Commentary
Although this is a case of alleged dental negligence and can be usefully read in full not only by dental experts, but by dentists, oral surgeons and students of dentistry, it is also of some general significance not just for experts who provide evidence in Scotland, for whom the exposition of Scots negligence law is invaluable and civil procedure significantly different, but for lessons about expert evidence in clinical negligence cases generally.
It is also a case that illustrates both the legal approach to guidelines and how clinical negligence issues are addressed in the absence of guidelines. For more on the use of guidelines in clinical negligence case, readers are referred again to S Britten ‘Clinical guidelines in trauma and orthopaedic surgery in: Samanta J, Samanta A, editors, Clinical guidelines and the law of medical negligence: multidisciplinary and international perspectives (Cheltenham: Edward Elgar; 2021. p. 252-80). Although this was written for orthopaedic experts, there is much in this chapter which is useful for all experts, as also Britten’s related papers: ‘Clinical guidelines and the standard of care: Part 1.’ JTO. 2023 Jun; 11(02):40-2, and ‘Clinical guidelines and the standard of care: Part 2.’ JTO. 2023 Sep; 11(03):46-8.
It does not appear that there are any specific learning points for dental experts. Its value for the dental profession is that it illustrates how expert dental evidence is admitted and tested in a case of alleged dental negligence, including details of the cross-examination of the experts.
Learning points:
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The test in clinical negligence is not what the expert would have done or what he might have expected others to do in the situation in which the defendant/defender found himself; that is quite different from identifying an ordinary and common practice.
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The ‘gold standard’ is not to be equated with the standard of ordinary and common practice.
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It should not happen that a draft report or a report “not for disclosure" is before the court instead of the report that has been finalised for disclosure. In this case ultimate responsibility for this disclosure of the expert’s draft report rested with his instructing solicitors but he should have been informed of the disclosure of the report and in which case he would have been able to point out that his opinion had not been finalised. When he prepared his second report “letter” he ought to have noticed that he had so far produced only a draft report. Without being un duly critical of the expert, this is a case in which the case preparation that depended on cooperation between solicitors and experts was not satisfactory.
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A document on which an expert relies should be available to the court. In this case it was Selection Criteria for Dental Radiography and known in Scotland as a ‘production’. It is not clear whose fault it was. It was a published document so it was probably not incumbent on the expert to append it to his report or supply it to his instructing solicitors. In England and Wales experts only have to provide copies of unpublished documents. But the fact is that it was not available to the sheriff and probably counsel when the expert referred to it.
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Particularly in Scotland, in a personal injury case, ask if you can be in court to hear the evidence of the pursuer/claimant/plaintiff and this is particularly important if your report is ‘on papers’ and prepared without a consultation with the subject of the report. Otherwise it is not possible to have regard to the developing factual matrix which may not be the same as that in the documents with which you have been provided.
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Beware relying on hindsight when considering breach of duty; it can be used when considering causation issues.
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