Is it difficult to prove dental negligence?

It is important to consider whether the injury may have occurred through any fault of your own. Did you regularly attend dental check-ups? Did you maintain a good level of oral hygiene and follow instructions from your dentist? Are you a smoker and how high is your sugar intake? These are all factors which would make it harder to prove negligence, as the other party could argue that you have contributed to the extent of damage to your teeth.

The most vital evidence will be your dental records and radiology. From your records, we can assess how you were treated by your dentist, e.g. what advice was given, how often x-rays were taken, whether referrals were made.

Once we have all your records, we will obtain medical evidence from a dental expert to see if your case can meet the requirements of the legal test.

There is a difficult two-fold test that must be satisfied in order to prove negligence.

Firstly, it must be established that there has been a breach of duty. Your dentist has a duty of care to you as their patient and we will investigate whether there were breaches in that duty which were serious enough to amount to negligence. The legal test for this is called the Bolam Test, which means asking whether a reasonably competent body of practitioners in the relevant field at the relevant time would have treated you in the same way that your dentist has.

All dentists are expected to follow the official guidance of authorities such as the National Institute of Health and Clinical Excellence (NICE), Faculty of General Dental Practice (FGDP), Royal College of Surgeons (RCS) and International Association of Dental Trauma (IADT). They are also required to meet the 9 principles of the General Dental Council (GDC) which is the organisation that regulates UK dentists.

If a dentist falls short of any of these guidelines and standards, then it is likely a breach of duty has occurred. Some common breaches of duty that we see in general dentistry include failure to take regular x-rays, failure to diagnose periodontal disease and substandard root canal treatments.

Secondly, we have to prove causation. This means that the breach of duty directly caused your injury. For instance, a failure to detect tooth decay may have resulted in avoidable pain, the need for unnecessary treatment and possibly the loss of teeth. It is often difficult to say for certain whether there was a link between the substandard treatment and the injury, so we use the term ‘on the balance of probabilities’, i.e. more likely than not. There may have been other factors which led to your injury and are not related to negligence, but it is sufficient to prove that the breach of duty materially contributed to your injury, even if there were other causes.

In summary, if the treatment you received fell below the standard of a reasonable dental practitioner and this caused damage which would, on the balance of probabilities, otherwise have been avoided, then you have successfully proved dental negligence.

Although we are careful not to take on a case unless we think it has good prospects, occasionally an expert report will be unsupportive of negligence, and we may unfortunately have to discontinue your claim. This could be because we cannot prove liability; sometimes dentists simply make mistakes which are not negligent and decisions are made which, whilst regrettable, are not unreasonable. Even if our expert would not personally have carried out the treatment in the way your dentist did, if there is a reasonable body of dentists who would have done, we cannot say it was negligent. There are also issues which are recognised complications of normal treatment, e.g. nerve injury following an extraction or root canal treatment, which does not mean there has been negligence. On the other hand, it may be that we cannot prove causation. It is not enough to only show that the dental treatment was negligent; it must also be shown that the substandard treatment caused damage. E.g. if you already had compromised teeth which would have always required further treatment or extraction, then we cannot say on balance that this was caused by the negligence. Or, if there was a failure to treat dental caries but your x-rays show that caries had not spread or worsened during that time, then the failure has not made any difference to your outcome and causation is limited.

In the event that we cannot prove negligence and have to discontinue your case, you may wish to contact the Dental Complaints Service of the GDC or, if it was NHS treatment, make a complaint via the NHS Trust. This may at least result in an explanation, apology and a refund for treatment if appropriate.

If our expert is supportive of negligence, we will be able to progress your case. The Defendant will either admit or deny liability, and will likely instruct a dental expert of their own. Your case may take a while to settle and there are no certainties, but as long we remain confident of breach of duty and causation, we will continue to pursue your claim until we recover the compensation you deserve.

If you would like to know more about bringing a dental negligence claim, have a look around our website.