Caroline Bailey v Monica Bijlani & Anor

A dentist must undertake a full, current and patient-specific assessment before recommending implant treatment. Reliance on an earlier scan and undocumented discussions will not establish a defensible treatment plan where the patient’s anatomy presents particular risks. Informed consent requires advice about the actual material risks of the proposed procedure, including increased risks arising from reduced clearance and the available alternatives.

Under the Bolam test, the court assesses the treatment actually provided in the circumstances of the individual patient. A technique may be recognised in some circumstances yet indefensible in the case before the court. Where pain or patient movement means that treatment cannot safely continue, the dentist must stop the procedure. Breaches causing dental injury and consequential medication-related illness attract damages on proof of causation.

The claimant brought a claim for negligent dental treatment carried out by the first defendant at a dental practice operated by Brilliant Dental Limited. The treatment involved removal of a longstanding bridge and attempted replacement with an implant, followed by root-canal treatment to adjacent teeth.

The claimant alleged inadequate assessment and planning, inadequate records, failure to obtain informed consent, inappropriate implant placement, negligent management of pain and complications, and consequential loss, including ischaemic colitis said to have resulted from NSAID use. The second defendant, the credit-card issuer, was sued under Consumer Credit Act 1974.

The issues were breach of duty, causation, the second defendant’s liability, and quantum.

1. Liability. The claimant contracted with Brilliant Dental Limited. The first defendant provided the services on its behalf but independently owed the claimant a duty of care. The contractual relationship also engaged the implied term under Consumer Rights Act 2015 and potential joint and several liability under Consumer Credit Act 1974.
2. The first defendant failed to make a full and proper assessment of the claimant’s suitability for implant treatment. Reliance on a scan taken two years earlier and alleged undocumented discussions did not provide a sound treatment plan. The claimant’s periodontal condition, narrow space and likely limited bone width required careful contemporaneous assessment and appropriate radiographs.
3. The generic consent form did not amount to informed consent. The claimant was not told that the implant would be attempted with only 1 mm clearance on either side, rather than the usual 1.5 mm, or of the resulting increased risks of failure and damage to adjacent teeth.
4. Under the Bolam test, the court assesses the defendant’s conduct in the specific circumstances of the patient. The use of bone mapping by some professionals in some circumstances did not make its use defensible here.
5. Once the claimant was in significant pain and unable to remain still, it was unsafe to continue. The dentist had to stop the procedure. Continuing caused damage to LL2 and substantial pain. The subsequent infection and inadequate root-canal treatment caused or contributed to the loss of LR2.
6. The claimant proved that the dental breaches caused her pain, dental losses, bone damage and remedial treatment. On the expert evidence, the NSAIDs taken because of the dental pain and infection caused ischaemic colitis on the balance of probabilities.
7. The claim succeeded against both defendants on liability. Damages were assessed at £87,663.30. The second defendant was entitled to a 100% indemnity or contribution from the first defendant in respect of damages and, in principle, recoverable costs.