Many legal firms are initially approached by a Client venting their spleen about dissatisfaction with dental treatment.
Un-resolved problems, protracted pain or poor communication are often the main precursors. Surprisingly, if there is a good relationship, patient’s will rarely complain and actually blame themselves for it going wrong. In my experience it is the fundamental breakdown of the relationship or the failure of its formation in the first place that drives most Claimants to seek legal redress.
After the letter of claim is prepared (with a resume of the history of the complaint) providing the Claimant’s view of events, the dental records of the miscreant are obtained and an Expert Witness opinion is sought.
Not uncommonly, there is a wish to minimise the costs to Claimant and Counsel at this stage. An Expert Witness having been located, an initial screening report which restricts the said Expert to a couple of hours of their time is requested to see if the case has any merit.
Now let’s assume the Expert accepts and the letter of claim and dental records are sent. I shall use a real clinical example to proceed…
Let’s take a patient who has been under the care of a general dentist for 20 years before they discover, after attending another dentist, that they have advanced periodontal disease with bone loss that will invariably lead to tooth loss. A review of their dental records by the Expert shows limited documentation related to assessment of the gums, except intermittent advice to brush their teeth a bit more, and routine scaling every six months.
When the patient attends another practitioner they suddenly feel shocked and aggrieved due the ‘failings’ of their previous practitioner. Blame is apportioned, and a screening report follows after the review of the dental records highlights serial omissions.
A-ha! you exclaim. We’ve got him. Breach of Duty. Now go for the jugular…
In the meantime, the patient (now Client) trots off to a periodontist who reinforces the terrible state of the gums and the enormous costs of complex implant dentistry that is required to put things right. Due to the complexity of the proposed treatment, the former Expert cannot provide an opinion as he/she is a general dentist with no specialist training. In addition, their report did not allow them to examine the patient.
Yours truly is then instructed to examine the Client, perhaps 18 months after they attended the periodontist, to provide the Current Condition, Prognosis and Treatment options in my capacity as a Specialist in Restorative Dentistry. At the consultation, the Client presents with ongoing severe active periodontal disease associated with abundant plaque deposits throughout. It is clear this patient has not taken a blind bit of notice, despite repeated visits to the periodontist, and is quite ill-suited to expensive dental implants. Not only do I consider that he/she is a candidate for conventional dentures, but I consider that he/she shows such a disregard for his own oral health, that in all probability he is behaving as he did with the Defendant, ignoring advice and failing to comply. In essence, the Client is wholly culpable for their own tooth loss. My report has now totally contradicted that of the first ‘Expert’.
It may not surprise the Reader that Counsel are often furious with my conclusions and imply that I have ventured beyond their instructions for the Condition and Prognosis Report. Not so, I point out. My duty is to the Court. Their error is to assume that a second Expert will always agree with the conclusions of a previous Breach of Duty Report. The only way to avoid contradictions between the two reports is to ensure only one Expert is engaged. In essence, the screening report was worthless. I advise Counsel not to waste their time (and money) – it rarely is worth the paper it is printed on.
That’s why I will never provide a screening report. I will never provide any report unless I examine the Claimant myself. And that’s why I advise Counsel to always commission the same Expert to provide both Breach of Duty, Causation and Current Condition and Prognosis reports and request that the patient is examined.
All the views and opinions expressed by the author are personal but I would welcome public debate on all the issues included.
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