Dental expert witness vindicated in High Court appeal

A widely reported Third Party Costs Order (TPCO) against Mr Christopher Mercier, a dentist who undertakes expert opinion work, has been overturned by the High Court following an appeal supported by Dental Protection.

Mr Mercier 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.

Dental Protection considered the judgment of Recorder Hudson was wrong both in fact and law in many different respects and sought permission to appeal the decision.

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 allowing the appeal, Mr Justice Sweeting said the Recorder’s conclusion that Mr Mercier stepped outside the boundary of his expertise in giving expert opinion about breach of duty and causation in a personal injury case concerning allegations of negligence against an Oral and Maxillofacial surgeon, was wrong. Mr Justice Sweeting further stated that the Recorder’s views in her judgment were expressed ‘somewhat trenchantly’. It was largely as a result of the language used by the Recorder in her judgment that the TPCO received such widespread media reporting at the time.

Dr Raj Rattan, Dental Director at Dental Protection, said: “Expert witness work is a noble and rewarding duty and there is a growing need for a larger and more diverse dental expert witness pool. It is therefore disappointing to see an expert, who is performing the role to the best of his ability, be unfairly criticised and in such a public way. 

“Supporting the appeal was important in order put the record straight and restore the reputation of our member, as well as to prevent him from having to pay a significant amount of money in costs. As a not-for-profit organisation run for and owned by healthcare professionals, our default position is to always consider how we can help members; our support goes beyond guarding against financial loss. We can be flexible and responsive to changes in the dentolegal environment and assist with unforeseen issues such as this.

“Fortunately, this kind of criticism and treatment of expert witnesses is very rare. However, we would advise clinicians acting as expert witnesses in clinical negligence cases to always ensure they have adequate professional protection, so they can request assistance with issues arising out of medicolegal work.”

END

Notes to the Editor

The conclusion of Mr Justice Sweeting’s judgment was based on the following factors:

1. The Defendant Trust’s application for a 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.
2. 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.
3. 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.
4. 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.

Joseph McCaughley, in-house Litigation Solicitor at MPS, instructed Nadia Whittaker, Counsel at Crown Office Chambers to represent Mr. Mercier at the hearing.

Read the detailed case analysis from Counsel here.