High Court of Ireland Decisions

1. The Plaintiff became a patient of the Defendant, a Dublin Dentist, in 1996. In October of that year, Dr. Cahill took an impression to make a new crown for a tooth and also provided her with some antibiotics for an infection. She turned to Dr. Cahill on the 21st October. Her gum area was aching and she was experiencing discomfort. Dr. Cahill took an X-ray and told the Plaintiff she had a large cavity in the lower first right molar tooth and that it would be necessary to have the tooth extracted. On the 23rd October, 1996 under sedation, he performed an extraction of the tooth which gives rise to this litigation.

2. The Plaintiff claims that the Defendant was negligent in failing to advert to the fact that he had left a portion of the root of the extracted tooth in the jaw and to take proper steps to remedy that situation.

3. On the 25th October, two days after the extraction, the Plaintiff returned and had sutures removed. Her mouth was swollen and her condition was worse. Her gum was sore. She told Dr. Cahill that her mouth was swollen and sore and she gave a sharp intake of breath which she described as a type of a yelp when the suture was being removed. Dr. Cahill told her that the soreness would heal up by itself. He did not inform her that any portion of root was left in her mouth, and she complains of his failure to deal with the fragment that was left in her mouth. She complains that he should have adverted to her pain and that should have alerted him to the fact that there was a portion of root left in her mouth. He merely told her to come back when she was better and he would fix the crown.

4. At the end of October the Plaintiff went to London to see her mother and when she was in London her glands were sore, she had a throbbing pain going up under her ear and she noticed the tooth next to the extracted one was wobbling. She was in discomfort and she was not sleeping well. Her mother persuaded her to see Dr. David Price and she saw him on the 7th November, approximately two weeks after the extraction. He told her that he could see an infection and he took an X-ray and informed her that the problem was that part of the root was left in her mouth. He told her it would be necessary to remove the piece of the root but he did not want to do this immediately. On the next day, Dr. Price put in a temporary crown and set an appointment for the end of November for the removal of the root.

5. While she was away in London, Ms Keely, the dental nurse of the Defendant, had made an appointment concerning the crown. The Plaintiff’s husband had told her that Mr. Cahill had left a portion of root in her mouth. Ms Hamilton complained that in a conversation with Ms Keely, Ms Keely told her that she was not to let anybody touch her mouth, explaining that Mr. Cahill had an X-ray and that they could see something there that she could not see. Ms Hamilton said “You are making this sound very sinister” and Ms Keely said “ Yes, it is sinister”. This upset the Plaintiff very much as she was worried in case she might have had a tumour in her mouth. However, she was reassured by Dr. Price.

6. On the 26th November she got a letter from Dr. Cahill which read as follows:-

7. The effect of this letter was also frightening because it magnified what the nurse had said. She was frightened by the phrase “the consequences could be dire”.

8. The Plaintiff said that after the treatment by Dr. Price on 26th November she began to feel better. She was unaware that Dr. Price had retained some of the tooth and sent it for analysis. She had to wait ten days for the stitches to be healed and she was feeling tired and said that it was a horrible experience. She was stressed, tired and irritable and could not sleep. It took her about two and a half months until she felt better - this was over the Christmas and she could not pull her weight at work.

9. Dr. David Price, a very experienced dental expert, made a diagnosis that she had pain as a result of a retained root. He had no doubt but that it was a difficult extraction but he was certain of his diagnosis from the X-ray. He had no criticism of the fact that the tooth was broken during the extraction nor did he find fault with part of the root being left in in these circumstances. However, the criticism is that Mr Cahill could have relieved the pain, and he could have told the patient and planned the removal of the root. Forty-eight hours later was not enough time to assess the pain. He should have detected the presence of a fragment of tooth on the X-ray.

10. Dr. Barry Harrington, an experienced dental expert, was also called on behalf of the Plaintiff. He examined the pre-operative X-ray taken by Dr. Cahill and the post-operative X-ray. The post-operative X-ray looked to him as if there was the root of a tooth remaining in the bone. His criticism of Dr. Cahill was because -

11. These matters should have indicated that things were not progressing as well and he should have followed up.

12. Central and essential to the allegation of negligence against the Defendant is the proposition that he should have adverted to a fragment of tooth, which the Plaintiff said was apparent from the x-rays taken by Mr Cahill. Dr Price said that the Defendant should have noticed form the x-ray that a fragment of root of the tooth remained. Dr Harrington stated that the x-ray together with the increase of pain and the fracture of the tooth should have alerted the Defendant to the fact that there was a problem with the extraction. Both Dr Price and Dr Harrington were of the view that the x-ray showed the presence of a portion of root. Their opinion is however, at variance with the view :

13. In his view the sclerotic area in the bone represents a compact bone island which is a common lesion in this are. The pre-operative x-ray taken by Dr Price did not show anything different. It is to be noted that Dr Wilson took precise measurements with a calliper. It is also of relevance, I think, that Dr Price had not the benefit of the pre-operative x-ray taken by Dr Cahill. I am not convinced therefore, that the x-ray disclosed the presence of a portion of a root. It follows therefore, that Dr Cahill was not negligent in failing to advert to such. Even if I am wrong in that conclusion and the opinion of Dr Price and Dr Harrington that a root remained is correct, in my view it could not be said that the Defendant was negligent in failing to advert to the presence of something the existence of which is doubted by experts who have carefully examined the x-ray in the context of their litigation.

14. A sample containing two fragments of hard tissue taken by Dr Price was sent for examination by Dr Mary Toner, Senior Lecturer and Consultant in Oral Pathology in the Dublin Dental School. Her findings were

15. It is common case that cementum itself is not normally removed, and that cementum does not of itself cause a problem that occurred. Both Dr Price and Dr Harrington interpret the findings of Dr Toner as supportive of their view that there was indeed part of a root left which was extracted by Dr Price. Mr Beirne however, for the Defendant took the opposite view and said that the finding of less than 5% cementum was inconsistent with root being there. In my view the findings of Dr Toner are not of assistance, because I am unable in the evidence before to resolve her findings in favour of the Plaintiff or indeed of the Defendant. (I note that in the procedures carried out by Dr Price, he, of necessity, removed some of the material, which may have supported his contention). I find therefore, that the Plaintiff did not fall below the requisite standard of care in his interpretation of the x-rays taken pre and post his operation. In my view that is fatal to the Plaintiff's case. Absent any warning of difficulty provided by the x-ray, the fact that the tooth had fractured (even when coupled with the Plaintiff's symptoms) was not in itself sufficient to alert the Defendant to a potential problem. Indeed, such case has not been made. Furthermore, while I am satisfied that the Plaintiff was in discomfort and even pain at the time when she returned to have the sutures removed, and I accept that she had a sharp intake of breath (which she described as a yelp) at their removal, I am not satisfied that she communicated to Dr Cahill that she was in real pain (apart from the pain attendent on having the suture removed). In my view, if she had communicated her pain to the doctor it is likely that she would have been prescribed painkillers as had been done on a previous occasion when she had complained of pain.

16. While Dr Price faulted the Defendant for removing the sutures so quickly the matter was not pursued in the case and I am not prepared to make a finding of negligence in that regard. Likewise the failure of Dr Cahill to specifically to invite the Plaintiff back in the event of her having problems, as opposed to the invitation to come back to have the crown fitted, cannot in my view constitute negligence. I have no doubt whatsoever that the Plaintiff felt quite at liberty to return.

17. This case is not about the correctness or otherwise of the contention that a piece of root was left in the Plaintiff's jaw, it concerns the negligence of the Defendant.

18. The Plaintiff said that Nurse Keeley told her that they had an x-ray, and that they could see something that she the Plaintiff could not. When she said to Nurse Keeley that she was “ making it sound sinister ” Nurse Keeley replied " yes, it is sinister ". While I have no reason to doubt the Plaintiff was distressed by whatever transpired in her conversation with Nurse Keeley, I am satisfied that there was no intention on the part of Nurse Keeley to frighten or browbeat the witness, in any event she was reassured by Dr Price. Clearly there was a misunderstanding. Likewise, while the Plaintiff was further upset by the letter of Dr Cahill, I do not accept that he intended it to be threatening or frightening. It has to be taken in the context of her refusal to speak with him on the telephone. The letter was unfortunate in that it left itself open to misinterpretation. Such misinterpretation caused distress to the Plaintiff.

19. In view of the failure of the Plaintiff to prove the negligence alleged the Plaintiff's case must be dismissed and the appeal allowed.