Jones v Braund - [2020] NSWDC 54 - NSWDC 2020 case summary — Zoe

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Jones v Braund

[2020] NSWDC 54

District Court of NSW|2020-02-28

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Court

District Court of NSW

Decision date

2020-02-28

Source

Original judgment source is linked above.

Judgment (106 paragraphs)

[1]

TABLE OF CONTENTS NATURE OF THE CASE Dr Braund's Defence FACTUAL BACKGROUND NATURE OF THE ALL-ON-4 IMPLANT PROCEDURE Dr Benge's Evidence The defendant's explanation of features of the All-On-4 procedure ISSUES TO BE DETERMINED MR JONES' PRE-EXISTING DENTAL HISTORY Submissions Dr Braund's Submissions Mr Jones' Submissions Determination MR JONES' CONSULTATIONS WITH DR BRAUND Consultation on 22 April 2015 Mr Jones' Account Ms Jones' Account Dr Braund's Account Dr Braund's View of Root Canal Therapy (RCT) Dr Braund's Pre-Consultation Protocol Ms Ward's Account The CBCT Radiograph Clinical Notes Consultation on 24 April 2015 Procedure on 30 April 2015 Mr Jones' Account Ms Jones' Account Dr Braund's Account Follow up through early May 2015 Consultation on 7 July 2015 Procedure on 22 September 2015 Later consultations with other health care professionals Dr Willey's first and second reports Dr Zoud's reports EXPERT EVIDENCE Dr Howe's Opinion Dr Benge's Opinion Dr Nichols' Opinion Dr Willey's opinion The joint report Concurrent evidence Experts' Qualifications Was the All-On-4 procedure widely accepted in Australia? Is the procedure 'widely accepted' for someone with treatable teeth? Were there lesions in teeth 21, 16, 27 & 26? Were RCT and extraction appropriate alternative treatments for Mr Jones? Was 'informed consent' obtained from Mr Jones prior to 30 April 2015? Adequacy of the explanation Desirability of consulting a cardiologist before administering treatment on 30 April Should the surgery have been performed in a hospital-like environment? Was Mr Jones a 'high risk' patient for the procedure? Following up - period between 30 April and 4 May 2015 Causes for implant failure - April 2015 Management of INR prior to removal of implant on 22 September 2015 Causal connection between procedure on 22 September 2015 and subsequent bleeding Consideration Dr Braund's Submissions April 2015 Consultation Treatment on 30 April 2015 Procedure on 22 September 2015 Mr Jones' Submissions Determination General Impressions of the Experts Credit of Lay Witnesses Mr Jones Ms Jones Dr Braund Ms Ward SECTION 5O DEFENCE Statutory Provisions and Relevant Principles Dr Braund's Submissions on Section 5O Mr Jones' Submissions Determination Mr Jones' complaint about the absence of 'informed consent' BREACH OF DUTY Section 5B Risk(s) of Harm Whether it was appropriate to offer this procedure to Mr Jones Failure to inquire or consult other practitioners Omissions to review dental history - April 2015 Omission to consult Dr Davis - April 2015 Failure to consult endodontist - April 2015 Failure to consult cardiologist prior to 22 September 2015 Mr Jones' Negligent Advice Case - April 2015 Principles Mr Jones' submissions Was it reasonable to expect the disclosure of the advice/information or risks identified by Mr Jones? Whether there was a negligent failure to inform or disclose material risks? Whether the treatment was administered with reasonable care and skill 30 April 2015 Procedure September 2015 procedure CAUSATION The non-disclosure/advice case What would Mr Jones have done if advised as he says he should have been advised? The negligent treatment case 30 April 2015 treatment Causes of implant failure Failure to consult Dr Davis - September 2015 Failure to Consult an Endodontist Summary DAMAGES Damage sustained by Mr Jones Medical evidence Non-economic loss Submissions Dr Braund's submissions Mr Jones' submissions Determination Past Out-Of-Pocket Expenses Dr Braund's Submissions on Past Out of Pocket Expenses Determination Future Out Of Pocket Expenses Experts' evidence Submissions on Future Out of Pocket Expenses Dr Braund's submissions Mr Jones' submissions Determination Interest Award for Damages ORDERS

[4]

FACTUAL BACKGROUND

The following part of these reasons concerns essentially uncontentious facts taken from the chronology (Exhibit 1D-1) supplied to the court by Dr Braund. I invited Mr Jones, who was unrepresented at trial, to supplement Dr Braund's chronology if he saw fit. That did not occur.
Mr Jones was born in 1963. At the time of the impugned dental treatment he was 52 years of age. He has been a builder for about 35 years.
In 1999, Mr Jones had undergone atrial heart valve replacement surgery and was prescribed Warfarin to prevent intra-vascular blood clotting.
Mr Jones has experienced financial trouble. In 2009 he was bankrupted. Mr Jones cited the effects of the GFC and a failed property development when he gave evidence. He said he was discharged from bankruptcy in 2012.
On 3 November 2014, one of Mr Jones' teeth (number 11) was given a hopeless prognosis (by Dr Little). Three weeks later, Dr Little removed that tooth.
In January 2015, Mr Jones underwent periodontal access surgery and bone regeneration at tooth 11.
After reading the advertisement about the 'All-on-4' dental implant procedure in the newspaper, on 21 April 2015 Mr Jones attended a consultation with Dr Fadi Yassmin at Bupa Dental Broadway, to discuss that procedure. Mr Jones was informed by Dr Yassmin that he was an 'All-on-4' candidate following certain scans. Mr Jones had abscesses at teeth 26 and 16 that had already had Root Canal Therapy (RCT). He received an estimate of $50,000 for the 'All-on-4' procedure for both the upper and lower jaws.
On 22 April 2015, Mr Jones sent an email to Dr Do-Vuong advising that "I have decided once and for all to have them removed and an All-on-4 procedure applied to the top and bottom set of teeth installed."
Subsequently, on the same day, Mr Jones consulted Dr Braund at the latter's practice in Macquarie Street, Sydney. Dr Braund says that Mr Jones completed a patient information form. Dr Braund completed a patient risk assessment form, took CBCT scans and photographs, and gave a consent form to Mr Jones and a letter setting out the treatment breakdown.
The next day, Mr Jones sent an email to Dr Braund thanking him for the appointment of the prior day and asking questions about the procedure.
On 30 April 2015, Dr Braund performed the 'All-on-4' dental implant procedure on Mr Jones at his Macquarie Street clinic.
On 1 May 2015, Mr Jones advised Dr Braund that he had (no) post-operative pain, although the left side of the bridge was loose and arranged to come in on the following Monday to have the bridge refitted. On the same day, he sent an email to Dr Do-Vuong indicating that the procedure had 'went well' whilst reporting that Dr Braund had identified another 2 areas of infection seeping through the gums.
On 2 May 2015, Mr Jones attended a Hunters Hill clinic and consulted a dentist colleague of Dr Braund.
On 3 May 2015, Mr Jones sent several emails to Dr Braund. Very early in the morning (12:33am) he complained that his denture felt like it was almost coming off and was scared of choking if it came loose. At 12:34pm, he advised Dr Braund that screws had come loose and he sought a full explanation as to his situation.
On 4 May 2015 he consulted with Dr Braund at the latter's Macquarie Street practice. Dr Braund re-attached the prosthetic denture.
On 7 May 2015, Mr Jones rang Dr Braund's Macquarie Street clinic advising that he was having ulcerations. A booking was made for a further appointment.
On 13 May 2015, Mr Jones again consulted Dr Braund regarding the procedure. Dr Braund provided oral hygiene instructions.
On 21 June 2015, Mr Jones sent a further email to Dr Braund at 1:38 PM, requesting the cost for a final denture.
On 24 June 2015, Dr Braund sent an email to Mr Jones recommending a titanium bridge and providing a cost breakdown.
On 5 July 2015, there was a chain of emails between Mr Jones and Dr Braund concerning Mr Jones' problems with his teeth on one side. Mr Jones reported that he could not chew hard and favoured his opposite side; as well as experiencing a dull ache in the implant when he bit down. This had been happening for about 4 weeks. Dr Braund responded that he needed to examine the teeth in his surgery. A further appointment was arranged.
On 7 July 2015, Mr Jones attended a consultation with Dr Braund at the latter's Hunters Hill clinic regarding the procedure.
Further email correspondence was exchanged between Mr Jones and Dr Braund between 8 August and 5 September 2015. Aside from some less than serious banter, the upshot of it was that the problem with the single implant was to be addressed at the time of the reline of the prosthesis.
This occurred on 22 September 2015, when Mr Jones saw Dr Braund at the latter's Balmain clinic, in order to have the right maxillary posterior implant removed and the replaced and the bridge relined. In the afternoon, after having left the clinic (in contentious circumstances), Mr Jones returned to the clinic in the afternoon following the replacement of the implants, complaining of bleeding.
On 29 September 2015, Mr Jones consulted Dr Chowdhury at FDM. Dr Chowdhury provided PSA results and recorded patient notes concerning Mr Jones' recent dental work and noted mild swelling and tenderness.
On 30 September 2015, Mr Jones called Dr Braund's Macquarie Street clinic requesting clinical notes and records and a disc with the CBCT scan.
On 9 October 2015, Mr Jones complained of pain around the right eye and right lateral nose.
On 12 October 2015, Mr Jones consulted Dr Zoud, an oral and maxillofacial surgeon, complaining of tenderness when touching the right lateral nose and Mr Jones reported a constant and dull pain. Dr Zoud did not see any obvious signs of infection.
On 30 October 2015, Dr Zoud wrote a letter to Dr Willey regarding his examination of Mr Jones conducted on 12 October. Dr Zoud said that upon examination, he reviewed Mr Jones' current CBCT and this demonstrated significant thickening of the mucosal lining within the right maxillary sinus. The angulated implant at the 16 site was in close proximity to the right anterior maxillary sinus wall and the apex of the implant just perforated the right lateral nasal wall. He thought it was "possible" that the lump and tenderness in the region of the right alar base of the nose could be related to the apex of the angulated implant at the 16 site.
On 30 November 2015, Mr Zoud again wrote to Dr Willey regarding a discussion with Mr Jones about proposed steps to remove failed angulated implant in the right posterior maxilla and treatment steps.
On 17 December 2015, Mr Jones was admitted to Westmead Hospital where, under a general anaesthetic, Dr Zoud removed the failed dental implant in the right posterior maxilla, curetted the resultant bone cavity at the failed implant site, augmented the right posterior alveolar ridge and assessed the implant at the 22/23 site. He reported upon the procedure in his letter to Dr Willey dated 23 December 2015.
Other matters of significance that Dr Zoud noted were: 1. at the resultant bone cavity, he noted significant reactive bone formation lateral to the maxilla related to the apical portion of the failed angulated implant. After this had been removed, Dr Zoud noted a defect on the lateral aspect of the cavity at the explanted implant site towards the apical 10mm of the implant. At the apex of the cavity at the explanted implant site, there was no bone separating the cavity from the nasal mucosa; and 2. he assessed the implant at the 22/23 site and noted that 3.5mm of the crestal portion of the implant threads were exposed without any bone coverage. Although it was firm, the moderate amount of granulation would require monitoring for possible further loss of the bone.
On 12 May 2016, Dr Zoud and Dr Willey conducted dental implant surgery on Mr Jones at the hospital. In his letter to Dr Willey reporting on the procedure, Dr Zoud noted that he found a discharge from the gingival sulcus associated with the implant at the 12 site and found that the implant at that site had significant granulation tissue. It had a hopeless prognosis. He prepared an osteotomy for a conventional implant at the 12 site in order to replace the failed implant at that site.
On 1 December 2016, Mr Jones sent an email to Dr Braund complaining of negligent treatment.
On 24 January 2017, Mr Jones consulted Dr Howe who conducted an examination.
On 7 December 2017, Mr Jones was admitted to Westmead Hospital for removal of failed zygomatic implants, bilateral sinus lists, three implants and augmentation of maxillary sinus floor. He was discharged from hospital three days later.
On 30 April 2018, Mr Jones commenced this proceeding. He filed a statement of particulars on 29 June 2018.

[6]

Dr Benge's Evidence

An account of this was supplied by Dr Larry Benge, one of the expert witnesses, in his report dated 26 April 2019. Dr Benge has been a dentist for nearly 40 years. Most significantly, he is currently the clinical director of the Malo Clinic, in South Yarra, Victoria. The All-on-4 procedure was pioneered in 1995 by Professor Paulo Malo, from Lisbon in Portugal. Dr Benge received training from Prof Malo over many years and has performed thousands of such procedures since 2007 (and prior to that in 2005 in Victoria). Dr Benge regularly runs teaching courses for dentists, oral surgeons and periodontists in respect to this particular procedure. It emerged in evidence that he taught or trained Dr Braund and Dr Yassmin in this procedure.
Dr Benge was not challenged on his account of the development of this particular procedure and I accept it. What follows is a summary of that part of his report.
Dr Benge indicated that the problem with the then current treatment modalities before this procedure emerged was that many rehabilitation cases required multiple operations because of the need for patients to have enough bone in their mouth prior to the placement of implants and the construction of final teeth. The process could take up to 12 months and the cost was expensive.
Dr Benge explained that what Prof Malo proposed was to utilise the patient's own remaining bone in the anterior region of the maxilla (the upper jaw) or mandible (lower jaw) which enabled implants to be immediately placed after extraction of teeth (if the patient was dentate) or immediately if the patient was edentulous. 'All-on-4' enabled practitioners to immediately load the teeth on day one of the procedure, so long as the insertion torques of the implants were adequate to support the desired torque. The Malo protocol allowed for only acrylic teeth to be placed in the first three months, while osseointegration occurs, and the teeth should not have any cantilevers as that placed more load on the healing implants.
The basic premise of the procedure is that the front implants are parallel and the posterior implants are angulated at 45 degrees due to the anatomical structures. In the maxilla (the upper jaw), the implants (posterior) are angulated to avoid the maxillary sinus and allow for longer implants than parallel placed implants. Angulating the implant enables the practitioner to place it across the alveolar ridge. Multi-unit abutments are the intermediate connection between the implant and provide a platform to screw in the final prosthetic teeth.
The most important characteristic of the implant is that it has a 2mm tip and there are threads on the implant, from the very tip to the head of the implant. It is designed like this so that the small tip allows dentists or dental surgeons to place implants into the cortical bone, either at the crest of the ridge, or the nasal floor, and thus achieve desired torque for the immediate loading of the implants. The threads at the top of the implants provide for more implant stability at initial insertion and this contributes to the ability to achieve immediate loading. The implants are available in the range of 7mm to 25mm in length. This provides more range than any other implant system available today. It is imperative that if the implants are loaded they need the required torque.
When asked to identify the risks of this procedure, Dr Benge noted that dental implants do not have 100% success rates (he instanced dental literature which revealed a success rate of 94-98%) and the expectation is that all patients are warned of the risks prior to surgery so they can provide informed consent. The specific risks that he considered needed to be disclosed to patients were: 1. failure of the implant to integrate into the bone, either due to infection, overload of the fixture, bruising of the bone on implant placement, lack of implant stability at insertion and the implant being then placed in the wrong position (maxillary sinus); 2. bleeding, bruising, although not strictly 'risks', are a product of surgical intervention; and 3. medical history: for all patients over the age of 50, they are required to have preliminary blood tests and ECG screening prior surgery, to determine their suitability for surgery of this kind. For patients with extensive medical issues, practitioners are expected to contact the relevant medical GP and specialists to ask their advice on management. For those patients who present medical risks, that is to be managed in hospital.
The initial bridge is made of acrylic on temporary cylinders during the healing phase of the treatment and is inserted on the same day of surgery. Dr Benge explained that several issues can arise in a patient adapting to the bridge inserted. This can include: speech and phonetics; chewing and the patient feeling a gap between the initial prosthesis and their gum as healing occurs; as well as fracture of the prosthesis. In the last respect, acrylic teeth can fracture, or pop off the bridge, if the inclusion is not correct or if the patient para-functions. Some patients experience tension in the prosthesis after initial insertion; although that dissipates with time.

[7]

The defendant's explanation of features of the All-On-4 procedure

Dr Braund started training in the All-on-4 procedure when he attended a week long course in Melbourne in 2011. He started to perform this procedure in 2011. He received training from Dr Benge.
He recounted that this procedure developed from a recognition of a lack of bone on the posterior (back) part of the upper (and/or lower) jaw; the idea was to use the bone from the nasal floor downward to place an entire set of teeth and by utilising four implants, creating a 'bridge' of 12 teeth (all joined together). The process involved the following steps.
First, all the teeth would be removed from the jaw (upper and/or lower).
Secondly, the implants were to be placed; preferably in the front part of the teeth.
Thirdly, following teeth removal, the maxilla was flattened (by using pliers). Thereafter, the implants would be placed. For this purpose, a drill was used. The insertion of the implants would be controlled by torqueing (the force required to insert the implant to a certain level, being 35mm maximum). Ideally, the implants were to be implanted at the floor of the nose, where the bone was most solid. If it could not be implanted there, then they would be implanted in the zygoma (cheek bone). The screws would be held by connectors (an 'abutment').
Fourthly, an 'impression', or mould of the abutment would be taken and sent to a technician who would prepare the model bridge.
Fifthly, after the patient was sent to the recovery room, and hydrated, the bridge would be screwed into abutments (again through torque control).
Sixthly, the patient's bite would be checked and the patient would be given post-operative instructions. This included wearing a guard at night and regular check-ups with the hygienist.
Arrangements would be made to see the patient 3-6 months later, to reline and remove the gaps under the first bridge that had been created. If the mouth had stabilised a new bridge (of better quality, such as porcelain) might be obtained.
Dr Braund identified that the main criteria for the suitability of All-on-4 procedure was the patient's general medical health; his or her needs, the pattern and distribution of tooth loss, the health of the existing dentition and how much bone was in the sinuses.
In his evidence, Dr Braund gave evidence of a procedure he usually used to assess a patient's suitability to receive this form of treatment. He would check the patient's medical history. He would speak to the patient about his or her objectives and the desired outcome. He would conduct a CBCT. This is a 3D picture of the bones which is used to detect any pathology (contrasting with an OPG, which is like a 2D frontal picture). He would explain to the patient the results of the CBCT.
He said that as part of his general procedure would give patients a 'warts and all' description of the procedure, from start to finish, and explain what could go wrong. The main concerns were swelling, bruising and the sense of feeling 'beaten up' in the head, and a need for painkillers. There were risks: the bridge was thicker than the natural teeth; and patients would have to 're-learn' speech and chewing; there was a 2-5% risk of implant failure. This could occur because of germs or the bite (if the titanium moved). The bridge could fracture.

[8]

ISSUES TO BE DETERMINED

Dr Braund supplied to the Court a schedule of issues. Mr Jones accepted that these issues arose and did not add to them. The issues are: 1. the condition of Mr Jones' dentition prior to seeing Dr Braund; 2. what occurred during Mr Jones' consultations with Dr Braund throughout 2015; 3. whether Dr Braund arranged appropriate investigations into Mr Jones' dentition when assessing Mr Jones; 4. whether Dr Braund provided appropriate information to Mr Jones concerning various dental treatments available for his dental conditions; 5. whether Mr Jones was warned of material risks relating to the All-on-4 procedure; 6. whether Dr Braund acted in a manner that (at the time the service was relevantly provided) was widely accepted in Australia by peer professional opinion as competent professional practice in any or all of the following: 1. the administration of the 'All-on-4' procedure (on 30 April 2015); 2. the performance of a post-operative care (after 30 April 2015); and 3. the administration of the implant replacement (on 22 September 2015), such that Dr Braund does not incur any liability arising from the provision of such service(s) under s 5O of the Civil Liability Act, 1. on the premise that the s 5O defence is not made out: 1. what was the 'risk of harm'; 2. did Dr Braund provide negligent advice to Mr Jones concerning various dental treatments available for his dental conditions; and 3. did Dr Braund provide negligent treatment, 1. what was the cause(s) of implant failures and whether any negligent advice or negligent treatment by Dr Braund caused Mr Jones damage; and 2. on the premise that Dr Braund's liability is established: 1. whether Mr Jones suffered the injuries and disabilities alleged in his pleading and statement of particulars; 2. whether Mr Jones is entitled to damages for non-economic loss; and 3. whether Mr Jones is entitled to damages for past or future out-of-pocket expenses and if so, the quantum of those respective heads of damages.

[9]

MR JONES' PRE-EXISTING DENTAL HISTORY

A potential complicating factor concerning Mr Jones medical and dental treatment generally was his heart condition. Mr Jones was under the care of a cardiologist, Dr Davis, but, since about 2000, was generally was able to monitor his INR level himself. The INR is a measure testing the time a person's blood will clot. (Blood clots can travel through a person's brain and cause a stroke). The higher the INR is, the longer the time that person's blood will take to clot and a person will have an increased risk of bleeding. Mr Jones said that he usually kept his INR within a range of 2.7 to 3.3. The INR is utilised to monitor blood-thinning or anti-clotting medicines, known as anticoagulants. In Mr Jones' case, he utilised Warfarin.
Mr Jones said in evidence that prior to 2000 he suffered an injury playing soccer, which resulted in a tooth being knocked out. He had to have a veneer inserted. He said that he was a regular patient of the Smile Dentistry, in Balmain, for many years and was satisfied with the services he received in that time. This was principally with Dr Danielle Do-Vuong. He explained that for a period of time, he was a beneficiary of the Medicare Chronic Diseases scheme and received substantial dental benefits, until that was taken away in the early part of the last decade. He appreciated that his dental costs thereafter were very substantial.
Under cross-examination, Mr Jones acknowledged the nature and extent of his dental problems from 2010 to 2014. He had had teeth removed in the past for infection. He had also had RCT on parts of his lower jaw and in his upper jaw. It was suggested that he might have had up to 8 or 9 teeth subjected to RCT on his lower jaw but Mr Jones could not recall how many. He thought he had had 2 teeth subject to RCT in his upper jaw. He had had crowns and fillings inserted.
He acknowledged that he had received a recommendation from Dr Do-Vuong for a night splint to try to protect his teeth from bruxing, but did not use it. He accepted that, sometimes, there was some sensitivity in his teeth if a filling failed.
In October 2014, a note indicated that he had drainage sinus from tooth 11.
In December 2014, one of his front teeth was pulled out. Dr Fiona Little diagnosed a vertical root fracture and recommended the removal of tooth 11 and the insertion of an implant retained crown. She offered to remove it, put a bone graft in and provide temporary front teeth. He was quoted the price of $8,500 for this procedure to be performed.
He received the option of treatment for one implant, but the quote for that treatment was for $8,500 simply for one tooth. He thought that was a very expensive sum for one tooth. He contemplated that other implants might be needed for the future.
On 28 January 2015, Mr Jones saw Dr Do-Vuong to adjust the acrylic over the 11 ridge. She advised Mr Jones to take his plate out when eating and sleeping. An implant placement was due for June.
On 18 April 2015, Mr Jones saw Dr Do-Vuong, complaining of having a sore jaw. He indicated that he wanted a splint made. A note by Dr Do-Vuong indicated that he wanted veneers inserted over the lower teeth.
Mr Jones did not dispute that, as at April 2015, he was concerned about the appearance of his lower front teeth and was, moreover, generally concerned about the overall appearance of his teeth. That month, he casually came across a newspaper advertisement promoting the 'All-on-4' procedure. He initially attended a dentistry practice in Broadway to determine whether this form of treatment was appropriate and to inquire about the cost of the procedure. He received a quote from Dr Yassmin on 21 April of $50,000, for the upper and lower jaws. That was too much for him to pay. Dr Yassmin's notes suggested that Mr Jones had had enough with 'patch up' work on his teeth and was concerned about his appearance.
Mr Jones then 'googled' Dr Braund's name as a practitioner with professed expertise in administering this procedure. The advertisement was not in evidence, but Mr Jones recalled that Dr Braund had indicated in the advertisement that he could perform the procedure for $17,000 for all of his teeth.
From the time he saw the advertisement until 30 April 2015, it was suggested that Mr Jones discussed with Dr Do-Vuong the idea of his undertaking the 'All-on-4' procedure. According to his report of it to Dr Howe, Dr Do-Vuong told Mr Jones that she did not support the plan and suggested that he reconsider.
In his email to Dr Do-Vuong dated 22 April 2015, Mr Jones said that he had made a decision "once and for all" to have an All-on-4 procedure. He understood that there were at least three abscesses. He was now resolved to 'bite the bullet' and have the All-on-4 procedure for both his upper and lower jaw.
In the medical information form which he later signed on 22 April 2015, Mr Jones also referred to his seeking a "permanent solution" to the problem with his teeth.
Under cross-examination, Mr Jones recalled Dr Do-Vuong telling him that such procedure was new and that it was usually people older than himself who had failing dentition who had the procedure. She said that she would not undertake the procedure if she was in his position. When he asked why, she said that his teeth could be treated and that she could not foresee future issues. It was put to Mr Jones that Dr Do-Vuong's advice formed part of his decision-making process. He did not undertake any further research although it was put to him that he did consult Dr Yassmin. Mr Jones recalled Dr Yassmin indicating that no future treatment was needed although he was concerned about future infections.
It was put to Mr Jones, but Mr Jones denied, that Dr Yassmin informed him about abscesses in teeth 26 and 16, which had already been the subject of RCT. It was put that Dr Yassmin had provided a rough estimate of the costs of repairing his upper and lower jaws. That was not disputed.
In his summary of Mr Jones' dentition prior to seeing Dr Braund in April 2015, Dr Nichols, the expert dental surgeon for Dr Braund, observed, on the material before him, that while some of Mr Jones' teeth appeared to have apical pathology and leaking margins of restorations, the majority of Mr Jones' teeth appeared normal; albeit extensively restored and with a degree of wear from bruxing. Whilst conservative restoration may have been the most appropriate treatment, there was nothing obvious, apart from Mr Jones' medical history, which would preclude him from the consideration of implants.

[15]

Mr Jones' Account

Before seeing Dr Braund, Mr Jones filled out an in-patient information form, and undertook a CBCT scan. Before any discussion of the All-on-4 procedure there was a discussion about what that form and scan revealed.
The in-patient information form contained provision for Mr Jones to disclose a range of his dental and medical conditions and his current concerns. In evidence Mr Jones was wary about admitting to discussion about those topics which he had indicated represented his current concerns in the form.
Dr Braund explained what he learnt from the scan. Mr Jones could not recall specific discussion as to which of his teeth (27, 16 and 21) which Dr Braund identified as being infected although he accepted that there was a discussion of infection. It was put to Mr Jones, but Mr Jones denied, that he had vehemently indicated to Dr Braund his opposition to further RCT or periodontal care and was very keen to have the All-on-4 procedure.
Mr Jones said in his evidence that when he first consulted Dr Braund on 22 April 2015, he explained that he was looking for an economical option for treatment of his top front teeth. Mr Jones says that Dr Braund provided him with a quote of $25,000-$30,000. He recalled Dr Braund looking at his teeth and explaining the benefits to him of this form of treatment. He said he was interested in learning the possible outcomes. He was not all that specific in his recollection of how Dr Braund responded.
Mr Jones recalled informing Dr Braund that he was taking Warfarin. He recalled Dr Braund telling him that for this form of treatment, he would not be required to lower his INR. He did not recall Dr Braund requesting his medical or dental records.
Mr Jones also recalled that when he asked Dr Braund what the potential downside was of the procedure, Dr Braund told him that there was a 2-5% chance that the implant might fail, but recalled Dr Braund saying that he doubted that this would happen. He says Dr Braund told him that the fixed prosthesis (denture) would feel like his own teeth; and that although he had a bite like a 'bull dog', it would be strong enough and function like normal teeth.

[16]

Ms Jones' Account

Ms Jones, partner of Mr Jones, said she attended the consultation on 22 April 2015.
Ms Jones affirmed an affidavit (20 July 2019). She explained the circumstances in which Mr Jones came to see Dr Braund. Her husband had seen another dentist on 21 April (at Broadway - this appeared to be a reference to Dr Yassmin) after he had received advice from his dentist in Balmain (Dr Do-Vuong) that an implant on his front tooth would cost $8,000 or thereabouts. She recalled Mr Jones not being happy with the outcome of his appointment on 22 21 April. She recalled him showing her a newspaper article about the All-on-4 procedure and Mr Jones indicated that he might inquire, given the information he had received about a tooth implant costing $8,000. She recalled that Mr Jones 'needed another opinion' and accordingly rang on 21 April to book one.
Under cross-examination, she said she could not recall any discussion of his dental history or her husband even filling out such a form. She could not recall his filling out an in-patient information form.
In her affidavit, she recalled Dr Braund remarking that Mr Jones had a 'bite like a bulldog' and saying that due to his bone structure, it was highly unlikely that an implant would fail.
When she gave evidence, she accepted that Mr Jones had received an oral examination. She recalled being shown an x-ray in Dr Braund's room. She recalled him pointing out multiple infections (she could not remember how many).
In her affidavit, she deposed to Dr Braund responding to her request for a quote for the All-on-4 procedure by saying that it would be approximately $17,500 for surgery, with the bridge in 6 months' costing approximately $4,000. To the extent that she recalled that anything which was said about costs, when giving evidence, it was only the likely costs of putting implants in to replace individual teeth. She recalled that this would be $25,000-30,000 in the sort to mid-term.
She could not recall any discussion about RCT. She deposed in her affidavit that Dr Braund did not advise Mr Jones, or them, of any shortcomings of the treatment, apart from possible implant failure. Under cross-examination, she denied that Dr Braund explained that RCT could be performed or her husband responding by saying that he did not want RCT. She added that when she and her husband were sent away after the consultation, they did not receive any pamphlet concerning RCT.
She recalled that Mr Jones spoke of his heart valve condition - Mr Jones was always concerned about his heart and the need to keep his teeth cleaned accordingly - and his disclosure of the name of his cardiologist.
She had a vague recollection of what was discussed about the All-on-4 procedure: Dr Braund said that the bridge would look like normal teeth. She recalled Dr Braund informing them that 'initially' he may have difficulty eating or may get food trapped in his mouth but understood that this was only for the short term. She recalled being told that the risk of implant failure was 2.5%, and that the risk was highly unlikely to materialise because of Mr Jones' bone structure. She recalled the mention of bruising. She recalled Mr Jones asking Dr Braund if he was a suitable candidate for All-on-4 procedure and that Dr Braund said that he was.
Beyond these matters, and other than 'chit chat', Ms Jones had no real recollection of what else was discussed as to the procedure itself.
She recalled that no mention was made about paying any deposit. She recalled that they paid on the day. Ms Jones denied that her husband was presented with a pamphlet containing a treatment plan and consent form.

[17]

Dr Braund's Account

Dr Braund gave evidence in which he said he went through Mr Jones' medical history. He assumed that Mr Jones had completed it. He noted Mr Jones' concerns about excessive bleeding and the fact that he took Warfarin. He recalled Mr Jones telling him that he had a heart valve replacement and telling him that his INR was 3. Penicillin was discussed.
Dr Braund said he discussed a dental information form. Mr Jones was unhappy with his regular treatments and wanted a more permanent solution to problems concerning his teeth, and better-looking teeth. He said he went through with Mr Jones each of the conditions and matters which at that point were concerning him.
Dr Braund said that he arranged for a CBCT scan to occur. After this happened he said he took Mr Jones through computer images (which he said were of 3D). During the trial, a demonstration was provided to the Court, amounting to a reconstruction, through the use of a CD Rom (Exhibit 1D-8). The demonstration was intended to simulate the operation of the CBCT; although Dr Howe later said that what was really depicted was the results of an OPG. During this, Dr Braund recalled informing actual or suspected infections with teeth 27 (which had previously been subject to RCT), 16 (which had also been subject to RCT) and 26. As to tooth 21, it appeared that a nerve had died in that tooth. Tooth 11 was missing. He recalled telling Mr Jones that to save teeth 16 and 27, RCT would need to be re-done and completed in relation to teeth 26 and 21. He recalled saying that RCT for each tooth would be $4,000 each. But, he recalled, Mr Jones said he did not want RCT.
Mr Jones suggested to Dr Braund in cross-examination that the images that were demonstrated to the Court were larger and of better quality than the images he was shown during his consultation. Dr Braund disputed there was any lesser quality but accepted that the images he showed to Mr Jones in April 2015 were more compressed. Mr Jones suggested that only one image [2] was shown to him, but Dr Braund disputed this. Mr Jones also put to Dr Braund that an OPG provided a better indication of the state of a patient's dentition than a CBCT. Dr Braund disputed this, noting that whilst the latter was in 3D, the former was only 2D.

[19]

Dr Braund's Pre-Consultation Protocol

Dr Braund explained his usual administrative practices as at 2015 in respect to how he took clinical notes (usually at the end of the day), maintaining an appointment diary and providing pamphlets describing procedures like the All-on-4 procedure, or answering frequently asked questions. In relation to his consultation with Mr Jones on 22 April 2015, he said he inserted notes into his system, at lunch time, straight away after consulting with him.
There was a discussion about implants. If Mr Jones did not want RCT there would have to be teeth taken out. To replace them would require sinus grafting (moving the bone to the sinus area) to hold an implant. The costs of implants (for 4 teeth) were identified.
Then there was discussion about the costs of bone grafting and implants, amounting to about $25,000. Mr Jones said that this was a lot of money and he could not afford this. Dr Braund reiterated under cross-examination that the $25,000 figure was referable to the option of sinus grafting and implant.
Discussion then turned to the All-on-4 procedure. Dr Braund said he told Mr Jones that he had only 3 teeth, either side, which were good: 22, 23 & 25 on side; 12, 13 & 15 on the other. He outlined the procedure if Mr Jones wanted to go ahead with it. He recalled discussing arrangements for the procedure, Mr Jones' INR (usually taken to 2), which Mr Jones was able to monitor; fasting the night before and the prospect that an anaesthetist might call him.
Dr Braund's method of assessing suitability consisted his tallying a ranking score on an assessment form (Exhibit 1D-4, page 24). He explained that he deployed his experience in evaluating the risk. The point of the ranking was to illuminate 'red flags', i.e. matters which might disqualify a patient from this type of procedure. According to the form, Mr Jones was ranked as being of 'normal' type for suitability: his score of 30 fell within the 'normal' bracket (the other brackets being 'moderate' and 'difficult') for categorisation of risk. The form indicated the types of risk factors which generated this ranking, being:

a risk being assigned for 'appearance', by which Dr Braund meant the patient's cosmetic expectations, which I took to mean the apprehension that Mr Jones might be disappointed in how the end result might look;
Mr Jones self-monitoring of his INR and consumption of Warfarin;
gum disease (periodontitis);
the circumstance that Mr Jones' sinus was towards the front, which required that the implants be closer together. The further apart in distance that the implants were inserted the greater the stability; and
lesions (infection) at teeth 27, 26, 16 & 21 and a tooth missing (11), with tooth decay (tooth 17).

Under cross-examination, Dr Braund identified that Mr Jones' being a bruxer was also a risk factor; this was because a bruxer might be more likely to crack the prosthetic bridge. On the risk assessment form, bruxism was identified as a 'restorative' risk factor; rather than a surgical one. It was put to Dr Braund that someone with Mr Jones' profile was more likely to be in a higher category (being 'severe'). Dr Braund disagreed. Usually, he said, elderly and frail people were in that profile category.
Thereafter there was a discussion about the sorts of things which might affect Mr Jones' suitability to undertake the All-on-4 procedure: this included his taking Warfarin, allergic reaction to penicillin and his own self-management of his INR level. He said that he took Mr Jones through the images from the scan and pointed out to Mr Jones that because of his heart valve, it was important to treat the infection in his mouth. There was also a suspected lesion in tooth 21.
Dr Braund conducted an examination. What he saw did not alter his opinion that Mr Jones was a suitable candidate.
Dr Braund said that he presented the options of further RCT or implants to Mr Jones and explained the prospective costs of those forms of treatment. (A treatment plan (Exhibit 1D-10) was later put in evidence which showed potential costs). He also said that Mr Jones could keep his teeth and manage his infections but that he did not recommend that he adopt this course because of the condition of his teeth. He later explained (in re-examination), when asked why he thought it was appropriate to remove the remaining healthy teeth, he said that Mr Jones would have required a denture or more grafting and the insertion of individual implants. He said that if it was he, he would have chosen grafting and the insertion of individual implants, but Mr Jones made the decision to proceed with the All-on-4 procedure.
Mr Jones denied that each of these forms of treatment were explained to him. Mr Jones also put to Dr Braund that he did not explain the likely costs of performing additional work to address complications. Dr Braund said that he (verbally) promised Mr Jones that he would not charge for the cost of the repair of a bridge (within the first 3 years) or failed implants (without any time limitation). Mr Jones then questioned Dr Braund as to the utility of this promise given the relatively short lifespan of the acrylic bridge.
Dr Braund said that he explained to Mr Jones the basic steps of the All-on-4 procedure, involving: him being placed under sedation, the removal of teeth, some shaving of the bone and, with the use of a drill, fixing the four implants. He then told him how to manage the Warfarin. In response to the latter point, Mr Jones said that he could lower his INR 2 to but that Dr Braund would need to contact Mr Jones' cardiologist, Dr Davis. (Dr Braund denied that Mr Jones said this). Continuing on, Dr Braund explained that after the holes had been drilled, a mould would be taken and a bridge would be put on the four implants.

the explanation for what the All-on-4 procedure entailed;
an indication of what might occur post-surgery ("There will be a degree of bruising (potentially around the eye), swelling and pain.");
indication of the risk of failure ("There is a small possibility of implant failure. In the unlikely event of failure, the failed implant will need to be removed. Efforts will be made to replace this implant, however this may involve additional costs of adjunctive surgical procedures such as sinus lifting, bone grafts and zygomatic (cheek bone) implants. In very rare cases, there may be a need to wear a full denture until the implants osseointegrate (3-6 months).");
indication of specific risks of failure: (relevantly) in the upper jaw, especially if the sinus lift procedure was required, there was a slight risk of chronic sinus problems which may require referral to an ENT specialist for further investigation;
special reference was made to speech ("...you are likely to experience changes to your speech. Following surgery a gap under the bridge is expected to develop and this is likely to trap food and affect speech … it may take several weeks or months for your speech to return to normal."); and
a warranty was given for the initial acrylic bridge for a period of 2 years (though this was, according to Dr Braund, affected by a verbal warranty of 3 years).

In the consent form that was in evidence, Mr Jones' initials were inserted in the form alongside all these indications. His signature appeared under the following wording: "I have read, initialled and understood the points above, been given the opportunity to ask questions and have been given enough time to consider alternative options. I have seen and understood the treatment plan and have had the costs of upgrading explained to me."
Mr Jones recalled reading the pamphlet but could not recall seeing the consent form. The pamphlets contained information relating to expected post-operative symptoms (such as pain, swelling and bruising and a potential for numbness). He accepts that Dr Braund asked him if he had any questions and invited him to contact Dr Braund if he requested any further information.
Mr Jones challenged Dr Braund on the matter of the consent form. I understood Dr Braund's evidence was to the effect that without specific reference to the consent form, he had discussed the risks of the procedure with Mr Jones and then asked him to read the pamphlet, containing the written consent form. So far as he perceived, nothing said by Mr Jones, to this point, indicated any lack of understanding about the procedure. It was put to Dr Braund, but Dr Braund denied, that Mr Jones did not have sufficient information to provide his informed consent.
Mr Jones questioned Dr Braund whether he thought that sufficient information and time was given to Mr Jones to decide whether to go through with this procedure. Dr Braund said he was so satisfied. There was only one consultation because Mr Jones only sought one consultation. Dr Braund accepted that, through administrative oversight, his surgery was in error to require Mr Jones to pay the sum of $2,000 on the day of treatment. This was to cover the anaesthetist's fees. It was not, as Mr Jones had put it, part of the 'hard sell' to Mr Jones regarding the merits of this procedure.
Mr Jones challenged Dr Braund on the latter's estimate that the consultation occurred over 45 minutes. Dr Braund accepted that it might have been longer (noting that the social introductions were not factored into his initial estimate).
Mr Jones challenged Dr Braund generally on what occurred during the consultation. He put to Dr Braund that hardly anything was discussed other than the costs. Dr Braund disagreed with this.

[20]

Ms Ward's Account

Ms Charlotte Ward was called by Dr Braund. In 2015, she was employed by Dr Braund as a dental nurse. Ms Ward described her tasks as supporting Dr Braund with surgical procedures, including the All in 4 procedure (a species of implant treatment), including sterilising implements and assisting with the management of patients. Back in 2015, she recalled assisting Dr Braund to see up to 10 patients a day for consultations and treatments.
Ms Ward said she recalled the consultation with Mr Jones (and Ms Jones) in April 2015.
She set out her recall of the procedure that occurred. This was similar to many other procedures for consultations. She initially greeted Mr Jones. She said Mr Jones was provided with a medical information form which she took, noted and handed to Dr Braund. She said she noted Mr Jones 'cardiac complexity' and, his INR reading and the circumstance that Mr Jones self-managed his INR.
She was involved in setting up the CBCT scan for Mr Jones and the downloading of the scan into the computer system for the practice. She heard Dr Braund explain what was seen from the CBCT images.
She said she saw Dr Braund perform an oral examination. She also said that she saw Dr Braund fill out a risk assessment form.
She heard Dr Braund explain treatment options. These were of two kinds. First, there was what she described as being the 'conventional treatment'. This was an amalgam of individual implants, with bone grafting and RCT. About this, she recalled Mr Jones indicating that he wanted definitive treatment; and did not want multiple hours spent in a dental chair.
She said she heard Dr Braund explain the risks of the All-on-4 procedure. There had been an initial discussion about risks, generally, about implant treatment at the time that the medical history form had been completed. But specifically in relation to the All-on-4 procedure, she said she heard Dr Braund refer to the risk of implant failure. She recalled him saying that if it failed, there would be an easy fix: the implant would come out and there would be a bone graft. She also recalled him saying that there would be no additional costs for a new implant. She recalled him mentioning that Mr Jones would have to have his INR checked; to reduce the risk of bleeding during the procedure, or post-operatively.
Under cross-examination, Ms Ward said it was very possible that Mr Jones received a quote of $25,000-$30,000 for the first of the two forms of treatment suggested - the individual implants with RCT. She accepted that Mr Jones had mentioned that he had a cardiologist, although could not recall Mr Jones identifying the name of the cardiologist.
Ms Ward had no concerns about Mr Jones' capacity to understand what was said. She inferred from what he said that he had engaged other practitioners about other forms of procedure; though she could not recall whether he mentioned that he had received advice about All-on-4 specifically. She could not recall what, if any, questions Mr Jones had asked.
After Mr Jones indicated his intention to proceed with the All-on-4 procedure, a treatment plan was produced. She said that the consent form was not discussed during the consultation, but it was provided to Mr Jones and he was told to take it away and read it and sign it. This was mentioned at the end of the consultation.
In cross-examination, it was suggested that Ms Ward was unconsciously biased towards Dr Braund. She rejected this - she said she was no longer employed by him. Ms Ward informed me that she took no notes or other record of what occurred at the April 2015 consultation. She did not consider that she was merely saying what was conventionally said to patients rather than retaining specific recollection of what she heard said to Mr Jones. Since she became aware of the proceeding, she said she had not spoken to Dr Braund about it.

[27]

Follow up through early May 2015

Mr Jones recalled that the next day, he began to feel lumps in his sum soft tissue and felt that the prosthetic was loose. On the Friday, he tried to see Dr Braund in his Macquarie Street office, but was informed that no appointment was available. He was told he could go to the Hunters Hill surgery on the weekend if he had problems.
Clinical notes dated 1 May 2015 indicated that Mr Jones had no post-operative pain; however the left side on the bridge was loose. Mr Jones was expected to come in the next Monday (4 May 2015). The notes recorded that Mr Jones was "very happy".
However, Mr Jones saw a dentist in Hunters' Hill (whose name he could not recall), who, Mr Jones recalls, told him that he did not have the correct screwdrivers to seat the denture and was unable to contact Dr Braund. The dentist tried to tighten the denture but ultimately left it as it was and prescribed more painkillers. Clinical notes of 2 May 2015 stated that the denture was loose almost straight away and that the tissues were still bleeding and that there was severe swelling. The bridge was not able to be reseated. Whichever practitioner who provided this treatment noted that s/he "hadn't been unable to reseat an All-on-4 like this before".
Ms Jones said in her evidence that she attended with Mr Jones, at the Hunters Hill clinic, but complained that they could not get assistance.
On Sunday 3 May 2015, four days after it had been placed, the whole of the prosthetic fell out and Mr Jones recalled that his implants were sticking out. This caused acute embarrassment to Mr Jones when he attended a work meeting the next morning. That day, Mr Jones sent certain emails to Dr Braund indicating that he was upset about his condition.
He saw Dr Braund next on (Monday) 4 May 2015, when Dr Braund tightened the implants and re-attached the bridge. Mr Jones remained in such pain that he attended his general practitioner. He had prescribed for him the painkiller Endone (a schedule 8 opiate analgesic), a drug usually given to patients who have unsuccessfully tried to relieve pain through other painkillers.
Clinical notes that day confirmed that the denture had come out and a reference was made to a fault with the torque control - the bridge had not been seated.
In cross-examination, Mr Jones questioned Dr Braund whether the delay between the implants inserted on 30 April 2015 and his seeing Dr Braund on 4 May 2015 may have affected the osseointegration. Dr Braund said that no soft tissue growth would have occurred in this time.
Two weeks later, a hygienist instructed him how to floss the teeth. At about this point, he felt that the teeth were healing. A reline appointment for the bridge was booked for 6 months.
Mr Jones did not have communications with Dr Braund again until 24 June 2015 when Dr Braund advises to the cost of an upgraded bridge.

[29]

Procedure on 22 September 2015

The replacement of the 15 implant and relining occurred whilst Mr Jones was under local anaesthetic and Mr Jones was given a Keflex antibiotic 30 minutes prior to the operation.
Clinical notes that day referred to Mr Jones' verbal consent. The implant had reached 2mm into the floor of the nose.
Mr Jones believes that his INR was at 3 at the time of the operation. If that was so, then it would greatly have increased his risk of bleeding and bruising. But Mr Jones said in evidence that he told Dr Braund that it was below 3. As had occurred in April, Dr Braund did not contact Dr Davis, Mr Jones' cardiologist in advance of the procedure.
After the surgery, Mr Jones took the opportunity to return to work. There was a dispute as to whether or not this was contrary to Dr Braund's request that he remained in the waiting room. Mr Jones said that Dr Braund had merely waved him away and requested his return in 4 hours. Dr Braund maintained that he did not want Mr Jones to go and let him know as such.
At any rate, it was understood that a new bridge was being fitted which required a mould being sent off and would necessitate Mr Jones' attendance about four hours later. In the afternoon, he began to bleed profusely. He contacted Dr Braund's rooms and says that he was told to bite down on the gauze that he had been given. But Mr Jones did not have a gauze and had to purchase one from a pharmacy.
The clinical notes record that Mr Jones had rung up, saying he was bleeding with Dr Braund telling him that bleeding was normal and Mr Jones should just bite upon a gauze and, if he did not have a gauze, then to bite on tea bags. The notes recorded Mr Jones complaint that he had not been given any gauze, and that the Panadeine Forte that he had been provided with was not doing anything. They also recorded Mr Jones' complaint that he had only been given antibiotics 5 minutes' before treatment.
When the bridge was placed on with 4 screws Mr Jones felt severe pain. After initially suggesting Nurofen, Mr Jones reminded Dr Braund how this might affect Mr Jones' bleeding time. Instead, Dr Braund advised him taking Panadeine Forte and Nurofen, alternatively, every 4 hours. Dr Braund gave Mr Jones his mobile number and asked Mr Jones to call him if he had any problems.
In cross-examination, Dr Braund was asked whether he regarded Mr Jones as haemorrhaging. Dr Braund that it was normal blood loss.
Mr Jones said that he was in severe pain all that night and his INR raised to 4.1, due to the Nurofen. Consequently his face was swollen and extremely bruised.

[32]

Dr Zoud's reports

Dr Zoud is an oral and maxillofacial surgeon. He is also a senior lecturer at Sydney University. He prepared a series of reports for Mr Jones dated 30 October 2015, 30 November 2015, 23 December 2015, 23 May 2016, 30 January 2017, 12 February 2018, 20 March 2018 and 6 September 2019.
In the first report, Dr Zoud reported to Dr Willey on his examination of Mr Jones on 30 October 2015 and reviewed his current CBCT. This revealed significant thickening of the mucosal lining with the right maxillary sinus; as well as a palpable lump just lateral of the right alar base of the nose. The CBCT revealed that the angulated implant at the 16 site was in close proximity to the right anterior maxillary sinus wall and the apex of the implant appeared to just perforate the right lateral nasal wall. The implants in the 12 and 22 sites both perforated the corresponding nasal floor, but appeared to be deep to the nasal floor lining.
In his second report to Dr Willey, following his examination on 30 November 2015, Dr Zoud commented on a review of a more recent post-operative CBCT (conducted on 9 November). This demonstrated a marked right maxillary sinus oedema. Dr Zoud indicated that he had explained to Mr Jones the procedure for the proposed removal of the failed angulated implant in the right posterior maxilla.
In his next report to Dr Willey dated 23 December 2015, Dr Zoud referred to his removal of the failed dental implant in the right posterior maxilla. He curetted the resultant bone cavity at the failed implant site, augmented the right posterior maxillary alveolar ridge and assessed the implant at the 22/23 site.
On 12 May 2016, Dr Zoud performed dental implant surgery on Mr Jones. He explained the procedure in his report to Dr Willey on 23 May 2016. He reported that Mr Jones was making satisfactory post-operative recovery. There was no paraesthesia in the distribution of the right infraorbital nerve and his post-operative swelling had resolved. His mouth opening had returned to normal.
In his report to Mr Jones dated (apparently erroneously) 30 January 2017, Dr Zoud explained that he would require treatment to address the failing implant in the back part of his right upper jaw. That initially required Dr Willey's removal of the bridge in the upper jaw to facilitate access to the failed implant. He explained that after removing the failed implant, he would look to see whether there was any communication between the right sinus and nose with the hole where the implant was placed. If that was found, he would repair those as required. He would then fill the hole with the implant was placed with a bovine bone grafting material; which would be covered by a porcelain membrane.
A further second surgery would be required to enable Dr Zoud to provide a stable implant at the back of the right jaw; which would bind in the bone of the right cheek bone.
On 7 December 2017, Dr Zoud surgically removed the failed right implant and placed implants (of varying lengths) at the 16, 12 and 26 sites. He explained the procedure to Dr Willey in his report dated 12 February 2018. The procedure also included his injection of Botox to induce weakness in order to assist Mr Jones' bruxing habit.

[33]

Dr Howe's Opinion

Dr Howe's starting point was that Mr Jones' maxillary dentition, as it existed prior to 30 May 2015, was, with the exception of tooth 26, sound and the removal of that tooth and its replacement by the All-on-4 procedure was not warranted. He also assumed that Dr Braund had not discussed other treatment options with Mr Jones. He further assumed that Dr Braund had suggested that he would need to spend between $25,000 and $30,000 to fix his teeth in the future. Assuming these things were true he did not regard that opinion as being justified. Without alternative treatment plans and an outline of the costs of those options, he did not consider that Mr Jones could make any rational decision as regards to his treatment.
Dr Howe opined that there was no literature to support the risk, or lack of risk, from implants. They were prone to peri-implantitis, being an infection similar to gum disease; and which can cause bone loss.
He generally opined that a reasonably competent dentist would have advised Mr Jones to remain with his existing dentition and would not have presented what he understood was an 'economic' decision when Mr Jones did not clearly understand the distinction between his own teeth and an All-on-4 procedure.
He believed that the treatment option that should have been presented was an implant replacement for tooth 11 (as he understood had been recommended by Dr Do-Vuong). He considered that a competent dentist would have advised Mr Jones on the viability of (continuing to) managing his existing dentition in comparison with the risk associated with an All-on-4 procedure.
Dr Howe also criticised Dr Braund for an omission to communicate with Dr Davis, Mr Jones' cardiologist, at any point. He considers that Dr Braund should have consulted him for guidelines as to the withdrawal of anticoagulant therapy and the substitution of other medications and antibiotic cover. He thought that the operation should have been conducted in a hospital so as to facilitate the management of any post-operative complications.
Dr Howe opined that Dr Braund also failed to warn Mr Jones of the intended surgery on 22 September 2015 and operated despite Mr Jones' INR being 3.
Dr Howe opined that Dr Braund failed to place the implant successfully. He considered that the implant at site 26 had failed and foreshadowed that the implant at site 23 is destined to fail in the near future due to its exposed threads.
He opined that Dr Braund failed to gain cross arch support for the implants, so that the denture came loose in the first 24 hours; thereby greatly reducing the chances of successfully integrating due to implant movement.
Where an implant had failed, Dr Howe considered that it should be removed and that either the site should be grafted and allowed to repair and with another implant be placed the same site later on, or placed in another site or, if the site could be cleaned and primary stability obtained, another implant could be placed at that site.
He also considered that Dr Braund failed to organise follow-up appointments and manage Mr Jones post-operative treatment; such as controlling the high bleeding time. This was especially so after the treatment on 22 September 2015.
Leave was granted to Dr Howe to elaborate his reasoning on various matters in his report to which Dr Braund took objection. Each of the other experts then had opportunity during the process of concurrent evidence to respond to this elaboration of Dr Howe's reasoning.
Dr Howe said: 1. his opinion that in April 2015, Dr Braund had failed to place the implants in Mr Jones' jawbone correctly was based on his view that the implants did not engage the floor of the maxilla into the nasal cavity, but passed through (perforated) it by two or three threads. In the absence of any note that Mr Jones' nose was lifted with the implant placed underneath and with grafting, he concluded that they were placed too deeply. Further, there were threads exposed above the bone level at sites 13 and 25, rather than being engaged in the bone. They were not placed adequately into the cortical bone of the maxilla; 2. his opinion that Dr Braund's performing the procedure on 22 September caused a large hematoma resulting in destruction of the bone on the right maxilla (and severe pain) was explicable by the circumstance that the hematoma underneath the periosteum put force on the bone; resulting in inadequate shape of the maxilla for future implant placement and also for cleaning under a prosthesis. There was a large bit in the basilar bone when it healed; 3. his opinion that the implant at site 23 was 'destined' to fail has subsequently been vindicated by events (noting that it was not Dr Braund who placed it, but rather Dr Zoud and Dr Willey). Once threads were exposed (rather than placed in the bone) the implant was susceptible to peri-implantitis (i.e. gum disease); 4. his opinion that Dr Braund had failed to recognise Mr Jones' parafunction ('bruxism') and deal with that and the occlusal loading; and 5. his opinion that the haemorrhaging of Mr Jones after the 22 September 2015 procedure caused substantial bone loss and malformation of soft tissues was explicable to the large hematoma in the area and a comparison between the x-rays taken before and after the procedure indicated destruction of the bone at the rear of the quadrant 1.
The responses of the other experts to this supplementary evidence of Dr Howe were as follows.
On the issue of whether the implants passed through the floor of the maxilla, Dr Benge disagreed with Dr Howe. He thought that there was a great volume of bone. He thought that the nasal lining was lifted without tear with only the tip of the implant sitting 1-3mm into the nasal cavity. This was acceptable. Dr Nichols had no comment. Dr Willey considered that this was a false issue. He was referred to an earlier view he had expressed that the implants looked 'okay' on the x-ray. He later said that there was no way of knowing whether there was a perforation of the soft tissue of the nasal lining or not. He said that when he performed the subsequent surgery, he did see a significant loss of thread. He also said that the literature revealed that contamination from the nasal cavity, if perforated, can lead to implant failure. Dr Willey thought that the real reason for failure of the implants was that his parafunction (bruxism) caused the initial implant to fail. He was also concerned about connecting the implant to the bridge. Increasing the load on the implant may have compromised the tissue which, in turn, caused the second implant to fail. Dr Howe, in reply, said he thought that there were no records to indicate that Dr Braund had lifted the sinus floor.
Dr Braund's notes indicated he had managed to achieve the torque on the implant before getting to the floor of the nose.
On the issue of a hematoma causing destruction to the bone, Dr Benge disagreed with Dr Howe. In his experience hematomas were a collection of blood from soft tissues. Dr Nichols did not comment. Dr Willey did not know of any recognisable connection in the literature between a hematoma and bone loss. In reply, Dr Howe said he could not think of any other reason to attribute the bone loss. This implant failed to integrate.
On the issue of the implants failing at sites 26 and 23, Dr Benge said that it was difficult to see any thread loss by looking at the x-ray. He did not consider that any comment could be made when the implant was placed on the bone initially. Dr Howe said in reply that there were threads showing in the x-rays in May 2015 which he had seen. The experts were eventually shown a photocopy of an x-ray (Exhibit 1D-4, page 60) and they agreed that it was a poor copy. Dr Benge said he thought the only implant not in the bone was at site 15 but he said that no dentist could diagnose from the copy. Dr Howe forcefully added that it was impossible to use photographs as a diagnostic tool (T 432, 448).
On the issue of a failure to recognise Mr Jones' bruxing, Dr Howe was referred to Dr Braund's risk assessment which indicated Dr Braund's assessment of Mr Jones' bruxing as 'moderate'. Dr Howe said that he believed that Dr Braund had not taken any evasive action due the bruxing. Dr Benge said that a dentist could not do anything more than provide a patient with a night splint. Dr Willey said that, although concerned about the bruxing, it would not have influenced the initial surgery in April 2015. He would have been very concerned about it when loading the replacement implant in September. He accepted that the parafunction had got a lot worse subsequent to his commencing to treat him from late September. In reply, Dr Howe said that had Dr Braund obtained Dr Do-Vuong's records, he would have seen that Mr Jones was a heavy bruxer, had been issued a splint and failed to have worn it. That would have rung alarm bells to him.

[35]

Dr Nichols' Opinion

Dr Nichols is a dental surgeon who assessed Mr Jones on 1 February 2019. Dr Nichols prepared two reports, one dated 5 February 2019; the other dated 4 April 2019. The latter report was produced following the provision of further information to Dr Nichols and contained his answers to specific questions.
I will deal with his first report first.
Having reviewed relevant x-rays (before and after the impugned treatment) and Dr Braund's clinical notes, Dr Nichols considered that Mr Jones had been informed about 'conventional' alternative forms of treatment but insisted upon the All-on-4 despite disclosure of the risks. He also noted a comprehensive consent form, outlining those risks, having been signed by Mr Jones. He opined that these notes suggested that he was more than adequately informed and warned of the risks of the proposed treatment.
Dr Nichols responded to Dr Howe's report. He noted that, like himself, Dr Howe does not provide, that is put in place, implants. He inferred that Dr Howe, like himself, regarded Dr Braund as following the accepted protocol. He also inferred Dr Howe's belief that the best treatment may well have been to maintain his existing dentition. He inferred that they both agreed that the best treatment for the future is removal of the existing implants with a further 'All-on-4 procedure' (after bone grafting).
In his second report, Dr Nichols expressed disagreement with Dr Howe's view about failure to inform Mr Jones of possible alternative treatments. He said that Mr Jones admitted to him that both Doctors Do-Vuong and Braund had advised that conservative options were available but that he chose the 'All-on-4' procedure for economic and cosmetic reasons. He noted that Mr Jones also signed a consent form representing his awareness of complications of implant treatments.
Dr Nichols disagreed about the alleged failure to manage Mr Jones' heart condition. He said Mr Jones admitted to himself that he was responsible for contacting his cardiologist but that he had not.
Dr Nichols says that Dr Howe (like himself) is not qualified to opine on whether the implants were adequately placed or whether the initial denture was adequately secured on 30 April 2015.
Dr Nichols says that if there was post-operative bleeding, that that been caused by Mr Jones' failure to contact his cardiologist, an omission which Mr Jones admitted to him.
Dr Nichols also rejected suggestions about failure to arrange follow-up appointments and manage post-operative treatment after April 2015 and September 2015.

[36]

Dr Willey's opinion

I noted that Dr Willey effectively replaced Dr Braund after the procedure in September 2015. In his first report of 3 March 2016, Dr Willey opined that the 'All-on-4' procedure was a "well accepted" alternative to removable dentures for a patient who had either lost all of their teeth or that their existing teeth were considered not treatable (or that the patient might think that the cost of saving the teeth was not justifiable). Dr Willey's clear preference was to save teeth, if possible: a prosthesis was never as good as natural teeth, although they are a better option then dentures.
Dr Willey said that Mr Jones had told him that it was left to him to manage his Warfarin dose. Mr Jones told Dr Willey that his INR was around 2-4 at the time of the surgery. Dr Willey said that it was his usual practice to contact a patient's cardiologist to manage the medication to facilitate surgery without excessive risk to the patient's cardiac health.
Mr Jones relied upon a third report of Dr Willey dated 1 July 2019. Dr Braund objected to the report, on the basis of a lack of independence and non-adherence to the expert witness code of conduct. I determined that lack of independence went to weight; not the admissibility of the report. In relation to the expert witness code, largely because the report was obtained at a point when Mr Jones was unrepresented, and no objection on this ground had been communicated to him until trial (so that he might rectify the omission), I exercised the Court's discretion to admit the report notwithstanding non-adherence to the requirements in the rules (i.e. r 31.23(3) of the Uniform Civil Procedure Rules) on terms that Dr Willey be provided with the expert code before he was called to give evidence. Mr Jones assured me that he fulfilled this requirement. I note that at the time I ruled on Dr Braund's objection, I was not made aware that Dr Willey had provided earlier reports (dated 16 February 2018 and 3 March 2016) in which he had acknowledged and agreed to be bound by the expert code. That subsequent knowledge only fortified my decision to admit his report dated 1 July 2019.
Dr Willey did disclose that he did not regard himself as being independent, having regard to treating Dr Jones previously. He also considered himself a commercial competitor to Dr Braund and Dr Benge. The circumstance that he openly disclosed these matters at the earliest opportunity strengthened my conviction that he could provide expert opinion evidence that might assist the Court.
Dr Willey first responded to Dr Nichols' report (being that of 4 April 2019).
As to the disclosure or risk or provision of information, he accepted that Dr Braund had followed an 'accepted protocol', although he questioned Dr Braund's handling of Mr Jones' medical history. He accepted that some information, both verbal and written, was provided to him regarding the procedure and that the option of retaining some of his upper dentition was disclosed. Dr Willey considered that Mr Jones was fully aware that he should avoid complex dental treatment, but decided to progress his desire for this particular form of treatment regardless.
Dr Willey considered that proper disclosure required the dentist to provide all treatment alternatives in detail (including advantages, disadvantages and risks); providing costs of all treatment options; assess what alternatives were appropriate given the patient's complications and the costs for treatment of such complications. All of this, he considered, should be provided both verbally and in writing and in a way which was specific to the patient's particular circumstances. A patient should be given sufficient time to weigh up positions. The dentist should satisfy himself or herself that the patient fully understands the information given. Consistent with his view that the All-on-4 procedure may have been less desirable than a procedure which would have seen the retention of his natural teeth, Dr Willey considered that there was a heightened responsibility on the part of the dentist to ensure that the patient was properly informed of the risks and to be provided with details of alternative treatments.
Dr Willey also briefly addressed Dr Benge's report. He thought it accurately represented the 'philosophy' behind the All-on-4 procedure. He emphasised his agreement with Dr Benge's view that for patients with extensive medical issues, the relevant medical consultant or specialist should be consulted and the treatment should occur in a hospital environment.
Dr Willey criticised Dr Braund for not contacting Mr Jones' cardiologist directly for advice about the risks of treatment in the light of the medical history. It was not enough for him to leave it to Mr Jones to manage his INR levels himself.
As to whether this form of treatment should have been carried out at all, Dr Willey disagreed with Dr Nichols' assessment of the likely risk of failure. Although the level of 5% risk may be a reasonable estimate, that did not take into account complications and there was a need to take into account Mr Jones' risk factors, including his medical history, social history and Mr Jones' concern about his history of grinding his teeth. Dr Willey considered that this procedure was a reasonable treatment option for someone who had previously lost all their teeth, or whose existing teeth were not treatable. Dr Willey regarded the choice of treatment to have been unreasonable. Later, he indicated that in cases where most of Mr Jones' teeth were treatable, in the sense that they could be saved, it was better to preserve and restore the natural teeth rather than to insert dental implants.

[40]

Was the All-On-4 procedure widely accepted in Australia?

This question is plainly relevant to the section 5O defence raised by Dr Braund. The question was addressed in the procedural context in which the question was raised in the evidence. It arose in the context of more general questioning whether the procedure was actually suitable for Mr Jones' situation (which, it was said, featured 4 teeth with lesions; 6 healthy teeth and some missing teeth). In answer to that, Dr Benge thought the procedure was appropriate. In his initial response to what Dr Benge said, however, Dr Willey said that the All-on-4 procedure was still a "controversial" area, and that many dentists may definitively be against the idea that it should be deployed. In light of that response, I raised the more general question about the procedure's acceptance within the profession of dentistry.
On this question, Dr Willey said that he did not think that the procedure was 'widely accepted'. He said that there were small groups of dentists that used it a lot. He had earlier accepted that he had performed it himself, but said that it was something of a 'compromise' procedure (previously the implanting of 6 to 8 teeth was more usual) and not a 'top-line one' for persons who had not lost all their teeth.
Dr Howe agreed with this, but more emphatically. He described it as a 'saviour' for patients without teeth, or whose teeth were chronically unfavourable. He questioned survey research that spoke of high success rates. Some of that research did not articulate what 'success' actually meant.
Dr Nichols said that there was significant acceptance for the procedure but also accepted that it was controversial and the failure rate was higher.
Unsurprisingly, given his background, Dr Benge was more positive. It has now been performed for 25 years. Many dentists had embraced it and nearly all of them that offered it. There was a group of dentists who regarded it with disfavour; preferring treatment by implant.

[44]

Was 'informed consent' obtained from Mr Jones prior to 30 April 2015?

Mr Jones put to the experts, and they all generally agreed, that in order for Dr Braund to procure his informed consent, Mr Jones should have received: an explanation of the advantages and disadvantages of the procedure, the costs of the procedure and the costs of further remedial treatment arising from possible complications. They all agreed that this should be done verbally and in writing and that the dentist should have ensured that information was understood.
Dr Willey qualified his assent to all of this. He said he thought an informed consent could be obtained without necessarily having to go through all of these steps: it would depend, for example, on how complicated the procedure was. Dr Nichols agreed with this point and said that he understood that Mr Jones had expressed no interest in other treatments. Dr Benge agreed with this last observation.
One matter which emerged from Dr Braund's evidence that he accepted had not been recorded in writing was his offer to provide a new bridge free of charge within 3 years and an unlimited (in time) offer to repair failed implants. Dr Howe considered that such promises should have been in writing.
Dr Benge opined that Dr Braund received sufficient consent. Dr Nichols agreed, and noted that Mr Jones had initialled every paragraph on the consent form.
Dr Howe acknowledged that consent was provided. The question was whether it was 'informed'. He was unable to say that it was without seeing examination notes and the evidentiary trail generally; including record of the discussion of alternative treatments.
Dr Willey was more equivocal. As to the consent form itself, Dr Willey said he would want to know whether Dr Braund had asked Mr Jones whether he had read the form. He would not personally have been satisfied that Mr Jones understood the procedure from reading the information contained in the All-on-4 pamphlet that had been supplied to him. This was a complex procedure and he would have wanted a second appointment.
Doctors Howe and Nichols spoke of their practice of taking the prospective patient through the consent form itself.

[45]

Adequacy of the explanation

There were several inter-related facets to discussion on this topic.
The experts did not regard it as unreasonable for Dr Braund to refer to a 2-5% risk of failure, as per published literature. Dr Willey opined that this was the case even if the chances of success may depend upon a range of things. On this last point, Dr Benge disagreed - a dentist could not give estimates of success based upon other things. Dr Howe considered that the estimated risk of failure might be an under-estimate: it was referable only to the risk of implant failure.
Mr Jones referred the experts to his receiving a verbal estimate of costs of between $25,000 and $30,000 [3] and questioned whether it was reasonable or appropriate to receive the estimate verbally. Doctors Benge and Willey said that they considered that Dr Braund could give a ballpark figure. Dr Howe considered that there were too many potential modalities and would have preferred it if a draft costs estimate was supplied in writing with a follow up discussion.
They all agreed that the costs of the All-on-4 treatment should be in writing. They also thought that the future costs for contingencies should have been in writing.
The experts were asked for their preferences in a patient in Mr Jones' position being shown an OPG or a CBCT as the means to explain to Mr Jones his position. Doctors Willey and Howe would prefer to use both in combination, as they had their own separate advantages. Dr Willey explained that an OPG was helpful for restorative surgery as it provided a general overview. The CBCT was helpful to ascertain the viability of subsisting crowns, bone structure and the width and volume of the bone. Dr Benge preferred the CBCT.
A further aspect was the period of time for the consultation. Dr Benge and Dr Nichols regarded 45 minutes as sufficient. Dr Howe did not have an opinion. The issue for him was whether Mr Jones had adequate time to comprehend what was being said to him; and, also, the state of his dentition: if Mr Jones had no teeth at all, 45 minutes would likely be enough; but if he was fully or almost dentate, it would be desirable to investigate other possibilities. Dr Willey considered that there was a need for more information.

[48]

Was Mr Jones a 'high risk' patient for the procedure?

Neither Dr Benge nor Dr Nichols regarded Mr Jones as being a high risk patient. Dr Howe regarded him as being at risk, but he would have been guided by a cardiologist. Dr Willey spoke in similar terms, saying that there was sufficient risk not to take on the implant without the advice of qualified people.
Put another way, when asked whether there was a good chance of success with the implants, Dr Willey thought that there had been. Drs Benge and Nichols agreed with this.
Dr Howe was more reserved. When asked if Mr Jones had a 95% chance of success, Dr Howe clarified that that figure may be right when it came to the implants, but not the superstructure of the teeth. On this last point, the other experts agreed.
Was the All-on-4 procedure administered on 30 April 2015 appropriate?
The experts disagreed as to whether or not the All-on-4 procedure was appropriate. Dr Benge (who had trained Dr Braund and Dr Yassmin) said that he thought that was. He referenced the earlier teeth that had previously been treated with RCT. He referred, more generally, to Mr Jones being a bruxer and that it was questionable whether root-filled teeth with crowns on them would last for life. He had a guarded prognosis in that regard. Dr Benge explained that if the patient did not want RCT and chose an implant for those teeth that were currently infected, he would have to have sinus grafting and then place implants. He thought that having individual implants placed on grafted bone had a lesser success rate than All-on-4. It would, at any rate, be very expensive to have five or six implants inserted. For someone with Mr Jones' heart condition, that was likely to be traumatic as well. He acknowledged that certain teeth were salvageable but considered that the clinician was faced with a balancing exercise which included the economics of the form of treatment. Even if Mr Jones went ahead with the six implants, because of the position of angulation of the sinuses, that may present difficulties as well. At least with the All-on-4 procedure, the implants were longer than implants for individual teeth. Mr Jones' bone volume was suitable for the All-on-4 procedure.
Dr Howe disagreed. It was critical that there was an absence of a thorough initial examination. He said that there were a range of different kinds of implant treatment, including but not limited to an implant supported bridge, which did not mean that the All-on-4 procedure was an exclusive form of such treatment. It was a significant jump for somebody who still had natural teeth in place. Dr Howe commented upon what was described as the CBTC demonstration in court. He regarded this as in fact being an OPG. He did not consider that there was any evidence that Mr Jones was at risk of endocarditis.
Dr Nichols understood that Mr Jones was aware of differences between different forms of treatment, but had made an economic decision. He thought that Mr Jones should have been dissuaded from the All-on-4 procedure and persuaded to save what teeth he had. This view was similar to Dr Willey, who said that in his view, the All-on-4 procedure was one of last resort, where other treatments had failed: he said that if the idea was put to him, he would have been very discouraging. This viewpoint was also similar to Dr Howe's view. All-on-4 procedures could be viable, but not where a patient was 'dentate'.

[54]

April 2015 Consultation

Dr Braund submitted that at the initial consultation he acted reasonably and consistently in accordance with how he had acted in the past: he went through a medical information form, he arranged for and examined the results of a CBCT scan and conducted an intra-oral examination of Mr Jones' teeth in the dental chair. He discussed relevant options: the need to perform RCT; individual implants and skin grafting, or the All-on-4 procedure. He discussed the suitability of the All-on-4 procedure, and the relevant steps and the risks of implant failure. Dr Braund submitted that his account of what occurred should be preferred to that of Mr Jones: putting aside matters of credit, it was corroborated by Ms Ward and supported by his clinical notes.
He submitted that the experts had, broadly, indicated that so long as adequate information was provided, it was one appropriate option for Dr Braund to offer this procedure to Mr Jones [5] . Counsel for Dr Braund submitted that Dr Willey's evidence as particularly apposite: even where teeth in the maxilla could physically be 'saved' with individual implants, the costs of such individual treatment may not be justifiable overall. Dr Benge spoke to similar effect.
The costs of the treatment itself, and the potential future costs if complications arose, was adequately disclosed. The costs of the treatment were set out in the treatment plan (Exhibit 1D-10). Dr Braund had given a verbal warranty that Mr Jones would not need to pay for a new bridge within 3 years and would not need to pay for any failed implant at all. Although he accepted that he did not advise what the likely costs were if things went wrong, it was unrealistic to suppose that he should do so. They were only estimates. If Dr Braund was required to give a costs estimate as to what might happen in the event that the procedure failed, then, logically, in order to give a fair assessment to Mr Jones, he might also be required to give a costs estimate if the alternative form of treatment failed as well.
In relation to risk disclosure, Dr Braund submitted that Mr Jones had admitted being warned of the risk of implant failure (2-5%) and that the experts regarded this as reasonable.

[57]

Mr Jones' Submissions

Mr Jones disputed that he was in a desperate financial position in April 2015. He said he had been discharged from bankruptcy in 2012 - not 2015. He said he accepted that he wanted Dr Braund to investigate the application of the All-on-4 procedure. He accepted that it offered him the chance to minimize the recurring number of trips for dental work, which consumed much time and personal expense.
Mr Jones refined his argument about breaches of duty by Dr Braund as follows.
First, there was a failure to sufficiently advise or inform Mr Jones prior to the April 2015 procedure about the alternative treatment including RCT. There was also a failure to inform Mr Jones about the prospective costs of complications if the All-on-4 implant procedure. In this regard, Mr Jones disputed that any promise - written or verbal - was given by Dr Braund that Mr Jones would not be left out of pocket, in terms of replacing a bridge (within 3 years) or replacing failed implants (at any time). Any such promise, he said, would be inconsistent with the terms of the treatment plan.
Secondly, there was a failure to disclose a material risk to Mr Jones; namely, that his bruxing might cause failure of an implant or cracking of the bridge. Mr Jones explained that his previous dentist, Dr Do-Vuong had indicated that his bruxing had not affected the veneers or crowns placed on his individual teeth.
Generally, Mr Jones submitted that he received a hard sell, with very little meaningful discussion. He disputed the accuracy or contemporaneity of information contained in the medical in patient information form (which he had signed). He disputed that the risk assessment form completed by Dr Braund reflected discussions he had with him on 22 April 2015.
Secondly, there was a failure, prior to both the April and September 2015 procedures, to consult Dr Davis, his cardiologist. He pointed out, by reference to a report prepared by Dr Zoud (including an account of his contact with Dr Davis), the sorts of things that Dr Davis would have informed Dr Braund had the latter enquired of him. Mr Jones submitted that there is no reason why any different explanation or advice would have been given to Dr Braund in April or September 2015.
This failure to enquire, he said, had slightly different causal consequences. On both occasions, the failure meant that there was an excessive bleeding and swelling. Mr Jones submitted that the failure to consult in April 2015 produced such swelling and blood loss as to cause the damage to the implant that was discovered in July and replaced in September 2015. He submitted that the failure to consult in September 2015 gave rise to hematomas resulting in destruction of the bone on the right maxilla as well as severe pain. I understood him to submit that the destruction of the bone contributed to the failure of the replacement implant inserted in September 2015.

[58]

General Impressions of the Experts

I was generally impressed by all the experts. I do not accept that Dr Willey was materially influenced by unconscious bias in any significant way because he had treated Mr Jones. Rather, like most competent professionals, he was able to form his own objective view. He repeatedly acknowledged the particular circumstances in which he was placed. But although he said he was sympathetic to Mr Jones, he also said he was sympathetic to Dr Braund.
I also do not consider that Dr Benge or Dr Nichols were materially biased in favour of Dr Braund on the basis that they, like Dr Braund, had some common financial interest in Bupa; or that in Dr Benge's case, he had taught Dr Braund in the All-on-4 implant procedure.
I considered all three experts of these were honestly trying to fulfil their paramount duty (which all had understood was) to assist the Court. At different points when they gave evidence, some of the evidence was contrary to the interests of Mr Jones (in Dr Willey's case) and Dr Braund (in the case of Dr Benge and Dr Nichols).
Dr Benge was highly knowledgeable and authoritative in the field of administering All-on-4 procedures. He was obviously a pioneer, at least in Australia, of this form of treatment. I think it is fair to say that he is a fervent enthusiast for the procedure and, to some degree, may have been somewhat less willing to consider the viability or desirability of other forms of treatment. Dr Howe, at the other end of the scale, struck me as being much more conservative in his approach to assessing the general viability of this particular procedure and its suitability to Mr Jones in particular.
I think Dr Howe was also very proper in outlining his approach to such things as obtaining consent and disclosure of risks and information. He placed significant emphasis upon the existence of an evidentiary paper trail; and, without it, he was apt to draw negative inferences against Dr Braund. To take a small example, he appeared to distinguish an inputting note disclosing the content of a consultation on the electronic system of a dentistry practice from writing or having a trail of clinical notes. I found this distinction difficult to accept and thought it might have amounted to a counsel of perfection. Dr Howe was also particularly cautious: he was less willing than the other experts to accept at face value things that he had been told. This was evident, when he expressed opinions that differed from his colleague about what was shown in the images depicted through the demonstration. I also found that Dr Howe showed some reluctance to reconsider his original views in the light of new information which might have conflicted with instructions or assumptions he was asked to make.
Nevertheless, Dr Howe impressed me with his technical proficiency. He was observed at different points during the process of concurrent evidence to take the lead in providing technical explanations, in which the other experts concurred. Where there was any conflict between the experts in terms of what could be ascertained from CBCT or OPG or other examinations of Mr Jones' teeth, I would be inclined to prefer Dr Howe's evidence.
Dr Willey often gave long answers to questions raise of him. That is not a criticism. He struck me as being very deliberative and practical; if not pragmatic. He himself had performed All-on-4 procedures many times, but was highly practised (and highly expert, in view of his qualifications and training) in implant surgery. His answers to questions commonly revealed a willingness to think about what options were appropriate for the particular circumstances of the patient and I thought he was less wedded to any view as to whether the All-on-4 procedure was generally viable or not. I thought also that in his evidence, very often he was willing to accept the limits of his expertise and be more open-minded about consulting other specialists. In all of this, I considered his evidence very persuasive.
His views were those of a very competent practising dentist, and I formed a view that he was no less competent than Doctors Benge or Howe. Generally, I considered that Dr Benge was as strongly attached to his view about the appropriateness of this implant procedure as Dr Howe was strongly attached to his view about how inappropriate it was. Though it is difficult to generalise, I would have been marginally more disposed to place greater weight on Dr Willey's views than Dr Benge and Dr Howe as to the practices of reasonable dentists. A minor qualification to this is where the questioning centred on what occurred on or soon after 22 September 2015, where Dr Willey was involved in remedial work. Where the questioning concerned the remedial work, Dr Willey was even more cautious in giving evidence and I am also cautious in giving weight to events in which he had such involvement.
Dr Nichols often expressed deference to the views of the other experts on matters of clinical practice. I discerned a certain subconscious partiality towards Dr Braund, evidenced sometimes when instead of answering questions raised by Dr Jones, he would throw the question back on Mr Jones by asking him whether he had been warned or advised of something by Dr Braund. This led to him being unnecessarily combative at times, such as when he erroneously suggested to Mr Jones that Dr Do-Vuong had recorded in notes that Mr Jones had an objection to RCT.
By the same token, I note that Dr Nichols in some respects departed from views he expressed, in favour of Dr Braund, from his written reports. The expression of deference and willingness to depart from previously expressed views spoke to Dr Nichols' honesty, but confirmed in my mind that I would generally be inclined to give greater weight to the views of other experts than Dr Nichols where there was disagreement on particular topics.

[59]

Mr Jones

As witness and as advocate in his own cause, Mr Jones presented as a forceful personality. I pay tribute to Mr Jones' industry in presenting his own case. I regret to say, however, that I did not regard Mr Jones as being a reliable witness. During his closing case, in an unsolicited fashion, he disclosed that he had a condition similar to Attention Deficit Hyperactivity Disorder, which might explain (wholly or partly) his lack of reliability; along with the ordinary incidents of witnesses who have a stake in the outcome of the case. Making full allowance for that circumstance, as well as the difficulties which any litigant in person has in presenting their case, particularly in litigation of this kind, when he was cross-examined as a witness, too often he provided, or attempted to provide, non-responsive or evasive answers to questions. An example of this evasiveness was his denial that he discussed with Dr Braund information contained in the in-patient information form - a fairly standard practice for health care professionals before they commence supplying advice as to treatment options.
To some extent he supplied explanations with the intent of advancing his case. An example of this was when, asked whether he had a full choice as to which treatment he wished to take, his answer was that Dr Braund had provided a 'hard sell' to him. It appeared that Mr Jones possessed a sincere belief that Dr Braund was motivated by money, but there was no objective foundation for that belief. The contemporaneous email correspondence before the Court evinced Dr Braund's regret that the surgical procedure was unsuccessful.
Mr Jones also had an associated difficulty in conceding facts which were inconsistent with his case. Examples of this included his initial denial of receiving recommendations Dr Yassmin in 2015 about the All-on-4 procedure and his inability or refusal to accept what he had represented in an email to his general dental practitioner, Dr Do-Vuong on 22 April 2015, on the morning before his consultation with Dr Braund. A comparison between Dr Yassmin's notes in April 2015 and Mr Jones' recollection of the consultation when he gave evidence presented a very different picture of the effect this consultation had on Mr Jones' decision-making.
I generally formed the view during his presentation of the case that Mr Jones has been so enraged by his perceptions of what Dr Braund did to him as to try to find any reason to criticise Dr Braund. Many of the matters he complained of, such as Dr Braund not being accessible in the period from late April 2015 until 4 May 2015, whilst on one view regrettable, could not give rise to any actionable breach of duty.
None of this is to question Mr Jones' honesty. But in the circumstances, I am unable to accept at face value alone Mr Jones' evidence, but must consider his evidence in light of the objective probabilities borne out of the evidence in the case as a whole.

[63]

Statutory Provisions and Relevant Principles

I will consider Dr Braund's s 5O defence first, since if the defendant makes out the defence, it is a complete answer to the plaintiff's claim, without the Court needing to determine liability questions under s 5B (or the causation inquiry in s 5D): South Western Sydney Local District v Gould [2018] NSWCA 69 ('Gould') per Leeming JA (with whom Basten and Meagher JJA agreed) at [123]-[129]. Section 5O effectively displaces the standard of care considered in s 5B.
Section 5O of the Civil Liability Act 2002 (NSW) provides as follows: "5O Standard of care for professionals (1) A person practising a profession ('a professional') does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
In Gould, Leeming JA described the following propositions as being uncontroversial: 1. the defendant bears the onus of establishing the elements of s 5O(1) (namely, he or she was a "professional" and acted in a manner which, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice); 2. it is clear from s 5O(3) that there may be inconsistent bodies of peer professional opinion each of which is widely accepted; 3. it is clear from s 5O(4) that peer professional opinion may be widely accepted without being universally accepted; 4. subject to s 5O(2), when the elements of s 5O(1) are made out, the defendant does not incur a liability in negligence; 5. if the court considers that the opinion is irrational, then the section does not to that extent apply; and 6. the test of "irrational" in s 5O(2) is not otherwise defined, but in light of s 5O(3) and (4) it cannot be sufficient for peer professional opinion to be irrational merely because one peer, or a body of peers, does not share that opinion.
Counsel for Dr Braund referred me to the live debate as to the correctness of the view of the Court of Appeal in McKenna v Hunter & New England Local Health District [2013] NSWCA 476 per Macfarlan JA at [160] (with whom Beazley P - as her Excellency then was - agreed) that it was necessary, in order for a professional to engage s 5O, for the professional to identify the specific 'practice' that was in existence at the time that the service was provided, and then establish that that practice was widely accepted by the profession.
In Sparks v Hobson; Gray v Hobson [2018] NSWCA 29, Basten JA and Simpson JA, in their separate judgments, indicated their preference for the view that it was enough for the professional to establish that the service that was supplied accorded with competent professional practice, being a reference to the practice of the profession (generally). In the case of Simpson JA, however, her Honour considered (at [332]-[333]) that she was bound to apply the view of the Court of Appeal in McKenna. (In Sparks, Macfarlan JA adhered to his views from McKenna: [211]-[215]).
In Gould, Leeming JA (with whom Basten and Meagher JJA agreed) said (at [114]) that it was unnecessary for him to resolve the debate since, on any view, the specific 'practice' of administering a certain antibiotic following a fracture in certain circumstances satisfied the test of McKenna.
The Court's decision in Sparks v Hobson was the subject of an unsuccessful application for special leave to the High Court after the Gould decision was handed down in the Court of Appeal.
Counsel for Dr Braund formally submitted that McKenna is erroneous and that I should follow the construction of s 5O preferred by Basten JA and Simpson JA in Sparks v Hobson; whilst acknowledging that, like Simpson JA in Sparks v Hobson, I might be constrained to follow the test for McKenna. In my view, I am bound by the test fashioned by a majority of the Court of Appeal in McKenna and I therefore propose to apply that test, which posits the requirement for the professional to identify a specific practice which accorded with widely accepted peer professional opinion.
Separately, Counsel for Dr Braund drew my attention to a subsequent decision when Leeming JA sat at first instance, in Zhang v Hardas (No.2) [2018] NSWSC 432 at [171]-[172], where his Honour queried, although did not ultimately need to decide, whether 'peer professional opinion' is to be construed in a way that effectively confined the peers to a sub-set of a relevant profession. The question in that case was whether there was disharmony between those chiropractors who preferred one class of technique and those who preferred a different type of technique. Transposed to the present context, there is a question whether, for the purposes of s 5O, the Court should consider the relevant peers as being those who were positively disposed to All-on-4 procedures and those who did not; or perhaps a little more broadly, those who practised implant surgery and those who did not. His Honour suggested that for the purposes of s 5O, the relevant class of peers is the relevant profession generally. Applying that view, the class of peers here is the dentistry profession generally.

[66]

Determination

Adopting Counsel for Dr Braund's construction of this part of Mr Jones' case, I find that s 5O is not made out in relation to Mr Jones' case of negligent advice or information preceding the treatment in April 2015. The defence does not apply to any liability in a professional arising from his or her giving (of failing to give) a warning, advice or other information in respect of the person of personal injury associated with the provision by the professional of a service: s 5P. In this particular context, the common law, from authorities such as Rogers v Whitaker (1992) 175 CLR 479 remains applicable. The effect of this is, in this particular context, evidence of peer professional opinion, though relevant, is not conclusive in determining the standard of care as to what a patient should be advised or informed.
In relation to the case of negligent treatment, whether that be in late April 2015 and/or in September 2015, Counsel for Dr Braund accepted that s 5O does not have the effect of immunizing a professional against liability in circumstances where the professional acts in a negligent fashion in the administration of a certain medical or dental procedure. The typical case in which the defence arises is where treatment is performed in a certain way, such as by the application of a certain protocol, which may differ from the way that some other professionals may have performed the treatment. The defence posits that so long as the deployment of the protocol by the practitioner accords with widely accepted peer professional opinion, there can be no liability. The defence is not directed to negligence in the mode of performance of a protocol that is ordinarily or routinely deployed by the professional which adheres to widely accepted peer professional practice.
In relation to the April 2015 treatment, Counsel for Dr Braund conceded that the defence did not apply to Dr Braund's inability to place the screws to fix the prosthesis to Mr Jones' upper jaw. I consider that the concession was properly made. There is no suggestion in this case that the manner in which Dr Braund administered the All-on-4 procedure was in any way different to the way that other dental practitioners would have administered this particular treatment. Certainly, none of the experts suggested that a reasonable dental practitioner in Dr Braund's procedure would have performed the procedures in question in a different way. I place the complaint about negligent treatment in allowing loose threads in the same category. Accordingly, I reject the application of the defence to Mr Jones' complaint in limb (c), insofar as it concerns the treatment on April 2015; or, for that matter, in September 2015.
That leaves in question whether the defence applies to the limb of Mr Jones' case concerning whether the All-on-4 procedure should have been offered at all to Mr Jones. This reflects Dr Braund's assessment of the suitability of the procedure to Mr Jones' circumstances. There is a degree of artificiality in distinguishing a case that a procedure should not be offered (unconditionally) at all and a case that the procedure should not have been offered unless it followed from the disclosure of material risk or the adequate provision of advice or information.
Applying the McKenna test, in my opinion, it is not enough to say that, in the abstract, it is widely accepted within the dental community that patients may be offered All-on-4 implant treatments. Adapting what Macfarlan JA said in McKenna at [165] for there to be a 'practice' in offering a certain form of treatment to a patient, the professional would need to demonstrate that there are a number of situations exhibiting sufficient features in common to enable it to be said that there was a practice concerning how the situation in question was to be dealt with by a competent practitioner. In this context, I note that during the course of the experts giving their evidence concurrently, Counsel for Dr Braund commenced questioning on this topic by asking the experts whether they were aware of All-on-4 procedures were performed upon patients "with the same or similar issues" as Mr Jones (T 440.24). That only underscored the difficulty that an appropriate treatment procedure is affected by the particular circumstances of the patient in question.
On the evidence, there were indications as to why the procedure might have been suitable - Mr Jones' suggested rejection of alternatives, the presence of abscesses etc. But strong views were expressed by both Doctors Howe and Willey that the procedure was not designed or intended for, let alone widely accepted by the profession, those patients whose teeth were 'saveable'. Here there was evidence that certain of Mr Jones' teeth were 'saveable'. Even Dr Benge - who was, amongst the experts, the most enthusiastic proponent of this form of treatment - said it was unusual to administer this form of treatment to someone with 11 treatable teeth. Ultimately Dr Benge agreed that for someone with healthy teeth - and it appeared that Mr Jones at least had some healthy teeth in his maxilla - it was not widely accepted (T 498).
I am not persuaded that on the basis of the McKenna standard, the s 5O defence is made out in relation to Dr Braund's offer of the All-on-4 implant procedure to Mr Jones.
This means that the s 5O defence fails in all respects that it is cited.

[72]

Omission to consult Dr Davis - April 2015

In relation to both the 30 April and 22 September 2015 procedures, Mr Jones submitted that Dr Braund negligently failed to inquire of his cardiologist, prior to the procedures, what arrangements should be made to manage his INR and control the flow of blood with a suitable coagulant.
Mr Jones compared Dr Braund's failure to inquire unfavourably to Dr Zoud's subsequent inquiry of Dr Davis before the surgery he administered later in 2015; and submitted that if Dr Braund had raised the same inquiry, it was likely that he would have been told the same thing. Dr Zoud had said (in his report of 20 March 2018) that Dr Davis had informed him of the following steps: 1. Warfarin to be ceased four days prior surgery; 2. when the INR is less than two, then a bridging anticoagulant (in the form of Clexane) at 1m/kg twice daily should be administered; 3. the evening dose of Clexane could be ceased the evening prior to surgery; 4. Warfarin and Clexane could be recommended on the evening of the surgery; and 5. when the INR was greater than 2, Clexane could then be ceased.
Dr Benge distinguished Dr Zoud's operation from the procedure which Dr Braund administered in September 2015, and perhaps it was. But to my mind the difference in type of procedure underscores the desirability of consultation with a specialist.
It is not invariably the case that for a dental procedure, the dentist should consult a patient's cardiologist. This procedure, however, was expected to result in significant blood loss. In my opinion, there was a foreseeable and not insignificant risk that if the INR level was not adequately monitored with an appropriate coagulant, this may have caused or exacerbated injury with possibly serious consequences for Mr Jones' heart condition. As Dr Willey said in his 3 March 2016 report, Mr Jones' history of heart disease put him at significantly greater risk of severe postoperative complications, including the risk of death. For the purposes of s 5B of the Civil Liability Act, the expedient of obtaining contact details for and contacting Mr Jones' cardiologist was not difficult. I found the views of Doctors Howe and Willey (with whom Dr Nichols agreed, in the applicable context of invasive surgery) persuasive in this regard. In particular, I accept Dr Howe's evidence that a reasonably competent dental practitioner in Dr Braund's position would have inquired of the cardiologist of the guidelines for treating the INR, including the choice of coagulant and the status, or significance, of Mr Jones' allergy to penicillin to the choice of antibiotic (T 477, 487). There was no suggestion that it was in any way burdensome for Dr Braund to make such inquiry; relative to the potentially harmful risk.
I do not regard it as sufficient discharge of his duty of care for Dr Braund simply to rely upon Mr Jones' self-monitoring; no matter how experienced or adept Mr Jones represented he was. Nor do I consider that the circumstance that Dr Braund was medically qualified relieved him of the obligation of inquiry.
I find that there was a breach of duty in Dr Braund in failing to inquire of the cardiologist prior to undertaking the procedure on 30 April 2015.

[73]

Failure to consult endodontist - April 2015

All of the experts were asked what a dental practitioner should do in determining whether or not a tooth with an abscess should be removed. All of them agreed with Dr Howe that the practitioner should obtain a specialist opinion to ascertain whether the tooth was restorable (T 501-502, 503). Dr Willey considered that there was a chance that all 4 of the teeth could have been saved and one of them was not all that functional. The experts appeared to agree that the endodontist, who was technically more proficient than a general dentist, could opine on the likely prospects of success of RCT in comparison with an implant procedure.
A significant plank in Dr Braund's defence was that the state of Mr Jones' dentition as at April 2015 required that some treatment be performed and that he was concerned about the connection between abscesses in Mr Jones' teeth and his heart condition. He was right to be concerned. The management of the infection in the teeth was very important in guiding him as to the appropriate treatment options. The context, as indicated, is contemplation of the All-on-4 implant procedure which, I have found, was not widely accepted as being suitable for persons with healthy teeth. The risk of infection, and its consequences, was foreseeable and not insignificant. The expert witnesses were generally of the view that it was preferable for a patient to retain healthy teeth than to have a prosthesis.
In my opinion, the reasonable precaution for a practitioner in Dr Braund's position would, when presented with evidence of the tooth abscesses, have indicated that before expressing a final view to Mr Jones on the suitability of the All-on-4 implant procedure, he would wish to inquire of an endodontist for that specialist's view on what might be done about the infection. In the hypothetical situation, it may be that Mr Jones may have said that he would not have needed this additional information. Mr Jones might for example, have said that he had an unshakeable conviction that he would not want RCT whatever an endodontist said. If that was so, then no further inquiry would be warranted. But at least Dr Braund would have ruled off the possibility that another form of more conservative treatment (than the All-on-4 procedure) was more appropriate to Mr Jones' circumstances and advised him accordingly.
There was no indication that such inquiry would, in the circumstances have been burdensome.
In light of my finding that the use of the procedure was not usual (let alone widely accepted) for patients with treatable teeth, in my opinion, absent an indication from Mr Jones that he did not want inquiry to be made (which I am not persuaded that he did), Dr Braund breached his duty of care in failing to inquire of an endodontist whether, and if so how, the condition of the abscesses in Mr Jones maxilla affected the prospective administration of the All-on-4 implant procedure.

[77]

Was it reasonable to expect the disclosure of the advice/information or risks identified by Mr Jones?

At the advisory level, the precautions against the risk of harm required Dr Braund to provide all information and advice material to Mr Jones to decide whether to undergo the procedure. In this respect, in my view, it would not be correct to say, as I recall it was put (tentatively) to Mr Jones on Dr Braund's behalf, that he was merely seeking an alternative quote to the cost of undergoing the procedure, having been bent upon undertaking it irrespective of what Dr Braund might say to him. Dr Braund understood, correctly in my view, that his obligation was to provide advice about the suitability of the procedure to Mr Jones and that is what he tried to do.
In my view, regard should be had to Mr Jones' forceful personality. Ms Ward gave evidence of her recollection that Mr Jones had led her to think that he had previously received advice from dental practitioners about the All-on-4 procedure. Although this evidence is not specific, I accept the evidence as it is consistent with the contemporaneous clinical notes and email correspondence. Although this particular matter might more accurately viewed as relevant to the topic of causation (see below), where a patient conveys that he has already received advice about the merits of a proposed course of treatment, then this may affect the content of the advice that a different practitioner might provide about the same course of treatment. The same point may be made another way. The evidence does not suggest that when he saw Dr Braund on 22 April 2015, he was particularly inquisitive about other treatments; and that that circumstance was explicable because of the (limited) information about the procedure that he had obtained to date. Rather, as I have noted, I consider that at the time of his consultation with Dr Braund, Mr Jones was strongly predisposed or inclined to undertake the procedure.
It is curious that it was Dr Braund, rather than Dr Do-Vuong, or other dental practitioners who had previously seen Mr Jones, who were asked to carry out this procedure. The correspondence does not show that Mr Jones had any dissatisfaction with her services over a substantial period. Contrary also to his evidence in the Court, the same correspondence reveals that Mr Jones placed significance on what Dr Yassmin had told him. Dr Yassmin had given Mr Jones a "frank" account of his existing difficulties that was not inconsistent or dissimilar to what Dr Braund later told him. I consider that a very strong motivating factor for Mr Jones approaching Dr Braund (although not the only one) was economic: to consult him for the purposes of ascertaining that he could perform the procedure that he was enthusiastic about undertaking in a way that was consistent with Mr Jones' financial position. I hasten to add that I do not suggest that Mr Jones was disposed to have the procedure at all costs, irrespective of whatever recommendation and disclosure of information that Dr Braund might properly give to him. But I do not consider that the professional relationship with Dr Braund as at late April 2015 was particularly close, despite Mr Jones repeated submission that he trusted Dr Braund.
Regard may also be had to the objective evidence which suggested that Mr Jones conveyed to Dr Braund that he was seeking a permanent solution to his teeth; was concerned, overall, about his cosmetic appearance and that he also sought a cost-effective solution to the problem with his dentition. These were indicators of the sorts of matters which were 'material' to Mr Jones.
However, I consider that the effectiveness of the treatment was a material matter to Mr Jones: it could not be a permanent solution to Mr Jones' dentition if, because of the administration of this procedure, there was a risk of failure in any of the implants inserted with the procedure. Mr Jones might as well have borne the time, trauma and cost of individual implants if that was the case.
It was therefore a reasonable precaution for Dr Braund to disclose material risks of the procedure and supply reasonable advice and information about the procedure.

[78]

Whether there was a negligent failure to inform or disclose material risks?

I now address Mr Jones' submissions as to what he says he was not informed or matters he said were not disclosed to him.
I reject Mr Jones argument about the failure to inform/advice about the RCT as an alternative and the costs of complications arising from the All-on-4 procedure. I accept Dr Braund's account, relevantly supported by Ms Ward, that Mr Jones was informed about the RCT and the alternatives to All-on-4 procedure. I note that there was some difference in understanding, as between Dr Braund and Ms Ward, as to whether RCT was integral with the alternative treatment of individual implants or not. However, for present purposes, the point is that RCT treatment was discussed. Given the CBCT scan and oral examination of Mr Jones' teeth (which I found, contrary to Dr Howe's understanding, was conducted) it was a natural and an obvious thing for Dr Braund to refer to the previous failure of RCT in respect to some of the teeth. Further, and perhaps more probatively, I accept the accuracy and authenticity of Dr Braund's clinical notes of 22 April 2015 which expressly referred to Mr Jones' refusal of RCT as an alternative option. I regard Mr Jones' argument about the clinical notes as far-fetched.
In respect to costs of repairing a defective implant or bridge, I find that Dr Braund did provide a verbal warranty that, if it transpired that he would need a replacement implant or bridge, then this, or these services were supplied free of further charge (at least, in the case of the bridge, up to 3 years). That being so, in my view, it was not material for Mr Jones to know of the possible costs of complications arising from any failed administration of the procedure in late April. I also accept Dr Braund's submission that when it comes to any obligation to inform a patient about prospective costs of treatment, absent unusual circumstances (such as specific inquiry by the patient), it would not ordinarily be expected that the medical or dental practitioner would provide an estimate of the costs of complications from the prospective treatment. It is not customary for professionals generally to disclose to clients costs upon the predicate of a failure to provide a service that satisfies a client.
In relation to the risk of bruxing, I am satisfied that the risk of bruxing was clearly considered and discussed by Dr Braund on 22 April 2015. Although bruxing was not referred to in the clinical note, it was referred to as a 'moderate' risk factor in the risk assessment form compiled by Dr Braund. Dr Braund said, and I accept, that he had looked at Mr Jones' teeth and identified wear and tear on the lower anterior. He had crowns and veneers that were intact (T 307.25). Patients with bad bruxism had broken crowns, chips or fractures. Implicitly, Dr Braund suggested, Mr Jones did not fall into that particular category (which I take to be in the 'Severe' category of bruxer, according to the form). But the degree of bruxism was not identified as being 'Mild' (the only other category) either. It seemed to me that Dr Braund had assessed that Mr Jones' bruxism was not an insignificant risk to the viability of the All-on-4 procedure.
A more difficult question to consider is the extent to which the risk of bruxing affecting the implants or bridge was discussed. The clinical notes of the date omitted reference to bruxing. There was no reference to bruxing as a risk factor in the consent form which Mr Jones signed.
I did not recall Dr Braund explaining in his evidence in chief that he discussed bruxism as a risk factor to the failure of the implant procedure; although he did recall informing Mr Jones that the bridge could facture (T 261.20), and that a fracture of the bridge would involve a repair of the bridge by the technician. There was also no contemporaneous written note indicating the risk of bridge fracture. But fracture of the bridge, I consider, would be of less significance to the success of the procedure than the failure of one or more implants.
Despite all of this, under cross-examination, and in an explanation of an email that he sent to Dr Braund on 30 April 2015, Mr Jones accepted that he had discussed his bite in relation to his bruxing and the possible damage it could cause to a prosthetic bridge (T 152.24).
Towards the end of his cross-examination, Dr Braund accepted that the risk of implant failure due to bruxism was higher than he had originally estimated. However, this was an opinion given with the benefit of hindsight (T 386.1). Even if the degree of the risk of failure through bruxism was stated to be higher, I remain still unconvinced that Mr Jones would have changed course.
I reject Mr Jones' non-disclosure/advice case against Dr Braund.

[80]

30 April 2015 Procedure

I have noted the concession of Dr Braund's counsel that there was negligence by Dr Braund in failing to secure the bridge on 30 April 2015.
There was evidence, also, from Dr Howe and Dr Willey regarding loose threads.
Dr Howe located on x-rays on 13 May 2015 exposed threads above the bone level, at sites 13 and 25. If exposed, they could not be cleaned and the implant was exposed to peri-implantitis (a gum disease of the implant, which can cause bone loss and the loosening of an implant) (T 419-420).
Unlike Dr Howe, Dr Benge had not seen the x-ray itself or an OPG to ascertain any thread loss. He acknowledged that it was not desirable to have threads loose, but maintained that the implant would have been put on the bone initially. However, Dr Howe said (T 432.18) that just because they were placed on the bone does not mean that they were placed all the way in the bone.
Counsel for Dr Braund later sought to negate this evidence by reproducing an image of the 13 May 2015 OPG on a computer, however Dr Howe argued - without refutation by the other expert witnesses - that a digital image from an OPG was not diagnostic (T 448).
Neither Dr Benge nor Dr Nichols took the opportunity in their reports to refute Dr Howe's evidence about the exposure of the threads. Indeed, as I noted at paragraph 51 above, Dr Benge acknowledged the threads were intended to provide implant stability.
An email that Mr Jones sent to Dr Willey in May 2016 acknowledged Dr Willey's opinion that the implants performed by Dr Braund were "well done". In his report of 3 March 2016, in response to a specific question raise of him as to why the implant failed, he did not provide an answer that was fully responsive to the question. Although he had said that from his observation of an x-ray the implants looked ok, that was not definitive and Dr Willey said that when he was involved, with Dr Zoud, with the surgery subsequent to September 2015, he observed a significant loss of thread: there was no bone around the top two or three heads (T 430). Pressed in cross-examination as to whether that subsequent observation could indicate exposure of the threads back in late March, Dr Willey observed that the implant which failed was actually the one that had the most exposed threads.
Dr Zoud, in one of his reports (23 December 2015), also observed the 22/23 site and noted that 3.5mm of the crestal portion of the implant threads were exposed without any bone coverage. This was consistent with the evidence of Dr Willey when the latter saw Mr Jones; and what Dr Howe saw on the x-rays of 13 May 2015.
There was no explanation from Dr Braund for the presence of these threads. I accept Dr Howe's evidence that they were not placed adequately into the cortical bone of the maxilla. For the purposes of s 5B, reasonable practices required the threads to be fully placed into the bone of the maxilla. In my view their presence bespeaks negligence in the implementation of the implant in April 2015. No other explanation was supplied by Dr Braund that suggested that the threads were loose because of circumstances beyond his control.

[83]

What would Mr Jones have done if advised as he says he should have been advised?

In case I am wrong in finding no negligence against Dr Braund because of what he omitted to disclose to Mr Jones, by way of information, advice or because of the omission to disclose a material risk, I will now consider whether causation would have been made out. For this purpose I will address the advice or information and material risks which Mr Jones argued should have been disclosed to him.
In Wallace v Kam (2013) 250 CLR 375, the plurality in the High Court (at [9]-[10]) reviewed the common law of causation in the context of 'failure to inform/warn' cases and noted that the damage suffered by the patient that the common law makes compensable is not impairment of the patient's right to choose whether to have the procedure or not. Nor is the compensable damage exposure of the patient to an undisclosed risk. The compensable damage is limited to the occurrence and consequences of physical injury sustained by the patient as a result of the medical treatment that is carried out following the making, by the patient, of a choice to undergo the treatment. For particular physical injury sustained by a patient as a result of medical treatment the patient has chosen to have carried out to be compensable, it must be determined to have been caused by the particular failure of the medical practitioner to exercise reasonable care and skill to warn the patient of one or more material risks inherent in that treatment. The High Court went on to emphasise how the separate elements in s 5D of the Civil Liability Act had developed from the common law: factual causation was a question of historical fact as to how particular harm occurred; the scope of liability requirement involved a normative assessment as to whether legal responsibility should attach to a defendant for that particular harm.
The High Court in Wallace v Kam went on to say (at [17]) that factual causation is established if the patient proves, on the balance of probabilities, that the patient has sustained, as a consequence of having chosen to undergo the medical treatment, physical injury which the patient would not have sustained if warned of all material risks. Because that determination of factual causation necessarily turns on a determination of what the patient would have chosen to do if the medical practitioner had warned them of all material risks, the determination of factual causation is governed by s 5D(3). What the patient would have done if warned is to be determined subjectively in the light of all relevant circumstances in accordance with s 5D(3)(a), but evidence by the patient about what he or she would have done is made inadmissible for that purpose by s 5D(3)(b), except to the extent that the evidence is against the interest of the patient (emphasis supplied). Even without that statutory prohibition, it was notorious in the common law that Courts were wary of accepting accounts of what an injured claimant says s/he would have done after the injury has been suffered because of their self-serving nature [9] .
In the absence of such testimony, the types of considerations that are relevant to the question includes conduct of the plaintiff at or about the relevant time, evidence (contemporaneous) from the plaintiff as to how he or she felt about certain matters; the evidence of others in a position to assess the plaintiff's conduct and motivations and other matters that may have influenced the plaintiff [10] . As noted, admissions made by the plaintiff after the injury-causing event are also relevant.
Counsel for Dr Braund also emphasised the aspect of the scope of liability requirement considered by the High Court in Wallace; and the necessity for the plaintiff to identify that the risk which was said to require disclosure (in conformity with the exercise of reasonable care and skill) which later materialized had caused the damage (at [30]).
In April 2015, Mr Jones was in a very difficult predicament. He had apparently pressing problems with his teeth and general health: multiple teeth were suspected to be infected. Infection from any source was especially problematic for Mr Jones because of his heart condition. Despite protestations to the contrary during his evidence, I consider that (and Dr Braund's clinical notes confirm) Mr Jones had real fears of endocarditis when assessing what he would need to do about his teeth. He was also concerned about the general appearance of his teeth. Also despite his protestations to the contrary, he was also very conscious of economics: he admitted this to Dr Howe and this was concern was also apparent in the notes or correspondence with Dr Yassmin and Dr Do-Vuong.
Mr Jones had recently received a recommendation to remove one tooth (site 11) with the suggestion of an individual implant at a price ($8,500) Mr Jones considered to be too expensive. He had had RCT in the past for some teeth. He saw the All-on-4 advertisement. Although the ad was not in evidence, I infer that the procedure was likely to have struck him as a possible solution. It met simultaneous needs: it appeared that it might provide a permanent solution and, set against the cost of individually treating multiple teeth with separate implants, a cost of less than $20,000 would have appeared more economically viable. It would avoid the incremental process of surgery for individual teeth, which was a very significant factor for a patient with a heart condition.
Subject to receiving dental advice, therefore, Mr Jones was positively disposed towards the idea of receiving this treatment. He saw his long-serving dental practitioner, Dr Do-Vuong. But she recommended against the idea: it was a relatively novel procedure and the typical demographic of patient for this procedure was the frail and elderly. That advice did not deter Mr Jones from pursuing the idea.
He next saw Dr Yassmin. Dr Yassmin had pointed out that he had abscesses in teeth 26 and 16; which had both already been subject to RCT. This revelation, I expect, would have amplified in Mr Jones' mind the desirability of seeking a permanent solution in preference to treating individual teeth for economic reasons. But Dr Yassmin's quote of the procedure - for both maxilla and mandible - was prohibitive. An All-on-4 procedure only in relation to the maxilla would, again, have made more economic sense.
Mr Jones accepted that after the initial problems he experienced with his teeth in early May 2015, he made no complaint about the 'feel' of the implants in his mouth, other than food being trapped inside it. It was put to him, and he did not seriously dispute, that it was not until late September 2015, after the 'reline' procedure, that he started to complain. His complaints coincided with his receiving treatment from a different practitioner, Dr Willey and, not long after that, Dr Zoud.
Ultimately, even on the postulated case that might have been presented, I am not persuaded that Mr Jones has made out his case on causation in relation to his complaint about inadequate disclosure of information and advice. I consider that Mr Jones apprehended that whichever option he pursued had physical and financial downsides. He had already had RCT and he made it clear to Dr Braund that he did not want it again. The All-on-4 procedure, if it worked, was likely to be much less expensive and provided a permanent solution and thereby avoid the trauma associated with the individual treatment of teeth.
The potential costs of follow on treatment was a potential concern, but as I have found, Dr Braund indicated that he would meet the cost of repair of the bridge (for 3 years) and any failed implant (at any time). I do not accept that any further disclosure of other unforeseen costs would have made any difference to Mr Jones' decision-making.
Bruxing was a risk factor that was discussed; at least in relation to its effect on the bridge. To the extent (if at all) that it was a matter which might have affected the implants themselves, I am not persuaded that anything else said on the matter would have affected Mr Jones' decision-making.
Where the patient would have chosen to undergo the treatment that was in fact chosen even if warned of all material risks, a determination can be made of no factual causation. That is because, absent the negligent failure to warn, the treatment would still have gone ahead when it did and the physical injury would still have been sustained when it was (Wallace v Kam (at [18])).

[85]

Causes of implant failure

As indicated, one case raised by Mr Jones is that Dr Braund negligently failed to inquire of his cardiologist (in relation to each of the April and September 2015 procedures). Mr Jones submitted, in relation to the April procedure, that this failure ultimately caused the implant in one of the teeth to fail (a circumstance that became apparent in July 2015).
Mr Jones submitted that the Court should find that there were two explanations for how the implant failed that were connected with the April 2015 procedure. First, the excessive bleeding or haemorrhaging resulted in bone loss and this made it difficult to affix the implant. Secondly, the failure to secure the bridge endured for a period of 4 days, during which period of time, there was no effective loading imposed on the implants. That, in turn, may have affected the soft tissue and/or impeded the process of osseointegration around the relevant implant.
Having expressed his view - which I have accepted - that Dr Braund failed to place all of the implants successfully with threads left above the bone level, Dr Howe opined that the looseness of the bridge within a day (indeed within 24 hours) of its placement greatly reduced the chances of successfully integrating due to the implant movement.
Towards the end of his report, Dr Benge opined that the loss of the implants could not be attributed to the surgical skill of Dr Braund (or other practitioner). Possible causes for the failure he identified in his report were: 1. simply unknown (there is no 100% success rate); 2. 'bruxism' - Botox had been given and still the zygoma implant failed; 3. excessive cantilevers (though he could not advance this as he had not seen the prosthesis); 4. allergy to titanium oxide; and 5. lack of maintenance.
However, earlier in his report, Dr Benge had identified, as one of the risks of the implant procedure, the failure of the implant to integrate into the bone. As noted (at paragraph 51) the threads provided for implant stability; contributing to the ability to achieve loading. I take the presence of the threads to be indicative of a failure of integration of the implant into the bone. Dr Benge later explained in his report that the All-on-4 procedure was like a chair with 4 legs: if one leg became loose, then it would cause excessive stress and dramatically increase the cantilever on the adjacent implant, immediately placing it at risk because it took an extra load. I understand him to mean, in layperson's terms, that if one implant becomes loose it is likely to have 'knock on' effects for the other implants. As Dr Howe said (at T 420), the exposure of threads means they cannot be cleaned and thus exposes the implant to peri-implantitis.
Dr Benge said in evidence (T 431), in response to Dr Howe's opinion, that the failed implants could not be attributed to exposed threads because the implants were placed in the bone initially. But in my view, this opinion does not reckon with the evidence of Doctors Howe, Willey and Zoud which explains that threads were exposed, and that they potentially caused instability to the implant and the circumstance that the bridge fell out, which was a foreseeable consequence of instability in the implant(s). I accept Dr Howe's evidence that when threads are loose, it is likely that more threads will be lost (T 420).
In my opinion, it is more probable than not that the loose threads were separate from the bone as a result of the treatment that occurred on 30 April 2015 and affected one of the implants and not only caused instability in the prosthesis, but also in the other implants because of the excessive stress on them. This was a necessary condition of the implant failing (at least) by July 2015; resulting in the need for the replacement implant procedure in late September. I do not discount the possibility that other causes were at play (notably Mr Jones' bruxism) but the implant instability created by the loose threads was one of a number of necessary conditions for the implant failure. Factual causation (s 5D(1)(a)) is therefore made out.
In my opinion, on the balance of probabilities, Dr Braund's negligent treatment resulting in loose threads in April 2015 caused the upper right implant to fail. That means that factual causation is established. As indicated, the negligent treatment also caused the bridge to fall out in the first few days after 30 April 2015.
There is no reason why the scope of liability requirement for the test would not also be satisfied in relation to loss and damage sustained by reason of the negligence. But there is an issue as to how far the scope of that liability should extend.
Dr Braund submits that it should not extend beyond May 2016, when Dr Zoud performed surgical work. Any expenses incurred thereafter concerned Dr Zoud's work - not Dr Braund's. I accept that submission.

[86]

Failure to consult Dr Davis - September 2015

Causation difficulties can arise where, in considering the causal effect of negligence by a defendant towards the loss, the conduct or state of mind of third parties may become relevant. In Badenach v Calvert (2016) 257 CLR 440, the High Court indicated that it was necessary for the claimant to the estate to prove what the deceased testator would have done if properly advised by the solicitor to complete the causal nexus between the alleged negligence and the claimant's loss.
Dr Braund submitted, with reference to the 22 September 2015 procedure, that if Mr Jones' complaint was that his cardiologist was not consulted before the removal of the implant and its replacement, then even if the extent of the bloodshed was severe, it was still necessary to show that anything said or done by Dr Davis to Dr Braund would have yielded a different outcome. That is to say, there was nothing to show, in the hypothetical event that Dr Braund consulted Dr Davis, that Dr Davis was likely to have told Dr Braund to do anything differently. This, Counsel submitted, is not something that Mr Jones sought to do. That was so notwithstanding that certain reports of Dr Davis, and some of his notes, were in evidence.
I do not entirely accept the submission that Mr Jones has not established that the advice that Dr Braund would hypothetically have received from Dr Davis would have been different to the way that Dr Braund managed Mr Jones' INR level and use of coagulant.
I find that had Dr Braund made inquiry of Dr Davis, then it is probable that he would have received an account of the management of Mr Jones' INR similar, in substance, to the account provided to Dr Zoud. Dr Benge says that there was a different procedure (in September 2015) to that which Dr Zoud performed, but both procedures were invasive in nature and I do not consider that the approach would have differed in principle. Dr Howe said he regarded the April 2015 procedure as more severe than the September 2015 procedure.
I accept that, especially, in relation to the September 2015 procedure, a causal connection is demonstrated in relation to excessive bleeding and perhaps swelling in the afternoon of the procedure and for the next few days. I am also satisfied that this cause a haematoma. Fortunately, there was no exacerbation of Mr Jones' heart condition, but the failure to consult Dr Davis was a necessary condition to the harm suffered of haemorrhaging and the anxiety this naturally engendered in Mr Jones.
However, the difficulty for Mr Jones is that I am not persuaded that in September 2015, the excessive bleeding flowing from the mismanagement of Mr Jones INR level had a causative effect on the replacement implant inserted on that occasion. Dr Howe had expressed a view that extra bleeding caused bone loss and thus contributed to the subsequent failure of the replacement implant. This, however, was a minority view, not shared by the other experts. Dr Willey, for example, accepted that there was no literature establishing a connection between a hematoma and bone loss which might explain implant failure.
In relation to the September 2015 procedure, Mr Jones next submitted that there was an infection in the implant at the time and the hematoma caused by excessive bleeding (itself the result of Dr Braund's failure to inquire of his cardiologist) was a cause of the implant failure. I do not accept that argument. In my opinion, it is likely that Dr Braund cleaned the affected area where the implant was to be replaced.
I acknowledge the distress that Mr Jones must have felt when experiencing the profuse bleeding after the September 2015 procedure on that day and the ensuing days, but he was aware of the risk of bleeding. I am not persuaded, however, that it had a part to play in damage to implants subsequently experienced by Mr Jones.

[97]

Future Out Of Pocket Expenses

Dr Willey set out costs of future treatment in a further report dated 8 November 2019 tendered by Dr Braund. That report was predicated on the belief that his current bridge was unlikely to survive for much longer and that there was minimal prospects for further repairs. His proposed course of treatment involved two steps. First there was removal of the bridge, checking that implants had bonded to the bones (identifying that some were buried) and placing healing screws and suturing the gums. Only after that would the prosthesis be re-attached. The cost of this approximately $2,700.
Secondly, two or three months after the expected healing, an acrylic and titanium bridge attached to 6 implants would be made (and a night guard to fit the new bridge). The cost of this was approximately $11,000. Dr Willey noted that some more recent developments had occurred which might blow out these estimates by a couple of hundred dollars.
In his report dated 20 March 2018, Dr Zoud said that Mr Jones required further surgery on the three implants placed on 7 December 2017, being a second stage surgery on the three implants. The estimated cost for this surgery was $1,500 ($500 per implant). He would also require the likely removal of the most posterior implant in the left maxilla at a cost of $1,000 and a bone grafting at this site in order to allow for a subsequent implant to be placed. The cost of the bone grafting and further implant was approximately $5,000. Added to this were private hospital ($6,000) and anaesthetist's fees ($700-800 per hour).
Dr Zoud also considered that Mr Jones would require ongoing Botox injections, every 6 months, at a cost of $1,700 (for 100MU of Botox) or $2,500 (for 200MU of Botox). Dr Zoud considered that Mr Jones could have a good prognosis if he continued with his Botox injections at six monthly intervals. These, he thought, would weaken the biting muscles and that in turn would reduce the load on the dental implants in the upper jaw.

[102]

Determination

As indicated, Dr Braund accepts that allowance should be made as per Dr Willey's treatment plan.
Subject to a qualification, I would not allow recovery for the costs of future treatment identified in Dr Zoud's report. Those costs were predicated upon further surgery on three implants placed on 7 December 2017. It would go beyond the proper scope of Dr Braund's liability to be liable for that work.
The qualification is that I consider that allowance should be made to the twice yearly Botox injections for the reasons outlined by Dr Zoud: that they weaken the biting muscles which, in turn, reduces the load on the dental implants in the upper jaw which Dr Braund's negligence had contributed to. Three of those implants remain. Contrary to Dr Braund's submission, Dr Zoud's opinion and recommendation that Mr Jones receive Botox injections, twice each year, was not conditioned upon his receiving more implant surgery. I am satisfied that, however painful or inconvenient it might be, Mr Jones is prepared to receive these injections to provide the stability he needs for the implants (T 383-384). If he takes those injections, Dr Zoud noted that he can have a good prognosis. It is that good prognosis which Dr Braund relied upon in submitting that only a relatively modest award be given for non-economic loss.
Dr Braund did not dispute the quantum of Mr Jones' calculations as to the cost of future Botox injections, so I allow the claimed sum for this component of $80,173.08; which sum is to be added to the costs of Dr Willey's treatment plan.
I would also allow a sum for painkillers consequent to the treatment which Mr Jones will require.
I reject the claim for treatment of Mr Jones' lower teeth. That has nothing to do with any treatment or advice that Dr Braund provided. I would also reject the claim for periodical on-going replacement of the prosthesis; again on the basis that this would go beyond the scope of Dr Braund's liability for the negligence that I have found. Had the procedure in April 2015 been carried out without breach, then Mr Jones would have been liable to the periodical cost of replacement of the bridge.

Jones v Braund

At a glance

Court

Decision date

Source

Judgment (106 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (19)

Cited By (2)