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How time limits affect dental negligence claims

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    Strict time limits apply to bringing a claim for dental negligence, as they do to all personal injury claims. What are the particular factors in dental claims which set them apart?

    By Simon Elliman

The usual rule in any personal injury claim is that court proceedings must be issued within three years of the act of negligence causing the injury. In a dental negligence case that would mean three years from the substandard dentistry which injured the patient. But there are exceptions to the rule which need to be understood.

If you have had poor dental treatment, and are considering bringing a claim for compensation, it is always best to consult solicitors within three years of the treatment complained of, if you possibly can. In fact, the earlier the better, as your solicitor will need some time to investigate the claim before he will be in a position to issue court proceedings. If, however, more than three years have already elapsed since the treatment complained of, all is not lost

Date of knowledge

One of the features characterising dental negligence claims is that often the patient does not know that he has received poor treatment until long after the event. For example, a common type of claim relates to failure to treat periodontal (gum) disease. Very often, the patient does not know of this till years later, perhaps when he consults another dentist who tells him that he has the condition, and that it could and should have been treated earlier. In such a case, the three year limitation period runs from the patient’s “date of knowledge”, likely here to be the date when the patient is told that he has periodontal disease.

“Constructive knowledge”

Things are never simple though. Sometimes the court can judge that a claimant who did not have actual knowledge of negligence had constructive knowledge. That means essentially, that he ought to have known, or ought to have found out, that he had received negligent treatment. Take, for example, a patient who has had crowns placed, but they have fallen off repeatedly, and been re-affixed twelve times over two years. The court may judge that after the crowns had been repeatedly falling off for six months, a reasonable patient would have gone to a different dentist to find out what was going wrong. In that case, while the negligent act was the original placement of the crowns, the three year limitation period would run not from that date, but from six months later, when a reasonable person would have sought some alternative advice or treatment.

Discretion to disapply the limitation period

There is a third way around the problem of a limitation period which may appear to have expired: the court has a discretion just to disapply the limitation period – essentially to say that it doesn’t matter that it has passed. The court will do this in limited circumstances, and will take into account the reasons for the delay, the length of the delay, and how the delay has affected the evidence available in the case. The conduct of each of the parties, the claimant and the defendant dentist, will also be taken into account.

It is hard to give examples of when the discretion will or will not be applied, as it is very case-specific. By and large the shorter the delay the better the chances of success.

Treatment by multiple dentists

Sometimes a patient may have been given poor treatment by several different dentists. In that case it is possible that a different limitation period will apply to each of the dentists who are going to be sued. It is very important for your solicitor to be alert to this, and not to assume that the three years will run from one date only

Summary

It cannot be emphasised enough that if you have received poor dental treatment you should seek legal advice promptly, and above all within three years of receiving the treatment. Do not delay, as you cannot be sure that any of the possible exceptions to the rule will apply in your case; in fact the chances are that they will not apply.

The Dental Negligence Team has vast experience in conducting dental negligence claims, and our lawyers are familiar with the rules of limitation and how the courts apply them. If you have any concerns about dental treatment which you have received, even if you are not certain whether you are in time to bring a claim, one of the members of our team would be pleased to advise you.

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2 comments

  1. I had a treatment in 2008 but, I haven’t find out about this till 2017 the problem is a had t a tooth attraction and it was not completely removed I have some tooth left and I did not know this and till now. What is my opinions.

    Qadra
    • Hi there. A member of the Dental Negligence Team will contact you to discuss this further. Many thanks

      dentalnegligence

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