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Dental Negligence – An Overview
We all feel a little vulnerable when we are told to lay back and open wide while the man in the white tunic prepares to poke and prod around in our mouths. Dentists are, of course, skilled professionals and the vast majority of procedures run completely smoothly, whatever the anxieties of the patient in the chair. But like any medical procedure, things can go wrong, and sadly sometimes do.
When such incidents occur, many people will seek redress through legal action.
Such actins are rarely straightforward. The first issue to be resolved is that of who to sue. It is important to distinguish complaints from allegations of negligence, since the redress sought differs.
The Dentists Act 1984 establishes the General Dental Council (GDC) as a governing body for dentists that offers help to any patient making a complaint about a dental professional. The GDC is trying to implement an extensive program of reform and is frantically working to strengthen and improve patient protection.
If the case centres on an allegation of negligence in an NHS hospital, the defendant in any action will be the relevant Hospital Trust. But if the alleged negligence occurred at a private hospital or nursing home, claimants should take action against both the individual medical practitioner and the company or trust that runs the establishment.
Claimants will need to be cautious and check whether the dentist in question is an employee or a self-employed locum.
In the former case the employer may have vicarious liability for the alleged negligence. Partnerships are a common structure for dental practices, and under the Partnership Act 1980, each member of a partnership is jointly and severally liable for “any wrongful act or omission” or “loss or injury” caused by another partner.
Actions for dental negligence are based on the clearly established legal principle that patients have the right to expect dentists to carry out procedures to a reasonable level of skill and competence and that dentists, like other medical practitioners, have a legal duty of care towards their patients.
Making a settlement
Allegations of professional negligence are very embarrassing to dentists. Such allegations and claims can cause serious damage to their reputations, business and livelihoods that can, in extreme cases, be permanent and irredeemable. Dentists are understandably eager to defend their reputations and this may lead to a reluctance to settle claims.
But once a dentist’s insurer or defence union becomes involved in a case, they are able to take a more practical and impartial view of meritorious claims while, at the same time, protecting the dentist’s reputation. A negotiated settlement of a claim can often be achieved on a “without prejudice” basis without the dentist having to make an admission of liability. In that scenario there is a win for both the claimant and the dentist.
A claimant should not rush headlong into proceedings and in a complex case a conference between the claimant, their lawyer and an independent dental expert should be arranged. This will save costs and time in the long run, and will improve the prospects of achieving a negotiated settlement. A badly-prepared case will lead to subsequent amendments and a belief in the minds of the defendant and the defendant’s advisers that the claimant is unsure of the merits of their claim.
The court’s decision in the case of Bolam v Friern Hospital Management Committee laid down the standard to be expected of dental and other medical practitioners and the circumstances in which it is possible to establish negligence against them. The case of Bolitho v City of Hackney Health Authority defined the concept of causation in negligence claims.
Causation
The issue of causation is central to establishing a dental or other clinical negligence claim. That a particular action by the dentist was not only negligent but also caused the alleged damage must be capable of being established.
Knowing that causation is often very difficult to establish in dental and other clinical negligence cases has led to the almost universal practice of defendants denying that they caused the damage, even when they know that their actions were negligent. The onus is always upon claimants to establish, not only that the dentist was negligent, but that the negligence led directly to the damage.
It was held in the case of Warner v Payne (1935) (unreported), that “the mere fact that a patient’s jaw was fractured in the course of an extraction of a tooth would not be of itself any evidence of negligence against a dentist”.
Warner was applied in the case of Fish v Kapur (Kings Bench Division 1948) where damages were claimed from the defendant dental surgeon on the grounds that he had been negligent in extracting one of the claimant’s teeth. During the procedure, part of the tooth root was left in situ and her jaw was fractured. It was eventually held that the fact the fracture was caused in the process of extraction was not by itself any evidence of negligence, and court found against the claimant.
In the later case of Garner v Morell (1953), the claimant’s husband visited the surgery of the defendant dental surgeons to have some teeth extracted. Tragically, during the operation the claimant’s husband swallowed a throat pack that had been inserted in his mouth and he died from asphyxia. The claimant claimed damages for negligence and was successful, but the defendants appealed to the Court of Appeal on the ground that the outcome of the dentist’s treatment was a rare and unfortunate thing which could not have been foreseen. The Court of Appeal dismissed the defendant’s appeal on the ground that the throat pack had been too short.
The more recent decision in the case of Christie v Somerset Health Authority (1991) is interesting. In April 1983 the claimant underwent an operation for removal of wisdom teeth at a hospital managed by the defendant dental surgeons. During the extraction of a molar, the treating dentist created a flap in the claimant’s check to allow access to the tooth. Unfortunately during the procedure damage was caused to the lingual nerve, resulting in almost total loss of sense of taste and numbness of the tongue.
The claimant alleged that the injury to the nerve had been caused by negligence on the part of the dental surgeon. In contrast, the defendant’s expert argued that the injury was probably caused by necessary and non-negligent stretching. The court held that there was no basis for the conclusion drawn by the defendant’s expert as it was purely theoretical. The claim was upheld.
Over-treatment
Appleton v Garrett (1995) is an extreme case, but it is one in which a claim for aggravated damages was accepted by the Court.
In this case a registered dentist was sued by a number of claimants for negligence and trespass in relation to alleged gross over-treatment.
The defendant was found liable for trespass and for aggravated damages. The court found that the dentist had embarked on treatments that were unnecessary while, at the same time, misleading the claimants as to why the treatments had to be performed. It was found that had the dentist properly explained the treatments and the need for them to the claimants they would not have consented to them.
All eight claimants were awarded aggravated damages for pain, suffering and loss of amenity.
The overriding conclusion to be drawn from previous court decisions such as these is that there is no such thing as a straightforward dental negligence claim. They all follow the same guidelines, procedures and standards of proof which must necessarily be followed and established in other types of clinical negligence cases and they reinforce the fact that early, independent expert dental opinion is an essential prerequisite to proving liability on the part of the dentist. The previous decisions set out in the Bolam and Bolitho court judgments in particular have to be borne in mind when assessing issues of liability and causation.
The present court procedure rules dictate that claimants and their lawyers must always have in mind the issue of proportionality, aiming to keep the legal costs of a claim in proportion to the size and complexity of the case in question; dental negligence claims are no exception to this general rule. However, it is surely wrong for claimants to be denied access to justice simply because the very nature of dental negligence cases requires them to be supported by costly independent expert medical testimony.
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