The defendant, an oral and maxillo-facial surgeon, removed 3 of
the plaintiff's wisdom teeth during day surgery on 7 February
2001. The defendant recommended that the plaintiff take Amoxycillin
250mg 3 times per day while recuperating. During a check up on 13
February 2001, the plaintiff told the defendant that she was in
pain and could not open her mouth properly. The defendant
considered that the plaintiff had bitten the inside of her cheek,
causing ulcers, and gave her mouthwash to treat the problem.
On 20 February 2001, the plaintiff told the defendant during a
consultation that she was still unable to open her mouth. The
defendant advised the plaintiff that she was experiencing
'spasms' in her jaw muscle which she could treat this by
inserting paddle pop sticks into her mouth, increasing at a rate of
one extra stick per day.
The plaintiff alleged that when she returned to the
defendant's practice on 27 February 2001, she had developed
further neck swelling. The defendant's notes did not refer to
any neck swelling. The defendant told the plaintiff that she was
experiencing continued symptoms because she was overusing the
paddle pop sticks.
On 28 February 2001, the plaintiff called the defendant's
rooms and told his receptionist that her neck swelling had
increased significantly. The receptionist relayed this message to
the defendant, who asked the receptionist to instruct the plaintiff
to start taking Amoxycillin. On 2 March 2001, the plaintiff's
mother called the defendant's rooms to advise that the swelling
had again increased. The defendant was absent from his offices and
arranged for a colleague to treat the plaintiff. The plaintiff was
diagnosed with a deep neck space infection.
The plaintiff accepted that the defendant's treatment of her
until 27 February 2001 was appropriate. She alleged that the
defendant failed to diagnose her infection on 27 and 28 February
2001. She further alleged that the defendant should have advised
her to consult her GP on 28 February 2001.
The plaintiff sought damages referable to the negligent
treatment which she alleged caused her to develop psychological and
psychiatric responses which adversely affected her life to a
The court's decision turned on the credibility of both the
plaintiff and defendant. The court found that the defendant
provided careful responses during his examination and endeavoured
to provide accurate evidence despite the passage of time that had
elapsed since the consultations. By contrast, the court considered
that the plaintiff had a tendency to be dramatic and to
The court therefore accepted the defendant's evidence that
the plaintiff had not shown any signs of additional swelling on 27
February 2001 and concluded that if she had done so, the defendant
would have made a note of it. The court noted in this context that
the defendant made a notation that the plaintiff had experienced a
sudden increase in swelling following her conversation with the
defendant's receptionist the following day.
The court took account of the fact that all the medical experts
agreed that the infection was rare and difficult to diagnose.
The court was not persuaded that the defendant should have told
the plaintiff on 28 February 2001 to consult her GP. The court
accepted the defendant's evidence that he recommended that the
plaintiff take Amoxycillin knowing that she would need to see a GP
to obtain a prescription. In any event, the court did not consider
that the outcome for the plaintiff would have been different if he
had seen a GP.
The plaintiff therefore failed to establish that the defendant
breached his duty of care.
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What happens if a patient, particularly a mental health patient,.
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