DDUJournal. DDU Education Support supplement. One small word, one big effect. Time for a rethink Case study Ordered to breach GDC guidelines

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1 The DDU Journal December 2009 ISSN DDUJournal One small word, one big effect Time for a rethink Case study Ordered to breach GDC guidelines DDU Education Support supplement

2 2 DDU Journal December 2009 Dental editor Rupert Hoppenbrouwers/Leo Briggs Editor Naomi Marks Managing editor Lisa Stahl If you have any queries or comments, please write to: Lisa Stahl The Dental Defence Union 230 Blackfriars Road London, SE1 8PJ The DDU Journal is also available online at: the-ddu.com The DDU Journal is produced solely for DDU members in the UK and the Republic of Ireland. The dento-legal advice in the DDU Journal is for general information only. Appropriate professional advice should be taken before taking or refraining from action based on it. Opinions expressed by authors of articles published in the DDU Journal are their own and do not necessarily reflect the policies of the DDU. Unless otherwise stated the photographs used in this publication are posed by models or have been specially commissioned by the DDU and are used with kind permission of those appearing. Members can be assured that the DDU takes its responsibility to safeguard member information very seriously. When publishing articles, we take the greatest care to ensure there is no breach of confidentiality. Advice line dilemmas used are fictionalised, by compositing various versions of similar advice line calls, and cases are suitably anonymised, both in line with General Dental Council guidance. The Dental Defence Union (DDU) is the specialist dental division of The Medical Defence Union Limited (MDU) and references to the DDU and DDU membership mean the MDU and membership of the MDU.. Editorial 3 - Facing up to challenges News 4 - Check registration for all your DCPs (and dentists) 4 - GDC clarifies scope of practice 5 - Make civil justice costs fairer for defendants 5 - UK emergency prescribing exclusion lifted 5 - Guidance published on use of CBCT scanners Membership News 6 - Manage your membership safely 6 - Are you NHS indemnified? 6 - Download a complaints podcast 6 - Keep us informed General Interest 7 - Tough, just and fair defence for members 7 - Root canal treatment continues to top claims chart 8 - Interpreting impairment 9 - Tips for sticks Advice 10 - Advice line dilemmas General Dental Practice 13 - Ordering dental appliances 14 - Preparing for departure 15 - Time for a rethink 16 - One small word, one big effect Case Studies 17 - Ordered to breach GDC guidelines 18 - Operating room for an implant 19 - Crowning story

3 August December DDU Journal -- Membership Editorial 01 3 Facing up to challenges Sometimes it seems that dentistry has been transformed beyond recognition since I graduated from dental school. In some quarters patients are referred to as clients or customers, the public demands that we consider aesthetics almost as much as dental health, all members of the dental team are professionally accountable through registration, and it is possible to carry round the clinical records of an entire practice on a device the size of a thumb. Along with these advances come extra considerations for all dental professionals, many of them dento-legal in character. For example, as the role of dental nurse has been formally recognised, so their responsibilities have become more closely defined, they are accountable to the General Dental Council (GDC) for their actions, and we are now starting to see the first GDC disciplinary cases involving registrant dental nurses. The DDU was concerned when we learnt that thousands of dental care professionals (DCP) had been removed from the DCP register earlier this year after failing to pay their annual retention fee. Members are reminded of the importance of ensuring that DCPs maintain their registration on page 4 of this edition of the DDU Journal. Also in this Journal, bioethicist Richard Ashcroft ponders the ethical and legal challenges which arise as dental professionals increasingly embark on purely cosmetic treatments in their practices (page 15). Meanwhile, on page 9, the positives and the negatives of the technological advances which mean that today data can be stored and transported on tiny inexpensive digital devices are discussed. The DDU s aim continues to be to stay ahead of the changes in dentistry and offer you, our members, the best possible advice, support and guidance when you need it. We also continue to challenge those changes we believe go against our members best interests. In this edition of the Journal, MDU chief executive Christine Tomkins explains why we are currently challenging the rising trend in cases featuring conditional fee agreements (CFAs), also known as no win no fee cases (see page 7). We believe CFAs are wrong in principle, and in practice they lead to disproportionately high fees paid to claimants lawyers and in turn unfair rises in indemnity costs for you. As the Journal goes to press, the findings of Lord Justice Jackson s review of civil claims costs, to which the MDU made a submission, are yet to be published (see page 5). However, this, and other breaking dento-legal news of relevance to our members, will be published on our website, at the-ddu.com, as soon as possible. editorial Rupert Hoppenbrouwers head of the DDU and dental editor DDU website: the-ddu.com

4 4 DDU Journal - News December 2009 Check registration for all your DCPs (and dentists) Members should check the registration status of all Dental Care Professionals (DCPs) in their practice and also ensure that their indemnity record remains unbroken. The DDU advice follows news that the General Dental Council (GDC) took action to remove more than 4,000 DCPs from the GDC Register for not paying their annual retention fee (ARF) by the 31 July 2009 deadline. of the NHS GDS regulations. If found to be unregistered, and without indemnity, the GDC could take action by bringing a criminal prosecution for the illegal practice of dentistry. Also, any such dental professionals would be personally at risk for any damages and legal costs in the event of a successful negligence claim against them by a patient. The Dentists Act 1984 makes it an offence for a person who is not a registered dentist or DCP to practise dentistry, or hold themselves out whether directly or by implication as practising or being prepared to practise dentistry. The GDC has warned that if a dentist employs or manages an unregistered person to work as a dental professional, the dentist themselves could be liable to fitness to practise proceedings and possible erasure from the register. Members should be aware that under the MDU s Memorandum and Articles of Association, membership of the DDU would automatically cease on removal of any member from the GDC s Registers, unless the MDU Board of Management decides to retain that member in membership. Except when a member permanently retires, dies or is disabled, if a dental professional s DDU membership ceases, so too does their professional indemnity policy, which is provided as a benefit of membership. Dental professionals are then working without indemnity, which contravenes the GDC guidance and is in breach GDC clarifies scope of practice Registered dental professionals should familiarise themselves with new guidance setting out the General Dental Council s (GDC) required skills and competencies of each member of the dental team. Scope of Practice (GDC, 2009) describes the areas in which the GDC considers orthodontic therapists, dental hygienists, therapists, technicians, nurses, clinical dental technicians and dentists have the knowledge, skills and experience to practise safely and effectively and in the best interests of patients. The GDC stresses that their guidance does not simply represent a list of tasks someone can do. However, it does list reserved duties which can only be carried out by a particular group. The guidance also provides examples of additional duties each group of registrant might develop during their career. DCPs who wish to carry out reserved duties will need to gain the necessary qualifications to allow membership of a different registrant group. Registered DCPs are individually accountable for the treatment they carry out. Equally, dentists have an ethical obligation to delegate appropriately and not pressurise members of their team to carry out particular tasks if they are not trained or competent to do them. DDU 24-hour advisory helpline: UK / IRL

5 December 2009 DDU Journal - News 5 Make civil justice costs fairer for defendants Use of conditional fee agreements (CFAs) is growing and claimants now use them in around 47 per cent of DDU member s cases. The DDU has been prominent among defendants who are increasingly critical of CFAs because they inflate claims costs unfairly, usually out of proportion to the damages awarded. We welcomed the Ministry of Justice s decision last year to appoint Lord Justice Jackson to conduct a review of civil claims costs and contributed comments and data to the factfinding Phase 1 of that review. The DDU supports the position that any reform to the recoverability of clinical negligence costs must maintain access to justice for claimants. However, we think it should be possible to revise the claims procedure so that it maintains claimants access to justice, but becomes fairer to defendant dental professionals who are currently funding compensation payments that include disproportionately high costs. Lord Justice Jackson s preliminary report was published for consultation in May 2009 and the MDU made a detailed submission. Lord Justice Jackson s findings and recommendations are due soon. In the meantime, members can read the full submission on the DDU s website the-ddu.com UK emergency prescribing exclusion lifted UK dentists can now arrange for the emergency supply of antibiotics and other prescriptiononly medicines (POMs) from a pharmacist. The Department of Health has confirmed that an anomaly in a 2008 amendment of the Medicines for Human Use (Prescribing EEA Practitioners) Regulations 2008, which resulted in UK health practitioners being excluded from the emergency supply of POMs was resolved in May UK dentists can now arrange for the emergency supply of POMs, although the GDC makes clear that dentists should not request an emergency supply of POMs without examining the patient first. DDU members with specific queries about their ethical obligations when prescribing should call the DDU dento-legal team for advice on Guidance published on use of CBCT scanners Dentists who are considering the installation of cone beam computed tomography (CBCT) scanners for implant and other specialist procedures, should be aware of interim radiological protection guidance from the Health Protection Agency (HPA). While there are established safety procedures for conventional x-ray equipment, the HPA believes they may not be adequate or safe for CBCT systems and its Radiation Protection Division has set up a working party to look into the use of CBCT equipment. Formal guidance for the UK is expected soon, following a consultation exercise, but the interim guidance, in the form of an article 1, can be downloaded from the HPA website. It addresses the following: Selection of appropriate equipment. Establishment of a suitable quality assurance programme. Consultation of a radiation protection adviser (RPA) and medical physics expert (MPE) for the necessary advice on radiation protection. Training requirements for all persons involved in the use of CBCT scanners. Dealing with referrals from other dental practices. The HPA points out that the work of the working party mirrors that being done on a Europe-wide scale under the SEDENTEXCT project, but this project is not expected to publish formal guidance until Reference 1. The Radiation Protection Implications of the Use of Cone Beam Computed Tomography (CBCT) in Dentistry - What You Need to Know, J R Holroyd and A D Gulson, HPA, July hpa.org.uk DDU website: the-ddu.com

6 6 DDU Journal - Membership News December 2009 Manage your membership safely Busy dental professionals can nominate a third party to renew their DDU membership, amend their contact details, or access advice without fear that fraudsters will also be able to access their personal information. The DDU facility, which enables individuals such as practice managers and family members to discuss the membership details of a member, is applied with strict regard to security. We take the responsibility of protecting members personal information very seriously and we constantly strive to comply with the provisions of the Data Protection Act Anyone asking for information about a member has to go through a series of security checks to ensure that individual is either the member or their appointed representative. To nominate a third party to manage your membership, call the DDU membership team on or complete a Data Protection Authorisation form, which can be downloaded from the DDU website the-ddu.com/dpa Are you NHS indemnified? Dental professionals working in high street practices and providing NHS treatment under a General Dental Services contract with their Primary Care Organisation should check their membership category on their membership documents to ensure it is correct and that they have the appropriate level of indemnity. Does it say NHS indemnified when it should read General Dental Practitioner? Some members in general dental practice believe that they are NHS indemnified, but in general this will not be the case even for those who undertake no private practice at all. NHS indemnity usually only applies to work carried out by salaried dentists who work mainly, or wholly, for an NHS hospital the community dental service or a primary care trust and that they are directly employed by an NHS Trust or Health Board and are indemnified by the NHS in respect of their contractual duties for the trust. If you have any doubt about your indemnity arrangements, call the DDU membership team on Download a complaints podcast Members can download a new advisory podcast from the DDU on what to do if you receive a letter from the General Dental Council (GDC) saying someone has complained about you. DDU dento-legal advisor Leo Briggs said: It can be very worrying when you first learn that someone has complained about you to the GDC. This podcast explains at what stage you might be contacted by the GDC, in the event of a complaint, and outlines what you should do. You can listen to the podcast on the DDU website or download it for listening to later. Keep us informed Are you starting a new job? Changing your working hours? Perhaps you are going on parental leave? Or considering retirement? Whatever your situation, we understand that life can get pretty hectic when things are changing at work, but don t forget to ask yourself: have I informed the DDU? If you keep us updated on your working circumstances we can help give you the peace of mind that comes with having a comprehensive indemnity package in place. Ensuring that your membership is kept up-todate throughout your career can also save you money. Did you know, for example, that being on a break from work for a month or more could entitle you to a refund, and that members simply providing routine maintenance for patients who have had implants placed and restored by others do not pay an osseointegrated implant supplement? The only way to be sure that you are paying for the right level of indemnity is to let the DDU membership team know what you are currently doing on DDU 24-hour advisory helpline: UK / IRL

7 December 2009 DDU Journal - General Interest 7 Tough, just and fair defence for members From time to time there is a debate in dentolegal circles about the DDU s approach to the defence of its members. This has centred principally on the question of when we defend a claim and when we negotiate a settlement. The DDU s approach is to ensure the outcome of claims brought against our members is just and fair to all parties. We ask in every case whether a claim should be defended or settled and consider the likely cost. We do not defend the indefensible nor do we settle for the sake of expediency. Many factors have to be taken in to account when making judgements and our dento-legal team have a great deal of experience in this area. We also involve members in the conduct of their case. In our view, it is never a good idea to settle a claim where the cost of settlement is small, just for the sake of expediency. If the case is defensible then we will defend the actions and reputations of our members all the way to trial if necessary, even where the cost of the settlement may be small and the cost of defence high. On the other hand, the idea of fighting unwinnable cases makes no sense. With rising claimants legal costs, particularly in relation to no win no fee cases which now account for around 47 per cent of our dental members cases, it is a waste of time and money to defend a case where the facts show it should be settled. However, some cases do go on and on and when our members face a complaint or claim, a constructive approach is needed. Saying sorry and providing an explanation to a patient can help resolve that patient s concerns and answer their questions fully. This is often what is most important to patients when something goes wrong. We feel that excessive claimants legal costs, which often exceed the compensation awarded to the patient, are unfair on our members, whose subscriptions go to pay for such cases, and that this issue needs to be addressed. Under conditional fee agreements, also known as no win no fee cases, a patient making a claim against a dental professional may not have to pay the legal fees if the case is unsuccessful. But where the case succeeds, the solicitor may inflate the fee by as much as 100 per cent. This can make the sum going to the claimant s solicitor extremely large in proportion to the actual settlement, with the sum going to the damaged patient often being less than the sum going to his or her lawyer. The MDU therefore strongly supports Lord Justice Jackson s review of civil claims costs (see page 5). We believe it can only be a good thing if the claims procedure is revised so that the claimant s access to justice is maintained, but defendant dental professionals, who are currently funding disproportionately high claimants lawyers costs, are protected. Dr Christine Tomkins MDU chief executive Root canal treatment continues to top claims chart The proportion of dental claims notified to the DDU compared with medical claims rose in 2008 a trend which has continued since Last year, claims relating to dental treatment accounted for 29% of MDU claims. In 2003, dental claims accounted for approximately 22% of all new claims. The top three treatments resulting in dental claims reported last year were: Root Canal Treatment (RCT) (19% of new dental claims), extractions (13%) and crowns (9%). However, as senior dental claims handler Debbie Herbst said: Compared with medical claims, those concerning dental treatment are more difficult to categorise. This is mainly because a single dental claim may contain allegations relating to different treatments. For example, an alleged unsatisfactory filling may result in a need for RCT, which may fail, leading to a need for the tooth to be extracted. The extraction in turn may then be complicated by a fractured retained root which could become infected, leading to a need for surgical removal, perhaps under general anaesthetic. The 10 most common areas of patient management giving rise to dental claims in 2008 are shown in the pie chart. They do not vary much from year to year and analysis of data for January to August 2009 reveals this continuing trend. 10 most common areas of patient management giving rise to dental claims in % 7% 7% 6% 5% 3 2 % % 9% % 23% 19% Other RCT Extraction Crown Caries Restorations Periodontitis Bridge Implants Dentures Veneers DDU website: the-ddu.com

8 8 DDU Journal - General Interest December 2009 Interpreting impairment Having your competence as a dental professional called into question is a worrying time. Joanne Bateman, in-house solicitor, explores what case law tells us about the new rules determining whether a dentist is deemed fit to practise. It is now more than three years since the General Dental Council (GDC) introduced new rules governing how it regulates dental professionals. Under these, the test of impaired fitness to practise replaced the previous test of whether a dental professional was guilty of serious professional misconduct. However, there is no definition of the term impaired fitness to practise within the Dentists Act 1984 or in the new Fitness to Practise rules themselves leading to many arguments on the meaning of impairment and the evidence needed to prove that a dental professional remains fit to practise. There is, however, a body of recent case law which has a bearing on how GDC Practice Committees exercise their powers under the new rules, and, although they all involve the General Medical Council, they apply equally to GDC proceedings. Importantly, they can help us understand the meaning of the test impaired fitness to practise. First, though the background: The Dentists Act 1984 states that fitness to practise can be impaired by the following principal factors: Misconduct, Deficient professional performance, Adverse physical or mental health, A conviction or caution in the UK or a criminal offence. fitness to practise differed significantly from the previous test of serious professional misconduct. In the case of Meadows 1, Lord Justice Auld stated that it was inconceivable that misconduct under the new rules should signify a lower threshold for disciplinary intervention. Thus, this case emphasised that impairment still denotes serious misconduct and not mere negligence. Isolated errors When a GDC Practice Committee considers a case of misconduct they are required to consider separately the findings of fact and whether, on the basis of the facts found proven, fitness to practise is impaired. In the case of Cohen 2, it was established that a committee can properly conclude that a dental professional can be guilty of misconduct (on the basis of the facts found proven against him or her) but that the misconduct may not be sufficient to find their fitness to practise impaired. Thus, this case allows those representing dental professionals to argue that, where there is an isolated error, with little chance of repetition,this does not amount to impaired fitness to practise. Looking forward Finally, the case of Azzam 3 established that, while taking into account the way the dental professional has acted or failed to act in the past, the test of impairment looks forward not back. Thus, evidence as to present skills and any actions undertaken to remedy any deficit, is relevant to the GDC s Practice Committee s determination on impairment. This case opens the door to dental professionals facing conduct proceedings being able to introduce evidence on the steps they have taken to remedy any defect in order to prevent recurrence. All these cases are encouraging developments in the interpretation of the new rules. In particular, they illustrate the importance of seeking early advice from the DDU should you find yourself the subject of a GDC investigation. Early action in response to a complaint can be very important if the matter proceeds to a conduct hearing. It can demonstrate to a future GDC Practice Committee that you have taken steps to remedy any deficiencies and are therefore unlikely to repeat the conduct under scrutiny. This can be extremely important in reassuring a Committee that your fitness to practise is not impaired. References 1. GMC v. Professor Roy Meadow with HM Attorney General [2006] EWCA Civ Cohen v. GMC [2008] EWHC Azzam v. GMC [2008] EWHC If a dental professional comes before a GDC Practice Committee, at an appropriate stage during the proceedings the prosecutor and the dental professional s representative are allowed to address the committee on whether the dental professional s fitness to practise is in fact impaired. Beyond negligence One of the first issues to be clarified by the courts was whether the new test of impaired DDU 24-hour advisory helpline: UK / IRL

9 December 2009 DDU Journal - General Interest 9 Tips for sticks Dental professionals may find memory sticks useful for personal use, but they should remember that these devices are ill-suited for storing identifiable patient data, advises Rupert Hoppenbrouwers, head of the DDU. is lost or stolen the DDU has produced the following general tips on protecting electronic patient data: Avoid storing identifiable patient data on personal mobile devices. In fact, the Department of Health has said that the movement of unencrypted data held in electronic format should not be allowed in the NHS, and that wherever possible, identifiable patient data should always be stored on a secure server. erase information permanently from a hard disk. This can be a particular danger when dentists use laptop computers for both professional and personal use. Be aware of the relevant guidance, such as that provided by the GDC and the NHS, as well as your legal requirements to protect confidentiality. For example, the Data Protection Act (DPA) 1998 imposes a legal duty on those responsible for personal data to ensure it is held securely and it is protected from unauthorised or unlawful processing. Section 55 of the DPA makes it a criminal offence to obtain or disclose personal data unlawfully. Mobile devices such as memory sticks are a valuable and convenient way to store and transfer data. But they have a serious downside: they can easily be mislaid or stolen. If they are used to store identifiable patient data, they present a high risk of a breach of confidentiality. In recent years, there has been a spate of news stories about memory sticks, laptops, computer disks or other mobile devices containing patient data going astray. Registered dental professionals have a duty to protect patient confidentiality. Breaches of patient confidentiality can result in patient complaints, a media storm, a claim for compensation, a criminal prosecution under the Data Protection Act 1998, disciplinary action by an employer or a General Dental Council (GDC) investigation. Familiarise yourself with your practice, Primary Care Organisation or NHS Trust information security policy, including the name of the person in charge of data security and follow procedures laid down, for example, on the use of laptops and portable data storage. Do not store professional data on your personal computer. It could lead to breaches of confidentiality if someone else uses the computer and it is notoriously difficult to Any loss of data should be reported to the nominated senior person within your organisation immediately so that action can be taken and the patient, or patients, informed, if appropriate. If you have any specific concerns about whether you should use a portable datastorage device at work, speak to your employer or information officer at your NHS Trust, or contact one of the DDU s dento-legal advisers on To help ensure that identifiable patient data is not improperly disclosed even if a mobile data storage device on which the data is stored DDU website: the-ddu.com

10 10 DDU Journal - Advice December 2009 Advice line dilemmas The DDU s 24-hour freephone advisory helpline is available to answer members dento-legal queries and can provide support in difficult circumstances. Rupert Hoppenbrouwers, head of the DDU, shares some advice line dilemmas.* Will my mobile bleaching service be legal? Q. I am a general dental practitioner and I am hoping soon to diversify my business by setting up a mobile teeth whitening service in which I would whiten customers teeth in their homes and places of work. I am also considering working as a freelancer in established health spas, fitness clubs and similar establishments. Would my current DDU indemnity cover me for this enterprise or would I require additional cover? The DDU responds The benefits of DDU membership are open to you with regard to any matter arising out of the provision of tooth bleaching, including seeking indemnity under the policy of insurance you receive as a benefit of membership. This is so wherever in the UK the bleaching may take place. However, you should be aware that the legal position of tooth bleaching with compounds containing or releasing more than 0.1% hydrogen peroxide remains uncertain, and there still exists the risk of prosecution by trading standards officers. To date, the DDU is not aware of any such prosecution, but the risk is there and it may be increased when dentists advertise their services to the public or are associated with non-healthcare organisations. Trading standards officers have, in the past, shown interest in beauty spas and the like carrying out tooth bleaching. In addition, there are some other potential dento-legal issues in relation to the General Dental Council (GDC) and other regulatory bodies you might wish to consider before embarking on your enterprise. These are as follows: 1. The GDC might take exception to a registered dentist being associated professionally with a person who is not another healthcare professional or an organisation that is not a bona fide healthcare business. They might regard such an association as likely to undermine public confidence in the profession or likely to bring the profession into disrepute. 2. The GDC would expect the same high standard of care wherever treatment takes place. This would include adequate standards of infection control, including the disposal of clinical waste (see point 5, below), and the provision of proper facilities, equipment, staffing and training particularly in the management of medical emergencies, as set out in paragraphs 3.7, 3.8 and 5.7 of the GDC s guidance Principles of Dental Team Working (2006). 3. The GDC would generally expect a dentist to be assisted by a dental nurse, trained in the procedures to be undertaken and in the management of medical emergencies. Only registered dental nurses and trainee dental nurses enrolled in a formal course leading to a registrable qualification may act as a dental nurse. 4. The GDC would also expect the same level of record keeping and the same precautions to safeguard patient confidentiality, wherever treatment takes place. 5. Clinical waste may be defined as any waste that has been in contact with bodily fluids, and must be disposed of accordingly by a licensed waste disposal company. Failure to do so is a criminal offence. 6. It will soon be a requirement for all premises providing dental treatment, whether NHS or private, to be registered with the Care Quality Commission, which will have the power to inspect premises and facilities and to remove the registration of those who do not comply with accepted standards. 7. Health and Safety at work legislation applies to all places of work, and the same standards for protecting the health and safety of patients and staff would be expected wherever treatment takes place. DDU 24-hour advisory helpline: UK / IRL

11 December 2009 DDU Journal - Advice 11 Can I disclose a referral letter? Q. I recently saw a patient on referral from another dentist in my area that had previously carried out implant surgery on the patient. I have just received a letter from the patient s solicitor asking for their records. As I understand it, there is no complaint about the treatment I gave but, rather, with the referring dentist s treatment. I m not sure whether I should provide the records asked for, especially as they contain the referral letter from the dentist being complained about. Should I obtain his permission before sending them? The DDU responds Provided the patient has given the solicitor their consent to disclosure of the clinical records, there should be no problem in complying with their request. Indeed the patient and the patient s authorised representative are entitled to disclosure of their complete clinical records under the Data Protection Act Furthermore, the General Dental Council (GDC) requires you to give patients easy access to their Confidentiality is an issue whether the student is going to be observing and helping dental staff in the surgery records (paragraph 1.4 of the GDC s guidance Standards for Dental Professionals (2005)). The referral letter forms part of your own clinical records and permission from the other dentist does not need to be obtained. It is essential that you check the patient has given the solicitor permission to act on his or her behalf. The solicitor should provide you with a signed form of authority from the patient allowing disclosure of the records to the solicitor. Should I accept work experience students? Q. I am a partner in a high street dental practice and I am often asked by patients whether we can accommodate their schoolage son or daughter for work experience. Until now I have told patients that it is our practice policy to say no as I have been concerned about the implications for patient confidentiality. However, I do remember how work experience helped me decide on my career path and feel it is perhaps unfair that I don t offer youngsters the same opportunity. Should I rethink our practice policy on placements? The DDU responds You are quite right in considering confidentiality a big issue when deciding whether or not to take on work experience students. The third principle of the practice in dentistry, as set out in the General Dental Council s (GDC) guidance Standards for Dental Professionals (2005), is protecting the confidentiality of patients information. Confidentiality is an issue whether the student is going to be observing and helping dental staff in the surgery, or is just limited to observing and helping with administrative tasks on reception. Any personal information that passes through your practice even just the fact that someone has attended an appointment *These dilemmas are fictionalised by compositing various versions of similar advice line calls the DDU receive. DDU website: the-ddu.com

12 12 DDU Journal - Advice December 2009 When treating patients you should make sure there is someone else present in the room who is trained to deal with medical emergencies must be treated as confidential. For this reason, you need to ensure that any students you do choose to accommodate understand the importance of confidentiality, as well as the breadth of its scope. You might want to consider taking each request for work experience on a case by case basis, making your decision on your assessment of a teenager s maturity and attitude to responsibility. You could perhaps meet prospective work experience students first, or even seek references. It may be better not to offer work experience to students who live within your local area to avoid the possibility that the student comes across someone they know or finds out information about them. In addition, any work experience student you accept should sign a confidentiality agreement before they start work with you. As well as confidentiality, however, there are also consent issues to consider. If the student is going to be observing dental treatment, patients need to be informed that a work experience student is in the practice, and they should be given sufficient time to consider whether or not they agree to the student s presence during their consultation or treatment. You could put a notice up on your practice notice board when a student is in the practice, and ask your receptionist to further explain the identity and status of the student and perhaps also the benefits that work experience offers young people. Patients, though, must feel free to object to the student attending their appointment, without feeling awkward or that it will in any way affect the care they are given or their relationship with you. If patients do consent to a work experience student being present, they should be informed that they can still change their mind at any time. You should note the presence and identity of a student in the patient records. In addition to patient confidentiality and consent, there are a range of other issues that need to be considered before taking on a work experience student and these include indemnity, employment legislation, and health and safety. Is it risky to work on my own? Q. I am a dental therapist working in private practice and I work on my own for much of the time. I am concerned about the potential consequences if I am alone with a patient and something goes wrong, a medical emergency for example? Am I risking my registration by continuing to work alone? The DDU responds The General Dental Council (GDC), in its guidance Principles of Dental Team Working (2006) says that when treating patients you should make sure there is someone else preferably a registered team member present in the room, who is trained to deal with medical emergencies (paragraph 3.7). The GDC goes on to say (paragraph 3.8) there maybe circumstances in which it is not possible for a trained person to be present for example, if you are treating a patient in an out of-hours emergency or on a home visit. If this is the case, you are responsible for assessing the possible risk to the patient of continuing with treatment in the absence of a trained person. Principles of Dental Team Working also states: Medical emergencies can happen at any time in dental practice, and it advises that if you employ, manage or lead a team you should make sure there are arrangements for at least two people to be available to deal with medical emergencies when treatment is planned to take place (paragraph 5.7). However, in this section of the guidance it doesn t stipulate that the third person should preferably be a registrant or that they must be present in the treatment room. Therefore, if you were to treat patients entirely alone, with nobody else on the practice premises at the time and this were to come to the attention of the GDC, it is in our view, likely that, the GDC would decide you were in breach of its guidance which would place you at risk of GDC disciplinary action. On the other hand, if there were somebody else capable of assisting in a medical emergency near at hand on the practice premises, though not necessarily present in the treatment room itself, the GDC might consider that you had satisfied its guidance. However, to avoid any risk of criticism in this regard, you should work with a registered dental nurse, who is present in your surgery throughout treatment. The DDU has long advised members that it is desirable to have a third person present during any consultation or treatment, not least to act as a chaperon and a potential witness to corroborate a clinician s evidence in the event of allegations of misconduct or negligence being made. DDU 24-hour advisory helpline: UK / IRL

13 December 2009 DDU Journal - General Dental Practice 13 Ordering dental appliances Clear communication between a dental practice and a dental laboratory can avoid problems when ordering dental appliances, according to new DDU advice. The DDU has produced advice for dental technicians, and those ordering dental appliances, following the publication of General Dental Council (GDC) guidance reminding dental professionals of their responsibilities when arranging the manufacture of appliances and of the consequences when procedures are not followed. In Standards on Commissioning and Manufacturing Dental Appliances (GDC, March 2009) the GDC states that any dental professional who arranges for an appliance to be made in the UK is professionally responsible for issuing the prescription to, and receiving the appliance from, a UKregistered dental technician. It stresses: If you prescribe a dental appliance to be made by a person in the UK who is not a registered dental technician you are liable to face a GDC fitness to practise inquiry. record any problems encountered when producing a patient s dental appliance in his or her clinical record. The GDC guidance also points out that registered dental technicians must understand and comply with their legal responsibilities as manufacturer under the European Commission s Medical Devices Directive. The DDU advises that dental technicians: develop a referring protocol to include, for example, information on the type of work undertaken, waiting times and costs; supply laboratory forms to dental professionals and ensure they are completed; refer back to the dental professional when referrals are unclear or felt to be inappropriate; keep the referring dental professional informed of any delays so this can be relayed to the patient. While it is not illegal to sub-contract or prescribe the manufacture of a dental appliance outside the UK, the GDC says this places a particular responsibility on dental professionals who will be held professionally accountable for the safety and quality of the appliance, and take on the dental technician s responsibilities for the appliance. To avoid any difficulties when referring work to dental technicians, the DDU advises that dental professionals: satisfy themselves that dental technicians used are trained, competent and, if in the UK, registered with the GDC; record the steps taken to ensure appliances are safe and of an acceptable standard if laboratories outside the UK are used; check that instructions have been received and understood when first using a laboratory, or if they are complicated; DDU website: the-ddu.com

14 14 DDU Journal - General Dental Practice December 2009 Preparing for departure Moving on from your practice, whether for career advancement, a career break or retirement, can be a busy and exciting time. But don t let that mean you overlook your duties to your patients, writes Rupert Hoppenbrouwers, head of the DDU. (PCO). In all cases, you should ensure that you can be contacted after your departure, in case there is a complaint or claim against you. A General Dental Council (GDC) Fitness to Practise panel recently removed a dentist from the GDC register after it determined that he had abandoned his practice, leaving it in a state of disarray. Its findings illustrate the importance of dental professionals ensuring there is no disruption to patient care when they move on. In the case 1, the panel concluded that the dentist moved overseas without making arrangements for services for his patients. It reported that some patients were left with incomplete treatment and others were unsure where they could access treatment. While other factors influenced the panel s decision for immediate suspension and erasure, subject to the dentist s right to appeal, the determination made clear that the GDC expects dental professionals to put patients first and co-operate with healthcare colleagues in the interests of patients when they leave their practice. This case may have been extreme, but the DDU is aware of complaints from patients who have agreed a course of treatment with one dental professional and not been informed that another will be carrying it out. There have also been instances of complaints or claims against dental professionals who have left their practice and cannot be contacted. Continuity of care The GDC s guidance Standards for Dental Professionals (reprinted Oct 2009), does not make specific reference to the ethics of leaving a practice, but an underlying principle is that dental professionals should put patients best interests first and act to protect them. If you are leaving a practice, the DDU advises that, where practicable, you should try to complete all courses of treatment or make arrangements for them to be completed by another trained and competent dental professional. If you are selling the practice, it can be a good idea to seek independent legal advice about how to safeguard ongoing patient care in the contract of sale. If you know you are going to leave, it may be better not to begin extensive courses of treatment. You could offer patients the option of having all dental procedures in the treatment plan carried out by one dentist. At the very least, patients should be told of your plans so they are able to make informed decisions. Giving notice If you are not a practice principal, your contract with the practice should detail your notice period. If you have no written contract, you should negotiate a notice period that is orderly, professional and in the best interests of patients. The practice should update patients of changes in personnel, and once you have left, remove your name from the practice professional plate, appointment cards and headed notepaper. If you work in a non-nhs practice, ensure that all patients are given sufficient notice of your departure and provided with details of arrangements for their ongoing care. The owners of NHS practices will need to liaise with their Primary Care Organisation Patient records If you are leaving a practice, you should assure yourself that the practice will continue to provide secure storage of patient records. In Principles of Patient Confidentiality (GDC, 2005), the GDC says dental professionals must make sure that they protect confidential information at all times. Before selling your practice, it is advisable to seek legal advice about ensuring the safekeeping of records in the contract of sale. If the practice is closing altogether, you will need to make arrangements for patient records, including radiographs, reports and study casts, to be securely stored. NHS providers may again need to liaise with the PCO. Think carefully before disposing of records altogether. Professional negligence claims can arise many years after an incident or treatment and the records may be vital for a successful defence. The DDU s advice is the longer you can retain records, the better. Current recommendations from the Department of Health 2 state that, as an absolute minimum, NHS dental records should be retained for 11 years after treatment ends for adults. Children s records should be kept for 11 years or up to their 25th birthday, whichever is longer. You can find advice on the safe disposal of patient records on the DDU website the-ddu.com. For individual advice about dento-legal considerations of moving on, contact our helpline on A GDC Fitness to Practise panel recently removed a dentist from the GDC register after it determined that he had abandoned his practice, leaving it in a state of disarray. References 1. GDC Professional Conduct Committee determination in case of Meek, Andrew Richard, Registration No November Records Management: NHS Code of Practice, DoH, April DDU 24-hour advisory helpline: UK / IRL

15 August 2006 DDU Journal - Membership 01 December 2009 DDU Journal - General Dental Practice 15 Time for a rethink Bioethicist Richard Ashcroft considers the ethical, sociological and legal challenges thrown up by the transformation of dentistry. When I registered recently as a private patient at a smart new dental practice, the part of the registration form concerning my dental health and medical history was relatively short compared with the part asking me questions such as, How happy are you with your smile? It started me thinking about the questions thrown up by modern dentistry as the distinction between dental healthcare and what might be called dental wellness blurs. One set of thoughts was philosophical: What are the differences between dental healthcare proper and cosmetic dentistry? Do these differences have any moral significance? And is the relationship between the dentist and the person in the chair still that of dentist and patient when the procedure is purely cosmetic or has the patient become a client? The difficulty is that a patient may not fully grasp when a procedure is proposed for are they looking for healthcare or advice on how to improve their appearance? Is it more like visiting the GP or a health spa? The difficulty is that a procedure which is purely cosmetic may involve a risk, which may require a health-related intervention. Indeed, some cosmetic procedures involve actually damaging the integrity of the dentition, face or mouth. While a patient could conceivably consent to this, this is where we may start to run foul of the public interest test the fundamental legal premises permitting the practise of dentistry being that physical interventions which would otherwise amount to assault or battery are made lawful provided the patient validly consents to the intervention and there is a valid public interest in allowing the intervention. Cosmetic procedures are certainly a scenario in which a full appreciation of the risk run or harm done is required. Is the relationship between the dentist and the person in the chair still that of dentist and patient when the procedure is purely cosmetic or has the patient become a client? basic legal assumption is that the patient is autonomous and knows what he or she wants. But a risk in cosmetic dentistry is that the patient may be psychologically vulnerable, for example with low self-esteem. Our normal legal and ethical approach to mental capacity struggles to deal with this, partly because to deny a procedure because we believe the patient suffers from low self-esteem or similar seems like frank paternalism, and partly because turning it into a mental capacity issue seems to miss the point. All these problems challenging to dentists and society alike derive from the transformation that dentistry as a profession is going through. It is a transformation that brings with it fundamental questions about the values dentistry wishes to promote, the goals it seeks to achieve and the way these values and goals are communicated to patients and society at large. I and probably most dentists believe that patients are more than mere consumers and those dentists are far more than simply sales people. But as dentistry becomes more and more dominated by cosmetic practice, the ethical, sociological and legal contexts of dental practice require some serious rethinking. cosmetic reasons and when for health-related reasons. The level of risk a patient is willing to assume, and that it is reasonable for a dentist to take, varies according to the necessity and urgency of the procedure, and, arguably, a cosmetic procedure is not necessary by definition. But health-related procedures often have aesthetic elements. And at times a dentist may achieve the same health benefit in different ways, the choice of exactly which way being determined by the patient according to which of the two has a better aesthetic outcome. It can be very hard to disentangle the cosmetic and the therapeutic in practice. Another set of my thoughts was sociological: When a patient seeks routine dental care, Finally, but importantly, I thought further of the legal dimension: The scope of the public interest test is hard to define, but it is clear that the physical intervention in dentistry has to be performed with a legitimate purpose. The dentolegal aspects of this are complex and the case law is in flux but essentially the courts rely heavily on the standards defined by the dental profession itself when determining public interest. Similarly, the usual dento-legal approach to consent applies to a dental procedure whether that procedure is intended to address a dental health problem or solely to improve appearance. Patients must have the capacity to give consent and must be adequately informed, and the Richard Ashcroft is professor of Bioethics at the School of Law, Queen Mary, University of London. DDU website: the-ddu.com

16 16 DDU Journal - General Dental Practice December 2009 One small word, one big effect Rupert Hoppenbrouwers, head of the DDU, explains why dental professionals are not admitting liability if they apologise when something has gone wrong with their treatment of a patient Consider the following two fictional cases: Case 1: Three days after you have completed a root canal treatment, a patient of calls your practice and asks to speak to you. When you come to the telephone, he tells you that the side of his mouth which was treated still feels numb and he insists that something must have gone wrong. He sounds distressed. Case 2: You are about to fit an expensive private crown. Before you have the chance to check the fit of the crown, the patient unexpectedly leans forward, leading you to lose your grasp on the crown which goes flying across the surgery. No amount of searching by you or the dental nurse uncovers the crown which seems to have disappeared into thin air. You are irritated, but your patient is furious. In both cases, you might flinch at the thought of saying sorry. In the first case, because the patient may go on to make an official complaint and/or make a claim for compensation against you, and you fear any apology now may mean you accept responsibility for a complication which may not be due to any fault on your part; in the second, you may be reluctant to say sorry because it seems so obvious to you that the patient was responsible for the incident in which the crown was lost. However, to apologise in the first case, to say sorry that the patient is feeling numb; and in the second case, to say sorry that the crown has gone missing will not make matters worse, and it can be just the word a patient is looking to hear, defusing a potentially difficult situation. Importantly, there are no legal concerns about taking this course of action. Dental professionals are not admitting legal liability if they apologise when something has gone wrong with their treatment of a patient. In fact, this is now enshrined in law by virtue of Section 2 of the Compensation Act 2006 which says an apology, offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty. In the DDU s experience, in the event of an adverse incident, an explanation and apology at an early stage can help reduce the risk of a complaint. In fact, the DDU has always advised members to apologise if something goes wrong. Any patient who has had the misfortune to suffer through an error or mishap, of whatever nature, should receive a genuine apology. Patients should also receive a prompt, open, sympathetic and honest account of what has happened. The DDU s parent organisation, the MDU, has now endorsed Apologies and Explanations, guidance from the National Health Service Litigation Authority which was circulated to chief executives and finance directors at all NHS bodies earlier this year 1. This emphasises that an apology is natural and desirable where there has been an adverse outcome and that an explanation can help patients and their families in these circumstances. As well as it being a sensible course of action to potentially deflect a complaint or claim, dental professionals also have an ethical obligation to offer an apology and an explanation if something has gone wrong. The General Dental Council, in its booklet Principles of Complaints Handling (2006), states: Offer an apology and a practical solution where appropriate. Remember that an apology does not mean you are admitting responsibility. Apologise that something has gone wrong as a way of showing concern and understanding (paragraph 5.3). Reference 1. This Week (the electronic bulletin for NHS Chief Executives), 14 May The letter can be accessed on the NHSLA website at nhsla.com DDU 24-hour advisory helpline: UK / IRL

17 August 2006 DDU Journal - Membership 01 December 2009 DDU Journal - Case studies 17 Ordered to breach GDC guidelines A dentist was asked to release confidential patient information after he became the subject of a primary care trust investigation over his sedation treatment of a child with special needs. Case history The dentist, a DDU member, who provides a sedation service at his practice, agreed to see a10-year-old girl after the girl s own dentist made an urgent referral to him. The girl, who had Duchenne muscular dystrophy and was autistic, had experienced a number of sleepless nights with toothache, but her regular dentist had found himself unable to treat her because of her medical conditions. During the appointment with the member, the anaesthetist who was providing the sedation checked the girl s medical history. He decided initially to use inhalation sedation only. This technique failed to sedate the child sufficiently so the anaesthetist decided to use intravenous (IV) sedation. This also proved unsuccessful, so treatment was aborted. The member advised the parents to discuss referral to a hospital with their regular dentist. However, the parents were distressed and feared that this would cause delays in their daughter obtaining pain relief, so the member advised them to contact the PCT to see if the referral could be speeded up. Following correspondence between the parents and the PCT, the PCT decided to conduct an investigation into the case. The PCT considered it inappropriate for a 10-year old child to have received IV sedation and this was the reason for their investigation. The PCT wrote to the member asking him to stop providing sedation while the investigation was taking place. The member immediately called the DDU for advice. DDU assistance The DDU initially asked the member to provide copies of all the correspondence that had been received regarding the incident, as well as a report of the member s recollection of events. The DDU advised and assisted the member on all correspondence with the PCT as the case progressed through a number of stages. First, following its investigation, the PCT highlighted concerns with the member s record keeping, including his medical history questionnaires. It decided to refer the member to the National Clinical Assessment Service (NCAS). Next, NCAS advised that it may be appropriate to conduct an audit to see if this was a one off incident, before deciding that a full NCAS assessment of the member was required. The PCT informed the member that it would liaise with the NHS Business Service Authority (NHSBSA) to decide how to conduct the audit. Two months later the PCT had still not informed the member how it planned to conduct the audit, despite letters from the DDU asking for information. The DDU decided to complain to the chief executive of the PCT on behalf of the member, on the basis the delays were unacceptable. In response, the PCT informed the DDU that the way the member s practice returned information The DDU contacted the PCT stating that it was inappropriate to release patient information to them for these purposes without the patients consent to do so. to the NHSBSA meant it had not been possible to identify the member s patients and it asked for a list of patients who had been treated under sedation by the member. The PCT said that once it had this list, it would arrange to audit a random sample of the records. The DDU contacted the PCT stating that it was inappropriate to release patient information to them for these purposes without the patients consent to do so. The PCT insisted that it was appropriate to release the information, as it was in the public interest to do so. It refused to receive anonymised records and said it was impractical to seek the consent of patients before the information was released. The DDU instructed counsel who considered the issues and provided legal opinion that agreed with the position adopted by the DDU. The DDU therefore advised the member it would be inappropriate to release the information without the patients consent, unless it was anonymised. The PCT then asked the member for a list of dates of birth of 250 patients so it could decide which of these to audit. The member provided the list, but the PCT decided not to proceed with the full audit. Instead, it held a meeting with the member and discussed the member s ongoing continuing professional development since the investigation commenced. The PCT then concluded the matter by taking no further action. Learning points The following learning points can be considered: Dentists do not have to comply with demands from health authorities to release confidential patient information without patient consent if it is not in the public interest to do so. The GDC s Principles of Patient Confidentiality (2005) states that it may be in the public interest to release confidential information without consent when a patient puts their health and safety at risk or when the information might help prevent or detect a serious crime (paragraph 4.1). Requests to release information without patient consent in other situations may be successfully challenged. It can help a member s case considerably if they inform the DDU as soon as possible of any likely investigation against them, as well as keep the DDU informed of all developments as they happen. DDU website: the-ddu.com

18 18 DDU Journal - Case Studies December 2009 Operating room for an implant A 50-year-old man claimed he could neither yawn nor eat properly after a dentist failed to take account of the limited movement of his jaw, forcing it open during an implant procedure. Case history The man first asked his regular dentist about the possibility of an implant-retained crown to replace his missing lower-right first molar tooth. At the time, the man s lower right first molar was restored via a cantilever bridge attached to the premolars on either side. His regular dentist referred him to a colleague in the practice who was more experienced with implant procedures, and this dentist then discussed implant treatment with the patient, giving details about procedure and costs. An appointment was made for a full implant consultation and assessment, and this took place the following day. The patient s previous medical history was discussed, including the facts noted in the patient s records that he had slightly restricted mouth opening and he needed regular rests during dental treatment as a result of a longstanding problem. The dentist explained that this should not compromise the implant procedure and she took impressions for study models and diagnostic wax up for an implant-retained crown, as well as an OPT radiograph. Unfortunately, on the day the procedure was to take place the practice s surgical hand piece failed and the appointment had to be rearranged for the following month. At that appointment, the dentist was able to carry out the surgery. The implant was placed as planned, following which there was a slight difficulty in removing the torque wrench as the patient closed down on the instrument. After instruction, however, he opened his mouth, the torque wrench was removed and the procedure was completed satisfactorily. Two months later, the dentist saw the patient to take impressions for the implant-retained crown and the two new crowns for the adjacent premolars. She fitted these four weeks later. The claim Three years later, the dentist received a letter from a solicitor acting on behalf of the patient, in which it was claimed the dentist was negligent on many counts. In particular, it claimed she was negligent because she failed to take an adequate history, failed to heed the patient s records and failed to assess his condition before the implant procedure. It was also alleged that she could not remove the torque wrench during the implant procedure because the patient could not open his mouth wide enough, and that she had told the patient the equipment cost 8,000. It was claimed she then strongly levered the equipment in order to remove it from the patient s mouth. This, the patient alleged, was extremely painful for him and resulted in a cut lip. It also led to the patient experiencing ongoing jaw problems, including difficulty yawning, pain on eating and a feeling of jaw dislocation when opening it beyond a certain extent. Finally, the letter claimed that the dentist failed to use a mouth prop and/or rubber gag to stabilise and/or support the jaw. DDU assistance The dentist, a DDU member, contacted the DDU to request assistance. The DDU obtained independent expert evidence from an oral and maxillofacial surgeon, following which the DDU wrote to the solicitor denying all the allegations. In particular, the DDU responded that expert evidence pointed out that the height of a torque wrench is less than that of the head of a dental hand piece together with a drilling burr or implant which must also be accommodated in the mouth during implant site preparation and implant placement. The claimant s alleged difficulties in relation to the torque wrench, as opposed to the larger instrument used immediately prior to it, are not, therefore, understood, the DDU wrote. The DDU also responded that expert examination of the claimant showed he had previously undergone sophisticated dental treatment, including crowns on his second molars and a root filling on a pre-molar, suggesting that he could tolerate dental treatment requiring his mouth to be open for a relatively long time. As the implant placement procedure takes minutes and is a stopstart procedure, giving the patient regular rest breaks and requiring the mouth to be open for no more than two minutes at a time, the DDU wrote that there had been no reason to use either mouth props or rubber gags, both of which the member had access to should she have required them. In addition, the DDU denied that the member physically opened the claimant s mouth, or used force or leverage on the wrench, or was aware of any jaw injury or cut to the lip sustained during the treatment. It was further pointed out that the claimant made no mention of injuries during any of the eight subsequent occasions he attended the dental practice to see the member, his regular dentist or the hygienist. Finally, the allegation that the member told the patient that the device cost more than 8,000 was rebutted, and it was pointed out that the torque wrench costs 40-45, a figure of 8,000 being more than the cost of the entire implant equipment. Soon after receipt of the letter, the claim was discontinued. Learning points The following learning points can be considered: It is always worth remembering that a claim can arise some time after treatment and without the dental professional having been aware of any particular problem having occurred. It is important to take account of the patient s medical, social and dental history before formulating a treatment plan. Good records of history taking can help support a robust defence against claims of clinical negligence. DDU 24-hour advisory helpline: UK / IRL

19 August 2006 DDU Journal - Membership 01 December 2009 DDU Journal - Case studies 19 Crowning story A DDU member sought the help of the DDU after a patient claimed 7,500 to cover the cost of repair work she said was necessary following alleged negligent restorative work to her upper teeth. to recognise this. The expert further considered that the marginal fit of crowns at UR3, UR2 and UL2, as well as UL3 and UL4, were all deficient. Case history The patient, who had attended her dentist for a number of years, sought treatment from him to correct her anterior discoloured teeth and overlapping upper central incisors. The dentist examined the patient and arranged for occlusal and PA radiographs of both upper canines to be taken. Following this, he recommended crowning six upper teeth and consent was sought and obtained for this from the patient. The patient requested that her discoloured anterior teeth be crowned to improve their appearance. At that time she had crowns on UR3, UR2 and UL2. She had composite fillings in UR1 distal, UL1 mesial and distal and UL3 distal. At the appointment to have the crowns placed the patient also requested UR4 and UL4 be crowned as well to give a uniform appearance to her smile. It was agreed that the crowns on the 4s would be provided privately. The dentist carried out the treatment as planned, and without complications, over the next four months. The patient was pleased with the appearance of the crowns. After the treatment s completion, nothing more was heard from the patient for more than three years until she called the practice to request antibiotics to treat what she claimed was an abscess. The practice informed the patient that she would have to be examined before antibiotics could be prescribed and an appointment was made. However, it was later cancelled and it was not rearranged. The claim Seven months after the patient cancelled her appointment, the dentist received a letter from the patient s solicitors requesting a copy of the patient s records. These were provided. Seven weeks after disclosure of records the patient, through her solicitors, brought a claim against the dentist, alleging that in the provision of the post crowns on the upper-right canine (UR3) there was a failure to ensure that the post was located within the long axis of that tooth. The solicitors further alleged that the dentist failed to ensure there was no perforation of the tooth structure of UR3 during post canal preparation or post fitting. Finally, the solicitors alleged that there were marginal deficiencies in the crowns provided at the UR3, upper-right lateral incisor (UR2), upper-left lateral incisor (UL2), upper-left canine (UL3) and upper-left first premolar (UL4) the distal vertical defect at UL4 being of such significance that it was likely to affect the future vitality of the tooth. The claim for the reparatory treatment totalled more than 6,700. This sum was to cover the costs for an implant, root canal treatment and seven replacement crowns, although only five crowns were actually specified in the allegations It also included a sum in compensation for the pain and suffering the patient would undergo during the treatment. The dentist, a DDU member, contacted the DDU for assistance. DDU assistance The DDU claims handler sought a copy of the member s records. The patient was then asked to attend an independent prosthodontic and restorative expert who provided an expert opinion on the patient s condition and prognosis, as well as on the liability of the member. The expert considered that some of the damage that the solicitors contended had been caused by the member s treatment could not be commented on given the records available. The radiographs taken by the member were found to be of poor quality, mainly because of the elongation of the images. However, the expert also considered that the UR3 was perforated as a result of poor post placement and that the member had failed A copy of the expert report was sent to the member and he agreed that the DDU should attempt to reach an amicable settlement of the claim. Settlement was agreed on the basis that compensation should allow for the need to replace crowns at UR2, UL2, UL3 and UL4, and that an implant-retained crown would be needed to replace UR3. It was denied that the need to replace crowns at UR4, UR1 and UL1 had resulted from any problems with treatment provided by the member. It was additionally denied that there was evidence of the need to provide root canal treatment at UL4 because the relevant radiograph did not indicate a distal vertical defect as the solicitors contended. An offer of 5,200 made by the DDU was accepted by the patient s solicitors, and an amicable settlement was achieved without any admission of liability. Learning points The following learning points can be considered: Before undertaking any complex restorative treatment the patient must be adequately and appropriately assessed. Only proceed with treatment if it is in the patients best interests and safe to do so. It is essential to take good quality radiographs. It may be necessary to repeat radiographs if the originals are not diagnostically acceptable. Careful records should be made if radiographs need to be repeated. Richard Grimmett claims handler, DDU DDU website: the-ddu.com

20 For membership queries please call the freephone membership helpline on (calling from a mobile or overseas ) Lines are open Monday to Friday, 8am to 6pm Further advice For detailed advice about specific instances and situations, call the DDU s 24-hour freephone advisory helpline on (UK) and (IRL). You will also find a range of helpful advisory and risk management articles on the DDU website. Website the-ddu.com The Dental Defence Union 230 Blackfriars Road London SE1 8PJ Tel: +44 (0) Advisory Services, Claims Management and Risk Management Freephone: UK / IRL Fax: +44 (0) ddu@the-ddu.com Membership Freephone: UK / IRL Fax: +44 (0) membership@the-ddu.com Copyright Except where otherwise noted, all items that appear are the copyright of The Medical Defence Union Limited and/or MDU Services Limited 2009 as set out in our terms and conditions at the-ddu.com. MDU Services Limited (MDUSL) is authorised and regulated by the Financial Services Authority in respect of insurance mediation activities only. MDUSL is an agent for the MDU. The MDU is not an insurance company. The benefits of membership of the MDU are all discretionary and are subject to the Memorandum and Articles of Association. MDUSL Registered in England Registered Office: 230 Blackfriars Road London SE1 8PJ JN/002x/1209