By Dr James Foster, Deputy Dental Director and Dental Lead – Australia and Asia, Dental Protection
Estimated read time: 8 mins
A 22-year-old patient attended the practice for the first time complaining of some discomfort when brushing around the wisdom teeth. This had been going on for several weeks and the patient also described a bad taste in his mouth.
The dentist, a recent graduate, examined the patient and took an orthopantomogram (OPG), following which she presented the patient with a consent form for the extraction of all four wisdom teeth. He duly signed the form and passed it back, agreeing to proceed with the extractions under local anaesthesia on that same day. Following the administration of the local anaesthetic, a forceps extraction technique was used rather than a surgical approach.
While the extractions were completed with some difficulty, the teeth were removed in their entirety. Postoperative instructions were given, and the patient was discharged. No follow-up review was planned, but the patient called the practice the next day expressing concern over pain from the jaw on the lower right-hand side together with some numbness.
The receptionist informed the patient that pain was usual after such procedures and to give it time. Symptoms continued however the patient was not reviewed until seven days postoperatively, despite the repeated requests for an urgent appointment. When he was examined, a diagnosis of infection/inflammation was made, and antibiotics prescribed. The symptoms persisted but no other treatment or follow-up was offered, and some two weeks after the surgery, the patient decided to seek an appointment elsewhere.
On examination at the new practice, which included a further OPG, the patient was informed of the presence of a fracture together with the displacement of the lingual plate on the right-hand side. He also had continued numbness and unfortunately there was a resultant permanent paraesthesia together with a debilitating neuropraxia.
The patient was both angry and frustrated when he was informed of the fracture and the likely nerve damage. He felt he had been treated inappropriately and subsequently abandoned by the original dentist, who had made little effort to address his concerns.
Some five weeks after the extractions, he made a formal complaint to the Dental Council (DC) and a claim in negligence followed.
The DC complaint was referred through to a full hearing, where it was established that the consent process was invalidated by lack of information and that the clinician lacked the competence to carry out such procedures. It was determined that:
There was no clinical record to demonstrate that the patient was warned of the possible risks and consequences of extracting all four wisdom teeth, particularly 48. In addition, there was no evidence that the patient was offered a specialist referral and both these omissions led to criticism around the consent process.
The curved roots of the 48 were lying close to the inferior dental nerve (IDN) and that by carrying out an extraction with forceps, the procedure forced one or more of the roots against the nerve. The DC’s expert suggested that if a surgical technique had been adopted, and the roots separated, then elevation of the individual roots would not have caused the injury the patient experienced.
The DC determined that the registrant failed to carry out an adequate pre-operative assessment to investigate the potential risks before embarking on the removal of four wisdom teeth in a single visit under local anaesthesia. In addition, the registrant failed to properly execute the removal of the lower right third molar resulting in inferior dental nerve injury.
The DC stated that meticulous attention to pre-operative assessment and use of necessary skills is essential for the safety of the patient. As a result, a suspension was imposed.
For a patient to be successful in a claim in negligence, they must demonstrate that there was a breach of duty and that the patient suffered harm as a result. This claim can be determined on both the standard of treatment itself and the quality of the consent process.
In this case, the claimant’s lawyer was able to demonstrate that there was a breach in the duty of care owed to the patient both in relation to the treatment provided and the consent process. A surgical approach was indicated when taking in to account the radiographic appearance of the root morphology of 48 and its proximity to the IDN.
The only evidence provided in relation to consent was a signed consent form. However, there was no indication that the risks had been fully explained to and understood by the patient – a point made firmly in the allegations and one which could not be defended. Had a full discussion taken place alongside the consent form, and had this been recorded in the records, the situation may have been different. In addition, the patient should have been given time to absorb the information, particularly given the potential consequences of a nerve injury.
It took a significant time for the claim to follow the DC complaint – which is not uncommon – and substantial damages were sought. Unfortunately, obtaining a supportive expert report to defend the claim in its entirety proved unsuccessful, and defensive challenges were limited to exploring the appropriate level of damages.
Despite support from highly experienced legal teams, including local legal panel lawyers, in-house Dental Protection legal teams, our claims managers, and our dentolegal team, the facts of this case were indisputable and certain outcomes inevitable.
Ensuring fairness and correct procedure together with strong representation are essentials of our service to members. However, the support for the individual facing such a professional challenge is just as important.
DC investigations and claims can have a significant impact on emotional wellbeing and support from colleagues who understand the implications of these events can be invaluable.
Dental Protection also provides access to a confidential counselling service for members who feel they may benefit from further support.