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A failure to refer

15 September 2023

By Dr Martin Valt, Dentolegal Consultant, Dental Protection.

Mrs A presented to general dental practitioner Dr Y as a new patient, reporting an increasing degree of intermittent discomfort emanating from her upper left quadrant. Clinical and radiographic examination revealed a fractured and grossly carious 18, which was self-evidently beyond restoration.

Dr Y accordingly diagnosed a reversible pulpitis and recommended the extraction of 18, to which Mrs A promptly agreed. Unfortunately, a root apex of 18 fractured during the extraction procedure and, despite his best attempts, Dr Y was unable to retrieve this. He advised Mrs A of this complication and made the necessary arrangements for her to attend a specialist in oral surgery for the root apex to be removed. Mrs A indicated that she would prefer to be referred on a private basis with a view to this remedial treatment being undertaken as promptly as possible.

Whilst the surgical procedure was completed successfully and relatively uneventfully, Dr Y subsequently received a written complaint from Mrs A, requesting that he cover the specialist’s fees on her behalf. Dr Y was initially reluctant to do so, on the basis that the root fracture could not reasonably have been predicted or avoided, and that Mrs A had in any event declined the option of being referred to a specialist colleague for the surgical extraction of the retained 18 root fragment.

Dental Protection’s advice was sought, and it was in the first instance acknowledged that 18 was unrestorable on presentation. Dr Y’s advice that it should be extracted was therefore perfectly appropriate and entirely in accordance with Mrs A’s best interests. That being said, the pre-extraction radiograph also demonstrated a potentially intimate anatomical relationship between the 18 root apices and the floor of the maxillary antrum, which in turn clearly increased the likelihood of a complication arising.

Whilst the clinical records certainly demonstrated Dr Y having informed Mrs A of this, these were unfortunately not supportive of him having offered or considered the option of her being referred to an oral surgeon from the outset. Dental Protection accordingly advised Dr Y that it could be successfully argued that Mrs A was not provided with sufficient information or options to enable her to give valid consent to him extracting 18. This would amount to what is known in law as a breach of duty of care on the part of Dr Y.

Similarly, while fracturing the root apex during the attempted extraction of 18 did not necessarily amount to a breach of duty of care per se, it transpired on closer investigation that Dr Y had attempted to remove the fractured apex prior to exposing a further radiograph. The image that was eventually obtained demonstrated this apex to have been either displaced into the antrum proper, so to speak, or to have been ‘trapped’ between the hard tissue wall of the antrum and its epithelial lining. Either way, it was evident that a bona fide surgical procedure was always going to be required to facilitate its removal.

Whilst hindsight remains the most precise of all the biological sciences, a solicitor would nevertheless once again almost certainly be able to successfully argue that Mrs A’s best interests would have been served by Dr Y simply postponing the extraction at the point of fracture, and instead referring her immediately to an oral surgeon, rather than attempting to remove the root apex himself.

If either, or both, of these breaches of duty of care could in turn be demonstrated to have caused loss or harm to Mrs A, which they self-evidently did, she would then be entitled to recover compensation. Likewise, in the event of a regulatory challenge arising instead of, or possibly even alongside, a claim for compensation, one might reasonably speculate that the regulator would be somewhat critical of both the consenting procedure adopted in this instance and Dr Y’s first line management of the complication of the 18 extraction.

With all this in mind, Dental Protection advised Dr Y that his professional position would be best protected by making every reasonable attempt to secure amicable resolution of Mrs A’s complaint at local level, with a view to bringing the matter to a prompt close and, given his potential professional vulnerabilities, reducing the likelihood of it being escalated into another forum.

Dental Protection was able to assist Dr Y in preparing a suitably conciliatory response and to exercise discretion to indemnify him for covering the oral surgeon’s fees on Mrs A’s behalf as a gesture of goodwill. The latter was happy to accept Dr Y’s explanation, apology and financial contribution as a means of resolving the complaint to her satisfaction.

This case illustrates the importance of considering (and documenting) the option of offering a referral to a specialist colleague as part of the consenting process whenever a substantial potential risk or complication associated with the proposed treatment has been identified. It is not generally sufficient to simply warn the patient of such a risk, but to omit to offer an available means by which it might be minimised or at least reduced.

It is similarly important to remain mindful that, should an unanticipated complication arise, the vast majority of dental procedures can generally be safely brought to a halt and the clinical situation stabilised on an interim basis to permit specialist input to be sought. It is rarely necessary, or indeed in the patient’s best interests, for the dentist to simply press on regardless, irrespective of however well-intentioned such an approach might be, as to do so may inadvertently exacerbate the clinical situation and render a subsequent professional challenge more likely.        

These case studies are based on real events and provided here as guidance. They do not constitute legal advice but are published to help members better understand how they might deal with certain situations. This is just one of the many benefits Dental Protection members enjoy as part of their subscription. 
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