What is ‘Dentist Negligence’?
If you have sustained an injury as a direct consequence of dental treatment that you have received, this may constitute an act of dentist negligence. Like any medical procedure, when a patient visits his or her dentist for a check up or treatment, he or she trusts that the dentist will carry out the correct procedures in a satisfactory manner. Thankfully, in the vast majority of cases this trust is well justified and the dentist will carry out all procedures to a high standard. Unfortunately however this ideal is not always realised, and many people suffer pain and injury as a result of dental negligence.
Negligence by a Dentist
To prove that a dentist has acted negligently in his treatment of a patient is a very complex task and it should be noted that the law provides only the opportunity for a claimant to recover compensation if it can be shown ‘on the balance of probability’ that the treatment that he or she received was carried out in a negligent fashion by the dental professionals involved and that this directly caused or contributed to the injury.
Moreover even if dental treatment is unsuccessful, or in fact exacerbates existing or even causes new dental problems, it is important to remember that this does not necessarily mean that the treatment was ‘negligent’. Although better quality of care or safety measures could have prevented injury, it may be that the incident itself was in fact completely unavoidable.
Dental negligence falls under the broader legal banner of “Medical Negligence”. Medical Negligence cases are perhaps more complex that any other type of personal injury law. This is recognised by the Irish legal system; unlike almost every other type of personal injury compensation case, the Personal Injuries Assessment Board will refuse jurisdiction in respect of medical or dental negligence case.
With respect to any personal injury claim the injury sustained must have resulted from the negligence of someone who had a duty of care towards you at the time of and in the circumstances of the accident. It is apparent that a Dentist does indeed owe a duty of care to his or her patient. It should be noted, however, that it is often difficult to prove negligence on the part of the dentist or dental clinic when an injury has occurred, an illness contracted or a misdiagnosis made.
Types of Dental Negligence
While it is not always easy or straightforward to define what constitutes dental negligence, broadly speaking there are three main types:
The misdiagnosis or failure to diagnose a condition may subsequently result in a failure to provide a patient with adequate treatment for his or her actual dental condition.
Inadequate dental treatment could occur on one occasion, or alternatively over a long period of time. To make a successful dental negligence claim under such grounds, it must be shown that the same treatment would not have been provided by a reasonable and competent dentist.
Careless Dental Work
Claims for careless dental work can include a very wide range of different situations. e.g. if a dentist cuts a patient’s lip or gum during treatment or perhaps extracted a tooth in error.
Injury or damage
The first thing that one must remember when pursuing any personal injury claim, be it a claim for dental negligence or otherwise, is that it is in fact just that ; a personal injury claim. The plaintiff must have sustained some form of injury either physical or psychological as a consequence of the act of dental negligence that occurred. Even where the dentist or support staff have indeed acted negligently, one should note that the plaintiff can only claim compensation for a personal injury, loss or damage that he or she has in fact sustained. A near miss is not sufficient to justify compensation being awarded.
The date of knowledge
Normally, the date of knowledge will be the date on which the injury was sustained. It is therefore important that an injured party contacts a solicitor at their earliest convenience following negligent dental treatment. The reality is that, save for several specific exceptions, the opportunity to make a compensation claim will be lost precisely two years after the date of knowledge. It should be remembered, however, that exceptions do exist. These exceptions may be particularly relevant with regard to cases of dental negligence (for example a condition that went unchecked due to misdiagnosis). The ‘date of knowledge’ in such circumstances may be difficult to clarify. One should therefore always contact a solicitor at the first opportunity even if it initially seems that it is too late as an exception may well apply.
How will value be assessed?
There are a number of factors which will normally influence the value of the plaintiff’s claim, the first of which relates to any dispute over liability for the accident that may arise between the parties.
The cause of an accident (even an injury sustained in a healthcare environment) is not always obvious. In many situations one party e.g. the dentist that provided treatment, may be completely to blame, however it is also true that more than one, or several, factors may have contributed to the injury that has been sustained by the claimant. Moreover, one of the causal factors may in fact have been the negligence of the injured party himself. How then can blame be apportioned? Is the injured party entitled to any form of compensation if he or she has contributed, albeit slightly, to their own downfall?
Contributory negligence is the legal principle that an injured party i.e. the claimant may have contributed to his or her own injury by acting in a manner that was negligent when faced with the obvious and known conditions.
In a dental negligence case this may include circumstances for example where the plaintiff has in fact exacerbated his or her own illness, condition, or injury sustained due to the negligent care provided by their doctor by failing to co-operate fully with follow-up or remedial treatment provided (e.g. refusing to take prescribed medication or missing scheduled appointments etc.) when said care may have helped to cure or alleviate in part the damage sustained.
When this is compared with the negligence of the defendant (or defendants), the extent of contributory negligence may defeat the plaintiff’s case (i.e. the claim will be unsuccessful) or reduce the “amount of compensation awarded.
It is important to remember that compensation is paid only for the injuries that one has actually sustained. Unless a psychological injury or trauma can be proven to have occurred the nature of the accident i.e. that it was caused due to dental negligence and not by a road traffic accident for example is of very much secondary importance to the injuries that have in fact occurred to the plaintiff. Often, however, your solicitor or barrister will make reference to the dramatic or traumatic nature of the incident (in the case of dental injury for example the claimant may well have developed a ‘fear’ of future dental treatment for example) in negotiations or at trial as same will of course present your claim in a more sympathetic light and may contribute favourably to the case.
Dental special damages
Generally speaking, the costs of any specialist dental treatment that you have required or will require due to the injuries that you have sustained in the subject incident can be compensated for in full or in part.
Type of injury
Notwithstanding which injury may cause the individual more pain, it is very often the case that injuries are valued according to their level of seriousness and whether or not they require objective proof (i.e. expert diagnosis) to be believed (e.g. problems with the rear teeth or gums that are invisible to the layman’s aye compared to damage to front teeth that can be seen when one smiles, thereby affecting appearance). The permanency and persistence of the injury are of course also important factors.
Is the injury sustained likely to be permanent or have long-term dental consequences for the plaintiff? Obviously the longer that symptoms are expected to be present the larger the compensation. What is also very significant is the age of the victim. If an injury is expected to have permanent effects, very often a similar injury may be ‘worth’ more to a younger claimant than an older person. This is due to the simple logic that a younger person can be expected to have to cope with the consequences for more time. On a basic level for example if a 20 year old person loses his or her front teeth the principle is that he or she may have to live with that injury for potentially 60 years or more. A person of 70 years old who suffers the same genre of injury, it will be assumed will not have to cope with it for the same length of time. A claim value may also rise further if the specialist dentists consulted specify that you will require future specialist dental care.
Your dental history and records are an important factor in assessing your claim. If you have a prior history of similar or identical dental problems then this may affect your claim significantly as the court may find that the problem pre-dated the subject treatment and as such the dentist cannot be blamed in whole (or part) for same. Perhaps the key question is whether the dental negligence involved was the primary cause of the injury or only an aggravating factor?
Severity and persistence of pain suffered
The very principal behind any personal injury compensation, be it a claim for dental negligence or otherwise, is indeed to compensate the plaintiff for his or her injury and related suffering, therefore the greater the pain suffered and persistence of same, the higher the compensation awarded is likely to be.
It is important to note that each case is unique. If you feel that you have recently suffered injury or developed illness due to dental negligence and believe that you have a potential personal injury claim you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.