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Implants – What’s done is done

“What’s done is done.” (Macbeth) encapsulates that critical aspect of Dental Implant Surgery: it’s not reversible without consequences. This leads us to consider the precautionary steps needed by every dental practitioner prior to surgically placing dental implants.

Presenting Case

A 56 year old female patient presents to you for the first time on recommendation from a friend who mentioned that “my dentist is very good with implants”. She has type 2 diabetes controlled by medication, with a history of periodontal disease. Her presenting condition was:

  • Upper right first molar (tooth #16) lost several years ago from a root fracture
  • The adjacent teeth are unrestored and this is her only missing tooth other than the third molars
  • Her chewing is compromised and would like to have this space restored with an implant.

Case Selection

  1. History of the patient: A comprehensive medical, dental and social history would determine the suitability of the patient. Consultation with the patient’s Medical GP would add further valuable information.
  2. Examination: A thorough extra-oral and intra-oral of the soft and hard tissues inclusive of periodontal health, occlusion and bone volume (Study models and photographs are an integral part of this step).
  3. Investigations: Should be carried out in the form of radiographs, CBCT etc., as required.
  4. Patient Expectations: Assessment of their reasons for seeking treatment, their dental needs and their concept of how to measure a successful outcome.
  5. Diagnosis: Based on the information gathered.
  6. Treatment Planning: Should go beyond the implant and include consideration of the final restorative result, which can then be achieved with provision of a surgical guide.
  7. Treatment Options: Presented to the patient, detailing all available options with associated benefits and risks.
  8. Consent to Treat and Financial Consent: by ensuring that the patient is made fully aware by the treating practitioner of all material risks, alternative treatments, likely outcomes, nature and purpose of the procedure.
  9. Special considerations: Complex dental implant surgery requires detailed communication of possible complications and unexpected sequelae. Discussion should focus on the severity of the complication as well as its probability.

As dental practitioners, if we can evaluate each case with a structured and meticulous protocol, we can generally ensure a predictable outcome. A failure, complication or unsatisfactory outcome with dental implant treatment is usually the result of an error or omission in the preliminary stages of history, examination, investigation, diagnosis, treatment planning and consent.[1]

Are we ready to proceed?

As Dentists, we need to ask ourselves honestly whether we have the necessary skills, experience and adequate post-graduate training prior to placing dental implants. Here are some questions we all need to consider:

  • Have I discussed my case with my mentor or teacher to gain further insight?
  • Am I in contact with experienced clinicians who have years of experience in dental implant surgery that can give me feedback?
  • Do I belong to a study group or an implant team in which I can discuss my case in detail with my peers?
  • What are my limitations with respect to this case?
  • Have I looked critically into my case and made a clever case selection decision?
  • What could go wrong?

The Dental Board of Australia (DBA) Scope of Practice (SOP) for dental practitioners specifies that we must use sound professional judgement to assess our own individual SOP (full range of activities and responsibilities in which we are educated, trained and competent to perform).

Anticipated level of post graduate study and training

Dentists who place dental implants should have acceptable, recognised training over a long period and develop skills from treating simple cases, using the established protocols, prior to progressing to more complex and technically demanding cases.

In Britain, the General Dental Council (GDC) and the Faculty of GDP (UK) have published guidelines on training in implant dentistry for general dental practitioners which requires that a practitioner should have adequate practice in assessment, treatment planning and implant surgery under the guidance of an experienced implant clinician, until they are considered competent.[2]

In Australia, there is no special category for a general dental practitioner who surgically places implants. There might be a need in Australia to inaugurate guidelines similar to GDC (UK), specifically aimed at all clinicians surgically placing dental implants and recognised by the DBA

Preventing poor outcomes

  • Assess, listen and consolidate information.
  • Use a comprehensive treatment plan and list of treatment options.
  • Involve your patient in your choices, communicate and obtain informed consent.
  • Keep comprehensive and accurate records.
  • Embrace protocols that are proven and predictable (don’t take shortcuts).
  • Self-evaluate your skill and experience to deliver the proposed treatment.
  • Above all, refer cases that are too complex.

The dental implant industry is growing rapidly each year and there is substantial pressure from dental implant suppliers encouraging clinicians to place dental implants even if they have minimum experience and knowledge. Don’t fall into that trap! Excellent planning and execution of a dental implant case can still result in complications and an unexpected outcome, but if the protocols followed are proven and predictable, the outcome is supported by evidence of accepted clinical practice.

A further important perspective: Guild Insurance’s Annual Review based on a five year analysis of dental claims made, established that of 850 claims incurred by 230 practitioners, one procedure contributed greater and more frequent claims (based on the number of insureds conducting this procedure)  than any other, and that is “Insertion of Endosseous Implants (not including restorative procedures)”[3]. Surgical placement of dental implants has a higher claims cost than any other procedure, as demonstrated by the diagram below provided by Guild Insurance:

Dentists who surgically place dental implants need to assure themselves that they have the necessary training and competency which you can’t attain through a weekend course: it takes long periods of study, education and practice. If you don’t commit to these criteria then you can anticipate future patient problems, conflicts and high insurance risk, none of which you can easily cotrol.

Key Statement

…. if we can evaluate each case with a structured and meticulous protocol, we can generally ensure a predictable outcome.

Key Point

  1. Training + Practice = Competency
  2. Case Selection is Critical
  3. Ensure well informed consent inclusive of all relevant warnings.

 

by:  Dr. Sumanthi Mani, NSW Peer Advisor, Advisory Services

 

[1] Rees J. Medicolegal implications of dental implant therapy. Prim Dent J. 2013 Apr; 2(2):34-8
[2] Palmer, R.M: Risk management in clinical practice. Part 9. Dental implants: BDJ 209: No10
[3] Guild Insurance Limited (May 2016) Renewal Information

Case study – recovery of outstanding fees and lessons learned

A dentist provided treatment to a patient in the form of extensive fixed porcelain bridge work. The patient paid interim invoices rendered during the course of the treatment. The patient failed to pay the final invoice of $5,200 expressing that she believed that she had already paid for the cost of the treatment.

The patient alleges that she attempted to contact the dentist but was told that he was not prepared to see her for a review appointment until the outstanding invoice was paid. The dentist maintained that the cost of treatment was set out in verbal quotations provided, and which had been revised following changes to the plan for treatment.

After some time, the dentist issued proceedings against the patient seeking to recover the unpaid fee.

The patient filed a Defence denying that her informed consent for the treatment and its cost was obtained. The patient made a counter-claim alleging poor quality workmanship. In particular, the patient alleged that the agreement was entirely oral, that the porcelain bridge was a poor colour match for her lower teeth and that there were inadequacies in the size, positioning, form and texture of the bridge. The patient sought damages to rectify the alleged sub-standard bridge work and for personal injury, in the amount of $30,000.

The dentist denied the allegations of poor workmanship.

Of note is the fact that the patient and dentist had a good relationship prior to the dispute over fees. The dentist maintains that the patient had not expressed any concern with the appearance of the bridge following its insertion. Certainly, the patient’s initial written complaint to the dentist did not express dissatisfaction with the treatment, but merely confusion in relation to the amount outstanding.

The dentist is now in the unfortunate position of having to defend a professional negligence claim in relation to his treatment and the possibility of a damages award against him, well in excess of the amount he sought to recover. There is also the potential for a complaint to the Disciplinary Board.

What can we learn from this case?

It is inevitable that dentists will have to deal with the circumstance of a patient refusing to pay fees for treatment rendered. We recommend that before issuing proceedings to recover outstanding debts or placing outstanding accounts in the hands of debt recovery agents, that practitioners first make direct contact with the patient.

If a dispute in relation to fees arises, it is important that before issuing proceedings, the practitioner first ascertains from the patient the basis for their objection and specifically, whether it arises from any concern about the standard of treatment performed.

If the patient does cite dissatisfaction with the treatment, then we suggest that a practitioner arrange to meet with the patient for a review appointment to try and work through the patient’s concerns.

If the matter cannot be sorted out directly with the patient, a practitioner could give consideration to sending the patient for a second opinion regarding the adequacy of the treatment. That way, if concerns are well founded, attempts can be made to resolve the claim taking into account the fees outstanding and without resort to the stress of litigation.

It is important that practitioners ensure that each patient is provided with a written costs agreement at the outset of the treatment, and that this agreement clearly outlines the plan for treatment as well as the estimated cost of the treatment. That way, if a dispute arises, the patient can be referred back to the agreement which forms part of the contractual arrangement. It is recommended that practitioners insist on patients signing the agreement as evidence of their consent and as evidence of their acknowledgement of the terms of payment that are set out in the agreement.

If further treatment that was not initially anticipated is required, it is recommended that the patient is provided with a written, revised agreement and that practitioners obtain the patient’s further written consent to the treatment prior to undertaking any additional work.

If instalment payments are contemplated, it is recommended that the costs agreement clearly sets out the amount of each and every instalment and the trigger for payment (eg. following the insertion of fixed appliances). The agreement should set out the terms of payment (eg. payment within 14 days). The agreement should set out the consequences if payment is not made within the time allowed (eg. whether interest is proposed to be charged and, if so, at what rate and on what amount).

It is evitable that some complaints cannot be resolved despite the best efforts of the dentist concerned however, by ensuring the terms of the arrangement with the patient is in writing and is clear, practitioners will be better placed to resolve any fee dispute that may arise.

 

Kellie Dell’Oro
Principal, Meridian Lawyers

Sarah McPherson
Solicitor, Meridian Lawyers

Case study – nobody’s perfect

On 23 December 2008 an ADA Branch received an email from a member of the public complaining about the standard of service offered to him by its after-hours emergency service when he was experiencing considerable pain from a tooth that had been filled some 3 months earlier. The key elements of the complaint were:

  • The person who received the call introduced herself as the emergency dentist. She advised that she could pull the tooth for $350 or perform root canal therapy for $2,000. He would need to attend within the next hour as she would be leaving.
  • The complainant declined and subsequently his regular dentist solved the problem for $220.
  • He felt that the emergency dentist was attempting to take advantage of a person in considerable pain by pressuring them to make a hasty decision.

Although the ADA Branch obtained a verbal comment from the dentist’s dental assistant, it decided to wait for her to return from leave to get written details before responding. However, in the meantime it received two cool telephone calls from the complainant, and, even though full information about the incident was not known, in an attempt to defuse the situation the ADA Branch sent a response to the complainant

The key elements of the response:

  • Thanked him for his email about the emergency dental service and noted that the ADA was sorry that he felt it necessary to complain.
  • Advised that the service is an unsubsidized voluntary private service and consequently required patients to be scheduled at a given time, generally in the morning. The service had attended to 36 grateful patients over the Christmas period.
  • The dental nurse to whom he had spoken recalled that she had advised that removal of the tooth would cost $370, including the call-out fee, and that if it was possible to save the tooth then root-canal treatment would cost $800 – $1,400 over 3 visits.
  • The complainant had rudely told her that “you’ve got a good scam going” and hung up on her.
  • Advised that under no circumstances would he be pressured into making a hasty decision, but on seeing the dentist he would be presented with the best options for his overall dental care
  • An invitation to contact the ADA if he had any further concerns or queries.

The complainant responded to the ADA Branch on 25 January as follows:

“Madam

I am not in the habit of hanging up on any body I certainly did not in this case.

I most certainly did not say “you have a good scam going”, as I assumed that this was the necessary action.

The Lady who answered the phone told me that she was the Emergency Dentist and failed to give a name when asked.

She quoted $350.00 to pull the tooth and $2000.00 for root canal treatment.

She told me that she was at the surgery now and if I wanted Treatment to be there in an hour.

She should have offered emergency root canal therapy that was performed on me by my regular dentist.

I find it very distressing to be accused of being rude and of lying.

I am also surprised that a professional person finds it necessary to make these charges.

I await your response before taking further action on this matter.”

The ADA Branch decided that this issue was not likely to be readily resolved and thus sought legal advice from Guild Lawyers. The following email was sent to the complainant on 19 February:

“Thank you for your email transmission dated 25 January 2009.  I apologise for the delay in responding.

Please rest assured that we have taken most seriously your concerns in relation to your experience of the ADA Emergency Dental Treatment program.  In reporting to you the result of our enquiries with the staff member who assisted you over the telephone, no discourtesy was intended and we apologise for any distress that was caused to you in relaying the Service staff member’s version of the telephone conversation with you.

Again, thank you for your query and for drawing your concerns to our attention.  It always assists us in improving the quality of the service provided to members of the public.”

There has not been a subsequent response from the complainant. The ADA Branch sought a written report from the dental assistant which was received on 31 March.

“For every phone call I receive on the emergency phone I answer in the same way which is “Emergency Dental Service XXXX speaking”. I always quote the patient to the best of my ability without knowing the exact treatment to take place, and tell them that payment needs to be made at the time of the appointment and if they have a health fund to bring their card with them.

For a simple extraction I would have quoted at the time $370 which includes a consultation, x-ray and tooth extraction. If RCT is needed for a molar, $350 for initial appointment with at least two further appointments in future with their own dentist or specialist. If seeing a specialist for a molar the price is capped at $1400 and an anterior at $850. A crown maybe needed at a later date.

I do remember in this conversation the man saying “you have a good scam going”. I do not remember him asking my name, however I always answer the phone using my name. I do also remember saying that the fees were set and I did not have any control over them. I do also remember after he started getting quite rude asking him to direct any complaints to the ADA.

As you can imagine XXXX this phone conversation happened quite a while ago now and I do only remember some specifics to the conversation, but as I repeat myself every weekend, and have done so for the last 18 months I feel that I am consistent and do not vary the information I give to patients.”

†: Root Canal Therapy

The emergency dentist involved confirmed that the dental assistant always answers the phone as she had written in her email and had never heard anything but praise for her demeanour. The dentist had certainly never heard her be rude to anybody and was prepared to swear to this effect on a bible or in a court of law.

It should also be mentioned that before the patient rang the emergency mobile phone number, he received the following recorded message from the ADA Branch emergency line.

“Hello, this is the ADA Emergency Service.  The Service operates 9 am to 6 pm on weekends and public holidays.  An after-hours surcharge applies and payment is required at the time of treatment.  To contact the dentist on roster please ring XXXX.”

What can we learn from this case?

First, a written response should not be sent to a complainant without a solicitor from Guild Lawyers first reviewing it. It is clearly easy for a complaint to get out of hand. The error arose in commenting in the response that:

  • He had rudely told her that “you’ve got a good scam going” and hung up on her.
  • Under no circumstances would he be pressured into making a hasty decision, but on seeing the dentist he would be presented with the best options for his overall dental care.”

The issue was not if the statement was factual or not, rather that the statement might be seen by the complainant as inflammatory. The complainant’s second email was more aggressive than the first:

“I am not in the habit of hanging up on any body I certainly did not in this case. I most certainly did not say “you have a good scam going”

Second, in an ideal world a written record should be kept of all incoming calls. It is not unexpected for a busy dental assistant to forget the details of a call. As the dental assistant wrote:

“…. this phone conversation happened a while ago now and I do only remember some specifics to the conversation ….”

The courts are more likely to believe the patient’s recollection of the course of events rather than the dentist’s or the dental assistant’s because the event will be a major one for the patient, whilst it is only one of many such events to the dental people. The fact that a certain response is standard practice will not convince a court of law that the advice was actually given. However, keeping a record of every person who rings into your surgery, even though they decide not to go ahead with treatment or visit the surgery, would be ‘over the top.’

The ADA Branch is grateful that the dentist in question is willing to provide the after-afters emergency service, particularly over the Christmas break. Let’s hope the dentist doesn’t have to swear to his dental assistant’s demeanour “on the bible or in a court of law.”

The final message from this case is that no matter how courteous you are complaints can happen. Do not forget the adage of “there but for the grace of God go I.”

By Claudya Adamczewski and Len Crocombe

Case study – a good news story

It is always encouraging to hear that good, comprehensive clinical records can and do assist dental practitioners in successfully defending patient complaints. This case study is about one such positive outcome.

In 2009, the patient lodged a complaint against the dental practitioner with the Dental Board of New South Wales (as it was then known). The patient complained that her health had declined as a result of alleged injuries sustained from implant placement. The practitioner rejected the allegations of complaint and submitted to the Board that his management of the patient had been appropriate and in accordance with established standards of good practice.

In 2010, the matter was considered by the Dental Care Assessment Committee (DCAC) of the newly established Dental Council of New South Wales. The DCAC considered the matter, including reports from the consultants whom the patient had subsequently attended. An independent practitioner also provided an assessment, based on examination of the case records. The DCAC formed the view that the treatment provided was unsatisfactory on the following grounds:

  • Failure to record a medical history and patient assessment.
  • Incorrect diagnosis and treatment planning, failure to assess bone levels and failure to consider the necessity for bone grafting resulting in unsatisfactory case selection.
  • Incorrect placement of implants resulting in perforation of the maxillary sinus and bony floor of the nasal cavity resulting in apparent infection in the maxillary sinus.

The Committee made a recommendation to the Dental Council of New South Wales that the practitioner be directed to refund treatment fees.

The Dental Council sought the practitioner’s attendance before it so that the issues could be ventilated.

At the meeting with the Dental Council in 2011, the practitioner made submissions addressing the grounds above and answered questions from the Dental Council members. The practitioner also supplied the Dental Council with all of his clinical records, radiographs, and other materials.

In the result, the Dental Council decided as follows:

  • Council compliments the practitioner on his thorough and excellent records.
  • Council does not agree with the decision of the DCAC.
  • Council resolves to dismiss the complaint.

The Chairman of the Dental Council specifically commended the practitioner on the quality of his records and said that this matter is likely to be a good teaching tool for the rest of the profession. The outcome is an excellent one for the practitioner and, in our view, the wider profession in that it highlights the importance of good records and demonstrates that good, comprehensive records are important not only in the context of providing good clinical care but are also useful in successfully defending the practitioner against complaints.

For the current requirements in record keeping, practitioners are referred to the “Dental Guidelines on Dental Records” which can be found on the Dental Board of Australia website at www.dentalboard.gov.au.

Case study – the importance of detailed and careful assessment, treatment planning and communication when dealing with patients of advanced age

The case:

When the patient was 78 she attended the specialist practitioner (periodontist) for the placement of an implant at site17. This tooth had fractured and required extraction. A crown was subsequently placed by the referring general dental practitioner. The process was uneventful and the treatment outcome successful.

The patient returned to see the periodontist when she was 83 as she was experiencing discomfort and sensitivity associated with an old bridge replacing missing teeth 14 and 15.

The practitioner took a fresh medical history which disclosed changes since he had seen the patient 5 years previously. This exchange allowed the practitioner to assess the patient’s intellectual capacity generally. He formed the view that she still had capacity to make decisions about her healthcare.

He then performed a careful and thorough assessment which included updating the medical history, the periodontal chart and taking further radiology. The practitioner diagnosed mild chronic periodontitis. At that stage he did not think abutment teeth 13 and 16 required extraction. He recommended a conservative treatment plan of cleaning with re-assessment in 3 months’ time.

The patient returned 2-3 weeks later complaining of pain from the lower right area. Examination and assessment (including radiology) revealed an endodontic lesion at the 45 and a fracture of 46. The practitioner described his findings to the patient and discussed treatment options: endodontic re-treatment with crowns or extractions restored with implant supported crowns. The practitioner recommended extractions. Again, the practitioner spent a lot of time explaining his findings and the options and the discussion was recorded in the clinical record. He satisfied himself the patient understood the discussion and therefore had capacity to make decisions.

The upper bridge subsequently fractured. Radiology investigation revealed she was a suitable candidate for implants in the upper and lower jaws and the patient ultimately agreed to a treatment plan that provided for:

  • the extraction of teeth 13 and 16
  • the placement of 3 implants at the 13-16 site
  • the extraction of teeth 45 and 46
  • the placement of 3 implants at the 45-47 site

It was clearly explained to the patient that the cost of the treatment plan did not include the cost of the crowns which were to be placed by her GP dentist.

The extractions and implant placement proceeded without event. The patient was happy with all aspects of treatment. But someone else wasn’t happy, her son. The son was a lawyer.

The patient’s son sent a letter to the practitioner asserting that he had extracted two of his mother’s teeth “by mistake and without her authority”. He requested a “healthy discount” on the fees which he perceived were incurred in fixing a “mistake”.

The outcome:

The practitioner sent a detailed letter to the son explaining all the treatment steps and the associated decisions. He strongly denied the general assertion that the treatment was provided without the informed consent of the patient and noted that his mother had made no complaint and wanted to continue treatment with him.

The practitioner noted that his mother had paid all fees.

The practitioner stressed that he never had any doubt that the patient had capacity to consent to treatment and queried the son’s basis for asserting he had no authority to proceed. He queried whether the son had been appointed an enduring guardian authorised to make decisions about dental care on behalf of his mother.

The practitioner never heard from the son again.

The practitioner was in a strong position because of the comprehensive nature of his assessment, examination, treatment planning, communication and notes. He had communicated well with the referring GP dentist. In short he was able to “back himself” when it counted.

Lessons to be learned:

  • Practitioners must assess a patient’s mental state and cognition in order to be satisfied the patient has capacity to consent to treatment.
  • When dealing with patients of advanced age, always provide adequate time for the patient to absorb the information – don’t rush treatment.
  • Always document the discussions with the patient and note the consent of the patient.
  • If a patient does not have capacity to consent (for example due to dementia) then the practitioner needs to obtain consent from someone authorised to make decisions on behalf of the patient. Failure to obtain valid consent may leave the practitioner open to a claim for assault, battery and negligence.

Marianne Nicolle
Principal
Meridian Lawyers

Case study – the importance of clinical records in the defence of a claim

The case:

The patient commenced proceedings in the District Court following root canal therapy that was performed by the dentist. As a consequence of the root canal therapy, the patient suffered a penetration of his right maxillary sinus cavity leading to infection, chronic right-sided sinusitis, headaches and nasal blockages.

In May the patient presented to the dentist complaining of pain involving tooth 15. The dentist examined the tooth, took an x-ray and subsequently recommended root canal therapy. The records did not contain any findings of the examination and assessment.

Not surprisingly, the dentist did not recollect the consultation with the patient and therefore was not in a position to give direct evidence about what was discussed with the patient. There was no record of a discussion in the clinical record.

The patient alleged that the dentist used sodium hypochlorite solution during the procedure. The dentist’s clinical records did not record the use of any solution. The patient alleged that he noticed pain and swelling in the area where the solution was injected.

The patient re-attended the dentist in June. At this appointment, the dentist completed the second stage of the root canal therapy. The patient did not return to the dentist after this appointment.

Following the treatment, the patient developed severe symptoms in the right maxillary sinus region and was admitted to hospital with an acute epistaxis in September. The patient consulted with two ear nose & throat surgeons who advised that surgical treatment for ongoing infected maxillary and ethmoid sinuses would be required. The patient had tooth 15 extracted in October the following year.

At the time the tooth was removed, the clinical and radiographic evidence indicated that the patient’s maxillary ethmoid sinus condition had worsened. However, the patient was reluctant to undergo surgery because of the risk of possible loss of vision. In this regard he had already lost vision in his left eye and was particularly concerned about the risk of further loss of vision which was reasonable in all the circumstances.

The outcome:

Both parties (dentist and patient) obtained expert opinion in the matter on the following issues:

  • Whether it was reasonable for the dentist to perform root canal therapy rather than extracting the tooth;
  • Whether the dentist failed to perform the appropriate irrigation technique and use the appropriate instruments during the root canal therapy; and
  • Whether the dentist penetrated of the patient’s right maxillary sinus cavity and whether such penetration was below the standard of care.

Based on the x-ray taken in May and the patient’s version of events, the patient’s first expert considered the long-term prognosis of tooth 15 to be poor and therefore argued that endodontic treatment was not a reasonable option in all the circumstances. The patient’s second expert simply noted that the dentist’s reason for performing the root canal therapy was “unknown” as it was not recorded in the dentist’s clinical records.

The dentist’s expert disagreed with the patient’s experts. He considered the dentist’s decision to attempt to save the tooth was reasonable in all the circumstances. The dentist’s expert commented that in general dental practice, the clinical decision as to whether to extract or perform root canal therapy on a tooth is not absolute. Many variables may contribute to a dentist’s decision including the treatment aims, the patient’s desired outcome, the health of the patient, the prognosis of other teeth and financial concerns. Thus, the dentist’s expert did not believe that the dentist “was necessarily in breach of his duty of care in attempting to save the tooth rather than extract it.”

The patient’s second expert believed that the patient’s symptoms of immediate pain & swelling after the injection were consistent with a sodium hyperchlorite injury and that the dentist had failed to take appropriate precautions to prevent such an injury, given the proximity of tooth 15’s apex to the maxillary sinus. The expert said a side ported needle should have been used (ensuring that the irrigation needle was not blind to the root canal during the root canal irrigation) in order to reduce the risk of sodium hyperchlorite injury. The expert considered the root canal therapy itself to be acceptable. However, he considered the dentist’s alleged failure to take appropriate precautions and prevention of sodium hyperchlorite injury to fall below the standard of acceptable practice.

The dentist’s expert felt that the radiograph (which showed that the root apex of tooth 15 was very close to the sinus floor) should have alerted the dentist to the possibility of perforation or entry to the sinus. The dentist’s expert said that the dentist’s “choice of irrigant and irrigating needle syringe may have directly contributed to the sodium hyperchlorite injury”. The expert suggested that sterile isotonic saline should have been used instead, and that the needle used with the irrigation syringe should have been side ported to reduce the pressure of the irrigant in an apical direction, which is this case, was directly towards the sinus itself.

The patient’s first expert opined that it was likely that during or after the root canal therapy at the second appointment that an infection penetrated into the right maxillary sinus due to the proximity of the dental root to the sinus.

A decision was reached to settle this case prior to the hearing. This decision was made because it was difficult to defend the treatment provided by the dentist when his clinical records did not reflect details of the treatment provided. The dentist did not include any details of why the treatment was necessary, the instruments used or the type of solution used for the procedure. The dentist’s clinical notes simply recorded that he had performed root canal therapy.

Lessons to be learned:

  • Every practitioner needs to review and follow the Dental Board of Australia’s “Guidelines on dental records”. These Guidelines provide that dental practitioners “must create and maintain dental records that serve the best interests of patients, clients or consumers and that contribute to the safety and continuity of their dental care”.
  • In addition to the above rationale, a practitioner’s clinical records are evidence and essential to the defence of a civil claim. In this case the records did not contain any findings about tooth 15 to support the recommendation for RCT. The records did not record any discussion about treatment options. They did not record clinical details about the RCT itself including the solution used. Ultimately the records were of no assistance in the defence of the claim.

Amy Rogerson
Solicitor, Meridian Lawyers

Kate Hickey
Special Counsel, Meridian Lawyers

Case study – the importance of performing a thorough examination and not just the requested treatment

The case:

The patient attended the general dentist seeking treatment for multiple broken and sore teeth. The initial treatment plan was to extract the 44 root stump, place a crown on the 14 and make an upper and lower denture. The upper denture was to support the missing 15 tooth and the lower denture was to support pontics/false teeth in the 37, 36 and 44.

The treatment plan was revised after the dentist examined the OPG and following further discussion with the patient. The patient said he did not want an upper denture and preferred something permanent so the dentist suggested he was a suitable candidate for a bridge. The patient also preferred not to have the 44 root stump extracted so the dentist said he would try to smooth down the root stump so as not to interfere with the lower denture. The dentist said he warned the patient that leaving the stump could ‘cause trouble’ with the denture.

The dentist took impressions for the upper bridge and lower denture and the upper bridge was eventually cemented. The lower denture was fitted and all seemed ok. The patient did not return for the planned 6 month check-up.

The patient’s complaint to the Health Commission painted a very different picture of the treatment provided by the dentist. The patient did not return to the dentist because he says he was so upset by the final product of the upper bridge and lower denture.   He says that the upper bridge had never felt right since it was placed.

The patient ended up attending a public dental service a little over 7 days after the upper bridge was cemented and lower denture issued. He was found to have a severely infected 47 which required extraction. Further radiology showed that the 17 had a periapical abscess and was also extracted.

The dental service found that the bridge was in “hyper-occlusion and high in normal occlusion/bite”. The dental service adjusted the bridge abutment on tooth 16. The dentist’s opinion of the restorative treatment performed on 16 was that the “bridge in this section appears not to be have been seated properly or too large (poor fit) for tooth preparation”.

A subsequent review by an independent expert found that the dentist had failed to examine and treat the underlying infections to the patient’s teeth in the upper and lower right quadrants. These teeth required extraction shortly after the treatment was completed by the dentist and the expert reached the conclusion that there must have been signs of infection apparent at the last consultation with the dentist.

With respect to the upper bridge (which was to replace the missing 15) it was noted that the dentist did not conduct vitality testing to the abutment teeth 16 or 14. The dentist says he did test for vitality but was not in the practice of recording that he had done so in his notes (unless there was a problem finding).

The expert was critical of the dentist for failing to take a periapical radiograph to review the root filling on the 14 prior to bridgework. The expert queried why the dentist had gone ahead with the bridge ‘when visible apical radiolucencies were associated with teeth 17 and 47 both of which subsequently required extraction’. The dentist was forced to concede that he did not take x-rays of the area where the bridge was being placed because it was his practice to only take x-rays if the OPG showed areas of concern.   This explanation was not accepted by the expert.

The independent expert ultimately found that the 14 should not have been used for the bridge because it was a root-filled tooth and too weak to be an abutment tooth.

The 16 was used to support the bridge’s ‘rest’ and that failed due to the nature of the patient’s oral condition. It also appeared that no recess was made available in the filling of the tooth 16 to accommodate the bridge’s rest, with the result being a rest that sits ‘above’ tooth 16 rather than sits passively ‘within’ the tooth as a stress-breaker. Either way, the bridge was found to have failed and the 16 required urgent attention because of its use as a rest tooth for the bridge.

The expert expressed the opinion that the dentist’s justifications for his treatment choices “demonstrated a basic lack of comprehension of pulp sensitivity testing and raised real concerns about the dentist’s ability to even understand basic endodontic diagnosis”. The expert found the dentist’s choice of bridge design was “difficult to justify” especially because the practitioner could not produce treatment records to support his explanations, and because there was no evidence of charting and no study casts.

The outcome

The case eventually settled for approximately $15,000 which included an allowance for pain and suffering (given the amount of time the patient had the unsatisfactory bridge and denture placed) and the costs of restorative treatment involved in the placement of the bridge.

Lessons to be learned

  • It is expected that practitioners’ records will record the advice given to the patient on treatment options and the patient’s consent. It is important that the records contain all diagnostic information relevant to that discussion. Working casts for items such as a bridge ought to be retained and practitioners must be able to demonstrate that the bridge design and insertion produced an appropriate fit for the patient.
  • The case reinforces the expectation that general dentists must be competent with their diagnostic skills including radiographic interpretation as part of treatment planning.
  • It is crucial that the treatment records include proper charting and the diagnosis following radiographic evaluations and all diagnostic tests, including vitality tests, percussion tests etc. and even where the results are ‘normal’.

It was noted that this dentist’s CPD activities consisted exclusively of on-line podcasts with his peers. The expert commented that practitioners benefit from interaction with their peers and attending education events in person can be of “immense benefit”.

Caroline Tuohey
Senior Associate
Meridian Lawyers

Kellie Dell’Oro
Principal
Meridian Lawyers

Case study – a reminder for practitioners, who are performing ‘cosmetic’ dental treatments

The case:

The patient attended the general dentist requesting porcelain veneers on her upper and lower front teeth. The dentist performed an examination and deemed she was a suitable candidate. The veneers were cemented four months later and the patient said she was happy with the result.

So what went wrong? ….a peer review of the treatment plan revealed a number of inadequacies in the planning, treatment and review stages.

At the outset the patient’s request for “white and bright” teeth was agreed to by the practitioner without first performing an assessment of the condition of the patient’s mouth with no periodontal charting and/or OPG prior to treatment starting. The practitioner was not in the habit of doing so and the Dental Board and the independent experts agreed this was unacceptable. The failure to perform an adequate examination meant that the practitioner was not aware of signs of periodontal disease (estimated to be pockets up to 5mm and recession up to 4mm) and ultimately several teeth had to be extracted after the veneers were placed. The dentist was criticised for carrying out extensive restorative treatment on someone who had ongoing and untreated periodontal disease.

The veneers were placed on the upper 13 – 23 teeth and the lower 43 – 33. After the veneers were cemented, root canal therapy was performed on 5 of the 6 lower teeth. Approximately three months later the 41 veneer had to be redone.

Adequacy of the planning process for veneer placement

The dentist was not in the practice of preparing temporary veneers or a diagnostic wax-up and this was found to be “significant problem” by an independent expert because “there is no idea as to what the technician should make it to as well as whether the patient knows whether she will be happy with the proposed restorations”.   The dentist’s practice was to only send a photograph of the patient to her laboratory and leave it to the technician to make the restorations. This was not held to be an acceptable practice by the Board who commented that “there was minimal communication with the dental laboratory in relation to the design of the restorations”.

A second expert opined that study casts and diagnostic wax-ups of the proposed restorations were “mandatory in planning extensive treatment”. Providing the patient with the opportunity to review a mock-up of the veneers allows the patient the opportunity to consider the look and feel of the veneers before the tooth is prepared.

Poor outcome of the veneers

The final restorations were examined by an independent dentist as part of the Board’s investigation. That dentist found that the upper and lower veneers were over-contoured and had overhanging margins labially and interproximally. The twelve restorations were also found be substandard in fit, form and function.

The upper veneers were found to have affected the patient’s facial profile and appeared to be at least 1mm thicker than the external profile of the estimated previous line of the arch. The contour of the veneers appeared square and not in general keeping with the shape of the face. It was found that the level of the 13 and the 23 were not equal and the 13 was longer. The level of the teeth did not follow the profile of the lower lip.

Overall the veneers were found to be unsatisfactory and it was recommended that they be re-made.

Endodontic treatment

After the restorations were placed, the patient attended for an emergency consultation claiming to be in “agony” with reference to a number of the lower teeth that had veneers placed on them. The dentist performed RCT to 5 lower anterior teeth. The Board ultimately found that that the endodontic treatment was “technically inadequate” because a number of the teeth had to be re-done. The expert periodontist found that a number of the endontically treated teeth were underprepared and under-filled which meant that the root filling did not fill all of the root canal system.

Whilst the dentist says she was only trying to help a patient presenting in extreme pain, she ultimately conceded to the Board that she rarely performed RCT and as a result of this investigation gave an undertaking that she would no longer perform endodontic treatment and would refer patients to a specialist.

Outcome of the Dental Board’s investigation and civil claim

The dentist was found to have behaved in a way that constituted unsatisfactory professional performance and was cautioned. She was also required to undertake education with a specialist approved by the Board at her own expense.

In the ensuing civil claim the independent experts retained on behalf of the dentist all agreed that the final outcome of the veneers and RCT was unsatisfactory and this patient required a significant amount of further restorative treatment. The claim was eventually resolved for approximately $35,000 which was based upon the estimate of further dental treatment by the independent experts.

Lessons to be learned

  • Don’t be blindly guided by the patient’s wishes for restorative treatment without first performing a thorough assessment to determine the patient’s suitability for the treatment as well as advising of any alternative treatment options;
  • A patient cannot be said to have provided you with informed consent in the absence of being adequately assessed and provided with the pros & cons of the requested treatment and the viable alternatives;
  • When providing veneers the Board expects that the planning process will include study casts and diagnostic wax-ups of the proposed restorations. Sending a photograph to the laboratory is not sufficient. Allowing the patient to try-in the restorations is a vital checkpoint in the planning process.
  • Even if a patient presents for emergency treatment you should still consider whether you feel comfortable providing that treatment and whether a referral is warranted.

Caroline Tuohey
Senior Associate
Meridian Lawyers

Kellie Dell’Oro
Principal
Meridian Lawyers

Case study – the personal cost of debt recovery

Jurisdiction

The dentist commenced proceedings against the patient in the Local Court (NSW) to recover his professional fee of $3,800.

The patient subsequently lodged a complaint against the dentist with the Dental Board of NSW (now known as the Dental Council of NSW) alleging poor quality advice and treatment.

Outcome

The dentist successfully recovered his professional fees from the patient.

The patient’s complaint against the dentist to the Dental Board was dismissed.

Law considered

Dental Practice Act 2001(NSW)

Health Practitioner Regulation National Law (NSW)

Facts

In September 2008 the patient attended the dentist for the first time. Assessment, including periapical radiographs, revealed that tooth 27 had a hopeless prognosis. Extraction was recommended. The tooth was extracted at that appointment.

The patient returned in mid-September and October 2008 at which time restorations were placed on teeth 12 and 36. Then in November 2008 the patient presented seeking advice about replacing the extracted tooth 27. Options were discussed including the placement of a bridge using 26 and 28 as abutments. It was a lengthy consultation and the patient said he would consider his options.

The patient returned in July 2009. There was another lengthy consultation about his options and the patient ultimately decided to proceed with the bridge. The dentist agreed to accept full payment at the time of issue. This was against his usual practice but he believed the patient would honour the agreement. On the day of issue in August 2009 the patient attended without payment. He said he would go to the bank to get a cheque at the end of the appointment. The patient did not present the cheque as promised.

The dentist (and his staff) attempted to communicate with the patient about payment (written and oral). The patient responded to the effect that when he was happy with the bridge, he would pay for it. The dentist offered to assess the bridge and solve any issues. The patient did not respond. The dentist threatened to commence legal proceedings. The patient did not respond.

The debt recovery proceedings

In September 2009 the dentist commenced proceedings against the patient in the Local Court to recover his professional fees of $3,800. In October 2009 the patient filed a defence denying that he owed the money and asserting that the dental work was unnecessary and performed negligently. The patient also filed a cross claim alleging negligence and seeking damages against the dentist of $59,500.

Then in December 2009 the dentist received a letter from a law firm acting for the patient. The solicitor requested a copy of the dentist’s clinical file. He complied with that request.

The cross claim was dismissed by the court in February 2010. The dentist was ultimately successful in obtaining a judgment against the patient in July 2010. However, the patient then took steps to try and have the judgment set aside. Those actions were unsuccessful. Whilst the dentist did ultimately recover his fee of $3,800, it took over two years to do so. He and his staff had to attend the Local Court on numerous occasions and prepare many court documents and statements.

The Dental Board complaint

In March 2010 (that is, after the cross claim had been dismissed but before the claim by the dentist had been determined by the Local Court) the patient lodged a complaint against the dentist with the Dental Board of NSW (this entity became known as the Dental Council of NSW on 1 July 2010). The patient complained that tooth 27 should not have been extracted in the first place. The patient complained about the quality of the bridge issued by the dentist.

The Dental Council referred the complaint to the Dental Care Assessment Committee. That Committee recommended that the dentist be ordered to refund the patient the $3,800. The Committee was not satisfied that the notes and radiographs taken in September 2008 supported the extraction of the tooth 27. The Committee queried whether the wrong tooth was extracted. The Committee felt that the bridge should not have been issued in the presence of pain.

Not surprisingly the dentist was aghast. He identified factual errors in the report of the Committee. He was satisfied the radiology did support his decision to extract the tooth – it showed clear and extensive bone loss associated with tooth 27. He denied the patient complained of any pain at the time the bridge was issued.

He sent a submission to the Council to the effect that it should not follow the recommendation of the Committee. He carefully dissected the report of the Committee and explained the steps that he took to assess tooth 27: he took three periapical radiographs in conjunction with mobility, percussion, probing and air sensitivity testing. The problem for the dentist was that not all those important assessment tests were recorded in his clinical record.

The Dental Council ultimately decided to deal with the complaint by Inquiry at a meeting of the Council. The Council was concerned that there was no evidence in the clinical record that the patient’s oral health had been checked before the provision of the bridge. The focus was going to be on the record keeping of the dentist.

The Inquiry took place in April 2012. By that time the dentist had provided six written submissions to the Council. He had spent days of time preparing documents and submissions.

The dentist presented extremely well at the Inquiry. He was well prepared and showed great insight. He essentially submitted that his treatment planning and execution was appropriate and that his only downfall was not recording his findings adequately in his clinical record. He held firm to his position that he should not have to refund his fees (which he had only recently recovered). The members of the Council queried many aspects of the treatment planning and assessment and all questions were answered by the dentist in a frank and professional manner. The dentist explained the changes he had made to the manner in which he records his findings in the clinical record and in particular, his periodontal findings. The dentist assured the Council that he had read the Dental Board of Australia’s Guideline on Dental Records issued 1 July 2010.

The Dental Council resolved to dismiss the complaint. In doing so it provided advice to the dentist about the importance of maintaining clinical records which comply with the Guideline.

Comment

The dentist ultimately recovered his professional fees and successfully defended a complaint to his professional board. Unfortunately it took him many years to do so. He lost valuable time preparing court documents and Dental Council submissions. He had to attend the Local Court on a number of occasions (and pay a lawyer on some other occasions) and had to attend the Dental Council Inquiry.  The value of the time spent recovering his professional fee far outweighed the actual fee of $3,800.

At the Dental Council Inquiry in April 2012 the dentist was asked what he had learnt from the process. He provided a very insightful response in which he stated that “sometimes you need to let go and not pursue some accounts”.

If you decide to pursue a patient for outstanding professional fees you must enter that process with your eyes wide open and accept that the road ahead may be rocky.

Case study – the cost of tripping hazards in your practice

Jurisdiction

The patient commenced proceedings against the dentist in the District Court of NSW alleging negligence.

Outcome

The claim was settled.

Law considered

Civil Liability Act 2002 (NSW) – sections 5B, 5C, 5F, 5G and 5H

Facts

The woman attended the dental practice in NSW to enquire about making an appointment. Upon leaving the practice, her foot became entangled in a cord hanging from some window blinds. The cord was lying in the reception area and strewn across the means of egress. The woman sustained injuries to her nose, neck, shoulder and ankle as a result of her fall.

Evidence and issues considered

  1. Was the dentist liable for the fall?

As the occupier of the practice premises, the dentist had a legal duty to take reasonable care for those entering and exiting his premises. This duty included ensuring that the entry/exit to the practice was clear of tripping hazards. The fall was witnessed by an employed dental nurse who confirmed that the women had tripped and fallen after her foot became caught in the blind cord.

Applying the law, a court would consider the foreseeability and severity of the risk posed by the blind cord together with what reasonable steps were open to the dentist to guard against this risk. The cord created a risk of serious injury. Tying the cord up off the floor was a simple and reasonable step the dentist could have taken to prevent this risk. In these circumstances, the dentist was liable for the fall and subsequent injuries.

In reaching a decision to settle the claim, consideration was given to whether it could be argued that the blind cord on the floor represented an obvious risk. If it was an obvious risk, then the law presumes the woman to be aware of that risk. Having regard to all the circumstances we formed the view that the dentist would have difficulty establishing that the tripping hazard was obvious. Consideration was also given to whether it could be argued that the woman contributed to the incident by failing to keep a proper look out. Ultimately, the settlement reflected a compromise that took into account the available defences.

  1. What injuries and damage did the woman suffer as a result of her fall?

Medical evidence confirmed that the woman sustained soft tissue injury to her nose, left ankle and right shoulder. There was no evidence of any fractures or breaks. The soft tissue swelling to the nose resolved and with time so too did the injury to the left ankle but the woman had ongoing pain and restriction of movement in her right shoulder. Future treatment was recommended but there was evidence to suggest that her prognosis was guarded. As a result of her injuries she required assistance with some domestic tasks, and was likely to require such assistance into the future.

The woman was entitled to compensation for the injuries and damage she suffered as a result of her fall. The woman initially sought compensation of around $400,000. The claim ultimately settled for a small fraction of that amount and it was not necessary for the dentist to attend court.

Comment

If you are the occupier of premises, you owe a duty of care to those on your premises. This necessarily includes a duty to provide a safe means of entry and exit. You must take reasonable steps to minimise any foreseeable risks of injury to those who enter your practice. Failure to do so may result in injury for which you could be held legally responsible.