8: Clinical Negligence

Chapter 8

Clinical Negligence

Negligence is a term that instils fear in any professional person. Research of undergraduate dental students in the UK revealed that it was the single most frightening prospect when they were asked about postgraduation anxieties.

Negligence is a legal term that describes a sequence of events. It is likely that everyone at some stage of their career will in fact be negligent. The basic components of negligence in dentistry are:

  • The dentist has a duty of care to the patient.

  • The dentist fails in his/her duty of care to the patient by an act of omission (failing to do something) or commission (actively making a mistake when carrying out treatment).

  • The patient suffers harm as a result of the failure in the duty of care.

In 2000, the Physicians Insurers Association of America (PIAA) published data specific to dental malpractice claims. This data showed:

  • On average 41% of dental claims result in a payment to a patient.

  • Women filed 65% of dental claims.

  • When a dental claim involves the issue of consent for treatment, payments are made in 68% of cases.

  • When a claim involves problems with records, payment occurs 72% of cases.

Duty of Care

Once you agree to advise, consult or treat a patient it can be safely assumed that you have a duty of care to that individual. Your duty of care may extend to individual patients or to groups of patients.

There may be exceptional situations in which the dentist may not have a duty of care. By way of example, consider someone who calls on you late at night demanding emergency dental treatment. You have never seen the individual before, nor has the person attended your practice. You advise the individual that you are unable to see him and refer him to the local emergency service rota. The individual subsequently sues you for failing to see and treat him. It is likely that this would be successfully defended on the basis that you did not have a duty of care to treat the individual in that particular situation (i.e., you were under no obligation to treat someone who you had never seen before). Notwithstanding that, there may be ethical issues regarding the decision not to attend to the person.

Very few negligence cases revolve around the issue of duty of care. For the most part, if you agree to see a patient then you have a duty of care.

Standards of Care

The majority of negligence cases are disputes about the standard of care provided, with one side (the patient’s) arguing that the dentist or other healthcare worker failed to provide an appropriate standard of care to the patient (i.e., failed in their duty of care).

Dental students qualify with a good, contemporary knowledge of a range of techniques. The General Dental Council in the UK produces a document called The First Five Years, which sets out the curriculum for the undergraduate dental degree programme. This is constantly evolving and incorporating with new knowledge and understanding. Accordingly, standards also evolve and are ever changing. An appropriate standard of care today may be wholly inappropriate in a few years time. Standards are much to do with the people who are judging them and they are relevant in a number of different forums.

The Civil Standard

The civil standard, as applied in a Civil Court, is that of the judge (or jury in countries that have jury-based trials). There are number of tests but perhaps the most quoted legal test is that called the “Bolam Test” (see Chapter 5). This test, otherwise known as the professional test, is the standard that arose from a speech by Justice McNair in the case of Bolam v. Friern and Barnet Hospital Management Committee in 1957. It is still the baseline benchmark of a definition of the duty of care that a doctor owes a patient. The test (i.e., whether there has been negligence) is the standard of the ordinary skilled person exercising and professing to have that special skill.

In other words a general dental practitioner will be judged on the basis of whether it would be a reasonable standard for a general dental practitioner. A specialist endodontist would be judged in accordance with the standards required of a specialist endodontist.

The test works on the basis that as long as a dentist acts in accordance with a reasonable, reputable and respected view of a competent body of opinion then he/she will not be held to be negligent. This test has many critics because there are those who argue that it is far too paternalistic in its outlook. It has been heavily criticised in legal circles, yet it still stands almost 50 years later. There are similar test cases in other jurisdictions and indeed Bolam was preceded by the case of Hunter and Hanley in Scotland.

In recent years Law Courts have not held back from challenging the right of the profession to decide alone what is best. The case of Bolitho, which is now established in law in the UK, gives the Law Courts the ultimate right to decide what is a reasonable, respectable and reputable body of opinion.

This situation means that it is possible for Law Courts to find a dentist negligent even if they have been acting in accordance with a body of dental opinion. That is, if the Law Court takes the view that the body of opinion itself is unreasonable. In other words, just because a group of dentists are using a technique a Law Court could take the view that it is outdated and unreasonable.

A judge, however, has to have a very sound reason for questioning a body of professional opinion. It is not simply a case of a judge favouring one set of professional views over another, let alone inserting their own views. From a risk management point of view, therefore, a dentist needs to ensure that a patient’s care is in accordance with a contemporary body of opinion.

A good example is the use of silver points in endodontic treatment. Silver point techniques were widely taught in dental schools in the 1960s and 1970s. It would not be possible to argue that the use of such techniques back in 1965 was negligent. On the other hand, if a dentist wished today to treat an endodontic case using silver point techniques, then the dentist would need to ensure that the technique being used was in accordance with a respected body of dental opinion. It would be extremely difficult, if not impossible, to get an expert to support the use of silver points at the current time and, as a consequence, it would be very difficult successfully to defend a claim on that basis.

The important thing to remember is that all cases are judged on their individual merits, hence absolutes have not been used in the examples above.

Box 8-1

Key questions to ask:

Can this technique/approach be supported by a reasonable, respected and competent body of dental opinion?

Do I have appropriate training and/or experience to use the technique?

Do I have the appropriate facilities, equipment and materials available?

Is there evidence to back up my approach?

If there is insufficient or no evidence, can I put forward an argument with support for this particular approach?

Is the right treatment approach being used for this particular patient?

Do I have the appropriate resources to carry out the treatment in recommended way?

Staying Abreast of Current Clinical Thinking

Teaching at the undergraduate level is well developed and generally accepted. Most techniques have a life cycle, starting with an innovation which only a few may be advocating based upon assumptions or research. The technique usually becomes mainstream when the majority of the profession is likely to use it. In time, the quest for new knowledge and understanding may challenge conventional wisdom. As a result, techniques become modified or even discredited.

All dentists should ensure that they are practising in line with current clinical thinking. Some questions to be asked are summarised in Box 8-1. If your answer to any of the questions is “no” then it is important to reappraise the situation.

Conflicting Opinion

There are areas where there may be conflicting opinions about a technique or approach. These may include unconventional views – for example, the amalgam/mercury debate and alternative treatment techniques. It is not negligent to be different, but it is important to communicate the treatment options and to ensure that patients fully understand the implications.

An example of this is the use of rubber dam during endodontic treatment – a technique which is written into the ethical guidance of the Dental Board of Victoria, Australia. Dentists have been challenged on their failure to use a rubber dam as part of serious professional misconduct charges. The omission being considered by some to be a failure in one’s duty of care. Yet there are many who argue that it is not negligent on the basis that many dentists carry out endodontic treatment without the benefit of rubber dam i/>

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Jan 5, 2015 | Posted by in General Dentistry | Comments Off on 8: Clinical Negligence
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