Mal Byrne writes about potential compensation claims for victims of dental negligence.
TGB’s Mal Byrne writes about potential compensation claims for victims of dental negligence.
When I was a boy, I hated going to the dentist. I still hate it. Going to the dentist means pain, discomfort and embarrassment lying on your back with someone sticking their hands and various nasty implements in your mouth. However, it is a necessity. Your teeth are essential and the thought of false teeth is unattractive. Nevertheless, dentistry is a more expanded profession than it was when I first started having my teeth checked. There is an array of specialists now such as oral surgeons, orthodontists, prosthodontists, and oral hygienists. There has been a lot of development in dentistry over the past decade or two. I had never heard of dental implants until I needed one. Furthermore, in addition to essential dentistry, there is now cosmetic dentistry and options such as whitening, veneers, straightening, and even the perfect smile.
However one given and something that will never change about dentistry is that it is expensive. Even if you have private health insurance, there is usually a gap or a ceiling. When you are paying out that type of money, you want a good outcome. So what happens if the dental treatment fails due to the dentist’s negligence, what are your legal options?
To prove negligence, you need to establish that the dentist or dental surgeon (who automatically has a duty of care) has failed in his/her care in terms of either the advice provided or treatment provided. In terms of advice, a dentist may fail in his/her care by advising someone to have veneers on teeth that could only progress with crowns. Examples of poor dental treatment are numerous. Whether it is poor advice or poor treatment however, a person pursuing a claim in negligence will not be able to get anywhere unless they can obtain an expert opinion critical of the standard of care provided to the plaintiff by the provider concerned. Furthermore, proving failure of care is not sufficient to establish negligence. You also need to establish that if the dentist or dental surgeon or specialist had provided the requisite standard of care, the outcome would have been substantially different from the outcome obtained. If nothing could have saved your tooth, you will not be able to sue even if the dentist trying to save the tooth did a poor job.
Breach of Contract
Any time a patient pays a dentist for treatment, there is a contract as the patient is providing consideration to the dentist for that service by paying for the service. It is an implied term of any contract between dentist and the patient that the dentist will provide a reasonable level of care and also the full extent of the service to which he has been contracted to provide. If the dentist provides substandard treatment, the patient is entitled to a refund of the money provided as the contractual term has not been fulfilled. Furthermore, if the patient ends up worse off as a result of the breach of contract, the dentist is liable to compensate the patient for that worsening if the dentist cannot rectify the problem by further treatment.
Whether or not it is negligence or breach of contract, when a patient instructs a lawyer on one of these matters, the first stage of the case will be to obtain the patient’s dental records not only from the dentist who treated the patient but probably the patient’s previous dentists and new dentists including an x-ray. The reason for getting the old records is to confirm that the patient’s teeth were healthy prior to consulting the dentist. An argument that insurers use as a defence to these claims is to argue that the patient’s teeth were compromised in any event before consulting the dentist they are defending. Getting the records from the new treating dentist is important as the new dentist may have recorded fault on behalf of the previous dentist and would certainly have recorded his/her initial findings from the patient’s first consultation.
Once all records are obtained, the patients however need to consult with a specialist and obtain an opinion on the standard of care provided to the patient by the doctor concerned. Expert opinions are not cheap. They normally cost in the order of $1,500. The Law Society of South Australia Litigation Assistance Fund may provide funding to cover the cost of an expert opinion on the basis that the fund recovers double the money paid if the patient goes on to obtain compensation and writes off the amount paid if the patient is unsuccessful. The opinion will not only focus on the level of care provided by the dentist concerned but the consequences. The expert usually is an oral surgeon or prosthodontist who will provide an opinion on the standard of care provided, the consequences that arise out of the failure of care, the cost of rectification of the fault, whether or not the rectification is likely to be successful and whether or not rectification treatment needs to be repeated at intervals throughout the patient’s lifetime. Dental treatment is expensive and often the main point of argument between plaintiff and defendant in these cases is over the need for future treatment, the need for repetition of that treatment and the overall cost.
Once a supportive expert opinion covering all these matters is obtained, the next stage is to present a settlement proposal to the dentist and/or his insurer for their consideration. At that point the insurer will probably consult a lawyer and engage their own expert to examine the patient and provide his/her own opinion. The more that the defendant’s expert agrees with the plaintiff’s expert, the more likely that settlement discussions will begin. However, if the defendant’s expert completely opposes the views of the plaintiff’s expert, the matter becomes more complex and may be headed for Court.
Hence, if you are the victim of dental negligence, you should consult a lawyer for advice on whether it is worthwhile pursuing a claim.