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How to respond to a solicitor’s letter

03 June 2020

Receiving correspondence from a solicitor can be a stressful experience. Dr Kiran Keshwara, dentolegal consultant at Dental Protection, looks at some of the possible scenarios and how Dental Protection can help

 

“I finished my last patient for the day and, before going home, I decided to check my emails. I was shocked to see that I had an email from a lawyer with the subject line: ‘Mr X – DENTAL NEGLIGENCE IN NSW’.

“I remember Mr X was an unhappy patient of mine at the practice that I had left a year earlier, but I never expected an email from a lawyer about it. It seemed that the lawyer had found my work email address by simply Googling me and finding the new practice that I work at.

“I opened the email and saw attached a Statement of Claim about a crown that I had provided the patient. It seemed that the patient was unhappy with the treatment that I had given him over a year ago and wanted compensation. The shock and disappointment that I felt was immense and I tried to understand what the complaint was about and what I could do to defend myself.

“I spoke to one of my friends who had been in a similar situation before and he advised me to call my indemnity provider. I called Dental Protection and the adviser I spoke to explained to me how they would be able to help. I felt very reassured at the end of the conversation and, while the case is still not finished, I am confident that Dental Protection will do their best to look after me.”                                                                                                                                                               Dr AD

Receiving an email or a letter from a solicitor can be a daunting experience and Dental Protection will always be able to advise you on your individual case. Below we have outlined some of the most common reasons for you to get unexpected communication from a lawyer and how you should respond.

I’ve received a dental negligence claim

The most dreaded email from a solicitor and the one that worries the majority of dentists. The first thing to do if a dental negligence claim is made against you (either by a solicitor or directly from a patient) is to contact Dental Protection and discuss the details of the claim. We will ask you to provide us with the records so that any possible areas of vulnerability can be identified. If you do not work at the practice where the patient had been treated, you should contact the practice and ask them to send you all of the records, including any x-rays, details of any communication between the practice and the patient, and any financial details.

At Dental Protection, we will then assess the records and discuss them with you along with the compensation claim from the lawyer. Dental Protection uses a number of lawyers around Australia and also has access to general dentists and specialists who can give an independent expert opinion on the clinical nature of the work. We will contact our lawyers and facilitate an introduction between you and them so that they can contact you at an agreed time to get your take on the case.

Our appointed lawyers will handle any communication with the patient’s lawyer and procedural court matters, and Dental Protection will provide the dental and clinical expertise and take management of the case for you.

Dental negligence cases are usually a drawn-out process, with some of the more complicated cases taking years to settle. The steps in resolving a case can range from letters between lawyers to a mediation process, where the lawyers meet and try to come to an agreement, to a court hearing. Very few cases go to court. We will keep you updated with any developments during the process and aim to conclude the matter as quickly and simply as possible.

I’ve received a request for records

When a person wishes to start any litigation, they may contact a lawyer. The lawyer will usually try to ascertain the merits of a case by getting as much detail as they can. If the matter has been caused by or led to any dental treatment, the lawyer may contact you to obtain the patient’s records. The lawyer’s letter should include a signed authority from the patient. If this is included, it is appropriate to release copies of the records to the lawyers. The full records, including any x-rays, clinical notes, specialist reports, finances and communication between the practice and the patient should be included.

Usually, if you are aware that the patient was unhappy with the treatment you had provided, receiving communication from a lawyer requesting records can be a good indicator that the patient is considering initiating a claim against you. In this case, you should, as above, contact Dental Protection and we will guide you through the next steps.

If the request comes as a surprise to you, it may be that the patient has undergone treatment elsewhere previously, or had an accident and the lawyers are trying to work out the treatment that the patient had to have as a result of this.

I’ve received a request for a report

Sometimes a current patient or their lawyer may contact you to ask for your expert opinion on the treatment that another clinician has provided. This may come via the patient and many dentists feel obliged to provide this to the patient. Again, if the request comes directly from a lawyer, it should be accompanied with a signed authority from the patient. 

If you are comfortable writing a report, being fully aware that there is a possibility that the report provided could end up as evidence in court and that your opinion could be under scrutiny, you can provide the report. The report you write should be based on the facts and your clinical findings and sound clinical judgement, as it is important not to base your report on conjecture or a biased opinion. 

Report writing is a skill that most clinicians are not comfortable with and, with this in mind, if you are not comfortable with provision of a report, you can politely decline to do so. Many dentists, as a compromise, tell the patient/lawyer that they are not happy to provide a report but will release the records to the patient and they can find someone else to comment.

We are here to help

There are other reasons why a lawyer may contact you and the language used can be quite difficult to understand. In all cases you should call Dental Protection and take advice from one of our dentolegal consultants on your specific circumstances.

You can also listen to our podcast series for further guidance and advice. 

© 2019 The Medical Protection Society Limited

DPL Australia Pty Ltd (“DPLA”) is registered in Australia with ABN 24 092 695 933. Dental Protection Limited (“DPL”) is registered in England (No. 2374160) and along with DPLA is part of the Medical Protection Society Limited (“MPS”) group of companies. MPS is registered in England (No. 00036142). Both DPL and MPS have their registered office at Level 19, The Shard, 32 London Bridge Street, London, SE1 9SG. DPL serves and supports the dental members of MPS. All the benefits of MPS membership are discretionary, as set out in MPS’s Memorandum and Articles of Association. “Dental Protection member” in Australia means a non-indemnity dental member of MPS. Dental Protection members may hold membership independently or in conjunction with membership of the Australian Dental Association (W.A. Branch) Inc. (“ADA WA”).

Dental Protection members who hold membership independently need to apply for, and where applicable maintain, an individual Dental Indemnity Policy underwritten by MDA National Insurance Pty Ltd (“MDA”), ABN 56 058 271 417, AFS Licence No. 238073. DPLA is a Corporate Authorised Representative of MDA with CAR No. 326134. For such Dental Protection members, by agreement with MDA, DPLA provides point-of-contact member services, case management and colleague-to-colleague support.

Dental Protection members who are also ADA WA members need to apply for, and where applicable maintain, an individual Dental Indemnity Policy underwritten by MDA, which is available in accordance with the provisions of ADA WA membership.

None of ADA WA, DPL, DPLA and MPS are insurance companies. Dental Protection® is a registered trademark of MPS.