Personal injury sheriff grants absolvitor to dentist alleged to have acted negligently in wisdom tooth extraction

About this case:

• Citation:
  [2025] SC EDIN 35
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Walls

Pursuer James Gallagher raised a claim against defender Jamie Clement, employed at a Bupa Dental Care clinic in Glasgow, arguing that he had breached his duty of care to the pursuer in failing to obtain an orthopantomography (OPG) prior to the extraction. He additionally sought damages based on a failure to provide follow up care in the days following the extraction.

The case was heard by Sheriff Alastair Walls at the All-Scotland Sheriff Personal Injury Court, with McPhee, advocate, appearing for the pursuer and Clair, advocate, for the defender.

Obvious red flags

On the recommendation of his GP, the pursuer attended for a dental examination on 21 September 2022 in relation to pain in his lower left jaw. He was examined by the defender, who found that his lower left wisdom tooth (LL8) was decayed and fully erupted. The defender offered the pursuer a choice between keeping his LL8 under review or extraction. He opted to have the tooth extracted.

The pursuer attended the defender’s office for the planned extraction of his LL8 on 12 October 2022. Prior to extraction the defender explained the risks of the procedure and took a periapical radiograph of the tooth to assess the roots. During the extraction operation, the defender encountered difficulties that meant he failed to complete the extraction and had to dress the site with a temporary filling and refer the pursuer to an oral surgeon at the Albion Clinic in Glasgow.

It was the pursuer’s position, and that of his expert witness Dr Kerr, that had an OPG been performed prior to the extraction, the defender would have been aware of the increased potential for complications and referred the pursuer without attempting extraction himself. The defender’s evidence was that the decision to take a periapical radiograph was made to keep radiation doses as low as possible and because it typically provided better images than an OPG. He was shown the OPG taken prior to the pursuer’s surgery and said that, based on that image, he would still have proceeded with extraction, as the tooth was fully erupted and he could see the full crown and structure of the mouth.

For the pursuer it was submitted that there were obvious red flags evident from the radiograph which indicated the LL8 had a foreseeable risk of fracturing on extraction. He had received no communications from the defender within 48 to 72 hours of the failed procedure, which was outside of the normal practice. While determining appropriate radiography was always a matter of clinical judgement, it would have been appropriate to obtain an OPG.

Counsel for the defender submitted that there was no basis to find that there was a normal and usual practice applicable to the circumstances of the pursuer’s LL8. The defender had been entirely credible and well-reasoned in explaining why he would have proceeded even with the benefit of an OPG. On the second point, the pursuer’s evidence was that he did not call the defender because the practice was closed over the weekend and he had by that time arranged an appointment with the Albion Clinic for surgery.

Appropriate safety netting

In his opinion, Sheriff Walls said of the parties’ evidence: “The only meaningful issue of fact where there was conflicting witness evidence was in relation to whether or not the defender had given any post treatment advice to the pursuer. On this question, I preferred the evidence of the defender. His contemporaneous notes record that appropriate safety netting advice was given. He answered questions about this carefully. He was open in saying that he could not specifically remember giving advice to the pursuer over two and half years ago, but that it was his usual practice, and he therefore believed that he had. I consider that this answer added to rather than undermined his credibility.”

He continued: “Dr Kerr gave detailed and careful evidence, but ultimately it appeared to me that he was expressing what he would have done or what he might have expected others to do in the situation the defender found himself in. That is quite different from identifying an ordinary and common practice.”

Considering the existence of a standard practice, the sheriff said: “I have come to the conclusion that the pursuer has failed to a prove the existence of a standard dental practice of taking an OPG prior to the extraction of an LL8 tooth presenting in the same way as that of the pursuer. Even if there was an established practice of the sort claimed by the pursuer, standing the evidence of [the defender’s expert witness] Dr Boyle, it cannot be said the course of action pursued by the defender was one that no ordinarily competent dentist, exercising ordinary skill and care, would have undertaken.”

He concluded: “In relation to the claim based on the failure to obtain an OPG, the LL8 was fully erupted, no root involvement with the dental canal was indicated in in the periapical radiograph, and the defender had removed a considerable number of teeth previously. The evidence of the defender, which I accept, was that even with an OPG, he would have proceeded to attempt an extraction, in all the circumstances of this case. As for the second alleged breach, the pursuer’s evidence was that he called the Albion Clinic because he was worried about when he might get an appointment and he wanted to check if they have received his referral. It was not prompted by his symptoms, which did not develop until over the weekend.”

It was therefore held that the pursuer had failed to prove his case, and decree of absolvitor was granted in favour of the defender.