A Third Party Costs Order against a dentist, who undertakes expert opinion work, has been overturned by the High Court following an appeal.
Dental Protection reported, Mr Christopher Mercier, a dentist who undertakes expert opinion work, acted as an expert witness in a dental negligence claim which went to Trial in December 2020 when Recorder Abigail Hudson heavily questioned his competence and actions in the court and later ordered him to pay over £50K in wasted costs.
Permission to appeal Recorder Hudson’s judgment was granted by Mr Justice Choudhury, who pointed out that some of the language used in Recorder Hudson’s judgment was ‘regrettable’ and ‘unduly harsh’.
In Robinson v Liverpool University Hospitals NHS Trust and Mercier  EWHC 21 (KB), the Defendant Trust’s application for a Third Party Costs Order (TPCO) was predicated on its contention that, as a dentist rather than a dental surgeon, Mr Mercier lacked relevant expertise to be a medico-legal expert in this case which concerned care provided by a dental surgeon.
On proper analysis, however, Mr Mercier did have the requisite expertise to comment on the relevant issues. The treating dental surgeon was also a dentist, as was Mr Webster, the expert instructed by the Trust. Mr Mercier’s opinion regarding breach of duty concerned an examination that was undertaken by the treating dental surgeon prior to taking the Claimant’s consent.
In the circumstances of this case there could be no sensible suggestion that any different standard applied to the examination of the patient’s teeth and the x-rays to confirm which required extraction as between a surgeon dentist and a general practitioner.
In allowing the appeal, Mr Justice Sweeting further said:
- There was nothing illogical or (as the Recorder appeared to suggest) partisan about Mr Mercier’s conclusions and they were supported, in part at least, by the expert instructed by the Trust. The treating surgeon himself acknowledged in evidence an error in failing to identify – prior to taking the Claimant’s consent – that, although two molars were present in the upper left quadrant on the x-ray, only one remained in her mouth.
- The treating surgeon’s failure to carry out a proper examination had an arguable consequence in relation to consent if, absent the error, it would have led to a discussion with the Claimant in relation to the scope of the extraction procedure she was about to have.
- Mr Mercier was qualified to give an opinion in relation to the viability of a tooth and whether its condition was such that it required extraction. Both he and Mr Webster gave their opinions on the point, given that it went directly to causation.
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