Damage limitation

The vast majority of patient interactions go well and without dispute, but sooner or later many dentists experience the distress of a solicitor’s letter. This can cause the dentist to suffer acute anxiety as well as question his or her own ability.

Such letters are of course designed to do just that, so if you do receive one it is very important that:

• You do not panic

• You do not get in touch with the solicitor either by telephone or by letter

• You notify your defence insurer or mutual society immediately

• You collect together all the notes, models, X-rays and correspondence relating to the incident or treatment and put them in a secure place.

Do bear in mind that a substantial proportion of allegations made against dentists through solicitors come to nothing. A firm rebuttal by the defence organisation on the dentist’s behalf is often the end of the matter.

The solicitor will, after all, only be in possession of the patient’s account of events and perhaps the dental records (usually obtained through the Data Protection Act access provisions), and may not know salient facts about the case. Of the remainder of claims, some will be resolved by negotiation and settlement and a few – around one in 20 – will be defended in court.

To successfully pursue a claim, the patient (claimant) must show that the dentist was negligent. To do so, they must demonstrate:

• A duty of care and breach of that duty. If the dentist has injured a patient as a result of incorrect treatment, then the duty of care may have been breached. The standard expected of a dentist is generally that of a reasonable practitioner. To win, the claimant must show that the treatment failed to reach an accepted standard; for a successful defence, the dentist must show that what he or she did would be supported by a reasonable body of professional opinion

• Causation. The claimant must show that the injury suffered was more likely than not to have been caused by the dentist’s action or omission

• Harm or injury. The claimant must demonstrate that an injury, either physical or psychological, has been caused and generally needs to produce expert witnesses to support the nature of the injury.

If the claimant can show all three elements of the claim, then he or she is entitled to compensation. In civil courts where such cases are heard, the judgement is made on the ‘balance of probabilities’ (i.e. that it is more likely than not that the dentist did or did not breach the duty of care and cause the injury). In other words, for the dentist to lose there must be a 51% or more likelihood that his actions caused the injury.

The only remedy in the civil courts for injury is money. Claimants are usually awarded ‘general’ and ‘special’ damages. Usually the payment is made (by the dentist’s insurer or discretionary mutual society) as a single lump sum. General damages are paid for the pain and suffering associated with the injury suffered, while special damages are those specific to the claimant’s injury, such as remedial treatment costs and loss of earnings.

Successful claimants are entitled to be placed in the position they would have been, but for the negligence. For example, if the patient lost a tooth, they would be entitled to a replacement tooth by any clinically feasible method without particular regard to cost. If the negligent treatment occurred during an NHS course of treatment, the remedy is not limited to NHS treatment and could well be carried out on a private basis.

Claimants do have a duty to mitigate their loss. It may take a considerable amount of time for a case to come to trial or be settled. The patient should obtain timely and appropriate corrective treatment so as not to prolong suffering or the seriousness of the injury.

If a patient makes a claim they will visit a lawyer and the way in which the claim is funded will be reviewed. Some claimants are eligible for legal aid, while a few will fund their claim privately. Increasingly, cases are progressed on conditional (‘no win no fee’) fee agreements with a ‘success fee’ paid to the claimant’s solicitor if the case is won.

When a dentist receives a solicitor’s letter, his or her defence insurer will initially consider the claim. Experienced claims underwriters will be able to calculate the likely value of the claim, notes will be reviewed and the dentist interviewed to collect as much information as possible. The defence insurer may obtain initial expert opinion. By law, the dentist, through his defence insurer, must respond within 90 days.

The claimant’s letter may contain an ‘offer to settle’ which sets out the amount they would be prepared to accept to settle the claim. This offer is deemed to be open for 21 days but may have important future consequences. If the case is eventually settled for the same amount of money or less, the court may take the view that the offer should have been accepted early and a penalty may be made when assessing legal costs.

The dentist’s letter of response must fully address all the issues raised. The court rationale is that this clarifies the key issues and may avoid costly litigation. The dentist may make an offer to settle.

If the dentist does not admit liability, experts may be instructed by either side although the court may direct that a single joint expert is instructed. The more experts involved, the greater the cost of the litigation.

If the case is not resolved at this early (pre-action) stage, the claimant must decide whether to issue proceedings and this must be done generally within three years or within three years of becoming aware of the injury suffered. Failure to do so will result in being ‘time barred’.

All relevant documents, clinical records, X-rays, study models, etc must be exchanged between the parties, together with all witness statements. The claimant will also be required to submit a schedule of special damages.

It is often the case that settlement occurs before trial, often (metaphorically) on the steps of the court. If the case makes it into court, both claimant and defendant together with their respective witnesses will give evidence, experts will give their opinions and all will be examined and cross-examined. The court must judge the merits of the case and find for one party or the other, and the judge will give the judgement. Either party can appeal the decision.

Hopefully you will avoid the stress and disruption of a claim. The advice in my previous articles will go a long way to keeping you safe. Remember, too, that less than one in a hundred dentists is sued a year. With reasonable care you will probably be okay. Good luck!

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