A good expert witness combines training, skill and experience. Academic and clinical expertise in a specific field with critical appraisal and analytic skills are essential qualities when selecting the right expert. They should have effective communication skills including effective questioning and explaining ability and they should deal with evidence based facts, rather than subjective opinion. They should have full understanding of the role of an expert witness in legal proceedings including their duty to the court and provide honest, ethical and factual information.
An expert witness, explains Professor Cemal Ucer, should be experienced in preparing different types of reports Breach of Duty and Causation, Condition and Prognosis, and Full Negligence. Often the most important expert work is providing a screening report which advises the solicitor and their client if they have a reasonable case and how strong the current evidence-base is in supporting their case before they decide to proceed. Below, he expands on what lawyers should look for when searching for a dental expert witness.
One of the biggest problems facing the legal profession currently is the inability to find suitable experts for a case. What should lawyers look for, when a case involves dental issues?
Therefore, dentists who provide dental implant treatment are required to develop up-to-date evidence-based knowledge and competence in a vast range of treatments and employ safe and proven products and techniques.
An expert has to be not only highly trained and experienced in his field as a clinician but also has to have a vast and up to date knowledge of the current evidence-based literature. In my opinion, dental specialist and consultants are ideal choices for expert opinion as they undergo years of structured education and training, working in the academic and hospital environments and are usually involved in delivering structured teaching and training, as well as ongoing research. They provide leadership, educational and clinical mentorship roles to junior trainees and as such have the highest requirements for quality control with strong risk analysis and management skills. Equally, highly experienced practitioners ideally with academic postgraduate qualifications can offer similar skill sets required for good expert witness reporting. The expert witness report should provide unambiguous and concise advice based on the best analysis of the facts of the case guided by the best evidence available from the literature. The expert witness must include all relevant information and give a balanced opinion based on facts. However, if there is not enough information to reach a conclusion on a particular point, this must be made clear.
Dentists are now twice as likely to be sued than they were 10 years ago according to figures from Dental Protection. Why is this the case?
Delivery of satisfactory dental treatment and its long-term success and maintenance requires complex surgical and restorative procedures using a variety of highly specialised products, biomaterials and equipment. These interact with the host tissues both biologically and mechanically. Therefore, dentists who provide dental implant treatment are required to develop up-to-date evidence-based knowledge and competence in a vast range of treatments and employ safe and proven products and techniques.
In the last couple of decades, dentistry has undergone a rapid technological advancement with the introduction of new materials, techniques and high-end elective procedures such as cosmetic dentistry, digital dentistry and dental implantology. Dentists are increasingly under pressure to master and provide more these, technically challenging, full spectrum and expensive treatments in their practices. In many areas, technology has developed faster than science and education. Most of these high-end procedures are not yet taught in the undergraduate curriculum and dentists are having to attend courses run by individual dentists skilled in these procedures. Moreover, some dentists are under pressure to offer these techniques before they have undergone full training or developed sufficient experience. Unfortunately, some of these courses on offer are not well structured or quality assured and therefore some of the clinicians may be inadequately trained. The complexity of some of these treatments is such that very few clinicians can develop sufficient skills to provide a full spectrum of all of these advanced treatments. Furthermore, dentistry is becoming more specialised and it is becoming essential that complex treatments are provided by clinicians of different ability and skills all working together as part of a multi-disciplinary team. Unfortunately, dentists mostly work in isolation in their practices and it is often logistically difficult to work as an effective team from different sites.
Unfortunately, dental practices can have intrinsic and extrinsic factors at play that could result in cases of negligence.
Having said this the most common causes of negligence as in the case of periodontal disease are failure to assess, diagnose and appropriately plan treatments. If teeth are lost as a result of such negligence the optimum remedial treatment includes dental implant reconstructions which are very costly. Single tooth implant replacements can cost £3000 or more and costs can escalate to £20,000 – £50,000 in major full mouth reconstruction cases involving bone grafting and dental implant supported prosthesis hence the increase in litigation and malpractice actions.
Dental negligence cases also involve commonly oral surgical procedures such as collateral damage during an extraction, trigeminal nerve damage causing chronic neuropathic pain. Failure to establish an accurate diagnosis and lack of a structured treatment plan with options, result in an inadequate informed consent process, particularly in elective cases where the clinician is under obligation to disclose all material risks as dictated by Montgomery v Lanarkshire.
As a founding member of the National Advisory Board of Human Factors in Dentistry, I also know that human factors play a huge role in the causation of accidents and mishaps in dentistry and medicine as they do in high risk industries such as aviation and nuclear energy. Humans are fallible, but we now come to recognise the fact that human error is not the cause of accidents but rather it is the symptom of the problem. In other words, accidents, mishaps and unwanted outcomes or events are usually caused when organisational barriers and systems fail. Causation and unwanted event analysis are therefore an important part of what we do try to learn from common mistakes and develop systems to mitigate and prevent similar mistakes occurring. Unfortunately, dental practices can have intrinsic and extrinsic factors at play that could result in cases of negligence.
How do you identify causation and negligence?
In order for a clinical negligence claim to be successful, the claimant must prove that there was breach of duty by a clinician or dental practitioner, and that this breach caused injury to the claimant. Expert witnesses are required to provide an opinion and assist the court in establishing whether there is any basis on which to bring a claim.
An expert witness must conform to Part 35 of the Civil Procedure Rules 2 which stipulate that experts must be independent and that they must write their report for the benefit of the court and not for the instructing solicitor.
Causation and negligence can arise when correct treatment is applied incorrectly or conversely, incorrect treatment could result in unwanted or unplanned outcome even if applied correctly as a result of negligence.
Causation and negligence can be established by meticulous attention to detail and critical analysis of the facts of the case. This involves looking at the case documents made available and/or examining the patient and often reviewing the diagnostic tests and images. The expert should take into account other possible views and provide his/her opinion based on the facts of the case supported by the most up to date evidence from the literature.
Breach of duty can be investigated by asking fundamental questions such as “had a reasonable degree of knowledge and skill ordinarily possessed by a skilled and prudent clinician working in the same field been applied correctly to achieve the desired outcome?”. It is also important to establish correct techniques that have been used for clinical interpretation, decision making for treatment planning and delivery of surgical and restorative dental procedures. The process of risk assessment during an informed consent process with adequate patient information, education and disclosure are for also crucial in allowing an autonomous consent process by individual patients. Causation and negligence can arise when correct treatment is applied incorrectly or conversely, incorrect treatment could result in unwanted or unplanned outcome even if applied correctly as a result of negligence.
Identifying causation is the most important factor in a case and is often overlooked by some experts. Why is it so important?
The doctrine of the clinical standard of care (SOC) is a highly relevant concept to risk management. In this respect, reviewing the standards in healthcare is an essential prerequisite when assessing the quality of the standard of patient care. Standards or “good practice guidelines” help clinicians achieve better outcomes by benchmarking their clinical activities and how they practice. This reduces variations in the quality of healthcare and establishes national norms by helping to increase the ability of practitioners to predict, recognise, and complications arising from treatment they provide.
On the other hand, SOC does not mean that a clinician should possess a minimum standard of extraordinary knowledge or skills or provide treatment that never fails. SOC is the manner in which a clinician must practise to achieve a good result. In this context, it should be noted that if the treatment fails to achieve a satisfactory outcome, that alone will not be a successful cause for medico-legal action as long as the clinician can successfully demonstrate that he/she has applied reasonable care, knowledge and skills correctly in a prudent way.
Professor Cemal Ucer
BDS, MSc, PhD, FDTF Ed, Specialist Oral Surgeon
Professor of Dental Implantology, University of Salford
Fellow of the British Association of Oral & Maxillofacial Surgeons
Fellow of the ITI
Director of I.C.E Postgraduate Dental Institute
Tel: 0161 237 1842
Cemal’s current clinical and research interests include immediate implant placement, reconstructive bone surgery, Zygomatic Implants for the rehabilitation of the severely atrophic jaws, nerve damage and the effect of bone density on the success of implant treatment. Academically, he has gained European recognition for his work on the development of a new framework for teaching and assessment of clinical competence in implantology. He is a co-author of the consensus paper produced by the Association for Dental Education in Europe (ADEE) following the first pan- European collaboration between EU universities to establish common training and assessment standards in dental implantology. He is an invited member of the working group convened by the FGDP (UK) and the General Dental Council (GDC) to update the Training Standards in Implant Dentistry (TSID) guidelines in 2012 and 2016.
Cemal is a Fellow of the Dental Trainers Faculty of the Royal College of Surgeons of Edinburgh (RCSEd), Fellow of the British Association of Oral & Maxillofacial Surgeons, a Fellow of the International Team for Implantology (ITI) and a member of Megagen’s MINTEC UK & I Board for education and clinical research. He is a member of the editorial board of JOMR (Journal of Oral & Maxillofacial Research) and the chair of the editorial advisory board of Implant Dentistry Today.
Cemal is Professor and Academic Lead of the MSc programme in Dental Implantology at the University of Salford, and a member of the Faculty of Examiners of the Royal College of Surgeons of Edinburgh’s Diploma in Implant Dentistry. He is a past president and Honorary life member of the Association of Dental Implantology (ADI) (2011-2013).
Cemal has been appointed by FGDP (UK) to develop the “national standards in implant dentistry” which will be published later in 20202.
Cemal runs an accredited PG Cert in Implant Dentistry (Level 7) programme (in its 25th year). His private practice UCER Clinics and the Centre of Oral & Maxillofacial and Dental Implant Reconstruction are based at ICE Hospital, click here. Cemal also leads the Manchester branch of the international ZAGA Centre for zygomatic implant treatment and education.
