As a dentist you always aim to do the best you can, but if you don’t effectively manage your patient’s expectations and record adequate consent, they might have good grounds for a claim

A claim for compensation due to alleged negligence is often made because the patient has unrealistic expectations about the treatment or outcomes. Even though lengthy discussions may have taken place, unless this is clearly documented in the clinical records that patient may succeed in their claim. Therefore it is recommended to fully document every discussion in the clinical records to validate the patient’s consent. Signed consent forms can be helpful, and sometimes mandatory, but the forms should be specific to the individual treatment planned, rather than an all-encompassing, general consent form.

Tips to avoid a claim

Discuss and fully document in the patient’s record:

• the purpose of the procedure
• the nature of the treatment (what it involves and timescales)
• what the treatment will achieve (taking into account the particular concerns of the individual patient)
• all risks, limitations and possible complications (including rare but significant complications)
• alternative treatments and how they compare cost
• post-treatment issues including possible time-off work or the need for future treatment.

Case study: Unrecorded discussion leads to claim for negligence

A clinician examined a patient who asked whether something could be done to replace his upper right second premolar tooth. The patient had browsed through the literature in the waiting room about implants and bridgework and discussed the various options with the dentist.

The dentist recalled fully discussing the concept of an implant-retained prosthesis and the cost for such a procedure. He also advised his patient that a three-unit bridge using both the upper first molar and premolar as abutments was another alternative. The patient decided to go ahead with the bridgework because it would be quicker and less expensive.

The dentist made a three-unit bridge as agreed, but unfortunately the patient found it difficult to tolerate because he was getting food caught underneath it. By mutual agreement the bridge was removed, before making a crown and a porcelain inlay to restore the distal and mesial abutments respectively.

The dentist carried out some further preparation on the molar tooth and fitted the crown at the following visit. Unfortunately the patient experienced pain from the crowned tooth, which subsequently had to be root-treated.

Negligence claim

The patient instructed a lawyer to make a claim in negligence against the dentist alleging that he had not warned of the risks of preparing the tooth for a coronal restoration, nor had he fully explained the advantages of having the space restored with an implant.

Although the dentist recalled discussing the various options and material risks with the patient, there was unfortunately nothing entered in the records to support his claim that the consent process had been carefully completed. Given there is a legal and ethical obligation to create and retain appropriate records, the very absence of a suitable record in the context of a claim is likely to give rise to an overall impression of poor/substandard care and leaves a court or a decision-maker with an unfavourable view of a clinician’s practice, whether that is fair or not. Similarly, in the absence of a good record, the decision on the standard of care may well depend upon the reliability and credibility of the parties and their recollection of the incident.

In view of the lack of supportive records, it was decided it would be difficult to defend the claim and a settlement was effected to compensate the patient for the destruction of the abutment teeth and the costs involved for further restorations of these teeth in the future.

Learning point

Unless conversations and warnings are recorded contemporaneously in the notes, they may well be deemed not to have occurred if a problem subsequently arises and the patient presents a different version of events to that presented by the dentist.

Case study 2: Out of shape

A middle-aged female patient had badly imbricated lower incisor teeth. She responded to an advertisement placed by a dentist who declared a special interest in cosmetic dentistry.

After an initial consultation, various options were outlined in her treatment plan that ranged from orthodontic treatment and crowns, to the most conservative option of reshaping the tooth using enamel reduction and the selective addition of bonded composite. The patient was unsure about using fixed orthodontic treatment, even though it could achieve more than selective reshaping, so she opted to have the four lower incisor teeth crowned.

After having the crowns fitted, the patient was still unhappy with the appearance of her lower incisors. Although the buccal aspects of the teeth were now aligned, any view from above the incisal edges (the patient was short in stature so this became an important consideration) would reveal a strikingly excessive lingual to buccal width of the two teeth that had previously been instanding. As a result, the patient refused to pay for the crowns and threatened legal action.

On investigating the background to the case, it transpired that the patient had been shown several ‘before’ and ‘after’ pictures of cases where crowded and badly angulated teeth had been corrected into normal alignment. In none of these cases had there been any instance where a tooth ended up with excessive buccal to lingual width, and nor had there been any discussion of this possibility in the pre-treatment consultation between dentist and patient.

An expert opinion was sought, which stated that given the original position of the teeth it was never likely to be possible to create well-aligned teeth of normal dimensions without devitalising the teeth and placing posts and cores. This fact had not been considered or discussed with the patient and as a result the dentist was vulnerable to a successful claim, given that treatment had been provided without informed consent. Dental Protection assisted the dentist to achieve an amicable settlement without the involvement of attorneys.

Learning point

Whatever the treatment plan, all options need to be given to the patient in order for them to give valid consent to the treatment that is finally selected. If the information provided by the clinician to the patient is incomplete or not accurate, the consent process is very likely to be challenged if the patient is dissatisfied with the outcome.