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Everything you need to know about making a dental negligence claim – explained

The Dental Negligence Team receives enquiries every day from members of the public who have received substandard dental treatment.

If you think you have a claim make sure to contact us as soon as possible.


What is classed as dental negligence?

Whilst we may not be entitled to ‘gold standard care’, and sometimes we may suffer harm for non-negligent reasons such as recognised complications, we are entitled to reasonable treatment that is carried out correctly. Dental negligence can include a range or errors including a delay in treatment or an incorrect diagnosis, substandard treatment when carrying out fillings, crown work or root canal treatments, poorly executed orthodontics, periodontal disease misdiagnosis and mismanagement, and restorative or cosmetic dentistry errors.

However, it is not sufficient to only show that the treatment that was received was negligent, it must also be shown that negligent treatment caused damage and has led to further injury and suffering. Examples of causation may include nerve injuries or loss of or damage to teeth caused by mistakes in treatment. The defendant is liable for damage that would not have occurred in the absence of the negligent treatment.


What are some examples of dental negligence?


Common examples of dental negligence include:

— Delay or incorrect diagnosis – including misdiagnosis of oral cancer

Failure to diagnose and or treat periodontal (gum) disease or decay of teeth

Substandard root canal treatment

Substandard crown and bridge work

Failures with cosmetic dentistry

— Wrongful extraction of teeth

— Substandard Orthodontic treatment


How long does a dental negligence claim take?

On average, a dental negligence claim can take anywhere between six months to three years to conclude. This all depends on the complexity of the claim, the amount of evidence/ investigation required and the cooperation of third parties involved.

There are a number of third parties that we may need to liaise with as part of a dental negligence claim including experts, Counsel and the defendant’s insurers. Therefore, timeframes will depend on how quickly information can be acquired and responses obtained from everyone involved.


Can I sue my old dentist?

Yes. By law, all dentists must be registered with the General Dental Council (GDC) and must have appropriate indemnity and insurance arrangements in place in order for patients to seek compensation which they may be entitled to. Therefore even if your dentist at the time is no longer your current treating dentist, or has subsequently retired, they will still be responsible for the treatment they have carried out.


Can you sue an NHS dentist?

Yes, you can sue an NHS dentist much like you can sue a private dentist. The procedure is exactly the same and will include your legal representative writing to the dentist and asking that he/she informs their defence organisation of a claim against them following which we would usually liaise directly with the defence organisation for the duration of your claim.


What is the limitation period for negligence?

The time limits for making different types of legal claims are set out by the Limitation Act 1980. The time limits are also known as a limitation period. The usual time limit for bringing a dental negligence claim is three years. This can be either from the date the Client was injured or the date of knowledge, also known as the when the Client first realised they suffered an injury due to a potential dental negligence.

However, there are some exceptions, such as cases involving minors, vulnerable adults or deceased persons:

1 –  If the case involves a minor, the three-year time limit begins to run the victim’s 18th birthday, at which point the minor legally becomes an adult;

2 – If the case involves a vulnerable adult with no mental capacity, there is no time limit for when a dental negligence claim can be brought. However, if the person recovers from their condition, the three-year period begins from the date of recovery;

3 – If the case involves a deceased person and the person dies within the three-year period since discovering dental negligence, the limitation period begins from the date of death. If the negligence is discovered after the death, the family has three years to begin legal proceedings, with limitation period beginning upon the discovery of the dental negligence.


Can I claim for medical negligence after three years?


Not unless the victim of negligent treatment was a minor or without mental capacity. The courts are unlikely to accept claims that are out of time.

The limitation periods were introduced as a protection for potential defendants. The three-year period was introduced as a reasonable period to enable someone to make a claim and issue if necessary. By ensuring claims are made promptly, the courts are more likely to obtain clearer input from both parties.


How can you obtain medical records for a claim?

Can I access my dental records?


How much does it cost to get your medical records in the UK?

Under General Data Protection Regulation (GDPR) accessing your medical records is free. However, you can be charged if the request is ‘manifestly unfounded or excessive’ and a reasonable fee can be charged. Similarly, if you have made more than one request to a provider, they can charge a reasonable fee.

How far back can I access my medical records?

Practices should keep your records for a minimum of two years from the date a treatment is completed.

How long do the NHS keep dental records for?

The revised NHS advice on retention provides guidance, which recommends 15 years as the minimum retention period for adult dental clinical records and that children’s records should be retained until the 25th birthday or 26th if the patient was 17 when treatment ended.

How do you ask for dental records?

You should contact the practice in question and see what their specific policy is, but the practice may require a signed form of authority from you and the request may need to be in writing.

How do I write a letter to request dental records?

A request needed to be made with the organisation, generally in writing and an email will suffice. The request should simply state hat you wish to make a request for your notes, records and x-rays and the dental practice has one calendar month under the GDPR from the date of your written request.

What if I am refused access to my records

Under the General Data Protection Regulation (GDPR) information must be given to patients without delay and at the latest within one month of the request. If you are refused access, you may consider making a complaint to the Information Commissioner’s Office (ICO).


Are dental records transferred?


What happens if my dentist has retired or left the practice?

The practice should still have copies of your dental records, even if the dentist has retired or left.

What happens if the practice I attended has now closed?

This can be difficult, ideally the practice should advise patients where their records will be stored following closure of the practice. If the treatment was under the NHS, it may be possible to contact NHS business services. Failing this, the local NHS area should have had an agreement with the practice owner for the storage of patient records. However, the local NHS area may maintain that it is the responsibility of the practice owner and they do not have access to records.


What happens once you have your dental records?

It will now be necessary to carry out a review of your records. It is important to review records to ensure that they are consistent with your recollection of events, and to determine if there are any inconsistencies or errors in the documentation that may be helpful for your case. We also need to ascertain if any records are missing, for example radiographs or consent forms, so these can be requested, and a full set of all relevant records obtained before these can be considered by an expert, for an initial liability and causation report to be prepared.


What is a breach of duty and causation report?


Once a full set of records has been obtained, we will instruct an expert to prepare an initial liability and causation report.

In the report, the expert will consider the facts of your case and advise whether the treatment you have received has been substandard and caused you harm. We need the opinion of an expert to help us establish whether there has been a breach of duty, and whether that breach of duty has caused you injury/damage.


How do you confirm liability and causation?


A difficult test must be satisfied before a successful claim in dental negligence can be brought. To bring a successful claim, liability and causation must be established.

To establish liability, it must be shown that the investigation or treatment in question fell below the standard of a reasonably competent dentist in the relevant field practicing at the relevant time.

In addition to satisfying the test for liability, causation must also be established. This means that there must be a link between the substandard treatment and the injury that has been suffered. It is not sufficient to show that the treatment that was received was negligent, it must also be shown that negligent treatment caused damage.

The liability and causation report will determine whether your claim is likely to be successful or unsuccessful, i.e., whether there is evidence of breach and causation, so we only use experienced experts that we have worked with for many years and whom we trust.


What is an example of negligence/causation?

Whilst we may not be entitled to ‘gold standard care’, and sometimes we may suffer harm for non-negligent reasons such as recognised complications, we are entitled to reasonable treatment that is carried out correctly. Dental negligence can include a range or errors including a delay in treatment or an incorrect diagnosis, substandard treatment when carrying out fillings, crown work or root canal treatments, poorly executed orthodontics, periodontal disease misdiagnosis and mismanagement, and restorative or cosmetic dentistry errors.

However, as mentioned above, it is not sufficient to show that the treatment that was received was negligent, it must also be shown that negligent treatment caused damage and has led to further injury and suffering.

Examples of causation may include nerve injuries or loss of or damage to teeth caused by mistakes in treatment. The defendant is liable for damage that would not have occurred in the absence of the negligent treatment.


What happens if the expert is unsupportive?


In some cases, the expert may advise that treatment was reasonable and there is no evidence of negligence. We are not entitled to ‘gold standard’ treatment, and if our expert finds that a reasonably competent dentist in the relevant field practicing at the relevant time would have treated you in the same way, we will not be able to satisfy the test. In that situation, unfortunately we will not be able to continue investigations and will end the claim. Please note that in those circumstances, you would not be liable to pay any costs if you claim is funded on a ‘no win no fee’ basis.


What happens if the report is supportive?


If our expert finds evidence of substandard treatment, then the next step will be to obtain condition and prognosis report to establish what remedial treatment is required to put you back in the position you would have been in, in the absence of negligence.

Read on to understand what this will entail.


Expert examinations


What is a condition & prognosis report?


A C&P report stands for ‘Condition and Prognosis’ report. It is a document prepared by a dental-legal expert to comment on the claimant’s current condition (including any injuries acquired) following the alleged negligent treatment and what their likely future prognosis will be as a direct result of the negligence. For example, will the claimant require more treatment due to a worsening condition derived directly from the negligence, and how much will this cost? All of this will be contained within a C&P report.


Why is a condition & prognosis report needed?


Once an expert has commented in their C&P report on a claimant’s current condition, future prognosis and the costings of any future treatment, we can use this evidence to help value the claim with a view to making an offer in settlement. Furthermore, if a claim were to progress to the litigation stages, a C&P report is an important document that would need to be served on the defendant’s insurers/solicitors to progress the claim.


Do I have to pay for an expert examination?


You will not be directly charged for the expert examination or condition & prognosis report. Rather, RWK Goodman will pay these disbursements initially on your behalf. Then, these disbursements will either be recovered from the defendant, if your claim is successful, or they will be recovered through the After-The-Event Insurance policy taken out as part of your claim if your claim is unsuccessful.

However, please note that you could become directly liable to pay for the expert examination and/or condition & prognosis report should you fail to attend an expert examination or fail to give notice to cancel an appointment that you are unable to keep. Therefore, if you agree to attend such an examination please do try and make every effort to either attend or give sufficient notice if you cannot.

You will also need to make your own arrangements to travel and see the expert for an examination. This includes paying for any train tickets, petrol or car parking charges.


Can the examination be done remotely?


In some instances, such as with psychiatric expert reports or reports where a face-to-face physical review is not required, there could be a remote examination carried out.

However, it is very rare for remote assessments to occur in dental negligence claims. This is because in the majority of cases where the claimant is suffering from dental issues, it will be necessary for the expert to physically carry out checks and even potentially an x-ray or vitality test to determine the prognosis and best future treatment needs for the purpose of their report. This is extremely difficult, if not impossible in some cases, without that face to face interaction.


How long does it take to organise an examination and when will I get the results back?


In our experience, each expert will have their own terms and conditions for preparation of their report and how quickly they would like to examine you after being instructed.

Some experts prefer to read through your dental notes first and the evidence as a whole before arranging an examination to then finalise their report.

Other experts may wish to undertake an examination straight away so that they can familiarise themselves with your condition before then considering all of the paperwork and finalising their report then. Therefore, the style of the expert instructed in your individual circumstances will determine how long you will wait for an examination and report once they have been instructed. We anticipate that most examinations and reports will be finalised within a couple of months maximum.


How long will it take?


In our experience, condition & prognosis examinations take between 30 minutes to an hour.


Can I be examined at home?


The expert is likely to want to see you for an examination within a clinic with all of the equipment and resources to carry out their assessment. We will take into account your home location when finding a suitable expert to assist you and we try and instruct an expert as local to you as possible to ensure that you will not have far to travel. In some instances though, even the closest expert may be a few hours’ drive or train journey away.


What can I expect from the examination? Will it be invasive?


The examination will not be invasive and will not be to provide treatment. Rather, the examination or assessment is simply to determine your current condition by physically looking at your teeth as you would expect during a routine dental check-up. In some instances a vitality test or x-ray may be required. The expert will then be in a better position to provide their opinion on your future prognosis.


What do I need to bring, if anything?


If the expert needs you to bring anything to your assessment, they will arrange/their secretary will arrange to contact you beforehand to discuss this. Sometimes, they may require ID.

Otherwise, there is unlikely to be anything else they would require because RWK Goodman can forward copies of your dental records and any other documentation they may need.

The expert will ask you general questions about your dental health and may need you to answer specific questions relevant to your claim to better their understanding.


What experience do your experts have?


Our experts tend to provide copies of their CVs prior to us instructing them to prepare a condition & prognosis report and to carry out an examination. Therefore, we will be sure that they have the relevant qualifications and have excellent credentials before instructing them.

Furthermore, we tend to instruct experts that have been highly recommended or where we have a long-standing relationship and rapport where we are already familiar with their high standards and credentials.


Is the expert examination necessary?


The purpose of a condition & prognosis examination is to understand your current dental condition for the purpose of a condition & prognosis report which forms evidence in your claim, it also acts as evidence of what future treatment/costings will be necessary by way of verification from an independent expert. It is necessary to assist with the progression of your claim to value it with a view to putting forward offers in settlement and to serve as evidence if your claim were to proceed to the litigation stage. It will be an important document especially in more complex and high value claims where the value of the claim is in dispute.


How is a dental negligence claim started?

Following on from your expert examination and upon receipt of your medical report a detailed “Letter of Claim” will be drafted.


What is a Letter of Claim?


A Letter of Claim sets out our allegations of negligence and causation to the dentist you are claiming against.


How long does a defendant have to respond to a Letter of Claim?

The defendant will have four months to investigate our allegations made and will provide a substantive response. During this four-month period called the “Letter of Response”.


What happens if a defendant does not respond to a claim?

In some scenarios the defendant may not respond to our Letter of Claim. If this happens then we will contact them to ask why they have failed to respond.

Quite often the defendant will request a further extension of time in order to provide their Letter of Response – in this situation we would normally agree to a reasonable extension of time.

Should the defendant still fail to respond, then we may have to organise a conference with the expert instructed on your case and a barrister (Counsel) to ensure that prospects of success are good so that we can prepare to issue court proceedings on your case as this is ultimately the only way to progress your file.


What if the defendant denies liability?


If the defendant denies liability, we would then disclose a copy of this letter to our instructed expert for their comments and ask if they still remain supportive of your case.


When a claim is denied, your first step is…

If the expert remains supportive then we will organise a conference with the expert and a barrister (Counsel) to ensure that prospects of success are good so that we can prepare to issue court proceedings as this is ultimately the only way to progress your file.


What if the expert changes his mind upon reviewing the defendants Letter of Response?

After reviewing the Letter of Response if the instructed expert believes prospects of success are not as high then we would discuss with you the reasons for this and most likely come to the decision to close your file and terminate the No Win, No Fee Agreement.

In this situation we would simply close your file and you would not be liable for our fees.


Would I be liable for your fees if you had to close my file?

You personally would not be liable for the fees incurred on your file. The costs incurred to instruct the experts will be recovered by an insurance policy we take out with Temple.

The legal costs incurred will be written off.


What happens when the defendant admits liability?


Following on from the Letter of Response, if liability is admitted then it is possible that settlement negotiations can be entered into with the other side. Sometimes quantum (value of your case) can be disputed whereby the other side fails to make a reasonable offer. If this happens your solicitor will advise you accordingly which may result in the needs to issue court proceedings in order to achieve a suitable settlement figure.


Taking a dental negligence claim to court


What are the stages of court proceedings?


1 – Issuing court proceedings


This sounds very complicated and can sometimes be daunting, but it simply means lodging a Claim Form at court with the relevant court fee. It doesn’t mean you are going to trial any time soon so don’t worry!

The Claim Form will set out brief details of the claim along with the parties involved. It will also provide an approximate value of the claim. Once received and sealed by the court it essentially means your claim is now issued.


When will you need to issue court proceedings?

In clinical and dental negligence claims, if the limitation period is close to expiring and/or if the defendant denies liability following sending a Letter of Claim, we will usually advise you to issue court proceedings if your prospects of success remain reasonable. This will essentially mean there is no longer a limitation period, and your case will now be managed under a court timetable.


2 – What happens after you issue court proceedings?


Once you issue court proceedings you have four months in which to serve the Claim Form (sealed version), Particulars of Claim (setting out a very detailed background of your claim including the allegations of negligence), Preliminary Schedule of Loss (providing your past and future losses) and Condition and Prognosis evidence (evidence obtained by our experts) to the defendant and/or their nominated solicitors. Once served, the defendant has 14 days to serve an Acknowledgment of Service setting out whether they intend to defend the claim. They then have 14 days to serve a Defence although it is not uncommon for them to ask for short extensions


How much does it cost to issue court proceedings in the UK?

If your claim is being pursued under a Conditional Fee Agreement with After-the-Event insurance, you will not be asked to pay the court fee to issue proceedings. If you are successful in your claim, the defendant will be responsible for paying the court fee on conclusion of the case. If you are unsuccessful, your After-the-Event insurance policy will cover the cost of the court fee, as well as any other disbursements incurred throughout the duration of your claim. In some cases, i.e., if you are on benefits and/or low income, you may be eligible for a fee remission which means you do not need to pay all or some of the court fee. This is something we will discuss with you before taking steps to issue court proceedings.


Can court proceedings be stopped?

You will never be advised to stop proceedings unless your prospects of success have fallen below 51%. The only other time proceedings will come to an end is if your case settles and/or you reach the end of trial. In the event that you decide to stop proceedings against the advice of your legal representatives, you will be responsible for all parties’ legal costs up until you file and serve a form called a ‘Notice of Discontinuance.’ It is a straightforward form to complete but this is not something we would ever advise you to do unless there is an absolute requirement that proceedings must end, which never usually happens. We understand circumstances may arise whereby you feel you can no longer continue with proceedings but again, if you decide to do this, please be aware that you will be asked to pay the legal costs for all parties, and this is likely to be significant.


How do court proceedings work?

The rules of civil proceedings are contained within the Civil Procedure Rules (CPR). Each party is essentially trying to prove their case on a balance of probabilities, usually before a Judge. All parties must comply with the CPR.

Once you have received the Defence, your case will be allocated to a court (usually local to you) and steps will be taken between both parties to agree directions i.e., how your case is to be managed all the way up to trial. There will be various deadlines to exchange witness and expert evidence. The aim is for both parties to exchange their evidence with a view to narrowing down the issues and hopefully settling the case before it reaches trial. Only a small percentage of cases ever reach trial but if it does, the Judge will ultimately weigh up the evidence and decide which party is successful in their argument.


Reaching a settlement

Most of dental negligence claims are resolved by negotiation, using the Pre-Action Protocol procedure, rather than a trial in court. Resolving claims by settlement is preferable to a trial. The main advantages of a settlement are that the case is concluded far quicker and the decision is in your own hands. Trials do not always guarantee successful outcomes and often have unexpected results.


At what point do most cases settle?


Claims can be settled at any point in the litigation process. Our solicitors aim to resolve claims in the shortest possible time whilst ensuring the settlement reached is fair and proportional to what our clients have suffered.


How long do compensation claims take to settle?

The time it takes to settle a claim highly depends on the stage at which the settlement offer is made and whether supportive evidence can be disclosed when making the offer. In most cases, settlement will be reached within three months of initial settlement offer. However, this highly depends on both parties’ willingness to negotiate.

The main delay in settlements is the length of time it takes to obtain all expert evidence that is required to support the legal claim.

Often, as a tactic, we advise our clients to make an initial offer which is somewhat higher than our more realistic valuation of their claim. This is because we want to entice the defendant to enter into negotiations and allow enough scope to negotiate downwards with a view to meeting in the middle and reaching a final reasonable settlement amount. We provide a bracket valuation to our clients before making any offers, with a bottom-line figure in mind, and always strive to achieve a reasonable settlement to accurately reflect the value of their claim.


Should I accept the first offer of compensation?

We advise our clients on the value of their claim and, if an initial offer is reasonable, we will offer advice on whether to negotiate further or accept it straight away. However, if an opening offer is not reasonable, we will discuss alternative options with our client which would not involve acceptance of this first offer. These options may include making a counter-offer or proceeding further with the claim by way of litigation.


How much can you claim for dental negligence?


Claims can vary anywhere from £5,000 to millions depending on the severity of the claim. Find out more about how much a claim might be worth in our claims calculator.

The amount of your damages depends on a variety of things, including:

a) Pain, suffering and loss of amenity – this highly depends on the seriousness of injuries, recovery time and long term impact;

b) Financial losses – such as treatment fees, travelling costs and medication expenses flowing from the injuries;

c) Future losses – such as future treatment costs;

d) Loss of earnings – in cases where time off work has been taken following the negligent treatment.

Your solicitors will be able to advise you on the likely value of the claim once sufficient expert evidence has been obtained. Once the value of the claim is confirmed, the solicitor will be able to advise you on a suitable settlement offer.


How much do solicitors take from compensation?


With No Win/No Fee agreements, solicitors only get paid if the case settles. In most cases, solicitor’s costs are paid by the losing party.

Solicitors charge a success fee, which is taken from the compensation and set out at the beginning of the claim. In most cases, the success fee is set at 25%, however this percentage does not always apply to the total amount of compensation. The success fee is subject to a 25% limit which is taken out of general damages.

Clients should not be alarmed if they are sent hourly rate documents every now and then. These are required in case the court might order that the costs are paid by the defendant on an hourly basis. This is not very common, but can happen in high value claims. A solicitor would not charge the claimant these rates and will instead stick to their agreement of a fixed percentage out of the compensation received.


What happens once a claim is settled?


Once a claim is settled, the client can no longer ask for additional money. This is the reason why our solicitors ensure that no settlement is agreed before clear evidence has been obtained from an expert.

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