A patient attended the practice for the first time complaining of bleeding when brushing around the wisdom teeth. This had been occurring for several weeks and the patient also described a bad taste in their mouth.
The dentist examined the patient and took an OPG, following which he sent his nurse through to the patient with a form to obtain consent for the extraction of all four wisdom teeth. The patient agreed to proceed with the extractions under local anaesthesia. Following the administration of the local anaesthetic, a forceps extraction technique was used instead of a surgical approach.
The extractions were completed with some difficulty, but the teeth were removed in their entirety, postoperative instructions were given, and the patient was discharged. No follow-up review was planned but the patient rang the practice two days later, expressing concern over pain from the jaw on the lower left-hand side, together with some numbness.
The patient was not offered an appointment for seven days despite the request for an urgent appointment. When she was examined, a diagnosis of infection and inflammation was made, and antibiotics prescribed. The symptoms persisted but no other treatment or follow-up was offered and, by day 12 after the surgery, the patient sought an appointment elsewhere.
It was at her new practice and following a clinical and radiographic examination that the patient was informed of the presence of a fracture and displacement of the lingual plate. She continued to experience numbness as a result of permanent paraesthesia and a debilitating neuropraxia.
The patient was both angry and frustrated when she was informed of the fracture and the likely nerve damage. She felt she had been treated inappropriately and subsequently abandoned by the original dentist, who had made little effort to address her concerns following the extractions.
Some three weeks after the extractions, she made a formal complaint to the Dental Council (DC) and a claim in negligence was lodged two and a half years later.
Dental Council complaint
The DC complaint was referred through to a full hearing, where it was established that the consent process was not valid and that the clinician lacked the competence to carry out such procedures. It was also determined:
Consent process
There was nothing recorded to demonstrate that the patient was warned of the possible risks and consequences of extracting all four wisdom teeth, in particular 38. In addition, there was no evidence that the patient was offered a specialist referral and both these omissions led to criticism of the consent process.
Competence
The expert instructed by the DC gave evidence that in his opinion, the curved roots of the 38 were lying close to the inferior dental nerve and that by carrying out an extraction with forceps, the procedure forced one or more of the roots against the nerve. He suggested that if a surgical technique had been adopted, and the roots separated, then elevation of the individual roots would not have caused the injury the patient.
The DC determined that the registrant failed to carry out an adequate preoperative assessment to investigate the potential risks before embarking on the removal of four wisdom teeth in one single visit under local anaesthesia. In addition, the registrant failed to properly execute the removal of the lower left third molar, resulting in inferior dental nerve injury.
The DC stated that meticulous attention to preoperative assessment and delivery of necessary skills is essential for the safety of the patient. As a result, the registrant was suspended for a period of three months.
The claim
For a patient to be successful in a claim in negligence, they have to demonstrate that there was a breach of duty and that the patient suffered harm as a result. This claim can be based upon the treatment itself or the consent process.
In this case, the claimant’s lawyer was able to demonstrate that there was a breach in the duty of care owed to the patient, both in relation to the treatment provided and the consent process.
It took two and a half years for the claim to follow the DC complaint which is not uncommon, and substantial damages were sought. Unfortunately, obtaining a supportive expert report to defend the claim in its entirety proved unsuccessful and challenges were limited to exploring the appropriate level of damages.
Reflections
Despite support from a highly experienced Dental Protection legal team, the facts of such cases can be indisputable and certain outcomes inevitable. Ensuring fairness and correct procedure together with strong representation are essentials of our service to members but the support for the individual themselves facing such a professional challenge is just as important. DC investigations and claims can have a significant impact upon emotional wellbeing and support from colleagues who understand the implications of these events can be most helpful. Dental Protection also provides a confidential counselling service for members who feel they may benefit from further support.
Learning points
As set out by dental regulators, registrants have a duty to ensure clinical competency with adequate knowledge and skill. Developing further skills through postgraduate education, mentoring and shared experience is part of our own personal development and taking on complex treatments without appropriate consideration and competency may lead to significant impact upon your own registration.
In terms of consent, the case demonstrates that a signature on a form does not in itself prove valid consent has been obtained. Detailing that discussion in the records provides the additional support as demonstrated by the findings of the DC, and it should be remembered that consent is an ongoing process of communication.
It is also worth considering an important point often misunderstood in that consent does not mean protection against poor treatment. If a risk attached to a procedure is described, understood and evidenced, valid consent can be present but this does not mean that any subsequent injury can be accounted for by saying “well I had consent” – for example, if a warning is provided to a patient that endodontic treatment might fail and it does as only two out of four canals have been filled, that does not mean there is a defence provided by a warning – the standard of the treatment has to stand up to scrutiny itself.
Should an adverse outcome arise, it is imperative that the patient does not perceive that they have been abandoned and efforts should be made to be seen to support the patient in the postoperative period.
For more on this, please look into our workshops.