Judgment was handed down in Drabble v Hughes by Recorder Sweeting QC on 23 January 2013. The circumstances of this claim are typical of the claims that junior practitioners are regularly instructed in. Generally, such claims are modest in value (in the context of clinical negligence claims), but still carry significant risk: both parties will have supportive expert evidence, the costs incurred are significant and the risks faced at trial are stark.
In Drabble v Hughes the risk at trial came down to a straightforward factual dispute which, once resolved, determined the remaining issues in the claim.
The Claimant patient (C) sought damages against the Defendant dentist (D) in respect of alleged negligence. C alleged D had failed to monitor a white patch on the lower left side of her mouth which had previously been monitored by her Dental Hospital. The presence of the white patch and the need to monitor it for signs of oral cancers was brought to D’s attention in a referral letter dated 2004.
D examined C in June 2008 and the record card indicated that he performed a full mouth examination. No problems with the white patch were recorded. D examined C on four further occasions in 2008 and 2009 and did not record anything relating to the white patch until April 2009.
Following an examination in April 2009, D made a note regarding the white patch and referred C to an oral surgeon on a non-urgent basis. Following investigation, D underwent surgery to remove a tumour, following which she received radiotherapy and chemotherapy, and she was left with permanent functional problems. It was agreed that an earlier referral would have resulted in less invasive treatment and a better outcome.
C alleged that she had complained to D about changes in the colour and appearance of the patch from June 2008. C argued that failing to make an urgent referral in June 2008 was a breach of duty. D denied that the Claimant had made such complaints and asserted that if such changes in the white patch were evident in June 2008 he would have recorded them and referred the Claimant.
Recorder Sweeting QC dismissed the claim and the content of the dental records were central to the Recorder’s findings of fact.
- D's evidence was summarised as being clear, logical and supported by the contemporaneous dental records.
- On the other hand, C appeared to have conflated at least some of the events of 2008, given the disparity between her account and what was recorded in her dental records.
- If C was correct in her contentions, D had not only failed to observe and record the change in the appearance of the white patch, but had also failed to record C’s complaints that such change had occurred. The improbability of D’s persistent failure to record such matters led to the rejection of C's account and the acceptance of D's.
- The referral in April 2009 and the reasons for it were clearly recorded in the dental records and were logical with the chronology as recalled by D.
- The experts on both sides were agreed that in the absence of such earlier changes or complaints, a nonurgent referral in April 2009 was appropriate.