Membership information 1800 444 542
Dentolegal advice 1800 444 542

Whose fault is it anyway?

22 February 2019

Apportioning blame after failed treatment can be an exhausting and unhelpful exercise. However, there are some important principles of liability to understand. Dr Annalene Weston, dentolegal adviser at Dental Protection, explains all

At Dental Protection, a scenario we see repeatedly is one where multiple operators are involved. While we handle each case on its own merits, there are some basic principles we can apply to such situations.

Let’s look at the following case (while based on real events, facts have been altered to preserve confidentiality):

After experiencing severe pain, Mr S went to see Dentist A for an RCT. The treatment was uneventful, with the tooth pain-free. Dentist A recommended that Mr S have a crown on the tooth to protect it. The whole experience was quite expensive for Mr S, and so he shopped around to find the dentist where he has the smallest gap after his Health Fund rebate – Dentist B.

Mr S attended Dentist B and explained why he was there. He stated the tooth was asymptomatic, and that the root filling was only three months old. After visually examining the patient, Dentist B proceeded to place the crown, as requested.

Twelve months later, Mr S woke in the night with a horrible toothache: exactly the type of toothache he had when he had the abscess. A trip to Dentist B the next morning led to an x-ray that revealed a large periapical area associated with the tooth. The root filling had failed, and the tooth required extraction.

Playing the blame game

Mr S was angry and believed that someone “needed to pay” – but who? Dentist B felt very strongly that Dentist A should, because it was their root filling that failed. Dentist A, however, felt that Dentist B took over the responsibility for Mr S when they took on the case.

Broadly, when you take a patient on for treatment you assume responsibility for their dental health. As Mr S was a new patient, Dentist B had no records and no history of the tooth. He took Mr S at his word that the root filling was so recent and, critically, he did not perform any investigations of his own. Had Dentist B taken a preoperative x-ray, he would have been able to assess the integrity of the root filling and make an informed decision regarding whether he wanted to be responsible for the tooth. Had the x-ray uncovered a deficiency with the root filling, then Dentist B would likely have chosen not to proceed, consequently not ‘touching the tooth’ and assuming responsibility for the future success or failure of the work.

As the situation stood, Dentist B was responsible for Mr S, as by proceeding with the crown without any diagnostic tests (for example, any x-rays or periodontal probing, both of which may have been very revealing), he accepted the quality of the root filling as being suitable for the crown.

The same principle applies with work made by an external laboratory. If you assess it prior to insertion, and you are not happy with it but insert it anyway, you have no recourse if something goes wrong. The problem becomes yours. Identify the issue before insertion, however, and you can send the work back and request a remake (at no charge).

Should Mr S have refused a preoperative x-ray, then Dentist B could have either declined to proceed without it, or requested a copy of the records and x-rays from Dentist A. Either way, they would have been armed with the information they needed to truly assess the likelihood of failure of root filling before they placed the crown. In a situation such as this, it is critical that the patient fully understands the potential consequences of any refusal of diagnostic tests, and this conversation should be clearly documented in the clinical notes.

In any situation, but especially one with an unknown patient, make sure you have all the information you need before committing to provide treatment, and potentially owning the bad outcome.

© 2010-2024 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. 36142). 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. (“ADAWA”).
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 (“MDANI”), ABN 56 058 271 417, AFS Licence No. 238073. MDANI is a wholly-owned subsidiary of MDA National Limited, ABN 67 055 801 771. DPLA is a Corporate Authorised Representative of MDANI with CAR No. 326134. For such Dental Protection members, by agreement with MDANI, DPLA provides point-of-contact member services, case management and colleague-to-colleague support.
Dental Protection members who are also ADAWA members need to apply for, and where applicable maintain, an individual Dental Indemnity Policy underwritten by MDANI, which is available in accordance with the provisions of ADAWA membership.
None of ADAWA, DPL, DPLA and MPS are insurance companies. Dental Protection® is a registered trademark of MPS.

Before making a decision to buy or hold any products issued by MDANI, please consider your personal circumstances and the Important Information, Policy Wording and any supplementary documentation available by contacting the DPL membership team on 1800 444 542 or via email.