The Facts
The defendant, an oral and maxillo-facial surgeon, removed 3 of the plaintiff's wisdom teeth during day surgery on 7 February 2001. The defendant recommended that the plaintiff take Amoxycillin 250mg 3 times per day while recuperating. During a check up on 13 February 2001, the plaintiff told the defendant that she was in pain and could not open her mouth properly. The defendant considered that the plaintiff had bitten the inside of her cheek, causing ulcers, and gave her mouthwash to treat the problem.
On 20 February 2001, the plaintiff told the defendant during a consultation that she was still unable to open her mouth. The defendant advised the plaintiff that she was experiencing 'spasms' in her jaw muscle which she could treat this by inserting paddle pop sticks into her mouth, increasing at a rate of one extra stick per day.
The plaintiff alleged that when she returned to the defendant's practice on 27 February 2001, she had developed further neck swelling. The defendant's notes did not refer to any neck swelling. The defendant told the plaintiff that she was experiencing continued symptoms because she was overusing the paddle pop sticks.
On 28 February 2001, the plaintiff called the defendant's rooms and told his receptionist that her neck swelling had increased significantly. The receptionist relayed this message to the defendant, who asked the receptionist to instruct the plaintiff to start taking Amoxycillin. On 2 March 2001, the plaintiff's mother called the defendant's rooms to advise that the swelling had again increased. The defendant was absent from his offices and arranged for a colleague to treat the plaintiff. The plaintiff was diagnosed with a deep neck space infection.
The plaintiff accepted that the defendant's treatment of her until 27 February 2001 was appropriate. She alleged that the defendant failed to diagnose her infection on 27 and 28 February 2001. She further alleged that the defendant should have advised her to consult her GP on 28 February 2001.
The Decision
The plaintiff sought damages referable to the negligent treatment which she alleged caused her to develop psychological and psychiatric responses which adversely affected her life to a significant degree.
The court's decision turned on the credibility of both the plaintiff and defendant. The court found that the defendant provided careful responses during his examination and endeavoured to provide accurate evidence despite the passage of time that had elapsed since the consultations. By contrast, the court considered that the plaintiff had a tendency to be dramatic and to exaggerate.
The court therefore accepted the defendant's evidence that the plaintiff had not shown any signs of additional swelling on 27 February 2001 and concluded that if she had done so, the defendant would have made a note of it. The court noted in this context that the defendant made a notation that the plaintiff had experienced a sudden increase in swelling following her conversation with the defendant's receptionist the following day.
The court took account of the fact that all the medical experts agreed that the infection was rare and difficult to diagnose.
The court was not persuaded that the defendant should have told the plaintiff on 28 February 2001 to consult her GP. The court accepted the defendant's evidence that he recommended that the plaintiff take Amoxycillin knowing that she would need to see a GP to obtain a prescription. In any event, the court did not consider that the outcome for the plaintiff would have been different if he had seen a GP.
The plaintiff therefore failed to establish that the defendant breached his duty of care.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
