“I’ve given up” – The true cost of lying smokers in healthcare litigation  

Specialist in restorative dentistry, prosthodontics , endodontics and periodontics with over 20 years as an Expert Witness with a specific interest in dental negligence litigation claims, Toby Talbot voices his concern over deceptive behaviour in dental litigation.

Alarm bells are ringing across the UK, enflamed by a disturbing increase in healthcare litigation. It’s got so bad, that a UK medical or dental practitioner today is now four times more likely to have to defend a claim than a practitioner in New York. If there was an award for ‘Litigation Country of Culture’, we would win it.

The actual sum paid in compensation by the NHS for medical cock-ups in 2015 was over £1.3billion. And who pays for this? We do: the tax payers.

The question I’d like to ask is this: how many of these claims are legitimate? I suggest that an unhealthy proportion of these claims are inappropriate, and are taking a shameful toll on our finances and the reputation of our healthcare workforce.

As a restorative dental specialist of 30 years, I’ve been called on as an expert witness in countless medico- legal cases and have been shocked by some claimants and their lawyers, who callously proceed down the costly route of litigation, knowing full well they have no right to do so. Many even win.

On the face of it

Take this case, for example. If you were to learn that a patient who twice suffered failed surgery to treat severe facial asymmetry was on the cusp of claiming a substantial payout, you would probably feel that some small justice was finally being done for the unfortunate woman. Especially when you learnt that the second, ‘corrective’ surgery actually worsened her original state.

But if you look below the surface as I did, you will see that things are not quite how they first appear. The case went something like this…

Pre-surgery one

The patient went for treatment at a major dental teaching hospital. As standard procedure, the maxillofacial team carried out a full pre-operative assessment, involving photography, three-dimensional scans, orthodontic opinions and a thorough history. The patient was a smoker, so their assessment report raised the importance of her stopping smoking to avoid adverse influence on post-surgical healing. At this point, the patient was reported to have quit smoking.

Surgery one

Surgery went ahead, however the results were not as expected: the patient experienced complete breakdown of bone healing and relapse. This led to even more severe facial asymmetry than before.

Pre-surgery two

You won’t be surprised to learn that at this point the patient said she “lost all confidence” in the surgical team and the hospital. So she was referred to another head and neck surgical team in a district general hospital 30 miles away. They assured her they would start the whole process from scratch, and so proceeded to carry out the usual pre-operative work.

In the meantime, the patient started civil proceedings against the first teaching hospital – and the hospital admitted liability.

Surgery two

And so the patient underwent surgery for the second time. Again her facial bone union broke down and she was left with the same problem. The legal claim would be enormous.

It’s at this point in the story that I was called in. I was specifically to provide an expert opinion on three things: the patient’s current condition, her prognosis, and the future treatment required to make good the second, failed surgical intervention with restorative dentistry.

Act like the flower…

During my consultation with the patient, we get to the question of smoking. (Note that both hospitals required total cessation of smoking before and following surgery before they could proceed). She confirms that she stopped smoking at the times indicated on both hospitals’ records, including the teaching hospital that ended up admitting liability.

…but be the serpent under’t

Unfortunately for this particular patient, I’m a proponent of the ancient Greek physicians’ philosophy, which roughly translates as: “Don’t tell me about the disease in the man, but about the man with the disease”. So after our consultation, I asked her GP for her medical records. They would help me gain a better understanding of the patient’s past health. I’m a firm believer that the journey a patient makes to get to the ‘here and now’ has an inevitable influence on the probable course and outcome of surgery, especially on the chances of recovery. When it comes to making a meaningful prognosis, William Faulkner’s words ring true: “The past is never dead. It’s not even past.”

The GP’s records went more than 30 years into the past. But it was what I discovered in her recent past that would blow her case right out of the water. You can imagine how I felt to read about her counselling and treatment for smoking cessation right up to one moth prior to her seeing me – three years after her first surgery and 18 months after the second attempt.

Her medical records also documented that she “reduced her cigarette consumption to only 10 cigarettes a day”. This was dated one month previous to our meeting and despite the patient delivering an emphatic ‘no’ on three separate occasions when I asked her if she was a smoker. A lie lost in the stinking waft of tobacco that waved in her wake.

Lynchpin versus lynch mob

Naturally, in view of the well-established negative influence of cigarette smoking on soft and hard tissue healing, I included these findings in my report. The smoking issue was to be the lynchpin in the case.

As you will have gathered, this did not go down well with the lynch mob – I mean lawyers. They immediately instructed me to drop all mention of her smoking, as I was “not an expert on smoking”, so should restrict myself wholly to the subject of restorative dentistry.

At the end of the day, I’m the expert, not the lawyer. I held my ground, confident in the established protocol of both hospitals requiring the total cessation of cigarette smoking before and following surgery. The case was dropped.

So you can see why I question the billions of pounds we pay out each year to claimants who could well be putting up a smoke screen, relying on expert witnesses and that particular species of hand-rubbing, lip-licking lawyer prepared to do the bare minimum at best or omit critical evidence at worst.

All the views and opinions expressed by the author are personal but I would welcome public debate on all the issues included.

 

Toby Talbot BDS MSD (Washington) FDS RCS

 

 

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