Clyde & Co achieves discontinuance one week before Trial in a dental negligence claim - a reminder of CPR 35.12 and the importance of careful drafting of agendas

Acting on behalf of Dental Protection, Clyde & Co represented the interests of its member, a General Dental Practitioner (GDP), regarding the alleged failure to identify an ulcer in the Deceased’s mouth which, the Claimant pleaded, went on to become squamous cell carcinoma and sadly led to the death of the Deceased around a year later. The claim was pursued by one of the Deceased’s relatives. 

One of the key issues in the case was the interpretation of a brief handwritten note within the dental records which the Claimant asserted was indicative of an ulcer being present on that date. The Defendant on the other hand maintained that the note had been misinterpreted and there was no lesion present.

Whilst ultimately factual disputes of this kind are for the court to determine, we would flag this as a reminder that when completing medical records, practitioners should keep in mind that these could be analysed years after the event and it is therefore imperative that these are clear, detailed and unambiguous where possible. 

The Claimant relied upon expert evidence which the Defendant did not consider supported the pleaded allegations of Claim although the Court was not prepared to strike the Claim out as the report contained a ‘catch all’ provision confirming that she agreed with the allegations of negligence in the Particulars of Claim (despite the detail of the report clearly evidencing that the expert was not supportive of the Claim).  

The Claimant, was in our opinion, in real difficulties with proving her Claim following service of the expert evidence and her legal team began trying to plug the gaps at a very late stage of proceedings. 

Joint Meeting – Issues with Agendas

The Joint Meeting in this case was key. Given the strength of the Defence and the flaws in the Claimant’s case, it was essential to ensure that the agendas were limited to the issues in the Claim as clearly ordered in the directions which confirmed that the agenda should be one which ‘directs the experts to the remaining issues relevant to the expert’s discipline, as defined in the Statements of Case’. 

The Claimant’s draft agendas were concerning. The Claimant’s allegations were limited to the alleged failure to investigate a sore on the gumline, refer to secondary care for suspected cancer or to advice the Deceased to return for follow up in August 2018 and on three other dates, to simply note that an ulcer had been present for some months and refer to secondary care for suspected cancer. The Claimant’s agenda sought to introduce further allegations of breach including whether the Deceased ought to have prescribed mouthwash and whether it was reasonable to discharge for follow up in 1 week’s time and further, what action ought to have been taken in respect of keratosis being present (none of which were allegations pleaded within the Particulars of Claim or supported by the Claimant’s expert evidence). The Claimant also sought to introduce questions within the breach agenda which served no purpose following receipt of the causation joint statement which confirmed that such allegations would take their Claim no further. 

Despite trying our best to reach a compromise with the Claimant’s solicitor, we were left with no choice but to stand down the Defendant’s expert until the Claimant agreed to only the agreed questions being discussed. 

The Claimant issued an Application suggesting that the Defendant’s refusal to allow the meeting to proceed on the basis of their agenda was ‘both misguided and beyond their authority’. The Claimant sought the Court’s directions on the questions which remained unagreed, maintaining them to be appropriate questions.  The Claimant sought to increase their budget by £51,570.50 because of the issues with the agendas and Joint Meetings.  

We maintained our position as to the unreasonableness of the Claimant’s questions which did not accord with the direction of the Court as the questions related to matters which were not pleaded and therefore not in issue. CPR 35.12 makes clear that experts may meet to (a) ‘identify and discuss the expert issues in the proceedings’.

Often practitioners can become ‘bogged down’ in semantics on Agendas and it is important to take a step back to consider if the point is material. However, in this instance we considered that it was essential to challenge the Claimant’s proposed questions.  The Defendant had faced what we considered to be an unsupported Claim since 2019 and it would have been wholly inappropriate for the Claimant to be permitted to introduce new allegations at this late stage.   

The Claimant’s Application was dismissed on all aspects and the Defendant was awarded costs.

Joint Statement of GDP experts

Eventually the joint statement of the GDP experts was received and within this the Claimant’s GDP expert had either done a U-turn or, as we suspected, never supported the key allegations of negligence made against the Defendant. 

At this point, the Claimant’s Oncology expert also did a U-turn during his joint meeting with our instructed expert and the Claimant’s ENT expert declared that he did not have any dental training and would therefore defer to our expert on several matters. 

The Claimant made a significantly discounted Part 36 offer to lapse on the day before Trial which we rejected. 

We pressed the Claimant to discontinue the matter in light of the above and outlined that otherwise we would be making submissions regarding strike out within the Defendant Skeleton Argument for Trial. 

Discontinuance 

The matter was proceeding to a 3-day Trial but, with 1 week to go, the Claimant discontinued her claim in full. 

Comment 

The outcome in this case serves as a helpful reminder to practitioners as to the importance of the process of agreeing the Agenda and joint statements phase of the litigation. The parties must heed the directions of the Court and CPR 35. We had doubts about the Claimant’s experts from the outset and by progressing to joint statements, matters only became worse for the Claimant. 

Our advice to practitioners would be to make strike out Applications where reasonable on receipt of the liability evidence but then to take extra care to ensure that the Claimant is not seeking to use the joint statement to adduce new evidence which was missing first time round. 

This was a positive result for our client (Dental Protection) and their member, against whom this claim should never have been brought. 

The case hander at Dental Protection said: "We are committed to protecting and supporting the professional interests of our members, and we are pleased with this positive outcome. The interpretation of the patient notes was key in this case, and it is a reminder of how important quality record keeping is when defending clinical negligence claims."