australia by peer professional opinion as competent professional practice in any or all of the following:

1. the administration of the ‘All-on-4’ procedure (on 30 April 2015);

2. the performance of a post-operative care (after 30 April 2015); and

3. the administration of the implant replacement (on 22 September 2015),

such that Dr Braund does not incur any liability arising from the provision of such service(s) under s 5O of the Civil Liability Act,

7. on the premise that the s 5O defence is not made out:

1. what was the ‘risk of harm’;

2. did Dr Braund provide negligent advice to Mr Jones concerning various dental treatments available for his dental conditions; and

3. did Dr Braund provide negligent treatment,

8. what was the cause(s) of implant failures and whether any negligent advice or negligent treatment by Dr Braund caused Mr Jones damage; and

9. on the premise that Dr Braund’s liability is established:

1. whether Mr Jones suffered the injuries and disabilities alleged in his pleading and statement of particulars;

2. whether Mr Jones is entitled to damages for non-economic loss; and

3. whether Mr Jones is entitled to damages for past or future out-of-pocket expenses and if so, the quantum of those respective heads of damages.

MR JONES’ PRE-EXISTING DENTAL HISTORY

67. A potential complicating factor concerning Mr Jones medical and dental treatment generally was his heart condition. Mr Jones was under the care of a cardiologist, Dr Davis, but, since about 2000, was generally was able to monitor his INR level himself. The INR is a measure testing the time a person’s blood will clot. (Blood clots can travel through a person’s brain and cause a stroke). The higher the INR is, the longer the time that person’s blood will take to clot and a person will have an increased risk of bleeding. Mr Jones said that he usually kept his INR within a range of 2.7 to 3.3. The INR is utilised to monitor blood-thinning or anti-clotting medicines, known as anticoagulants. In Mr Jones’ case, he utilised Warfarin.

68. Mr Jones said in evidence that prior to 2000 he suffered an injury playing soccer, which resulted in a tooth being knocked out. He had to have a veneer inserted. He said that he was a regular patient of the Smile Dentistry, in Balmain, for many years and was satisfied with the services he received in that time. This was principally with Dr Danielle Do-Vuong. He explained that for a period of time, he was a beneficiary of the Medicare Chronic Diseases scheme and received substantial dental benefits, until that was taken away in the early part of the last decade. He appreciated that his dental costs thereafter were very substantial.

69. Under cross-examination, Mr Jones acknowledged the nature and extent of his dental problems from 2010 to 2014. He had had teeth removed in the past for infection. He had also had RCT on parts of his lower jaw and in his upper jaw. It was suggested that he might have had up to 8 or 9 teeth subjected to RCT on his lower jaw but Mr Jones could not recall how many. He thought he had had 2 teeth subject to RCT in his upper jaw. He had had crowns and fillings inserted.

70. He acknowledged that he had received a recommendation from Dr Do-Vuong for a night splint to try to protect his teeth from bruxing, but did not use it. He accepted that, sometimes, there was some sensitivity in his teeth if a filling failed.

71. In October 2014, a note indicated that he had drainage sinus from tooth 11.

72. In December 2014, one of his front teeth was pulled out. Dr Fiona Little diagnosed a vertical root fracture and recommended the removal of tooth 11 and the insertion of an implant retained crown. She offered to remove it, put a bone graft in and provide temporary front teeth. He was quoted the price of $8,500 for this procedure to be performed.

73. He received the option of treatment for one implant, but the quote for that treatment was for $8,500 simply for one tooth. He thought that was a very expensive sum for one tooth. He contemplated that other implants might be needed for the future.

74. On 28 January 2015, Mr Jones saw Dr Do-Vuong to adjust the acrylic over the 11 ridge. She advised Mr Jones to take his plate out when eating and sleeping. An implant placement was due for June.

75. On 18 April 2015, Mr Jones saw Dr Do-Vuong, complaining of having a sore jaw. He indicated that he wanted a splint made. A note by Dr Do-Vuong indicated that he wanted veneers inserted over the lower teeth.

76. Mr Jones did not dispute that, as at April 2015, he was concerned about the appearance of his lower front teeth and was, moreover, generally concerned about the overall appearance of his teeth. That month, he casually came across a newspaper advertisement promoting the ‘All-on-4’ procedure. He initially attended a dentistry practice in Broadway to determine whether this form of treatment was appropriate and to inquire about the cost of the procedure. He received a quote from Dr Yassmin on 21 April of $50,000, for the upper and lower jaws. That was too much for him to pay. Dr Yassmin’s notes suggested that Mr Jones had had enough with ‘patch up’ work on his teeth and was concerned about his appearance.

77. Mr Jones then ‘googled’ Dr Braund’s name as a practitioner with professed expertise in administering this procedure. The advertisement was not in evidence, but Mr Jones recalled that Dr Braund had indicated in the advertisement that he could perform the procedure for $17,000 for all of his teeth.

78. From the time he saw the advertisement until 30 April 2015, it was suggested that Mr Jones discussed with Dr Do-Vuong the idea of his undertaking the ‘All-on-4’ procedure. According to his report of it to Dr Howe, Dr Do-Vuong told Mr Jones that she did not support the plan and suggested that he reconsider.

79. In his email to Dr Do-Vuong dated 22 April 2015, Mr Jones said that he had made a decision “once and for all” to have an All-on-4 procedure. He understood that there were at least three abscesses. He was now resolved to ‘bite the bullet’ and have the All-on-4 procedure for both his upper and lower jaw.

80. In the medical information form which he later signed on 22 April 2015, Mr Jones also referred to his seeking a “permanent solution” to the problem with his teeth.

81. Under cross-examination, Mr Jones recalled Dr Do-Vuong telling him that such procedure was new and that it was usually people older than himself who had failing dentition who had the procedure. She said that she would not undertake the procedure if she was in his position. When he asked why, she said that his teeth could be treated and that she could not foresee future issues. It was put to Mr Jones that Dr Do-Vuong’s advice formed part of his decision-making process. He did not undertake any further research although it was put to him that he did consult Dr Yassmin. Mr Jones recalled Dr Yassmin indicating that no future treatment was needed although he was concerned about future infections.

82. It was put to Mr Jones, but Mr Jones denied, that Dr Yassmin informed him about abscesses in teeth 26 and 16, which had already been the subject of RCT. It was put that Dr Yassmin had provided a rough estimate of the costs of repairing his upper and lower jaws. That was not disputed.

83. In his summary of Mr Jones’ dentition prior to seeing Dr Braund in April 2015, Dr Nichols, the expert dental surgeon for Dr Braund, observed, on the material before him, that while some of Mr Jones’ teeth appeared to have apical pathology and leaking margins of restorations, the majority of Mr Jones’ teeth appeared normal; albeit extensively restored and with a degree of wear from bruxing. Whilst conservative restoration may have been the most appropriate treatment, there was nothing obvious, apart from Mr Jones’ medical history, which would preclude him from the consideration of implants.

Submissions

Dr Braund’s Submissions

84. Dr Braund submitted that by the time Mr Jones saw him in April 2015, he had already received extensive treatment on his upper teeth over a period from October 2005 to October 2014. As at the end of 2014, of the twelve teeth in his maxilla, tooth 11 had been removed after a failed RCT.

85. It was submitted that what Dr Braund found through the CBCT was consistent, or at least not inconsistent with what others had found. Dr Yassmin had expressly referred to abscesses on teeth 26 and 16, but the express reference did not exclude the possibility, as Dr Braund had found, that there were lesions also on teeth 21 and 27. All of Doctors Willey, Nichols and Benge had found three teeth in the maxilla with lesions (16, 26 and 27) and they perceived an abnormality with tooth 21 (which could not be discounted as a lesion).

Mr Jones’ Submissions

86. Mr Jones did not make any specific submission on this point.

Determination

87. In my view, there were at least 3, if not 4, lesions in Mr Jones’ maxilla when he saw Dr Braund on 22 April 2015.

88. I also consider that Mr Jones was strongly predisposed to the idea of having the All-on-4 dental implant procedure administered to him at the time he saw Dr Braund. Notwithstanding the content of his emails, however, I am not convinced that he was absolutely bent upon the procedure, irrespective of whatever Dr Braund might say; or that he was, in effect, simply shopping around for a cheaper quote for the procedure than was provided by previous dentists. Dr Braund did not, for example, say that Mr Jones had asked to be spared advice or information about the risks of the treatment or whether it was suitable for his circumstances. Further, it was not part of Dr Braund’s case that any advisory obligations he had were in any way circumscribed by any information he obtained from Mr Jones about the latter’s inquiries about the procedure from previous dental practitioners.

MR JONES’ CONSULTATIONS WITH DR BRAUND

89. As noted, Mr Jones appeared unrepresented. I asked him to give his account in the witness box and generally led him through his evidence.

90. I have also taken into account evidence of the histories that he subsequently gave to treating doctors and his expert witness, Dr Howe; relying upon s 60 of the Evidence Act1995 (NSW). This was over the objection of Counsel for Dr Braund who sought a limitation upon the evidence of the histories under s 136 of the Evidence Act being that the content of the histories could not be used as evidence of the truth of what was asserted in those histories. Notwithstanding authorities which suggested that such limitation could be imposed in such circumstances[1] , I did not impose this limitation in the exercise of my discretion. I was mindful of the fact that not only is this a trial by judge alone but also because Mr Jones, the maker of the representation, was available to be cross-examined. I was also mindful of the observations of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at [93]-[97] that by reason of the enactment of s 60, hearsay objections do not play a decisive role in the exercise of the discretion to limit evidence.

    1. Guthrie v Spence (2009) 78 NSWLR 225 at [75]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 per McColl JA at [6] and Bergin CJ (in Eq) at [142]-[143].

Consultation on 22 April 2015

91. Some context for Mr Jones’ consultation with Dr Braund on this date may be viewed in the email he sent to his erstwhile dental carer, Dr Danielle Do-Vuong at 1:22 AM on 22 April 2015 (Exhibit 1D-20). This was after Mr Jones had consulted Dr Yassmin, but just before he was due to consult with Dr Braund. In the email, Mr Jones referred to Dr Yassmin informing him that there were two abscesses in his teeth. It was suggested to Mr Jones that he understood that in addition to requiring an implant for tooth 11 he would have to receive treatment for the infection of both of those sites. It was put to Mr Jones, and Mr Jones accepted, that when he was preparing to see Dr Braund, it was not just to discuss the economic viability of the All-on-4 procedure, but also to discuss the cost of the implants which Dr Do-Vuong had discussed with him, the other abscesses which had been diagnosed and the general aesthetic appearance of his teeth. On the basis of his email to Dr Do-Vuong, it was put to Mr Jones that he was in fact determined to proceed with the All-on-4 procedure for both the upper and lower jaw and that all that he was seeking to do when consulting Dr Braund was to obtain a second quote. Mr Jones maintained that he was seeking a second opinion and, subsequent to his sending of the email to his former dentists, he believed that there was nothing wrong with his lower jaw. At any rate, prior to his visiting Dr Braund, he formed the belief that it would cost up to $25,000 to replace tooth 11 and it was necessary to deal with the other abscesses in his teeth.

Mr Jones’ Account

92. Before seeing Dr Braund, Mr Jones filled out an in-patient information form, and undertook a CBCT scan. Before any discussion of the All-on-4 procedure there was a discussion about what that form and scan revealed.

93. The in-patient information form contained provision for Mr Jones to disclose a range of his dental and medical conditions and his current concerns. In evidence Mr Jones was wary about admitting to discussion about those topics which he had indicated represented his current concerns in the form.

94. Dr Braund explained what he learnt from the scan. Mr Jones could not recall specific discussion as to which of his teeth (27, 16 and 21) which Dr Braund identified as being infected although he accepted that there was a discussion of infection. It was put to Mr Jones, but Mr Jones denied, that he had vehemently indicated to Dr Braund his opposition to further RCT or periodontal care and was very keen to have the All-on-4 procedure.

95. Mr Jones said in his evidence that when he first consulted Dr Braund on 22 April 2015, he explained that he was looking for an economical option for treatment of his top front teeth. Mr Jones says that Dr Braund provided him with a quote of $25,000-$30,000. He recalled Dr Braund looking at his teeth and explaining the benefits to him of this form of treatment. He said he was interested in learning the possible outcomes. He was not all that specific in his recollection of how Dr Braund responded.

96. Mr Jones recalled informing Dr Braund that he was taking Warfarin. He recalled Dr Braund telling him that for this form of treatment, he would not be required to lower his INR. He did not recall Dr Braund requesting his medical or dental records.

97. Mr Jones also recalled that when he asked Dr Braund what the potential downside was of the procedure, Dr Braund told him that there was a 2-5% chance that the implant might fail, but recalled Dr Braund saying that he doubted that this would happen. He says Dr Braund told him that the fixed prosthesis (denture) would feel like his own teeth; and that although he had a bite like a ‘bull dog’, it would be strong enough and function like normal teeth.

Ms Jones’ Account

98. Ms Jones, partner of Mr Jones, said she attended the consultation on 22 April 2015.

99. Ms Jones affirmed an affidavit (20 July 2019). She explained the circumstances in which Mr Jones came to see Dr Braund. Her husband had seen another dentist on 21 April (at Broadway – this appeared to be a reference to Dr Yassmin) after he had received advice from his dentist in Balmain (Dr Do-Vuong) that an implant on his front tooth would cost $8,000 or thereabouts. She recalled Mr Jones not being happy with the outcome of his appointment on 22 21 April. She recalled him showing her a newspaper article about the All-on-4 procedure and Mr Jones indicated that he might inquire, given the information he had received about a tooth implant costing $8,000. She recalled that Mr Jones ‘needed another opinion’ and accordingly rang on 21 April to book one.

100. Under cross-examination, she said she could not recall any discussion of his dental history or her husband even filling out such a form. She could not recall his filling out an in-patient information form.

101. In her affidavit, she recalled Dr Braund remarking that Mr Jones had a ‘bite like a bulldog’ and saying that due to his bone structure, it was highly unlikely that an implant would fail.

102. When she gave evidence, she accepted that Mr Jones had received an oral examination. She recalled being shown an x-ray in Dr Braund’s room. She recalled him pointing out multiple infections (she could not remember how many).

103. In her affidavit, she deposed to Dr Braund responding to her request for a quote for the All-on-4 procedure by saying that it would be approximately $17,500 for surgery, with the bridge in 6 months’ costing approximately $4,000. To the extent that she recalled that anything which was said about costs, when giving evidence, it was only the likely costs of putting implants in to replace individual teeth. She recalled that this would be $25,000-30,000 in the sort to mid-term.

104. She could not recall any discussion about RCT. She deposed in her affidavit that Dr Braund did not advise Mr Jones, or them, of any shortcomings of the treatment, apart from possible implant failure. Under cross-examination, she denied that Dr Braund explained that RCT could be performed or her husband responding by saying that he did not want RCT. She added that when she and her husband were sent away after the consultation, they did not receive any pamphlet concerning RCT.

105. She recalled that Mr Jones spoke of his heart valve condition – Mr Jones was always concerned about his heart and the need to keep his teeth cleaned accordingly – and his disclosure of the name of his cardiologist.

106. She had a vague recollection of what was discussed about the All-on-4 procedure: Dr Braund said that the bridge would look like normal teeth. She recalled Dr Braund informing them that ‘initially’ he may have difficulty eating or may get food trapped in his mouth but understood that this was only for the short term. She recalled being told that the risk of implant failure was 2.5%, and that the risk was highly unlikely to materialise because of Mr Jones’ bone structure. She recalled the mention of bruising. She recalled Mr Jones asking Dr Braund if he was a suitable candidate for All-on-4 procedure and that Dr Braund said that he was.

107. Beyond these matters, and other than ‘chit chat’, Ms Jones had no real recollection of what else was discussed as to the procedure itself.

108. She recalled that no mention was made about paying any deposit. She recalled that they paid on the day. Ms Jones denied that her husband was presented with a pamphlet containing a treatment plan and consent form.

Dr Braund’s Account

109. Dr Braund gave evidence in which he said he went through Mr Jones’ medical history. He assumed that Mr Jones had completed it. He noted Mr Jones’ concerns about excessive bleeding and the fact that he took Warfarin. He recalled Mr Jones telling him that he had a heart valve replacement and telling him that his INR was 3. Penicillin was discussed.

110. Dr Braund said he discussed a dental information form. Mr Jones was unhappy with his regular treatments and wanted a more permanent solution to problems concerning his teeth, and better-looking teeth. He said he went through with Mr Jones each of the conditions and matters which at that point were concerning him.

111. Dr Braund said that he arranged for a CBCT scan to occur. After this happened he said he took Mr Jones through computer images (which he said were of 3D). During the trial, a demonstration was provided to the Court, amounting to a reconstruction, through the use of a CD Rom (Exhibit 1D-8). The demonstration was intended to simulate the operation of the CBCT; although Dr Howe later said that what was really depicted was the results of an OPG. During this, Dr Braund recalled informing actual or suspected infections with teeth 27 (which had previously been subject to RCT), 16 (which had also been subject to RCT) and 26. As to tooth 21, it appeared that a nerve had died in that tooth. Tooth 11 was missing. He recalled telling Mr Jones that to save teeth 16 and 27, RCT would need to be re-done and completed in relation to teeth 26 and 21. He recalled saying that RCT for each tooth would be $4,000 each. But, he recalled, Mr Jones said he did not want RCT.

112. Mr Jones suggested to Dr Braund in cross-examination that the images that were demonstrated to the Court were larger and of better quality than the images he was shown during his consultation. Dr Braund disputed there was any lesser quality but accepted that the images he showed to Mr Jones in April 2015 were more compressed. Mr Jones suggested that only one image [2] was shown to him, but Dr Braund disputed this. Mr Jones also put to Dr Braund that an OPG provided a better indication of the state of a patient’s dentition than a CBCT. Dr Braund disputed this, noting that whilst the latter was in 3D, the former was only 2D.

Dr Braund’s View of Root Canal Therapy (RCT)

2. Exhibit 1D-4, page 25.

113. Dr Braund was experienced with this form of treatment and he explained the circumstances in which it was administered. A nerve lives in the tooth. It supplies blood which can kill bacteria. If the nerve becomes inflamed, pressure will increase and cause pain. Too much bacteria will increase swelling and pain and cut off blood supply to the nerve; killing the nerve and allowing bacteria to leech into the bone. This is an ‘abscess’, or infection; which can spread to other parts of the body.

114. RCT is intended to address the inflammation. The internal part of the tooth is cleaned and sterilised so that the nerve is cleaned. Bacteria are removed and the nerve is filled up so as to manage the spread of bacteria. A crown is usually put on to limit or prevent access for bacteria.

115. Dr Braund explained that RCT is not foolproof. He said studies showed that it has a 65-70% success rate, when originally performed. If it fails, the chances of successive RCT being successful are reduced. Failure may be caused by the failure to remove bacteria or if the bacteria retains a pathway to eat away at the jaw burn.

Dr Braund’s Pre-Consultation Protocol

116. Dr Braund explained his usual administrative practices as at 2015 in respect to how he took clinical notes (usually at the end of the day), maintaining an appointment diary and providing pamphlets describing procedures like the All-on-4 procedure, or answering frequently asked questions. In relation to his consultation with Mr Jones on 22 April 2015, he said he inserted notes into his system, at lunch time, straight away after consulting with him.

117. There was a discussion about implants. If Mr Jones did not want RCT there would have to be teeth taken out. To replace them would require sinus grafting (moving the bone to the sinus area) to hold an implant. The costs of implants (for 4 teeth) were identified.

118. Then there was discussion about the costs of bone grafting and implants, amounting to about $25,000. Mr Jones said that this was a lot of money and he could not afford this. Dr Braund reiterated under cross-examination that the $25,000 figure was referable to the option of sinus grafting and implant.

119. Discussion then turned to the All-on-4 procedure. Dr Braund said he told Mr Jones that he had only 3 teeth, either side, which were good: 22, 23 & 25 on side; 12, 13 & 15 on the other. He outlined the procedure if Mr Jones wanted to go ahead with it. He recalled discussing arrangements for the procedure, Mr Jones’ INR (usually taken to 2), which Mr Jones was able to monitor; fasting the night before and the prospect that an anaesthetist might call him.

120. Dr Braund’s method of assessing suitability consisted his tallying a ranking score on an assessment form (Exhibit 1D-4, page 24). He explained that he deployed his experience in evaluating the risk. The point of the ranking was to illuminate ‘red flags’, i.e. matters which might disqualify a patient from this type of procedure. According to the form, Mr Jones was ranked as being of ‘normal’ type for suitability: his score of 30 fell within the ‘normal’ bracket (the other brackets being ‘moderate’ and ‘difficult’) for categorisation of risk. The form indicated the types of risk factors which generated this ranking, being:

• a risk being assigned for ‘appearance’, by which Dr Braund meant the patient’s cosmetic expectations, which I took to mean the apprehension that Mr Jones might be disappointed in how the end result might look;

• Mr Jones self-monitoring of his INR and consumption of Warfarin;

• gum disease (periodontitis);

• the circumstance that Mr Jones’ sinus was towards the front, which required that the implants be closer together. The further apart in distance that the implants were inserted the greater the stability; and

• lesions (infection) at teeth 27, 26, 16 & 21 and a tooth missing (11), with tooth decay (tooth 17).

121. Under cross-examination, Dr Braund identified that Mr Jones’ being a bruxer was also a risk factor; this was because a bruxer might be more likely to crack the prosthetic bridge. On the risk assessment form, bruxism was identified as a ‘restorative’ risk factor; rather than a surgical one. It was put to Dr Braund that someone with Mr Jones’ profile was more likely to be in a higher category (being ‘severe’). Dr Braund disagreed. Usually, he said, elderly and frail people were in that profile category.

122. Thereafter there was a discussion about the sorts of things which might affect Mr Jones’ suitability to undertake the All-on-4 procedure: this included his taking Warfarin, allergic reaction to penicillin and his own self-management of his INR level. He said that he took Mr Jones through the images from the scan and pointed out to Mr Jones that because of his heart valve, it was important to treat the infection in his mouth. There was also a suspected lesion in tooth 21.

123. Dr Braund conducted an examination. What he saw did not alter his opinion that Mr Jones was a suitable candidate.

124. Dr Braund said that he presented the options of further RCT or implants to Mr Jones and explained the prospective costs of those forms of treatment. (A treatment plan (Exhibit 1D-10) was later put in evidence which showed potential costs). He also said that Mr Jones could keep his teeth and manage his infections but that he did not recommend that he adopt this course because of the condition of his teeth. He later explained (in re-examination), when asked why he thought it was appropriate to remove the remaining healthy teeth, he said that Mr Jones would have required a denture or more grafting and the insertion of individual implants. He said that if it was he, he would have chosen grafting and the insertion of individual implants, but Mr Jones made the decision to proceed with the All-on-4 procedure.

125. Mr Jones denied that each of these forms of treatment were explained to him. Mr Jones also put to Dr Braund that he did not explain the likely costs of performing additional work to address complications. Dr Braund said that he (verbally) promised Mr Jones that he would not charge for the cost of the repair of a bridge (within the first 3 years) or failed implants (without any time limitation). Mr Jones then questioned Dr Braund as to the utility of this promise given the relatively short lifespan of the acrylic bridge.

126. Dr Braund said that he explained to Mr Jones the basic steps of the All-on-4 procedure, involving: him being placed under sedation, the removal of teeth, some shaving of the bone and, with the use of a drill, fixing the four implants. He then told him how to manage the Warfarin. In response to the latter point, Mr Jones said that he could lower his INR 2 to but that Dr Braund would need to contact Mr Jones’ cardiologist, Dr Davis. (Dr Braund denied that Mr Jones said this). Continuing on, Dr Braund explained that after the holes had been drilled, a mould would be taken and a bridge would be put on the four implants.

127. In cross-examination, Dr Braund accepted that he had not contacted Dr Davis (or Dr Do-Vuong). This was after Mr Jones had disclosed to him his heart valve, that Dr Davis was his treating cardiologist and that his INR level was around 3. It was put that Dr Braund told Mr Jones that lowering the blood level was not required. Dr Braund disputed it. He said that he and Mr Jones had both agreed that 2 was the ideal INR level. Mr Jones suggested that Dr Braund should not have relied upon what Mr Jones, as a layperson, had told him on this subject. Dr Braund said he had operated on patients with heart valves in the past. Dr Braund could not recall whether, in those particular instances, he had consulted the cardiologist and he was challenged why he did not consult Dr Davis in this instance. Dr Braund said that the only risk factor (relevantly) was his taking Warfarin.

128. Dr Braund said that he told Mr Jones that he had a 95% chance of a successful implant. Mr Jones had said in his evidence that he was told it was only a 2 to 5% chance of failure. Under cross-examination, Dr Braund accepted that he had mentioned that there was a 2-5% chance of failure. Another reason was excess loading on the implant. Mr Jones denied that he disclosed these risks. He did accept that Dr Braund warned him that he could expect to experience bleeding; although he denied Dr Braund telling him that he would receive significant swelling and bruising.

129. Dr Braund said that he told Mr Jones that he may have some changes in his speech prior to the reline (expected to occur in September) and that he may experience some food trapping between his gum and bridge and that the bridge would be thicker than his natural teeth. Mr Jones did not really dispute that these things were said. He denied Dr Braund telling him that the bridge would (at times) drive him crazy prior to the relining. He accepted that Dr Braund indicated that if he wanted a thinner bridge, he would need to upgrade to a porcelain bridge and that although this was more durable, this was more expensive. Mr Jones said that he understood that it was up to him to choose which type of bridge he wanted. Dr Braund said, and Mr Jones disputed, that he mentioned the possibility that if the implants failed, Mr Jones may need to pay more money. Mr Jones also disputed Dr Braund referring to the possibility of the bridge being damaged.

130. After the consultation, Mr Jones was supplied, amongst other things, with a colourful pamphlet. This contained a consent form for him to complete. The consent form that was in evidence ran to just over two pages. It contained Mr Jones’ signature on the date that the procedure was administered.

131. Relevant parts of the consent form contained the patient’s representation (by initialling alongside each paragraph and his final signature) of his acknowledgement and consent to various matters, including:

• the explanation for what the All-on-4 procedure entailed;

• an indication of what might occur post-surgery (“There will be a degree of bruising (potentially around the eye), swelling and pain.”);

• indication of the risk of failure (“There is a small possibility of implant failure. In the unlikely event of failure, the failed implant will need to be removed. Efforts will be made to replace this implant, however this may involve additional costs of adjunctive surgical procedures such as sinus lifting, bone grafts and zygomatic (cheek bone) implants. In very rare cases, there may be a need to wear a full denture until the implants osseointegrate (3-6 months).”);

• indication of specific risks of failure: (relevantly) in the upper jaw, especially if the sinus lift procedure was required, there was a slight risk of chronic sinus problems which may require referral to an ENT specialist for further investigation;

• special reference was made to speech (“...you are likely to experience changes to your speech. Following surgery a gap under the bridge is expected to develop and this is likely to trap food and affect speech … it may take several weeks or months for your speech to return to normal.”); and

• a warranty was given for the initial acrylic bridge for a period of 2 years (though this was, according to Dr Braund, affected by a verbal warranty of 3 years).

132. In the consent form that was in evidence, Mr Jones’ initials were inserted in the form alongside all these indications. His signature appeared under the following wording:

“I have read, initialled and understood the points above, been given the opportunity to ask questions and have been given enough time to consider alternative options.

I have seen and understood the treatment plan and have had the costs of upgrading explained to me.”

133. Mr Jones recalled reading the pamphlet but could not recall seeing the consent form. The pamphlets contained information relating to expected post-operative symptoms (such as pain, swelling and bruising and a potential for numbness). He accepts that Dr Braund asked him if he had any questions and invited him to contact Dr Braund if he requested any further information.

499. Dr Braund did not dispute the quantum of Mr Jones’ calculations as to the cost of future Botox injections, so I allow the claimed sum for this component of $80,173.08; which sum is to be added to the costs of Dr Willey’s treatment plan.

500. I would also allow a sum for painkillers consequent to the treatment which Mr Jones will require.

501. I reject the claim for treatment of Mr Jones’ lower teeth. That has nothing to do with any treatment or advice that Dr Braund provided. I would also reject the claim for periodical on-going replacement of the prosthesis; again on the basis that this would go beyond the scope of Dr Braund’s liability for the negligence that I have found. Had the procedure in April 2015 been carried out without breach, then Mr Jones would have been liable to the periodical cost of replacement of the bridge.

Interest

505. Dr Braund concedes that, as of 3 March 2020, Mr Jones would be entitled to interest. If the Court’s finding was that the negligence consisted only of a failure to correctly implant, then the interest would be $3,000. That sum will need to be revised.

Award for Damages

506. In summary, judgment will be given for the plaintiff. Prima facie, the plaintiff will also be entitled to awards for interest and costs.

507. I am minded to award damages made up of the sum of $177,823.12, arising from the following components:

1. Non-economic loss:            $23,030.00

2. Past out of pocket expenses:      $54,793.12

3. Future out of pocket expenses:      $100,000.00

508. However, before entering orders, I will give the opportunity to review these calculations in light of the findings that I have made. They will also have the opportunity to revise their calculations for interest and make submissions as to any special costs order that might be made which might displace the usual rule that costs should follow the event. That might reflect the circumstance that for some part of, but not all, this proceeding, Mr Jones did receive legal representation[12] .

     12. Jones v Braund [2020] NSWDC 32.

ORDERS

509. In summary, I find the plaintiff has made out his action for damages of negligence against the defendant in relation to the administration of the All-on-4 implant procedure on 30 April 2015 but not otherwise.

510. The parties are to bring in short minutes of order in accordance with the following directions:

1. The defendant is to serve proposed short minutes of order attaching a schedule of damages, revised calculations to interest and any submissions as to costs within 7 days of these orders.

2. The plaintiff is to notify the defendant of any variations he proposes to the short minutes of order, and serve on the defendant any submissions responding to the defendant within a further 7 days.

3. If the parties are agreed as to the appropriate orders to dispose of the proceedings, then the defendant is to notify my Associate (by email) of those orders and they will be made in Chambers.

4. If there be disagreement between the parties, the defendant is to send to my Associate (by email) the documents referred to in (a) and (b) in addition to any response to the plaintiff’s submissions within a further 3 days, and unless indication is given to the contrary, orders will be made on the papers.

5. Liberty to apply is granted on 3 days’ notice.

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Endnotes

Decision last updated: 19 March 2020