As medical professionals, dentists have a legal duty of care towards their patients.

What this means is that a dentist has an obligation to provide correct and appropriate treatment to those in his or her care.

The United Kingdom is fortunate in that, in general, British dentists can rightly be proud of the high standard of dental care that they provide.

That said, errors do occur in any professional activity and some of those errors may be due to negligence.

Common examples of grounds for dental negligence cases include the following:

  • Cosmetic dentistry error
  • Dental implant error
  • Inadequate root canal therapy
  • Failed implants
  • Failing to manage and treat decay
  • Inadequate fillings
  • Inadequate crowns
  • Wrong tooth extraction
  • Anaesthetic error
  • Damage to lips (including nerve damage)
  • Orthodontic surgeon negligence
  • Error with Anaesthetic
  • Damage to tongue (including nerve damage)
  • Failing to manage gum disease (periodontal disease)

The above list is by no means exhaustive and there are numerous other justifications for initiating legal proceedings against a dentist for negligent treatment. Broadly speaking, however, when a dentist provides treatment that falls below the standard of care that one would normally expect from a professional, this is referred to in legal terms as “Dental Negligence”.

Dental negligence litigation is a specific type of medical negligence claim made for injuries suffered during any type of dental proceedure and may include a dentist’s failure to take action that was evidently necessary.

Making a Claim for Dental Negligence

Suing for dental negligence is a complicated process. Dentists are classified as medical practitioners therefore any negligent act performed by a dentist that causes an injury to a patient falls under the legal definition of “Medical Negligence”. A claim for personal injury compensation caused by medical negligence is, from a lawyer’s perspective, considerably more complex than a personal injury case that results from other forms of negligence e.g. the negligence of a supermarket that failed to clean up a slippery substance from its floors, or a driver who attempted to change lanes without due care and attention.

What does a lawyer mean by “Negligence” or “Dental Negligence”?

In everyday conversations the meaning of the word ‘negligent’ is often rather subjective; an action may be labled ‘negligent’ when in reality it was simply a little careless or naive e.g. A football commentator may refer to a defender who was slow to react to a cross as ‘negligent’.

It is therefore important to give a definition of what exactly is meant by ‘medical negligence’ (and therefore ‘dental negligence’) under British law.

The defining cases relating to medical negligence in the UK are Bolam vs Friern Hospital Management Committee [1957] and Bolitho v. City and Hackney Health Authority [1997].

These judgements established the principle that when dealing with an accusation of medical negligence a court should ask whether a normal competent doctor would have acted similarly to the defendant doctor. For dental negligence cases we can simply replace, “normal competent doctor” with “normal competent dentist.” What this means is that even when the subject dentist’s actions have caused or contributed to the claimant’s personal injury, those actions may not be deemed negligent if it can be demonstrated by the defendant dentist that they were the ‘reasonable’ and logical actions of a dentist given the information available and the relevant circumstances. As a consequence even when a dentist has made a mistake, as long as other reasonable dentists may have made the same decision and that that decision was more or less logical, that error may not actually constitute dental negligence.

“Will I have to go to court?”

Court action is not always necessary to resolve compensation claims for dentist negligence and in many instances such claims will be settled and a compensation payment agreed upon by the defendants and your legal team without going to trial. A full trial does, however, remain a possibility.

How is the value of a dental negligence case assessed?

Type of injury

Injuries sustained or illnesses contracted due to negligent dental care are valued regarding their seriousness and whether or not they require objective proof (i.e. expert diagnosis) to be believed. The permanency and persistence of the injury are also rather important factors.

Prognosis

If the symptoms of the dental injury suffered are expected to be long-term or permanent this will increase the amount of compensation that can be expected. The age of the injured party is also significant. In the context of a permanent injury, same may be ‘worth’ more to a younger victim than to an elderly one. To put it bluntly, this is because a younger person will usually have to live with the injury for a longer period of time.

To give a simple example; if a 20 year-old person sustains a permanent injury due to a negligent dental error, he or she may have to live with the consequences of it for, potentially, more than 60 years. In all probability a 75 year-old who suffers a similar injury, will not have to cope with it for such an extended period of time.

Dental History

A claimant’s dental history and records will be an important factor in assessing his or her claim. A pre-existing problem or a prior history of similar or identical problems may affect a claim significantly. The key question is perhaps whether the subject dental negligence was the primary cause of the injury or only an aggravating factor?

Impairment of quality of life

There is more to life than work! As such any dental negligence claim for personal injury compensation will take an impairment or loss of quality of life into account when value is being assessed. This is a very individual assessment for each claimant as every person’s passions and interests are different; injury to the lips or tongue, for example, may be viewed more seriously again if it can be proved that the claimant was a keen amateur trumpeter prior to the incident.

Severity and persistence of pain suffered

The very principal behind any personal injury compensation, be it for dental negligence or otherwise, is indeed to compensate the claimant for his or her injury and related suffering, therefore the greater the pain suffered and persistence of same, the higher the compensation awarded is probable to be.

Special damages following negligent dental care

In normal circumstances the costs of specialist dental treatment that a victim requires following his or her injuries, including the costs of remedying the error sustained due to the negligence of the defendant dentist can be compensated for in full or in part.

Loss of earnings

Loss of earnings is in fact a separate, additional, aspect to the dental negligence personal injury claim. It often causes great confusion for clients and frustration for their solicitors and barristers. Claimants may compare the settlement negotiated on their behalf to that of an acquaintance (or a friend of a friend) who received “£15,000 more than I did!” for a dental injury that they believe is similar to their own.

Comparing one settlement to another without having access to all of the facts in evidence is, of course, a mistake. Details become over simplified and the version of events that are recounted at work or in the pub can offer differ greatly from the reality.

Even allowing for misinformation, the difference in total settlement figures may simply be due to a significant loss of earnings which were awarded because of the other claimant’s lengthy absence (or even a predicted absence) from work.

Unsurprisingly, the money awarded for ‘loss of earnings’ corresponds to the particular claimant’s earning power or even potential earning power. For the loss of earnings aspect of any personal injury claim, the gravity of an injury or illness contracted itself is relevant only insofar as it restricts that person from going to work. Personal circumstances are a factor, and different injuries can have entirely different consequences for the claimant depending on his or her work e.g. an injury to the lips or tongue of a professional singer or the (visible) loss of a front tooth for a model or an actor.

Time limitation for dental negligence claims

The maximum time limit for making a personal injury claim in England and Wales (subject to certain exceptions) is three years after what is known as the “Date of knowledge.” This is the date on which injury was sustained or the illness contracted. The right to make a claim for compensation under UK law is extinguished exactly three years following the date of knowledge.

As explained above, the date of knowledge in cases of dental negligence is more often than not the day on which the dental error was in fact made. However, a dentist’s mistake may not always be obvious immediately and in such cases the ‘date of knowledge’ is actually the date on which the claimant became aware of the illness or injury resulting from the negligent treatment and he will have three years following that date to begin legal proceedings for compensation.

If in doubt as to the “date of knowledge”, a person injured due to dental negligence should consult with a solicitor without delay. Waiting too long can result in the right to compensation being lost forever and even when it appears that it is already too late to make a claim it is still advisible to speak a solicitor as an exception may apply to the particular circumstances.

Time periods relating to children as victims of dental negligence

When a child has been a victim of dental negligence the ‘date of knowledge’ of the injury is in fact the victim’s 18th birthday i.e. the three-year limitation period does not begin to run against the minor victim until he or she reaches majority. Thereafter, under the present law in England and Wales, the injured party, who would be by now an adult has three years within which to issue court proceedings. Nonetheless, a minor claimant may commence proceedings for compensation prior to their 18th birthday provided a parent or guardian legally acts as his or her ‘next friend’.

Please be aware that each case of dental negligence is unique. If you believe that you have recently suffered an injury or developed an illness due to hospital negligence you may have a legitimate personal injury claim. You are advised to contact a solicitor in order to discuss all of the points raised in the preceding article as soon as possible.