In February’s issue of The Dentist, there was an interesting article written about litigation in dentistry by Michael Sultan titled, ‘Living in Fear?’ This article is a direct response to the issues raised in this article, from my perspective as a young dentist who also acts as an expert witness in dento-legal
cases.
I sympathise with the author’s concerns regarding the General Dental Council; if I were to be investigated by the GDC, I am in no doubt that I would be left traumatised and demoralised. I think that there is a fear within the dental community that there is the possibility a sledgehammer will be used to crack walnuts when it comes to an enquiry into a dental professional’s performance. However, this being said, I believe the general response of aggrieved patients is not to go immediately to the GDC and complain. I have come across this just once with a colleague; and the patient who launched the complaint even apologised to him at a later date as they had no idea of the magnitude of the investigation that would be initiated. This is however the minority, the GDC usually only become involved after complaints at practice level have been dealt with poorly.
The usual response when a patient has cause to complain is to complain directly to the practice involved. The other alternative, and the one that strikes fear into so many of us, is litigation against the dentist involved alleging negligence, prompting solicitor’s letters, calls to defence organisations and sleepless nights. Litigation and complaints have become more and more commonplace over the last 30 years. Does this mean we should spend our professional lives tiptoeing around patients and practising defensively? No; to take this approach is both unethical, foolish and in my view, completely missing the point of why we work as dentists.
Defensive practice only serves to place patients behind our own self-interests. I don’t do ambitious dentistry, this isn’t because I don’t want the lawyers on my doorstep, but because I don’t like doing anything that doesn’t have a certain degree of predictability with it. The NHS has changed since 2006 so that it is no longer realistic for dentists to be doing anything but the simplest prosthodontics. I agree with Michael Sultan that this has led to an inevitable de-skilling, but this isn’t out of fear of litigation, it’s because we would be paying to do it. I manage a private Denplan list, some of the patients on the list have complex restorations that are failing or in need of replacement. Quite often I find myself with patients who have expectations that I will replace like with like and that this will last for another X or Y number of years. I think where some young dentists come unstuck is that they will allow themselves to be talked into doing extensive and unpredictable work, rather than being realistic and having a candid and admittedly difficult conversation about what you can provide them with. It is this communication that is important and taking the time to talk to patients that keeps patients from feeling they need to turn to lawyers rather than defensive practice.
The world has changed with regards to the public’s attitudes towards the healthcare professions. The lofty high regard that we were once held in has become resented- patients want dentists, doctors and nurses that they can have a frank and honest conversation with, who they can talk to like human beings. Those professionals who get themselves into trouble more often than not are those that have struggled to adapt to this new paradigm and still interact with patients in a way that does not promote good communication. Michael states, “Gone are the gung-ho days where dentists could try everything in the first few weeks of practice.” This is lamented by the author who presumably feels that patients should be fine with being held at an experimental dentist’s mercy. In the new GDC standards (7.2.2); “You should only deliver treatment and care if you are confident that you have had the necessary training and are competent to do so. If you are not confident to provide treatment, you must refer the patient to an appropriately trained colleague.”
It is recognised by the GDC that the ‘give it a go’ attitude is wrong, and my advice to every dentist would be to follow this rather than place a patient in the position of being unhappy or in a worse position than when you began treating them.
Patients are not the enemy. They are not out to litigate at the drop of a hat and waiting for the opportunity to make a complaint. There may be some cases where this is true but it is a very small minority. Regardless, it is a pretty miserable professional existence to imagine that every patient that walks through your surgery doors is looking to litigate against you. I know I couldn’t get out of bed to do my job with that attitude and I imagine it would lead to pretty much zero job satisfaction.
When the phenomenon that is medical negligence began, it was patients alleging that their treating dentist had strayed from the beaten path of accepted practice and they had suffered as a result. This would inevitably lead to both sides seeking an expert witness to give an opinion as to whether this treatment was supported by a professional body of opinion (as per Bolam test). This is still much the case, but the courts are now taking into account whether or not patient’s rights have been respected or not. The case of Chester v Afshar is a notable case in 2004 where the House of Lords found against a surgeon because although causation could not be proved, he had flaunted the claimant’s (his patient’s) rights to make properly informed decisions about her treatment. We may be told that since the Jackson Reforms of 2013 our indemnity fees will go down and patients won’t be able to sue us as much; but we can see by the increasing numbers of complaints and litigation that this simply isn’t the case.
I am of the belief that the current system of patient’s litigating against dentists and other healthcare providers is flawed. It is right that patients that have come to harm are able to seek compensation, but it is wrong that dentists and other healthcare workers who potentially are just trying to do their best are blamed for what is usually bad luck. Quite often the components of a legal claim against a dentist are many and legion, where one component is missing the claim may never happen because for example, patient may not be inclined to complain. Often the difference between one dentist who isn’t sued and one who is, is luck. The no-fault compensation scheme such as the one found in New Zealand is potentially the answer to this issue. Patients who suffer harm as a result of treatment gone wrong claim from the compensation scheme, with the adversarial system of the civil courts being bypassed. What many don’t know is that in this country, the NHS Redress Act 2006 set the foundations for more legislation to create such a scheme in England and Wales. If such a scheme did come into being, potentially that would mean farewell and good night to the many clinical negligence firms in England and Wales. In reality, this won’t come to being, because, surprise surprise, the Government is scared it will cost too much, but it is certainly a nice idea.