Liability in Dentistry: Belgium

Klaus Rötzscher (ed.)Forensic and Legal Dentistry201410.1007/978-3-319-01330-5_5

© Springer International Publishing Switzerland 2014

5. Liability in Dentistry: Belgium

Yvo Vermylen 
(1)

Department of Dentistry, Katholicke Uhiversity Leuven, Capucijnenvoer 7, 3000 Leuven, Belgium
 
 
Yvo Vermylen
Abstract
The dental contract is a usually unwritten agreement between a dentist and a patient, with on the one hand the dentist’s commitment to advice and/or treat the patient and on the other hand the patient’s obligation to pay the dental fee.

5.1 The Dentist-Patient Relationship

1.

The dental contract is a usually unwritten agreement between a dentist and a patient, with on the one hand the dentist’s commitment to advice and/or treat the patient and on the other hand the patient’s obligation to pay the dental fee.
 
2.

The dental contract is a consensual, reciprocal agreement which must be carried out personally, and it is often characterized by a certain duration.
 
3.

A contract is void if error, deception, or coercion is present: in that case, the contract is not automatically void, but will provide a basis for a claim for annulment. The consent must be given by the contractor.
 
Incompetent minors, insane persons, and all those who are prohibited to conclude contracts by law cannot enter into contracts. This means that the consent is required from the parent or guardian. Certain minors, intellectually and physically mature, can take decisions in relation with their health, especially if there are no major risks involved, which is almost always the case in the dentistry. This means that for young people under the age of 15 the consent of the parents or guardian must be obtained. Young people often come to the dentist alone with a dental problem. The dentist should in that case contact the parents in order to obtain consent, unless the children have a written consent of the parents. That is a very unreasonable and impractical situation, which in practice is difficult to apply. A young person who is in pain has a right to treatment, and the dentist who should not treat it would be guilty of failure to treat a person in distress. For this reason, it seems logical that in such a case, the treatment should be limited to the problem for which the child consults the dentist and further treatments will be postponed until a consent from the parents is obtained.
Sometimes necessary interventions cannot be performed if the parents do not consent to the treatment. That would be the case with orthodontic treatments. If the orthodontic treatment can be postponed to the moment that the child can give a valid consent (18 years in Belgium), there is not a big problem. If such a treatment will not be possible anymore or with a less favorable outcome, it is in principle possible that a child seeks the assistance of the Public Prosecutor who can send the case to the juvenile court in order to get a court decision. That is very exceptional but not impossible.
Another problem that arises with children is that consent, in case of divorce of the parents, shall be obtained from the parent who has the right of custody, except in emergency situations.
The subject of the contract is the commitment to give, to do or not to do something. Only things that are on the market can be the subject of agreements.
A cause is not valid if it is prohibited by law or contrary to public order or public morals. Dental surgery is allowed if it is necessary and therapeutic. What about pure cosmetic or esthetic treatments? Do they have a therapeutic value? Do we have to take only in consideration the physical or functional values? This can be disputed. A human being is concerned not only about physical but also about psychological well-being.
The problem of a patient suffering from an inferiority complex because of strong discolored teeth as a result of tetracyclines or due to heavily filled teeth can only be resolved with porcelain or acrylic veneers.
We can imagine that an intervention is unlawful if the risks of surgery are not in proportion with the therapeutic effects.
A patient has the right to interrupt a treatment unilaterally at any time. This may seem a contradiction at first sight, but it is not because agreements which cover the physical integrity are always revocable.
The revoking of the consent is therefore not a contractual error and does not give rise to damages.
A dentist can also step out of a treatment contract on condition that the health of the patient is not at risk and that he shall ensure that the continuity of the treatment will be guaranteed.
The dental contract is an agreement intuïtu personae, which means that a dentist should carry out the agreed treatment himself and not delegate the treatment without the consent of the patient.
The agreement is automatically terminated by the death of the dentist.

5.2 Obligation of Result or Obligation of Effort

Medicine and dentistry are dominated by an obligation of effort or means: a dentist will use all available means to achieve the best possible outcome, without it being mandatory to achieve a specific result. This is the general rule.
The legal difference between the two is situated in the burden of proof: In an obligation of result the patient only has to prove that the proposed result is not achieved, while with an obligation of effort the creditor must prove that the dentist has not acted as a competent, prudent, and diligent dentist (placed in the same circumstances).
That proof is much more difficult for the patient. He must prove that the dentist acted in a negligent, unscientific way.
In order to know whether or not we have to deal with an obligation of result:

  • An obligation of result can be derived from a breach of a statutory requirement or prohibition.
  • One can also look at the clauses of the contract or to what is agreed between the contracting parties.
  • An obligation of result can be derived from the non-aleatory nature of the treatment. If there are no unforeseen factors to influence the treatment or affect the end result and when we may assume that we almost always get a positive result if we treat the patient lege artis, we may have of an obligation of result.

5.3 Fault

When something goes wrong during treatment and causes damage and if there is a causal relation between the fault and the damage, liability is possible.
The patient has the burden of proof and that is not always easy. He often does not even know that an error was made, and sometimes the damage appears many years after the treatment.
Each patient may expect that his/her dentist is competent, skilled, and experienced in the field of dentistry. This distinguishes him/her from the ordinary man who does not have these skills. He should not be world champion or the best specialist in that field of dentistry, but someone who meets the normal standards of good practice.
The standard of care is measured through objective, external, and impersonal criteria and compared with the behavior of a standard dentist with the same qualifications under the same circumstances.1 It does not take into account subjective data such as age, sex, intelligence, and character. A dentist must be aware of his/her limits, and if he has no sufficient basic knowledge to perform a certain treatment, it is appropriate to refer the patient to a specialist or another colleague or to first acquire the specific technique. A dentist who performs a surgery which belongs to a recognized specialization in dentistry will be assessed according to the standard of care of that specialty. In Belgium there are two dental specialties recognized: orthodontics and periodontology. Since a general dentist received during his/her training the basic knowledge of orthodontics and periodontology, he may also exercise these subareas of dentistry on the condition that he meets the standards of care that are required for these specialties. A general dentist who performs endodontic or prosthetic treatments will not be compared with the dentists who followed additional training in this area of dentistry at the universities (which are not (yet) been officially recognized as a specialty) but with the standard general dentist. A lack of experience cannot be relied upon as a defense if something goes wrong. That means that a newly graduated dental professional or just starting up specialist must fulfill the same standards as his/her colleagues nor can an older dentist rely on the fact that he did not kept up with new treatment techniques.
That standard of care is not determined by the dental profession. It will be the privilege of the judge to decide what a dentist ought to do.
A dentist, who has to appear before court in a case where an endodontic file was swallowed, cannot argue that a rubber dam is not widely used in the region (country) where he practices.
The judge will take into account certain circumstances of time and place. That can be when a dentist performs an extraction on a bedridden patient without the necessary infrastructure (difficult circumstances, no accurate lightning) or when the treatment is urgent and life threatening.
The court will take into account the acquirements of science at the time of the surgery. The court will never rely on new scientific insights that were published after the disputed intervention.

5.4 Fault or Complication

The problem with dental and medical treatments is to determine if we are dealing with a fault or a complication and that is not always obvious.
Complications can be linked to the patient, the treatment, or the practitioner.
A patient can be allergic for some products (chrome-cobalt or adrenaline).
There are always risks that are inherent to the treatment. If adrenaline enters a blood vessel during injection of the local anesthetic, he may get tachycardia or syncope. This has no serious consequences for a healthy patient, but might have damaging consequences for a patient with a hidden or existing heart disease.
Practitioner-related complications are mostly the consequence of a lack of experience or incompetence, and in these cases we have to think more in terms of fault.
A judge will decide a case based on the provided evidence if a fault has been made.
In some cases, the burden of proof will be facilitated if the judge has a strong suspicion, deduced from known facts, that a fault has been committed. In that case, the burden of proof will shift to the practitioner.
A dead certainty is not necessary in civil cases, and a judicial certainty is enough (that means that there is such a strong degree of certainty that the judge does not have to consider the opposite anymore, even if it is still theoretical possible).

5.5 Admitting a Fault: Possible?

A dentist who recognizes that he committed a fault during treatment does not recognize liability. A dentist must deal honestly with his/her patient and inform him/her when something went wrong during treatment.
Recognizing liability by the practitioner should be avoided, even if that recognition does not bind the insurer. The patient has still the burden of proof, and he will only get compensation for damages from the insurer when he succeeds.

5.6 Installing a Legal Action

The prescription period of a medical error has a double limitation period: the legal action expires at 5 years. It starts to run from the day following the date on which the injured party discovers that something went wrong. No claim for damages can be installed 20 years after the date of the committed error.

5.7 What Can Go Wrong in Dentistry?

A typical treatment can be divided into several phases: the diagnosis and the medical history, the consent of the patient, the treatment itself, and the aftercare.

5.7.1 Diagnosis and Medical History

Before a dentist starts a treatment, he shall obtain a medical and dental anamnesis about the general health of the patient. That can be done with a standard form given to the patient who will answer all the questions. After completion the form is discussed with the patient to make sure that all questions are answered and understood.
This form must be at all times up-to-date and is an entire part of the dental dossier.
If not, the dentist can be held liable for all the damage that may occur.
The dentist shall use all necessary means to arrive at a correct diagnosis.
The use of diagnostic means should be in accordance with the level of difficulty.
Overdiagnosing could also be an error and lead to adverse effects for a patient (such as excessive exposure to X-ray radiation), but if necessary, the patient must be referred to a specialist for additional investigations (cone-beam CT). That means that all relevant clinical, diagnostic, and anamnestic information, related to the dental problem, must be included.

5.7.2 The Informed Consent

Each patient has a right to self-determination and the right to physical integrity. Without consent, a dentist commits battery and can be held liable for practicing illegal dentistry.
Medical and dental treatments are carried out by a person who has the legal authority to do so and require the consent of the patient.
In the United States, this problem of consent for treatment was for the first time raised by judge Cardozo in 1914 stating that: “Every human being of adult years and sound mind has the right to determine what shall be done with his/her own body, and a surgeon who performs an operation without his/her patient’s consent commits an assault, for which he is liable in damages”.2
In principle consent must be given for each treatment. In simple, low-risk diagnostic or therapeutic treatments, consent is assumed.
The consent shall be given by the patient himself. For children or people suffering from mental illness, the permission is given by the parent(s) or guardian.
The consent may be given in different ways: implicitly or explicitly.
For complex treatments a written consent form might be desirable, but it must be made in such a way that it is specifically made for the patient and takes into account all possible relevant problems (at least in Belgium).
Consent, however, is not enough. It must be an informed consent.
The information is given by the dentist in, for the patient, understandable terms.
The information must be given timely and to a conscious patient.3
A dentist shall not start with a complex treatment immediately if there is no urgent reason to do so. He shall give the patient the time to reflect on it and possibly to go for a second opinion.
Questions of the patient must be answered in good faith, and a well-informed patient will be better focused and cooperative during treatment.

  • Information must be supplied on the various aspects of the intervention, on diagnostics, the nature and scope of the treatment, the risks of the treatment, and the consequences of non-treatment. The obligation is not limited to the preoperative phase, but should also be insured for the postoperative phase.
  • The usefulness of a treatment should be indicated.
  • The possible adverse effects and the risks of an operation must also be included.
  • How much information should we give about risks? All risks or only the relevant risks?
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Nov 26, 2015 | Posted by in General Dentistry | Comments Off on Liability in Dentistry: Belgium
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