Background
In April 2015, Mr Jones 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.
Mr Jones had a history of problems with his teeth, including abscesses at teeth 26 and 16 that had already had root canal therapy. Mr Jones also had a pre-existing heart condition. He was under the care of a cardiologist having previously undergone atrial heart valve replacement surgery and was prescribed Warfarin to prevent intra-vascular blood clotting. The treatments performed by Dr Braund were invasive and carried risks in terms of the likely profusion of blood and potential risks to Mr Jones’ heart condition.
The implant procedure failed and, notwithstanding a further procedure with Dr Braund in September 2015 to replace the failed implant, Mr Jones continued to experience excruciating pain and profuse bleeding in his mouth and nasal region.
Mr Jones sued Dr Braund for dental negligence. He alleged that Dr Braund breached his duty of care in that:
- It was inappropriate for Dr Braund to offer this procedure to Mr Jones as Mr Jones was an unsuitable candidate;
- Dr Braund failed to inquire or consult other practitioners (including a failure to review his dental history or consult with an endodontist and cardiologist);
- Dr Braund failed to sufficiently advise or inform Mr Jones prior to the April 2015 procedure about the alternative treatment including root canal therapy;
- Dr Braund failed to disclose a material risk to Mr Jones, namely, that his bruxing (teeth grinding) might cause failure of an implant or cracking of the bridge; and
- Dr Braund failed to administer the procedures in April and September 2015 with reasonable care and skill.
Mr Jones alleged that as a result of the Dr Braund’s negligence, he suffered 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 and loss of self-esteem.
Dr Braund did not dispute that he owed Mr Jones a duty of care. He invoked the statutory standard of care under s5O of the Civil Liability Act 2002 (NSW) and argued that the administration of the implant procedure was undertaken in accordance with widely accepted professional practice.
Findings
Mr Jones was successful in his claim of negligence in relation to the administration of the implant procedure in April 2015 (but not the replacement procedure in September 2015) and was awarded damages in the sum of $177,823.12.
In summary, the Court’s key findings were as follows:
- Dr Braund’s s5O defence failed in all respects. Notwithstanding this, the Court did not consider that the offer of this form of treatment to Mr Jones was in breach of duty.
- Mr Jones had not established that it was unreasonable for Dr Braund to omit to review his dental history. However, there was a breach of duty in Dr Braund failing to inquire of the cardiologist and endodontist prior to undertaking the procedure on 30 April 2015. While Dr Braund’s failure to consult the cardiologist contributed to excessive bleeding, swelling and anxiety, the failure to consult with an endodontist did not cause any injury.
- The Court rejected Mr Jones’ failure to advise case against Dr Braund and found that there was no negligent failure on Dr Braund’s part to inform or disclose material risks. The risks had been clearly considered and discussed by Dr Braund. The Court accepted the accuracy and authenticity of Dr Braund’s clinical notes which expressly referred to Mr Jones’ refusal of root canal therapy as an alternative option.
- In relation to whether the treatment was administered with reasonable care and skill, while Dr Braund conceded that there was negligence in failing to secure the bridge during the first procedure in April 2015, the Court was not persuaded that the implant replacement procedure conducted by Dr Braund in September 2015 was conducted negligently. Dr Braund’s negligent treatment resulting in loose threads in April 2015 caused the upper right implant to fail. The negligent treatment also caused the bridge to fall out in the first few days after the April 2015 procedure.
The full decision in Jones v Braund (No. 2) [2020] NSWDC 54 can be read here.
