by Professor Paul Tipton
One of the biggest problems facing the legal profession currently is the inability to find suitable experts for a case.
According to research conducted for the British Dental Health Foundation, consumer confidence in Dentists is at 88%, far higher than that of doctors and twice as many people value their relationship with their dentist over their doctor (19.7% to 9.9%), yet dental litigation figures are going through the roof.
Dentists are now twice as likely to be sued than they were 10 years ago according to figures from Dental Protection. This is despite reports from the Care Quality Commission that dental patients are at lower risk than those being seen by any of the health provider.
The current clinical negligence landscape has arisen due to the current NHS system of payment and a deskilling of new dental graduates.
Dentists face an ethical imperative to promote what is best to the patients and this beneficial approach to care is balanced with a desire to avoid harm if possible.
NHS Payment System
One of the factors that drive dental decisions is the payment system. In the UK, the NHS payment system primarily revolves around activity payments (either fee per item or units of dental activity – UDA’s). The current remuneration scheme (UDA’s) in Health Service Practice in England & Wales impacts the daily decisions that dentists make. Quite simply, if your payment mechanism encourages prevention, then prevention will be provided. On the other hand, if your payment approach encourages restorations or extractions, then restorations or extractions will take place. To give an example, a dentist receives the same payment for an extraction as he/she does for a root filling. Whilst an extraction may take 5-10 minutes, a molar root filling may take one hour.
There is a professional and ethical obligation to find out what our patients want to know as well as what you think they need to know. Following on from the Supreme Court judgment in the Montgomery case, there is now legal obligation to do the same. Consent is not a matter of bombarding the patient with technical information or a smorgasbord of choices that are either specifically related to the patient or tossed into the conversation simply to fulfill the ethics of giving all the options or appropriate for the clinical situation.
The best known definition of ‘consent’ comes from the Department of Health which says it is “the voluntary continuing permission to the patient to receive particular treatments, it must be based upon the patient’s adequate knowledge of the purpose, nature, likely effects and risks of that treatment including the likelihood of its success and a discussion of any altenative to it including no treatment.” Montgomery replies that clinicians translate their professional knowledge into something meaningful for the average patient. The dentist is required to inform their patient about risks, which the individual sitting in the chair would be likely to attain significance to. Unless the patient is informed of the comparative risk of different procedures, they would not be in the position to give their fully informed consent to one procedure rather than another. However, dentists are not paid for treatment planning and giving alternatives, but only for treatment.
The consent checklist involves:
• Is the patient old enough and capable of making decisions?
• Have I given the patient sufficient information about the treatment?
• Does the patient understand what treatment they have agreed to?
• Does the patient know their risk susceptibility status?
• Does the patient know what his or her own involvement is?
• Does the patient understand the risks and benefits of the treatment?
• Has the patient been given alternatives?
• Does the patient understand all the costs involved?
• Have I provided any written information about the treatment and preventive procedures?
Breach of Care
A patient must prove there was a breach of duty of care in failing to reach the standard of care expected and they suffered harm/losses as a result (causation) and that harm was foreseeable and not to remote.
The key issue is what the standard care pertaining to the time for that particular clinical situation was and whether the dentist did something a reasonable dentist would not have done alternatively did not do something a reasonable dentist would have done in that particular situation. This is the ‘Bolam Test’ and still a relevant standard that applies some 60 years after the judgment was handed down.
The Bolam test is applied in law to assess whether or not the defendant in question has committed a breach of duty, and is guilty of negligence. It clearly states that a dentist is not deemed to have been negligent if he/she has acted in accordance with a practice accepted as proper by a responsible body at the time the event occurred.
The law does not expect the dentist to be aware of every recent development in medical science but they would however expect that the procedure or technique has become well proven and well accepted before it is adopted.
The GDC however expect clinicians to provide good quality care based on current evidence.
Proving negligence is only half the battle though. Once negligence has been identified, the claimant then has to prove causation. This is why the experts report is required.
Identifying causation is the most important factor in a case and is often overlooked by some experts. Each expert must understand that it is not enough to simply just to deal with liability, for the case to have merit. The claimant must prove that the patient would have had a much better prognosis but for the defendant’s negligence.
The but-for test is used to identify causation. I.e. but for the negligence, the resulting outcome would have been far better/ the injury would not have occurred. Thus the negligence in question made a material contribution to the severity of the injury.
If a defendant is deemed to have been negligent, but the resulting damage would still be the same, then there is no case as causation has been disproved.
Negligence cases take the most amount of time, are often highly complex and can involve multiple dentists over a period of time during which the patient was treated. This is especially in the area of periodontal disease where lack of care, treatments and diagnoses may have been going on for a decade or more; the patient has seen multiple dentists who have continued to misdiagnose the disease process. This becomes difficult to apportion the negligence percentage to each of the dentists involved in the case.
The periodontal disease types of negligence cases that we see in Dentistry are due to a lack of diagnosis and lack of treatments which has in turn led to tooth loss. These teeth then need to be replaced, usually with dental implants. Dental implants are a very costly treatment and usually not available in the health service and often, should the negligence have led to loss of many teeth, then treatment cost can be in the region of £50,000 in order to replace these missing teeth with implants.
The second most common cause of negligence is due to tooth extraction where it has not been explained to the patient that there are other options which could lead to the tooth being saved. If they had been fully informed they would have taken another route which would have led to their tooth being treated. This is often the result of the extraction being an easier but not always better option to complex restorative treatments to save the tooth. Again, once the tooth has been removed the usual replacement is with the dental implant and a single tooth replacement is often in the region of £3,000 to £4,000.
More recently, we are seeing complex cosmetic treatments for which the dental practitioner is either inadequately trained for or does not provide the patient with a reasonable estimate of the costs and outcome, alongside the pros and cons of such treatment. Here, the more expensive treatments include dental implants, cosmetic dentistry with veneers, etc., and also short-term orthodontics.
Patients are very often disappointed when having veneers or crowns placed, as the end result does not match their expectations which can again lead to a claim. Most dentists often do not complete enough diagnostic work in advance of treatment, so that the end result can be easily previewed by patients and amended as required.
Dental implants have a failure rate and this is often overlooked. The expected failure rate has always been in the region of 5% in the lower jaw and 10% in the upper jaw. More recently, however, there is periimplantitis disease which has led to an increase in these rates. Again this is often overlooked during the treatment planning stage. The patients have the assumption that their implants will last them a lifetime.
Prosthodontics My specialty of Prosthodontics deals with the replacement of teeth and this can be via crowns, veneers, bridges and implants. Prosthodontics would also include treatment of the temporomandibular joints and bite. This treatment is often wholly performed by dentists who have inadequate training in the field of occlusion (bite). Being a Specialist in Prosthodontics and a Professor of Restorative and Cosmetic Dentistry gives me an overall view of all the fields involved in Restorative, Cosmetic and General Dentistry which is essential when writing reports and coming to opinions as to plans and treatments.
Dental education has also impacted upon the current climate. Dental education has changed massively over the years and I have been involved in it very closely with my company Tipton Training. We have trained dentists over the last 20 years both in the UK and abroad in some of the complex issues of the newer techniques in Dentistry. Due to government cutbacks and lack of funding, often some of the newer graduates are graduating from dental school without basic knowledge and without having performed some of the basic dental tasks. This then leads to a lack of confidence on the dentist’s part which can be reflected in the quality of treatment that is provided. In general, many of the newer graduates from home and overseas may be de-skilled in many practical dental procedures that the experienced dental practitioner takes for granted.
Expert witnesses, however, now operate in a regulatory and legal environment. It is much more onerous than it was 10 years ago. Not only can any participant in the court case or indeed an outside observer refer an expert witness to the relevant professional regulator but litigators themselves can also sue their own expert for damages if they think the expert is being negligent. So there is a serious professional risk. In the latest British Dental Journal, there was an article on “The GDC – a law unto itself ”, which is well worth reading by the legal profession and describes exactly why today’s dentist are worried about being reported to their own regulator (the GDC).
This is why many experts have now closed their books or do not take on this type of work anymore especially the complex negligence work.
Choosing a Dental Expert
The increase in dental litigation combined with the paucity of dental experts means that finding the right expert for each particular case is incredibly difficult. This has obviously resulted in a lack of quality experts for litigants to choose from.
The choice of dental expert should be based on the understanding and knowledge of their field and someone who has over 10 years of general dental practice. Alternatively, dentists who have gone on to have further education in a particular field, such as Master’s degrees or Specialists in Periodontics, Endodontics, Orthodontics, Prosthodontics, General Dentistry and Implantology, and finally to Professors or Consultants when required for more complex cases.
The term involves the word ‘expert’ for a reason, they should have expertise in their particular field and not just be practicing in it, that shouldn’t qualify. There is definitely a positive correlation between who the best experts are and their knowledge and expertise within their particular field. Their CV, qualifications, professional standing, reputation and experience bears witness to their level of expertise.
An expert witness is called upon when the facts and issues of the case cannot be easily identified and requires the expertise of a specialist in a particular area to explain and draw conclusions on the case. The aim of an expert is to provide clarity and reasoned judgement on the complex issues and facts within the case.
Duties and Responsibilities
It’s a necessary trait that an expert has familiarity and demonstrates a clear understanding of all the procedural requirements for giving evidence in a court of law. They must conform with the requirements set out in Part 35 of the Civil Procedure Rules.
An experts duty and responsibility is to the court only, it is their duty to help the court on matters within their expertise. Experts must remain impartial to the case as their goal is to present an independent view that is objective of the case in question. The eventual outcome of the case should have no bearing on the experts decision making. As their primary duty is to the court, they must present an honest, impartial and rational opinion based on the relevant case facts, even if that means acting against the best wishes of the party by whom they have been instructed.
Impartiality starts before instruction. Before accepting any instruction, the expert must ensure that there will be no conflict of interest in the case in question, i.e. that the eventual opinion formed by the expert will be free from emotional attachment, bias and prejudice. This will obviously not occur should the expert have a prior relationship, on any level, with the defendant in question for instance.
Emotion can manifest itself not just as a result of a prior relationship, but also due to ones own past experiences. Previous experiences may result in a positive/ negative relationship with one viewpoint and for example, perhaps a feeling of sympathy towards the defendant. Bias has thus been created and neutrality towards the case lost.
Expert Witness Training It is also important to have continuity when choosing an expert and knowing that they have been through adequate training in the expert witness field and have enough experience in that field to write reports which are legible, easy to read and precise. It is essential to understand a basic knowledge of the legal system so as to help the court reach its opinion if required. It appears that accreditation from a recognised body is increasingly becoming a prerequiste of many instructing litigants.
Understanding of the Literature
Although there are very few cases in which an expert will physically end up in court, it is still paramount that they have the ability to communicate and present information well. A dentist may be correct in their opinion but unless they can fully explain and justify their opinion by reference to the relevant facts and dental/medical literature, then their opinion will be less convincing and thus will carry less weight. Therefore the ability to explain the relevant anatomy and physiology in layman’s terms to the court is crucial.
Experts should always communicate in a non-technical language that can be easily understood by the judge and tribunal. This goes for the experts report as well. A good expert report should always be structured in a clear and concise manner, easily understood by all, as well as citing all the relevant facts, the investigation, the references, the analysis, the reasoning and the conclusion.
The final key quality a good expert presents is decisiveness. The expert must draw on their knowledge to form a decisive opinion based on the relevant facts presented in the case. When fact-based opinions aren’t possible, an expert needs to be decisive and provide, to the best of their ability, an objective and accurate opinion based on the balance of probability. It is imperative the expert is able to understand the difference between what a dentist might to and what a dentist ought to do in any given situation.
Selecting the Right Expert
Thorough attention is required when reviewing a case. An expert must give careful attention to his or her instructions, ensuring that they scrutinize all relevant medical and dental records and witness statements from which to draw their conclusions.
Paying attention to detail helps to present a balanced but clear view of the case at hand, particularly the standards and accepted body of opinion that was used at the time the supposed negligence occurred. A good expert must always pay attention to the accepted body of opinion at the time of the event to adjudicate whether negligence has occurred by comparing the treatment facts with the then accepted treatment guidelines. In these time-lapse instances, it can be very important to choose an expert who was in practice during a similar timeframe. Likewise it is key that when selecting an expert witness for cases of the not too distant past, the expert in question must still be practicing and be up to speed with the now accepted body of opinion.
Professor Paul Tipton is a Specialist in Prosthodontics and visiting Professor of Restorative and Cosmetic Dentistry at the City of London Dental School. He has provided post-graduate education to dentists via his training business, Tipton Training Ltd for over 25 years.
He is Clinical Director of T Clinic, where he practices Dentistry alongside other experts covering the length and breadth of the UK. He himself has be an expert witness for over 25 years and as such is well versed in both providing reports dealing with the highest complexities and helping identify negligence and causation through his screening service.