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Ground 4
Ground 4
Ground 4 challenges part of the findings made by the PCC in respect of Charge 1(b), under which the PCC found proved the allegation of failure to carry out sufficient treatment planning in relation to Patients 6, 9, 10 and 12 before embarking on a course of Invisalign treatment. The findings in respect of Patients 6 and 12 were not challenged by Mr Mobasseri on appeal.
In respect of Patients 9 and 10, the PCC found that there was periodontal disease present when the patients initially attended appointments with Mr Mobasseri on 28 November 2019 and 24 February 2020 respectively, but that there was nothing in the contemporaneous clinical records to suggest he had recognised the presence of periodontal disease at the time, “far less that you had carried out adequate treatment planning to stabilise this prior to commencing the elective aesthetic orthodontic treatment for each patient” which would have been required. This required treatment would, found the PCC based on Mr Bateman’s opinion, have “required as a minimum, pocket charting and a 3-month interval prior to commencing the orthodontic treatment”.
The PCC also recorded in relation to these patients that:
“You stated in oral evidence that you were aware that Patients 9 and 10 were under the clinical care of other practitioners. You stated that you considered that monitoring or stabilising the periodontal disease would have been the clinical responsibility of those other practitioners and that your clinical role was confined to providing the orthodontic treatment. However, there was nothing in the clinical records (or even your detailed witness statement to the Committee) to indicate whether you were aware of any treatment carried out by those other practitioners or that you had attempted to identify when they had last seen their patient and whether the periodontal disease was being treated or monitored.”
The PCC therefore determined that Mr Mobasseri had failed to carry out sufficient treatment planning in respect of the periodontal disease present in Patients 9 and 10.
The challenge under Ground 4 of the PCC’s findings is to the first stage of the analysis – that there was evidence of periodontal disease when Patients 9 and 10 initially attended appointments with Mr Mobasseri. The findings (if there was such evidence at the initial appointments) of what should have been done about it and that Mr Mobasseri’s conduct was inadequate, were not challenged. This is, therefore, on its face a challenge to a clinical finding by the PCC which Mr Horne acknowledged in his oral submissions is generally a difficult type of finding to overturn on appeal.
The basis for the challenge was that the evidence relied upon by the PCC for the presence of periodontal disease comprised (i) radiographic images and (ii) Mr Mobasseri’s BPE scores for these patients of 232/232 (Patient 9) and 222/323 (Patient 10). The presence of the “3” scores being significant – as Mr Bateman explained (as set out above) a “3” score would be given where there is some “pocketing”, which is a symptom of periodontal disease. On appeal Mr Mobasseri contended:
The pre-treatment radiographic image for Patient 10 did not show any bone loss, and Mr Bateman had not suggested that it did. On this appeal, the GDC accepted that, and also accepted that in stating that radiographic images for Patient 10 had showed bone loss, the PCC had erred.
Whilst there was bone loss shown on the pre-treatment radiograph for Patient 9, Mr Bateman had said in his report that “periodontal health cannot be ascertained by looking at a radiograph alone” and in cross-examination had accepted that the bone loss shown on the radiograph for Patient 9 was “really quite minimal”.
If (contrary to his primary case before the PCC) he had not carried out BPEs for these patients (as the PCC held), then the PCC could not rely on his ex post facto made up BPE scores to show the presence of pre-existing periodontal disease.
In order to put these challenges, and the PCC’s findings in relation to Patients 9 and 10, into context, it is useful to set out a little more detail about how Mr Mobasseri came up with his ex post facto BPE scores for them. Whilst they were made up, in the sense of created after the event, they were not plucked out of thin air. They were arrived at by Mr Mobasseri based upon such information as he had available to him when inserting the scores. For Patients 9 and 10 that included not only the radiographs taken at the time, and the contemporary written records (such as they were), but also the iTero scans that had been take (as well as any memory Mr Mobasseri might have had of the patients and their condition). The iTero scan was an advanced scan that created a detailed 3D image of the patient’s teeth and gums, and was generally taken for Invisalign patients to assist in planning treatment.
In relation to Patient 9, Mr Mobasseri gave evidence saying that in coming up with his BPE score, he had reviewed the radiograph and noted the bone loss (which he described in his evidence as mild bone recession) and that he had noted (which, it appeared, was likely from the 3D scan) that the patient had inflamed gums. He thus justified his ex post facto BPE score (which included 3s). In fact, in his oral evidence in relation to Patient 9 he said “what I am trying to explain is that I have noticed the problem. I have totally acknowledged it. I put it in my notes.” However, he explained that he remembered the patient, that she had been referred to him by a friend of his with a practice in Golders Green, and that he knew that her dental hygiene would be looked after at his friend’s practice. In other words, his account was that he had identified the evidence of periodontal disease, but regarded the fact that the patient would be looked after in that respect by his friend, the referring dentist, or his friend’s hygienist, as sufficient.
In relation to Patient 10, Mr Mobasseri explained in his oral evidence in chief that, in coming up with his score, he must have looked at the radiograph “and I probably must have seen a slight bone recession, bone drop around the back molar”. In cross-examination, he explained that he had recorded 222/323 because he could see inflammation on the iTero scan that had been taken, and that the radiograph showed mild recession around the gums.
In other words, in relation to both patients, Mr Mobasseri’s own evidence was to the effect that his scores of 3 were accurate, and based upon the contemporary radiographs and scans (as well as his recollection). Thus, in his oral evidence, Mr Mobasseri explained that each needed to be seen by a hygienist, and that he had noted in his “second record in the SoE” (i.e. his amended records) that “there are some signs of periodontal disease”.
The issue before the PCC was not, therefore, so much about whether there were signs of periodontal disease, but rather whether Mr Mobasseri had carried out sufficient (or any) treatment planning in relation to the patients given that background.
With those points in mind, the challenge that Mr Mobasseri now brings to the findings under Ground 4 can be assessed:
The fact that the BPE scores recorded in SoE were made up by Mr Mobasseri after the event does not render them entirely without value as evidence of the state of these patients’ dental health at the time when the appointments took place. In the case of each of Patients 9 and 10, Mr Mobasseri explained how he had identified particular issues from the radiographs and/or 3D scans which had been taken at or around the time of those appointments which led him to reach the (albeit ex post facto) conclusion that the BPE scores should include 3s. That underlying material, which Mr Mobasseri relied upon in coming to those scores, itself supports the finding of periodontal disease in each of the Patients, as does (although not contemporary) the score given by Mr Mobasseri subsequently.
Whilst Mr Bateman acknowledged that periodontal health could not be ascertained from looking at a radiograph alone, in neither case was the radiograph the only evidence. Mr Mobasseri explained that, for Patient 9, he had noted gum inflammation, probably from the iTero scan, and that for Patient 10 he had seen inflammation on the iTero scan. He also explained that his view had been that both patients needed to see a hygienist, based on what he had seen at the time of the appointment.
Whilst it is correct to say that the PCC made an error in stating that the radiographic image for Patient 10 showed bone loss, that may have come about as a result of Mr Mobasseri’s own oral evidence about seeing bone recession in the radiographs. This error in itself does not cast doubt on the PCC’s findings on this point, given that there was in any event other supporting evidence (as identified above).
The fact that there was not a greater analysis in the PCC’s decision of the evidence for the existence of periodontal disease is not surprising given Mr Mobasseri’s own evidence that his amended records, which he said were accurate (albeit amended after the event), noted that there were some signs of periodontal disease.
As a result, Mr Mobasseri does not succeed in his challenge to the PCC’s finding of fact that there was some evidence of periodontal disease when each of Patients 9 and 10 attended their initial appointments. Ground 4 therefore fails.