A GDP member called the DDU's advice line after they received a claim from a patient who'd had an extraction.
The claim alleged that during the extraction, the member had failed to protect the soft tissues in the patient's mouth, leading to a laceration that in turn caused permanent nerve damage.
In responding the member's request for help in dealing with the claim, the DDU obtained independent expert advice from a GDP and a maxillofacial surgeon. The surgeon's advice stated that the injury had occurred because of the method of tongue retraction, and that this was a complication of treatment that couldn't be predicted or prevented. It was, more specifically, treatment that didn't constitute a breach of the member's duty of care.
After an examination of the patient, the surgeon reached the conclusion that it simply wasn't possible for a soft tissue injury occurring where this one had to cause any actual nerve damage of the type described by the patient.
The role of the expert
An independent expert has a duty to the court or tribunal, not to the organisation or company that has instructed them to provide the report. They have to be willing to give evidence in court, so need to make sure their report can stand up to intense scrutiny.
By allowing us to take into account an impartial assessment of the facts at hand, and of a member's treatment and actions, we can then proceed in the most responsible and appropriate way possible.
If expert evidence happens to be unsupportive of a member's actions, it's very unlikely to be in their interest to keep defending the claim because of the vulnerabilities identified. It's also worth noting that losing an indefensible case often incurs significant legal costs on top of any damages.
In those circumstances - and only with the member's express agreement - we may suggest settling a claim to avoid a drawn-out dispute and the stress of the court deciding the member's treatment was negligent.
However, a supportive expert opinion - as in this case - means we have a solid, evidence-based foundation on which to refute the allegations and press ahead with the defence of our member's actions.
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Having reached these conclusions, we sent a formal letter of response to the patient's solicitors setting out our points on the member's behalf. Unfortunately, this didn't stop the patient pursuing the claim as we had hoped, and because of the complexity of the clinical issues being argued between the patient and our member, we decided it would be appropriate to instruct solicitors to help manage the claim.
Despite both sides' solicitors corresponding for some time, we were still unable to convince the patient to discontinue their claim. The patient's solicitors had also sought independent expert evidence from a maxillofacial surgeon, whose opinion differed from our own, and eventually we agreed with the member to send the patient's solicitors a copy of our independent expert maxillofacial surgeon's report.
Soon after sending this, we received confirmation that the patient's solicitors had been instructed not to pursue the claim any longer, and the issue was finally resolved - to the member's understandable relief.
The independent expert has a duty to the court or tribunal, not to the organisation or company that has instructed them to provide the report.
The DDU's advisers and claims handling teams are well versed in helping members deal with all sorts of dento-legal issues, but independent expert evidence is very often a key component to help determine whether a claim can be successfully defended.
In this instance the expert concluded that the member's actions couldn't have resulted in the harm alleged - but even so, it was only when this evidence was presented to the patient's own solicitors that they were eventually persuaded to drop the claim.