Dental malpractice cases in Turkey during

Transcription

1 Journal of Clinical Forensic Medicine 1 (005) Original communication Dental malpractice cases in Turkey during M. Hakan Ozdemir a, *, Ahmet Saracoglu b, Aynur Uzunoglu Ozdemir c, Akca T. Ergonen a a Faculty of Medicine, Department of Forensic Medicine, Dokuz Eylül Üniversity School of Medicine, Inciralti, Izmir 3530, Turkey b Faculty of Dentistry, Ege University, Izmir, Turkey c Private Orthodontish, Izmir, Turkey Available online 17 March 005 JOURNAL OF CLINICAL FORENSIC MEDICINE Abstract Objectives: Doctors can face punitive and legal consequences if patients are not satisfied with the medical treatment. The purpose of this study is to provide a database for dental malpractice cases in Turkey. Methods: This study is based on the decisions of High Health Council (HHC) in medical malpractice cases. Between 1991 and 000, 158 decisions were made by the HHC. 1 (0.9%) of these decisions were related to dentistry. This study examines the 8 decisions under which the dentists are found to be at fault. Results: As three of these cases are based on the same facts they are examined together. Of the dentists consulted on 11 decisions, nine were male and two were female. In four cases the HHC gave its expert opinion before the trial, in five cases during criminal trial and in two cases during compensation trial. In five cases patients received surgical treatment, in four cases prosthetic treatment and in two cases endodontic treatment. Nine of these treatments were carried out at private dental practice. In eight reported decisions negligence and inadequate treatment were identified. Most of negligence was caused during surgical intervention. In two cases, treatments resulted in death. Conclusions: Like all other medical staff dentists are under the obligation to comply with the legal rules in the country they practice. They also have to consider ethical principles as well as the acceptable standards and protocols of diagnosis and treatment. Ó 005 Elsevier Ltd and AFP. All rights reserved. Keywords: Malpractice; Dental; Dentistry; DoctorÕs responsibilities; Patient complaints 1. Introduction Various aspects of doctor patient relationship have been discussed since Hippocrates. Increasing use of new technology in medicine has given the doctor patient relationship new dimensions. The issue of medical practice errors is one example. The patientõs claims for damages have recently attracted much public attention especially by mass media. Under todayõs developments in medical technology doctors may take more risks. The patient and/or the relatives of the patient can go to court and sue the medical * Corresponding author. Tel.: /51; fax: address: hakan.ozdemir@deu.edu.tr (M.H. Ozdemir). staff when they do not receive sufficient medical treatment or when they think they are harmed as a result of a faulty treatment intervention. The increased number of compensation cases brought against doctors in recent years has become a major concern for the medical industry not only in Turkey but also throughout the world. 1 In Turkey, dentists, like all other health care professionals, are responsible for the damage they cause during their medical practice. If a doctorõs action risks a patientõs life when the patient is under his/her care, the doctor will be held legally responsible. 5 8 In our country, malpractice cases are not covered within the framework of a specific legislation. These cases are examined under the general rules of law. Choosing the expert person and/or committee has a /$ - see front matter Ó 005 Elsevier Ltd and AFP. All rights reserved. doi:10.101/j.jcfm

2 138 M.H. Ozdemir et al. / Journal of Clinical Forensic Medicine 1 (005) great importance in the investigation of malpractice cases. In compensation cases the expert witness can be a doctor, health institute and/or a committee. The official body whose expert opinion needs to be taken in claims related to criminal law suits in Turkey is the High Health Council, which is under the control of the Ministry of Health. The HHC was established in 1930 and consists of 1 members. Eleven of its members who are experts in their fields work on a permanent basis and five of the members work in the Ministry of Health. One of the members of 1 has been chosen from among the dentists. The decisions of the HHC are based on the medical and legal documents presented in the relevant file. Legal authorities do not have to comply with decisions of the HHC. 9,10 The purpose of this study is to provide a database for dental malpractice cases in Turkey. Cases which were referred to the legal system have been evaluated. We have examined 8 cases where the dental practioner was found to be at fault.. Materials and methods Between 1991 and 000, the HHC examined 158 cases and out of 158 decisions only 1(0.9%) of them were related to dentistry. The study examined these 1 cases. As three of these cases were based on the same facts they were examined together. The authors did not examine any of the patients clinically who made a complaint against the dentists. The documents were studied in relation to details of the complaint, the location of the event, diagnosis, medical application, age and gender of the patient, gender of the dentist and the reasons for faults. Eight cases under which the dentists were found faulty are presented in accordance with the data included in the reports of the decisions. 3. Results A total of eleven cases were examined within the content of the study.in four of these cases the HHC gave its opinion before the case went on trial, in five of them during criminal cases and in two of them in compensation cases (Table 1). The cases in which the dentists were not found at fault were not further examined in this study (Table 1). These cases cover; causing injury to the lip mucosa during tooth extraction, death due to anaphylactic shock developed after the injection of local anesthetic and infection following the endodontic treatment. In all cases nine male and two female dentists performed the medical treatment. Nine of the treatments were carried out in private dental practice, one at the Table 1 General information about the cases Case Date Stage of trial Status of medical staff Patient sex Age Location Intervention Subject of claim Opinion of the HHC regarding fault or no-fault Case Pre-trial Dental student F? University hospital Endodontic Instrument in the trachea Fault Case 1990 Retribution Dentist F? Private practice Prosthetic False treatment Fault Case Compensation Dentist M? Private practice Prosthetic False treatment Fault Case 199 Pre-trial Dentist M? Private practice Surgery Causing death Fault Case Pre-trial Dental technician M? Private practice Surgery Unauthorized intervention Fault Case 1993 Retribution Dentist F? Private practice Prosthetic False treatment Fault Case Retribution Dentist M 5 Private practice Surgery Tooth aspiration Fault Case Retribution Dentist M 11 State hospital Surgery Inadequate intervention Fault Case Retribution Dentist M 13 Private practice Surgery Causing injury Not at fault Case Retribution Dentist F 50 Private practice Endodontic Causing death Not at fault Case Compensation Dentist M 15 Private practice Prosthetic False treatment Not at fault

3 M.H. Ozdemir et al. / Journal of Clinical Forensic Medicine 1 (005) Private Practice 1 1 State Hospital University Hospital Fig. 1. Distribution of the places where the dentists performed the medical interventions. Fig.. Distribution of reasons for fault. university clinic and one at state hospital (Fig. 1). Surgical treatment was applied in five cases, prosth etics in four and endodontics in two cases (Fig. ). In eight decisions dentistsõ fault was based on inadequate treatment; lack of informed consent of the patient, lack of care and unauthorized treatment (Fig. ). When the faults of the dentists, medical students and technicians were compared, the dentists were found faulty in six of eight decisions (Fig. 5). In two cases (cases and 10), treatments were performed at private dental practice and resulted in death. The following cases were studied on the basis of data provided by the HHC Case 1 Subject: Injury caused due to recklessness and lack of care, Gender: female, age: Unknown, Year: Surgery Prosthetic Endodontic Fig.. Distribution of the medical interventions performed on the cases. Fig. 3. Distribution of faulty in the medical interventions Facts of the case: A fourth year student carried out the treatment. An endodontic instrument passed into the patientõs throat. The foreign object went to trachea and could not be taken out by bronchoscopy. It was removed from the lower lobe posterolateral segment of the right hemithorax by thoracotomy. Decision of the HHC: Following the patientõs complaint the case went to court. The HHC examined the case during the legal process and found the student at fault, as the required care and attention were not shown during the treatment. 3.. Case 1 1 Dentist Student Technician Fig. 5. Distribution of medical staff found to be faulty. Subject: Decision on whether the dentist is at fault, Gender: Female, Age: Unknown, Year: Facts of the case: Prosthetic treatment had been planned for mandibular deformity. Four mandibular incisor teeth were extracted, some teeth were cut, and a fixed partial denture (FPD) was applied to some of the prepared teeth. The patient received inadequate preparation and after prosthetic treatment her chewing and speaking functions were damaged. The patient applied to HHC. Decision of the HHC: In order to correct the mandibular deformity diagnosed shortening of the mandible should have been performed. The fault could not be corrected by prosthetic method. Giving the detailed explanation to the patient should have provided the most appropriate treatment. The pathology of the

4 10 M.H. Ozdemir et al. / Journal of Clinical Forensic Medicine 1 (005) patient was increased due to wrong and inadequate treatment. The patient did not receive enough care from the dentist. For the above explained reasons the dentist was found at fault Case 3 Subject: Whether the applied treatment was wrong and faulty, gender: male, age: Unknown, Year: 199. Facts of the case: The patient went to private dentist with poor oral hygiene and gingival problems. Following the examination, maxillary right first and second molar, left first premolar, second and third molar teeth were cut and restored with FPDs. During the legal process expert opinion was taken from the Faculty of Dentistry. The expert report had stated that FPDs, maxillary and mandibular removable partial dentures (RPDs) were applied to the teeth. However, the interrelationship between crowns, abutments and the periodontal tissues were not appropriate. There was mobility in the teeth and there was also imbalance and mobility on the RPDs. Decision of the HHC: It is impossible for the complaints to appear suddenly following the crowning. This could only happen if there is carie, periodontal disease and periapical infection in the tooth or teeth to be crowned. The HHC found the dentist guilty as the treatment was started without giving appropriate attention to the patientõs oral hygiene. 3.. Case Subject: Causing death due to recklessness and carelessness, gender: male, age: Unknown, Year: 199. Facts of the case: The patient went to a private dentist with caries. Following the examination cc morphine was applied to the patient where caries were observed in the maxillary right first and second molar. Twenty minutes later the teeth were extracted. The patient collapsed after leaving the practice and was taken to hospital. Despite all efforts the patient died. Death was caused by hypotensive shock. Decision of the HHC: The tooth extraction was performed normally. Death was occurred as a result of events appearing after the extraction. Today morphine is not used as local anesthetic. A dentist who uses morphine is required to keep the patient under observation for at least 3 h following the application of morphine. The dentist in this case did not fulfill these requirements and was found at fault Case 5 Subject: Acting against the law, Gender: Male, Age: Unknown, Year: 199. Facts of the case: A dental technician extracted the tooth of the patient who complaint from caries. Following the extraction complaints of the patient increased. Submandibular edema, stiffness, trismus of third degree, destruction in the alveolar bone and alveolitis were observed. Decision of the HHC: The clinical profile appearing after the extraction of the tooth involves complications, which likely occurs following the extraction. By law the dental technicians do not have the right to extract teeth. As the dental technician extracted the tooth he was found guilty. 3.. Case Subject: Whether there was negligence and fault during the treatment, Gender: Male, Age: Unknown, Year: Facts of the case: The patient consulted a private dental practice for the treatment of existing FPDs and caries in his teeth. The crowns were removed and FPDs were renewed. The patientõs complaints carried on and the patient went to another clinics. During the new examination it was found that the mandibular left first and second molar utilized as abutments in the previous prosthesis had carious lesions. These teeth were extracted and new prosthesis was made for the patient. The patient files a complaint against the first dentist. Decision of the HHC: After clinical and radiographical examination the teeth, which had caries, should have either been treated or extracted. The FPDs should be applied to the prepared cut teeth. The dentist who applied the prosthesis before treating the caries was found at fault Case 7 Subject: Causing injury as a result of inexperience in the profession, Gender: Male, Age: 5, Year: Facts of the case: A dentist in private practice extracted two deciduous molars of the patient. The patient developed a continuous cough after coming home and was taken to a pediatrician four times on different dates. The prescribed medicine was used. As the medicine could not treat the cough, posteroanterior lung radiography was taken and a foreign object was observed in the lung left pulmonary conus. The patient was sent to cardiovascular surgery clinic of a university. One month after the attempted removal of the foreign object was tried by bronchoscopy under general anesthesia. The foreign object, the second deciduous molar tooth, was removed by EWI surgeons. Decision of the HHC: The dentist was under obligation to consider 5 year old childõs possible agitation during the extraction. As even under such care and attention it may not be possible to prevent such a result a dentist is supposed to give the family all the necessary explanation about possible agitation during

5 M.H. Ozdemir et al. / Journal of Clinical Forensic Medicine 1 (005) the extraction. In this case, the dentist did not fulfill any of these obligations therefore he was found at fault Case 8 Subject: Causing injury due to recklessness and carelessness, Gender: Male, Age: 10, Year: Facts of the case: The patientõs right mandibular first molar had caries. The tooth was extracted at a public hospital. After the extraction the pain of the patient carried on and the patient went to a private dentist. Periapical radiography was taken at the private practice and the root of the tooth was found and removed. Decision of the HHC: Tooth fracture is a complication, which can be seen quite frequently during an extraction. But dentists are under obligation to give the necessary information to patients and patientõs relatives about such a possible complication. As the dentist in this case did not fulfill these requirements he was found at fault.. Discussion Like all other specialists, dentists aim to provide a healthier life for their patients. But despite all the efforts sometimes undesired results may arise. In such cases dentists face legal action. In this study, it has been found out that within a period of 10 years only 11 cases concerning dentistry have been examined by the HHC. This figure is lower than expected and we believe does not reflect the real level of malpractices in Turkey. We believe that such figure results from the fact that: Under Turkish legislation the HHC is only consulted as an expert in criminal cases. Various experts before coming under the attention of the HHC have examined the majority of the cases. Some cases are not brought to the attention of legal authorities as the dentists compensate the patients. The study is based on the information provided in the files of HHC. In some cases the age of the patient, the expertise of the dentist, details of the dental examination and applied treatment cannot be established. The lack of such information is based on the fact that; In some cases files are sent to HHC before they are completed. Therefore, in such cases it is not possible to find all the necessary medical documents in these files. The necessary medical forms are not filled completely by the dentists. This lack of information causes problems for the dentists during their defense in malpractice cases. 11 In this study, the male dentists perform 8% of the dental treatment in private practice. 1 The majority of the faults made by the dentists are faulty diagnosis, faulty treatment plan and performance. 1 Our study also confirms this fact in Turkey. Under Turkish legislation only dentists have the right to perform dental treatment on the patients. If a dental technician performs dental treatment on a patient (see case 5) he/she will face legal responsibilities like some other countries. 1 Anesthetic applications are regarded as high-risk interventions in terms of dentistõs responsibility. It is well known that anesthetic applications in dentistry cause medico-legal problems. 13,1 In this study, under case, the dentist is found guilty for the application of morphine during extraction. As in many other countries, in Turkey the informed consent of the patient before the dental treatment has recently gained great importance in terms of patient rights. It is inevitable that if a dentist carries out dental treatment without the consent of the patient he/she will face responsibilities. In cases 7 and 8, the dentists are found faulty not because of the treatment they performed but because of the lack of their patientõs consent. In Turkey the legislation, Statutes of Patient Rights, concerning the consent of the patients came into force in Although informed consent is evaluated within the content of patient rights, the patientõs choice is important in the treatment interventions and protocols to be carried out so sharing responsibility in the dentist patient relationship. It is well known that in some areas, dentists perform treatment in accordance with the patientõs wishes. 15 It has to be kept in mind that, while considering the patientõs wishes, dentists should not apply any treatment which is not appropriate for contemporary medicine and for which the dentist will be responsible. In some countries, there are specialized councils where dental malpractice is examined. 1 In Turkey, there is no specific legislation concerning dental malpractice. Legislation on this subject is still under discussion in the Parliament. Present medical and technological developments force dentists to perform risky treatments and the compensation cases brought against dentists in malpractice cases put too much pressure on them. In various countries insurance companies work on issues on dental malpractice but this subject is quite new in Turkey. 1,3 Since we could not access the courtõs judgment we were unable to determine the penalties of compensation imposed by the court in these 8 cases.

6 1 M.H. Ozdemir et al. / Journal of Clinical Forensic Medicine 1 (005) It is essential that dentists pay regard to the national and international principles of ethics and the appropriate standards/protocols of diagnosis and treatment. References 1. Conrad DA, Whitney C, Milgrom P, OÕHara D, Ammons R, Fiset W, Vesneski W. Malpractice premiums in 199: results of a national survey of dentists. J Am Dental Assoc 1995;1: Venta I, Lindqvist C, Ylipaavalniemi P. Malpractice claims for permanent nerve injuries related to third molar removals. Acta Odontolog Scand 1998;5: Clark N, Paquin N, Nevin J. Dental malpractice; Baseline data from insurance claims closed in 1970, with analyses. Public Health Report 198;99: Doyal L, Cannell H. Informed consent and the practice of good dentistry. Br Dental J 1995;178: Özdemir MH, Hilal A, Çekin N. Malpractise in dentistry; an aspiration case of a tooth. J Foren Med [In Turkish] 001;15:37.. Özdemir MH, Salain S, Ergnen A. The PatientsÕ rights statutes and the physiciansõ sensitivities. Turkey J Med Ethic [in Turkish] 000;8: Uzel I, Kadoǧlu FG. The occupational courses in dentistry. Turkey J Med Ethic [in Turkish] 1995;: Demirhan EA. The place of the doctors in medical ethic and its importance legally and some of its results. Turkey J Med Ethic [in Turkish] 199;: Özdemir MH, Çekin N. The structure and the duties of the High Health Council of Health. Bull Foren Med [in Turkish] 1998;3: Özdemir MH, Arslan A. High Health Council and the recommending decisions st ed. Ankara: BMS Matbaaclk; 000. p [in Turkish]. 11. Keeling SD, Martin CS. The malpractice morass and practice activities of orthodontists. Am J Orthodont Dentofacial Orthopedic 1990;97: Rene N, Owall B. Malpractice reports in prosthodontics in Sweden. Swed Dental J 1990;15: Jastak JT. Morbidity and mortality from pharmacosedation and general anesthesia in the dental office. J Oral Maxillofacial Surg 199;50: Whitmire HC. Medicolegal considerations for office-based anesthesia in dentistry. Dental Clin North Am 1999;3: Eijkman MAJ, Assink MHJ, Hofmans-Okkes IM. Defensive dental behaviour: illusion or reality. Int Dental J 1997;7: Moles DR, Simper RD, Bedi R. Dental negligence: a study of cases assessed at one specialised advisory practice. Br Dental J 1998;18:130 3.