Lawyer Monthly Magazine August 2020 Edition

and it is often logistically difficult to work as an effective team from different sites. 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 EXPERT WITNESS WWW.LAWYER-MONTHLY.COM | AUG 2020 66 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 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 “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.”