Anne Edith Powell v University Hospitals Sussex NHS Foundation Trust
[2023] EWHC 736 (KB)
Alison Winterbotham v Dr Arash Zaker Sharak
21 October 2024
[2024] EWHC 2633 (KB)
High Court
A dentist didn't properly explain the risks of a wisdom tooth extraction to his patient. The patient's nerve was damaged during the procedure. A judge ruled the dentist was at fault because he should have explained a less risky option and the patient would have chosen that or waited. The patient was awarded £265,000 in compensation.
Key Facts
- •Mrs. Winterbotham underwent a lower right wisdom tooth extraction by Dr. Shahrak.
- •During the procedure, her lingual nerve was damaged, causing persistent pain.
- •The Claimant alleges that the risks of the procedure, including the possibility of nerve damage and a lower-risk alternative (coronectomy), were not adequately explained, thus informed consent was not obtained.
- •The Claimant claims £956,523 in damages for clinical negligence.
- •The Defendant denies negligence, arguing that even with additional information, Mrs. Winterbotham would have proceeded with the extraction.
Legal Principles
Bolam test for breach of duty in medical negligence cases: A doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical men.
Bolam v. Friern Hospital Management Committee [1957] 1 WLR 583
Montgomery test for informed consent: Doctors have a duty to take reasonable care to ensure a patient is aware of material risks of injury inherent in treatment, and of any reasonable alternative treatments.
Montgomery v. Lanarkshire Health Board [2015] UKSC 11
Professional practice test for reasonable alternative treatments: The question of what constitutes a reasonable alternative treatment is subject to the professional practice test (Bolam test).
McCulloch v Forth Valley Health Board [2023] UKSC 26
Chester v Afshar principle on causation: If a doctor negligently fails to warn of a material risk, and the injury is the result of that risk, and the patient would have deferred the surgery if warned, causation is established.
Chester v Afshar [2004] UKHL 41
Outcomes
The claim was successful.
The judge found that Dr. Shahrak breached his duty of care by failing to obtain informed consent and that this breach caused Mrs. Winterbotham's injury. The judge found that had Mrs Winterbotham been properly informed of the risks and alternatives, she would have either chosen a coronectomy or deferred the procedure, avoiding the injury.
Damages were awarded to Mrs Winterbotham.
The court assessed general damages for pain and suffering, and also awarded special damages for past and future loss of earnings, past and future medical expenses, and other financial losses. The assessment included detailed analysis of medical and expert evidence regarding Mrs. Winterbotham’s condition, prognosis, and impact on her professional work.