The
plaintiff is a Commissioner in the Zimbabwe Republic Police. The
defendant, a duly qualified dental surgeon, was, at the material
time, also a member of the Zimbabwe Republic Police. She practiced
her dentistry at the Police Camp Hospital and also at her surgery in
town.
In
June 2007, the plaintiff consulted the defendant complaining of
sensitivity to ...
The
plaintiff is a Commissioner in the Zimbabwe Republic Police. The
defendant, a duly qualified dental surgeon, was, at the material
time, also a member of the Zimbabwe Republic Police. She practiced
her dentistry at the Police Camp Hospital and also at her surgery in
town.
In
June 2007, the plaintiff consulted the defendant complaining of
sensitivity to his teeth. She examined him at the police hospital and
later invited him to her surgery where she carried out some work on
him. The work entailed extracting a tooth that was embedded in his
gum. The extraction was not successful and she referred him to
Professor Chidzonga, a specialist in the field, who finally extracted
the tooth and also found out that, in the process, the plaintiff had
suffered a fractured jaw. When the plaintiff's superiors visited
him at his house, a decision was made that he be flown to South
Africa for further management and treatment. He was duly attended to
in South Africa and the fracture was reduced.
On
24 January 2008 the plaintiff issued summons out of this court
against the defendant. He alleged that she had been negligent and had
caused the fracture in his jaw. He claimed against her the sums of
R10,000= for pain and suffering, R10,000= for loss of comfort and
R78,000= as special damages.
The
suit was defended.
In
her plea, the defendant denied that she was negligent as alleged or
at all. She further denied knowledge of the injury sustained by the
plaintiff, and, in particular, that she fractured his jaw and
suggested that this occurred at Professor Chidzonga's surgery where
the tooth was extracted.
At
the pre-trial conference of this matter, the parties settled the
issues for trial as follows:
1.
Whether or not the defendant undertook to perform surgery on the
plaintiff with such professional skill as is reasonable for a
qualified dentist?
2.
Whether or not the defendant carried out the surgery on the plaintiff
negligently as alleged by the plaintiff?
3.
Whether or not the plaintiff suffered damages as a result of the
defendant's negligence, and, if so, the quantum thereof.
At
the trial of the matter, the plaintiff gave evidence. His evidence
was as follows.
In
early 2007, he visited the Police Camp Hospital. He was complaining
of sensitivity in his teeth. He sought professional assistance from
the defendant. She advised him that he required a dental cleaning
session and that she needed to examine the exposed roots of his
teeth. On the first visit, she applied some medication to his gums.
She did not have adequate equipment at the hospital and could offer
him treatment at her surgery. He accepted the offer. A week later he
visited her surgery and she requested him to have an x-ray. A week
later she called him and advised him that she had discovered a buried
molar on the right side of his mouth. The tooth had to be extracted.
On 26 June, he attended at her surgery for the tooth to be extracted.
After taking him through the process, the defendant attempted to
extract the tooth using a variety of tools. After some time he grew
tired and was also in pain. She advised him that she had almost
exposed the tooth. He then felt a sharp pain and told her to stop. He
had been on her chair for two and a half hours. She advised him that
he now required theater and she would refer him to Professor
Chidzonga. She telephoned Professor Chidzonga's surgery and
explained to them what she had already done. She wrote him a letter
of referral and he left her surgery. He could feel that his jaw was
heavy. It was painful.
At
Professor Chidzonga's place he was taken into the consulting room,
and, by that time, he could not talk. Professor Chidzonga took a
small x-ray of the area. He then extracted the tooth in about 20
minutes. He suspected that the plaintiff had fractured his jaw. He
could not develop the xray at that time and allowed the plaintiff to
go home on a prescription for a mouth wash, a pain killer, and some
antibiotics.
As
he was driving home, he sent a message on his mobile phone advising
the defendant that he was in terrible pain and was suspected of
having fractured his jaw. His mouth was now quite heavy and he had to
keep on holding his lower jaw. He was also bleeding profusely.
When
he reported back to Professor Chidzonga's rooms the following day,
the fracture was confirmed. Professor Chidzonga cleaned his mouth and
immobilized the jaw. He placed him on a special diet and prescribed
more medication.
The
Commissioner-General of police visited him at home. At this time his
entire face was swollen. He was incoherent. Arrangements were made
for him to be flown to South Africa where he was accompanied by his
wife.
In
South Africa, the wires that had been used by Professor Chidzonga to
immobilize his lower jaw were removed and replaced by bracelets. He
was placed on a liquidized diet. On 29 July, he returned to the
clinic in South Africa where a few of the bands holding his jaw
together were removed. He could open his mouth by a fraction and
could now use a spoon to eat porridge and yoghurt. In August, all the
bands were removed and he was referred for physiotherapy. Around
September, he returned to have all the bracelets removed. He was
still on physiotherapy. He had to return for reviews in September and
December 2007. In January 2008, he attended the final physiotherapy
session here in Zimbabwe.
At
the time of testifying, he could not chew hard things with his right
hand side. He still felt some numbness in the side which he hoped
would go away after some time.
The
witness then applied to have affidavits by the three medical
practitioners who attended to him in South Africa adduced into
evidence. Also adduced were various documents, including air tickets
from Harare to Johannesburg and invoices for the services rendered
him in South Africa.
The
witness gave his evidence well. He is fairly articulate. His
responses to questions put to him under cross-examination were
forthright. He did not seek to exaggerate. It is my finding that the
witness was honest and truthful.
The
plaintiff called Professor Median Chidzonga. He holds qualifications
in dentistry and is a professor in maxillo-facial, oral and dental
surgery. He has specialized in facial surgery and has thirty years
experience under his belt. His evidence was as follows.
The
plaintiff was referred to him by the defendant who wrote a note to
him explaining that he should continue with the removal of a wisdom
tooth that she had started working on as the plaintiff was now in
severe pain.
After
sitting the plaintiff in the chair, he took a radiograph of the site
and then proceeded to examine him. He saw a socket where an incision
had been made. He attempted to remove the tooth and it was during
this process that he noticed that the jaw was not moving in unison.
He requested the plaintiff to go for an x ray of the jaw. The
following day the plaintiff brought back the x-ray and it showed that
there was a fracture passing through the socket where he had removed
the tooth. He reduced the fracture by wiring. He also obtained the
results of the first radiograph he had taken when the plaintiff first
visited him. It also showed that there was a fracture. Based on that
radiography, he was of the view that the jaw was fractured before he
started working on the plaintiff.
He
further testified that it is not normal for jaws to be broken during
tooth extractions. It is however possible. The possibility of this
happening can be assessed through x-rays of the area taken before the
extraction.
He
was aware that the plaintiff later sought medical attention in South
Africa. He was also aware that what was done in South Africa is
similar to what he did on the plaintiff in reducing the fracture. The
equipment used in South Africa is not available in this country but
the expertise is.
Under
cross-examination, the witness testified that the breaking of a jaw
during a tooth extraction does not, in itself, denote negligence.
Each case must depend on its facts. Even where a practitioner
exercised all due care, at times, a jaw could still break.
Regarding
the plaintiff's subsequent visit to South Africa to seek medical
attention, he was of the view that this was not necessary as he could
have attended to the plaintiff himself had the deteriorating
condition of the plaintiff been brought to his attention.
The
evidence of this witness was of great benefit to the court and great
reliance shall be placed upon it in the resolution of the matter. He
is an expert in his field and I would have been unable to form some
of the conclusions I formed in this matter without his expert
opinions.
After
the evidence of this witness, the plaintiff closed his case.
The
defendant testified. She narrated most of the facts that are common
cause in this trial as to how the plaintiff approached her for
assistance and what she did up to the time she referred the plaintiff
to Professor Chidzonga. Regarding the allegation that she was
negligent, her evidence was as follows;
The
plaintiff's tooth was a difficult one. She did the best that she
could to extract it without resorting to surgery. During the process,
the plaintiff did not bleed profusely as he alleges. She however was
putting water into his mouth during the process.
She
was not aware that she had fractured the plaintiff's jaw during the
extraction. Had she known, she would have put it in her referral
letter to Professor Chidzonga. She only received a report from
Professor Chidzonga who stated that, during the time he was
extracting the tooth, he felt an abnormal movement to the jaw. She
personally did not feel such movement.
The
witness also gave her evidence well. Her evidence was, in the main,
common cause with that of the plaintiff up to the time the plaintiff
left her surgery. I have no reason to disbelieve her.
The
defendant also called one Lewis Chidzambwa. He is a Dentist, holding
a degree from a university in Finland. He has ten years experience.
The
testimony of this witness was of a very general nature. He gave the
court his views on what can cause pain to a patient undergoing tooth
extraction, how each case is unique, and how fractures can occur in
patients.
I
found the evidence of this witness to be educative in a very general
way.
After
this witness was stood down, the defendant closed her case....,.
The
plaintiff alleges that the defendant fractured his jaw during a tooth
extraction. He further alleges that the fracturing of the jaw was as
a result of negligence on the part of the defendant. Finally, the
plaintiff alleges that, as a result of the fracture to his jaw, he
suffered the various damages whose heads appear in his summons.
The
factual issues that fall for determination in this matter present
themselves to me as;
(i)
Firstly, whether it was the defendant who fractured the plaintiff's
jaw; and
(ii)
If so, whether such fracturing was as a result of negligence on her
part; and, again
(iii)
If so, what damages did the plaintiff suffer?
I
now turn to the first issue. It is to determine whether the fracture
in the plaintiff's jaw was caused by the defendant.
I
do not have any direct evidence in answer to this issue. The x-ray
that was taken of the tooth area, after the defendant had referred
the plaintiff to Professor Chidzonga, was not produced to show
whether or not the jaw was fractured before Professor Chidzonga
started working on the plaintiff. What was adduced into evidence was
a photocopy of the x-ray which did not show anything. The copy of the
x–ray was not accompanied by any report explaining the picture,
and, as was correctly stated by Professor Chidzonga in his evidence
in chief, the photocopy was not useful at all.
The
plaintiff was of the firm belief that he suffered the fracture whilst
receiving attention from the defendant. He is of this belief because
he felt a sharp pain after an hour of drilling and wedging and he
stopped the defendant from further proceeding. When he left the
defendant's place, he was now holding his lower jaw. He urges me to
infer that the sharp pain marked the point when his jaw fractured.
This
is a reasonable belief on the part of the plaintiff but it is not the
only reasonable inference that one can draw from the facts.
It
is common cause that the plaintiff was under a local anesthetic that
was now wearing off. The tooth extraction was causing him a lot of
pain. The sharp pain could have been pain from the process which
would have otherwise been masked by the anesthetic had it been
working.
Professor
Chidzonga testified that it was during the process of extracting the
tooth that he noticed that the jaw was not moving in unison. He did
not notice this during the examination of the plaintiff before he
commenced the extraction. He then informed the plaintiff that he
suspected a fractured jaw. The fracture was only confirmed the
following day from xrays.
As
indicated above, it would have made my task easier had the plaintiff
produced the original x-ray that was taken prior to Dr Chidzonga
commencing work on him. The absence of the x- ray and the evidence by
Dr Chidzonga that he only noticed the irregular movement of the jaw
during the extraction places me in a position where I cannot
confidently hold that the jaw was broken at the defendant's
surgery. This is compounded by the fact that neither Professor
Chidzonga nor the plaintiff asked for leave to and opportunity to
replace the useless photocopy with the original x-ray and no
explanation was tendered for this omission.
Further,
it was Professor Chidzonga's evidence that the x–ray that he took
would only show the tooth and nothing much. He was not asked whether
it would show the jaw and the fact that he referred the plaintiff to
another facility for a bigger picture that would show the jaw seems
to suggest to me that the radiograph that he took did not. In any
event, neither the plaintiff nor Professor Chidzonga asked for time
and opportunity to have the original radiograph adduced into evidence
and no explanation was tendered for this omission.
I
am unable to come to a conclusion as to where and when the fracture
occurred from the evidence adduced before me. It could have occurred
at the defendant's
surgery. It could have occurred at Professor's Chidzonga's.
On
the one hand, I have the testimony of the plaintiff feeling the sharp
pain and the testimony of Professor Chidzonga that when he looked at
the radiograph that he had taken in his surgery, he observed a
fracture. This evidence seems to suggest that the fracture may have
occurred at the defendant's. On the other hand, I have the missing
radiography and the testimony of the defendant that she did not
notice the irregular movement of the plaintiff's jaw when she was
working on his tooth or else she would have included that in her
written report to Professor Chidzonga.
Further,
I have the testimony of Professor Chidzonga that he only noticed the
irregular movement of the plaintiff's jaw when he was in the
process of extracting the tooth. I also have his evidence that the
x-ray he took in his surgery is of a localized nature, showing the
tooth area, hence his request to the plaintiff for him to attend the
Avenues Clinic for a bigger picture showing the jaw area as well. The
learned professor was not asked on whether the localized x-ray he
took would show the jaw area as well and to what extent. In my view,
the fact that he referred the plaintiff for a bigger picture tends to
suggest his one would not show the fracture to the jaw.
I
have no crystal ball to gaze into for an answer to this issue. In my
view, the balance of probabilities tilts in favour of no party and
remains even to the detriment of the plaintiff who bears an onus to
establish the facts that he relies on for his claim.
Assuming
that I have erred and there is ample evidence upon which a superior
court will find that the defendant did indeed fracture the
plaintiff's jaw, I will proceed to give my opinion on the next
issue which arises. This is to determine whether the defendant was
negligent, as alleged, or at all, assuming she did fracture the
plaintiff's jaw.
In
his declaration, the plaintiff alleged that the defendant was
negligent in that she failed to remove the tooth with such skill as
is reasonable for a qualified dentist; that she tried to remove the
tooth in a way that caused the plaintiff to suffer severe bleeding
and unbearable pain; and that she fractured the plaintiff's lower
jaw.
In
his testimony, the plaintiff confined himself, and correctly so in my
view, to narrating the events leading to his visit to Professor
Chidzonga's surgery, and, thereafter, to him seeking treatment in
South Africa. When asked how the defendant had been negligent, he
simply gave his opinion that she must have been unprofessional by
failing to extract the tooth in two (2) hours when Professor
Chidzonga managed to do so in about 20 minutes.
The
difficulty that the plaintiff had in articulating the particulars of
the defendant's alleged negligence is, in my view, understandable.
He is not a dental surgeon. I understand the plaintiff to have taken
the simple approach to this whole matter that because an accident
occurred whilst the defendant was in charge, she must have been
negligent.
In
my view, the particulars of negligence alleged against the defendant
can only be validating by making reference to the standard operating
procedures of dentists. This is so because to test the negligence of
a professional, one has to first establish what an average reasonable
professional in the shoes of the defendant would have done. See S
v McGowan
1995
(1) ZLR 4 (HC).
The
average reasonable professional is not one who is an ace or an expert
in his or her field. Thus, the skills exhibited by Professor
Chidzonga cannot be used to measure whether or not the defendant was
negligent. She may not have been as adept at extracting teeth as the
professor was. This, however, does not automatically translate into
negligence on her part. An average professional is not one who is so
careful that he or she will weigh each and every risk attendant upon
the task at hand and advise the client of all such risks before
proceeding. He or she will weigh the obvious risks and advise the
client of the
same.
In
casu,
it was Professor Chidzonga's testimony that the likelihood of a
fracture during a tooth extraction can sometimes show in an x-ray
taken before the extraction. It is not in dispute that the defendant
caused an x ray of the plaintiff's mouth to be taken before she
started working on him. It was not suggested that this x-ray showed
that possibility of the plaintiff fracturing his jaw, and,
notwithstanding clear evidence of this likelihood, the defendant
proceeded with the extraction without taking any steps to guard
against the occurrence.
It
further appears to me that the reasonable professional is one who
will bring their training to bear on the task at hand to assess the
attendant risks and proceed with alertness. He or she has a certain
degree of confidence in their capacity and skill that allows them to
proceed without undue timidity and is, to a large extent, a practical
person who wishes to achieve a specified result.
As
I have indicated above, to establish what a reasonable dentist would
have done in the circumstances of this matter, the evidence of the
plaintiff was not material. It would only have been material in
showing what the defendant actually did. The evidence of another
dentist was imperative to set the standards that are average in the
profession and against which the conduct of the defendant would have
been measured to show the deviation relied upon to form a cause of
action in delict.
The
evidence of Professor Chidzonga, called by the plaintiff, did not
sufficiently set out the average professional standards expected of a
dentist extracting a tooth. His evidence was also largely narrative
of the steps he took to extract the tooth after the defendant
referred the plaintiff to him. He did not testify that what the
defendant had done prior to her referring the plaintiff to his
surgery was negligent. He was not examined on this aspect of the
matter. The only portion of his evidence-in-chief that I regard as
relevant on this issue is when the professor testified that it is not
normal that a jaw will fracture during a tooth extraction. He
qualified that by testifying that the possibility of a fracture can
be assessed by taking an x- ray before the extraction. As stated
above, the defendant did cause an x-ray to be taken before she
discovered the embedded tooth. The x-ray so taken was not adduced
into evidence.
The
issue that may have exercised my mind is whether the defendant was
negligent in not noticing, from this xray, that the plaintiff's
jaw was likely to fracture during the extraction had the plaintiff so
pleaded.
He did not.
