Dr Brian Franks writes ‘from the other side’ . . .


Dental Expert witness article –
In the first of two articles Brian Franks gives a unique and different insight into the hot topic of dental complaints and tips on how to prevent them from escalating.

There is probably no worse feeling in dentistry than receiving a letter, be it from a solicitor or from the GDC, informing you of an official complaint against you.

Many useful and informative articles have been written by the defence organisations and even by the solicitors’ firms themselves. However, I write this article from the other side… from the perspective of an ‘expert witness’, instructed by the solicitors representing the patient making the complaint.

Unfortunately, as you are all well aware, dental litigation is on the increase; and as I write, I have approximately 8 live cases on the go, which is an ever-repeating cycle.It is important to point out that the report of a dental expert witness is always impartial and always based on factual evidence.

The background

So what actually happens and what is the process when an expert witness is instructed? There are various solicitors’ firms with a department that specialises in dental and medical malpractice and one particular firm that specialises purely in dental malpractice and I am instructed by several of these firms.

Firstly, I receive a letter from the solicitor, enquiring as to whether I would be interested in preparing an initial screening report in relation to a potential clinical negligence claim for legal proceedings. This screening report usually is a letter of advice on Liability and Causation (L&C). The letter contains the background, which is a brief outline of the complaint and the names of the patient and dentist(s) concerned. At this point, I will declare if there is any conflict of interest, i.e. whether I know or knew one or both parties. On two occasions, I have known the dentist, so have declined the instruction.

Once I’ve accepted the case, I am sent an official letter of instruction together with a bundle containing the relevant dental records, including any radiographs (or copies) and all relevant correspondence. Some firms of solicitors also include a witness statement from the Claimant (patient). There are timescales, so I would also be informed of the date by which the initial report would be required.

The case, at this stage, is at the point of preliminary investigation. Although proceedings are contemplated, they have not commenced and I am asked only for advice. This means that my duty is to the client (patient). In the event that the matter proceeds to litigation and preparation of a report is required for those purposes, my duty will be to the Court.

Negligence

In assessing whether care provided by clinical practitioners has been negligent, the Court assesses whether a reasonably competent practitioner, in a relevant field at the relevant time, faced with the same circumstances, would have acted in the same way.

In order to show negligence, the Claimant needs to establish through medical evidence that the treatment fell below a reasonable standard, to be expected of a reasonably competent practitioner, in a relevant field, at that time. It would therefore be a defence to an allegation of negligence to show that a body of reasonable, reputable practitioners, in the particular field, would also have treated the Claimant in the way in which he/she was treated. This is known as the ‘Bolam’ test. Even if a minority were to treat the Claimant in that particular way, this would not necessarily be indicative of negligent practice, provided the treatment and/or care provided did not defy logical analysis. It is necessary to show that the shortcomings in treatments were sufficiently serious to amount to negligence. Further, it has to be shown that the shortcomings caused or materially contributed to the injury.

Causation

It is also necessary to show that the negligence has caused pain and suffering, and it will be necessary to show how the negligent acts or omissions directly resulted in the injury or materially contributed to it. Material means ‘non-negligible’ in this context. The Claimant can succeed in full on this basis, even where there is another (or more than one other) non-negligent cause, provided that the respective degrees of contribution to the injury (negligent and non-negligent) cannot accurately be divided up or defined.
There is also a relevant date for the accepted standard of practice applying in the case; for example if the alleged incident occurred on 20 March 2010, then this would be the relevant date.

Allegations

The solicitors would also outline the main allegations of negligence and causation at this stage. My report would follow these allegations.

Findings

From my experience, some of the main stumbling blocks for adequate defence of the Defendant (the dentist) include the following:

  • Record keeping is usually sub-optimal
    An example case is where a dentist wrote to a patient asking whether they understood steps involved in the treatment planned, along with all of the advantages and disadvantages. However, there were no notes in the records of what these were and whether they had been discussed. And although the letter implied that they were discussed, it is usually taken that if it has not been written, it has not been said.
    KEY POINT: Always record what is said, i.e. keep contemporaneous notes.
  • Lack of appropriate radiographs
    Decay is insidious and is sometimes present without any symptoms. It is incumbent on any dentist to take appropriate radiographs at appropriate time intervals. It would appear hard to defend a dentist who did not follow this protocol, if, subsequently, radiographs showed caries and/or other problems. Another area of concern is where radiographs are taken, but there are no notes in the records of the interpretation of these, i.e. what they show.
    KEY POINT: Ensure radiographs are taken at appropriate intervals and findings from these radiographs are noted. If nothing abnormal is detected, you should still record this.
  • Aids to diagnosis
    From an expert witness point of view, it would appear that the defence organisations may find it difficult to defend a practitioner where, for instance, a patient presents in pain, but minimal or no diagnostic tests have been carried out, e.g. crowns have been provided, with no radiographs being taken or special tests to elicit the pulpal and periapical health of the tooth. I am often presented with complaints from patients where, without these tests, an abscess with swelling has developed, causing the patient pain, necessitating further treatment and costs.
    KEY POINT: Always carry out the appropriate special tests for the proposed treatment and if it is thought that further treatment may be required in future (e.g. root canal treatment on a crowned tooth), inform the patient of this including anticipated fees and record it in the notes.
  • Treatment options
    A case was presented where a patient had amalgams removed and replaced with composites, but the full extent of the pros and cons of removing amalgams and providing composites was not explained to the patient. The patient’s allegation of negligence was that they would not have had the amalgams removed and replaced with composites had they known the possible side effects/adverse effects that could have and, in fact, did occur, e.g. sensitivity and reduced longevity. Another case involved the provision of a bridge, which failed in a short space of time, necessitating removal of the bridge and extraction of one of the abutment teeth. The patient’s claim for negligence here was on the grounds of not being given the option of any other treatment. Also her claim was that had she been given the option of an implant, that would have been her treatment of preference.
    KEY POINT: Always discuss all possible treatment options, and always explain and record the pros and cons of any treatment proposed to enable your patient to make an informed choice.
  • Missed and misdiagnosis
    A case evolved around the fact that although radiographs were taken, the caries present was not noted on the records and nor was it treated. The patient then presented at a later date to another dentist, necessitating more extensive treatment, including a root canal treatment and crown, and the loss of a tooth due to gross caries. A further case centred on the fact that over-treatment was performed by the dentist, necessitating extensive further treatment, (a root canal treatment and crown). This case hinged on the fact that what appeared as interproximal caries on a tooth was probably, in fact, an area of contrast
    (‘burn-out’) and not caries as diagnosed by the dentist. This region of contrast can, of course, sometimes be difficult to interpret.
    KEY POINT: Always check radiographs carefully and record the findings. If you have previous radiographs, compare them to the current ones and carry out a thorough, detailed examination. If you are not sure of the diagnosis, tell the patient, record it in the records and, if appropriate, seek another opinion from a colleague.
  • Working with colleagues
    One case initially involved a single dentist, but ended up with a claim against two dentists because of adjunctive treatment carried out by that second dentist.
    KEY POINT: When you are working in combination with another dentist, (e.g. the provision of implants), it is incumbent on you to be sure that the treatment being provided by your colleague is of a satisfactory standard and you have an understanding of the treatment they are providing. You need to work together to avoid any pitfalls. Your channels of communication should be clear and open.
  • Communication
    The old chestnut! On occasions, I am asked to report on a claim against negligence where, after examination of the correspondence supplied to me, it would appear that the claim was only made after the patient had gone for a second opinion on the treatment carried out and the practitioner giving the second opinion had severely criticised the previous dentist. I will not go into the ethics of this and whether the treatment provided may or may not have been of an appropriate standard. However, criticising a colleague is easy; putting things in a factual, non-judgmental way is sometimes more difficult. In this case, I feel that had one colleague not talked critically about another, a claim for negligence would never have been brought and this situation could have been settled without recourse to solicitors.
    I always use my ‘butcher’ story as an example here. A patient presents for the first time to a new dentist, complaining of a problem. The patient says: ‘My last dentist was a complete butcher.’ ‘Please explain,’ says the new dentist. The patient explains that the dentist down the road put a filling in last week, which has broken and is causing pain. The new dentist has a look and thinks ‘yes, this isn’t very good’ and remarks to the patient that it probably does need a bit of work to repair it/make it good. The new dentist then asks the patient whether they would like to have the work done now. The patient says, ‘Yes please, I’m not going back to that ‘butcher!’ So the new dentist attempts to provide the treatment. The patient can’t open their mouth very wide, retches, has a tongue like an elephant’s trunk, saliva like the Niagara Falls and the area to inject looks like a black hole. The new dentist has difficulty seeing into the mouth, the patient won’t stop moving around, so he can’t anaesthetise eit her.An hour later, and now running over time, the new dentist finds that a worse restoration has been placed than that provided by the poor colleague down the road!
    KEY POINT: Give the facts about what you find, but never openly criticise a colleague. In fact, never criticise. You never know the true position unless you’ve been in the same situation, with that same patient, at that time, in that environment, attempting to do the same treatment.

Conclusion

I have described above a small selection of the multitude of different scenarios with which I’m presented. A few tips to end with…
The best way to deal with a complaint is obviously to avoid it in the first place. The defence organisations have excellent risk management modules, which I recommend you to study. Another tip I would mention to you is to look up the relevant research papers for the treatment you are providing. For example, when providing veneers, it would be beneficial for the patient to know approximate longevity and failure rates. A good way to describe things is: ‘Research shows that…’!
In the next article, I will be writing about what happens when cases proceed to the next stage.

Dr Brian Franks
Web: www.drbrianfranks.com,
Email:brian@drbrianfranks.com

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