MDDUS successfully defends dentist in court

MDDUS case demonstrates the importance of contemporaneous records and expert opinion.

06 October, 2025 / indepth
Helen Kaney

Leading UK indemnity provider MDDUS has successfully defended a Scottish dental member at proof (trial), at the All-Scotland Sheriff Personal Injury Court. The case has been reported on social media, and below is a summary of the case from the perspective of MDDUS.

The facts

Patient X initially attended for an examination. Bitewing radiographs and a periapical radiograph were taken.

Caries were noted in a number of teeth but particularly in LL8, which was fully erupted.

Following a failed extraction, it was standard practice to refer the patient to specialist care, who would then assume the duty of care once they saw the patient.

Clinical findings were explained to Patient X and treatment options provided. It was explained that pain in the lower left quadrant was most likely due to LL8, which would require either observation or extraction, as it was considered by Dr C to be unrestorable. Patient X requested that LL8 be extracted and an appointment was arranged.

Dr C took the view that the periapical radiograph taken was sufficient to assess the root morphology of LL8 and its proximity to the inferior dental nerve and that an OPG was not required.

Patient X was informed of the risks of the extraction, which included a risk that the extraction might fail and that Patient X might need to be referred to an oral surgeon.

The extraction was attempted, and the treatment took place over the course of an hour, but unfortunately the crown of LL8 fractured due to the extensive decay. Dr C was unable to section the roots, and it was not possible for the extraction to be completed. A sedative dressing was placed and the patient was referred to an oral surgery practice. Haemostasis was achieved with written and verbal post-operative instructions provided. The patient was asked to contact the practice if any issues developed. This all took place on a Wednesday in mid-October 2022.

Patient X contacted the referral practice the next day, Thursday, and was given an appointment for the following Monday. Patient X had normal post-extraction symptoms on the two days following the attempted extraction (Thursday and Friday) and had Patient X contacted Dr C’s practice he would not have reported any symptoms justifying a follow-up appointment.

However, Patient X’s symptoms worsened over the weekend, but he did not contact Dr C’s practice because it was closed, and he had an appointment at the oral surgery referral practice on Monday. When Patient X was assessed then, he had a firm swelling on the LHS of the mandible and severe trismus.

He was immediately referred to hospital, where he was admitted and diagnosed with a left sublingual abscess and an OPG was taken. Patient X was taken to theatre for incision and drainage and surgical extraction of LL8. He had a 2cm incision of the lower left neck area to drain pus from the sublingual space.

The experts’ views

Patient X had solicitors acting for him who instructed an expert witness. MDDUS also instructed a defence expert. Both experts were experienced general dental practitioners.

In these circumstances, Patient X’s solicitors would instruct an expert opinion on the standard of care provided, specifically to ascertain, based on the Hunter v Hanley test, whether the expert believes that there was a breach of duty. Once breach is established the expert must opine whether that breach caused the injury complained of.

The Hunter v Hanley test is the legal test in Scotland which establishes whether there has been any breach of duty in the standard of clinical care provided. A patient, when trying to establish breach of duty, must establish by way of expert evidence:

That there was a usual and normal practice;
That the defender did not adopt that practice;
That the course the doctor (or dentist) adopted was one that no ordinary professional man of ordinary skill would have taken if he had been acting with ordinary care.

Patient X’s expert was of the opinion that a restoration should have been offered and that Patient X should have been warned of the risks of nerve damage, albeit these initial aspects were not pursued at proof. Patient X’s expert also took the view that an OPG should have been taken and that OPGs are the appropriate view when considering any potentially complex extraction. Had an OPG been taken then Patient X would likely have been referred for the extraction. This would have avoided the complications that arose. It was suggested that Dr C should have had a follow-up review of the extraction site, implying an in-person appointment.

Patient X’s evidence was that his severe symptoms did not start until over the weekend, when Dr C’s practice was closed, and Patient X had not tried to make contact with the practice out of hours. In evidence, Patient X’s expert stated that it was usual and normal practice for a dentist to pro-actively contact patients and check up on them after any invasive procedure. Under cross examination, he agreed that there were no guidelines recommending routine follow-up and that it was not mandatory. He denied that he was advocating a gold standard rather than the provision of reasonable care.

The defender’s expert had sat through all the evidence with permission from the Sheriff. His experience was that radiographs could be a poor predictor of whether an extraction will be easy or difficult. The periapical radiograph taken was appropriate for assessment and the taking of an OPG would not have changed the management plan. There is generally no evidence to support radiographic examination prior to routine extractions.

Not all practices have an OPG machine and the periapical radiograph available was sufficient. He regularly extracted molar teeth without any radiograph at all. Even if there was an established practice of obtaining an OPG prior to the extraction of a third molar, it could not be said that no reasonable dentist exercising ordinary care would have failed to do this (the Hunter v Hanley test). In any event, the OPG subsequently taken in hospital did not disclose any concerns, so this point would have failed on causation.

In terms of post operative care, the defender’s expert said that, following a failed extraction, it was standard practice to refer the patient to specialist care, who would then assume the duty of care once they saw the patient. In the intervening period the original dentist still had a duty of care.

There was no guidance mandating follow-up care after referral. While some patients were called after procedures, this was not standard practice.

Summary

Patient X failed to prove his pleaded case. Even if there had been a usual and normal practice, based on the defender’s expert opinion, it could not be said that the action taken was one that no ordinary dentist acting with ordinary skill and care would have taken. Patient X failed to prove any breach of duty, based on Hunter v Hanley.

Conclusion

Please do remember that such clinical negligence claims turn very much on their own facts and circumstances.

This case demonstrates the importance of contemporaneous records and highlights the need for careful expert opinion, based on the appropriate legal tests.

MDDUS members can be assured that we robustly assess clinical negligence claims and will defend cases at civil trial on behalf of our members where appropriate. We will not be browbeaten by patients’ solicitors into settling defensible claims.

Sheriff’s decision

All witnesses were found to be credible and generally reliable. Although in evidence Dr C said that he could not specifically recall giving post-operative advice, it was his usual and normal practice to do so, and his contemporaneous notes recorded that appropriate safety netting advice was given. Patient X’s written pleadings (drafted by his legal team) regarding the duties breached were opaque.

Some of Patient X’s expert witness oral evidence did not accord with the written pleadings, which is not permitted in the Scottish courts. Patient X’s case was that an inadequate radiographic assessment materially contributed to the failed extraction, but the sheriff did not agree. Patient X’s expert did not identify any usual and normal practice. The selection criteria referred to confirm that there is no mandated standard practice in relation to required radiography for the removal of an LL8.