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A misaligned claim

23 October 2019

Mrs T attended an appointment with her regular dentist. The dentist was already aware through previous discussions that she was considering a course of orthodontic treatment to address the mild crowding in her upper and lower arch, along with aligning the upper central incisors which were mesially inclined.

Mrs T informed the dentist that she now was ready to move forwards with orthodontic treatment. The dentist had considerable experience in providing short-term orthodontic aligner treatment and carried out a full orthodontic assessment and provided the patient with treatment options, along with option of referral for potential fixed braces with a specialist colleague. Mrs T declined the referral and so the discussion with the dentist was limited to aligner treatment. The patient was also given information about the anticipated costs of aligner treatment and made aware of the need for permanent retention after treatment had finished. Mrs T was asked to book the next appointment for a further discussion or to begin treatment should she wish.

At the following appointment, Mrs T said she was sure she wanted to begin treatment, so the dentist carried out the aligner treatment over the course of ten months. The patient was very happy with the final result and the dentist reiterated his recommendation that due to the original position of the mesially inclined upper central incisors that he considered it necessary to have both permanent fixed retention of the upper teeth and upper and lower removable retainers to guard against potential tooth movement in the future.

Mrs T declined fixed retention because she would not be able to floss. The dentist went on to remind her why permanent retention was necessary and the risk of relapse should she not observe a strict regime of wearing the retainers each and every night. She still refused and so the dentist provided upper and lower removable retainers being sure to document all their discussions in the treatment records.

Mrs T continued to see the dentist for her routine dental care up until the dentist retired five years later. The practice was sold and all patients were informed of the dentist’s retirement and that a new clinician would continue their care at the clinic.

Unexpectedly, three years later the dentist received a letter from a lawyer informing him that Mrs T was pursuing him for damages regarding treatment he had provided eight years previously. The dentist was shocked and disappointed to learn the identity of the patient, who he always felt he had enjoyed a good professional relationship with.

The dentist immediately contacted Dental Protection, who assisted him in obtaining more information and who also instructed lawyers to provide local assistance and support.

It became apparent that Mrs T had been wearing her retainers routinely since the dentist provided his initial orthodontic treatment course all those years ago. However, Mrs T had stated to her new dentist that the retainers were no longer maintaining the alignment of her teeth.

Dental Protection requested that Mrs T was examined by a specialist orthodontist to establish the current clinical situation. The orthodontic report stated that Mrs T had experienced a mild relapse in alignment of the upper anterior incisors, which had begun to become mesially inclined once again. Mrs T was requesting that the original dentist pay for remedial treatment to correct the relapse in alignment of the upper anterior incisors, as she said she was informed the alignment of her teeth would be maintained if she wore the retainer every night.

The specialist orthodontist also examined the patient’s retainer which was discovered to have two fracture lines present and a missing section in the upper anterior buccal aspect which allowed flex and movement of the retainer.

Based upon these findings, and the detailed treatment records clearly evidencing the patient and dentist discussion regarding the advice that permanent fixed retention was strongly recommended, Dental Protection was able to robustly defend the claim on behalf of the retired dentist and demonstrate the onus was on the patient to continue to wear a retainer fit for purpose and her refusal to accept the dentist’s recommendations of fixed retention all those years ago.

Learning Points

  • Always ensure you write detailed records of all key treatment discussions with your patient. In this situation, the information provided to the patient regarding the recommendation for permanent fixed retention – along with the warnings of potential relapse – was recorded. The patient continuing to wear a now defective retainer clearly demonstrated the dentist was not liable for the mild relapse.
  • Even after retirement from clinical dentistry, a dentist can find themself faced with a legal challenge for treatment provided a number of years ago.
  • Occurrence-based protection, with Dental Protection depends on the date on which an adverse incident occurs, and not the date that the matter is reported to us. This is important because it can be years before a case is brought and fully resolved. This type of protection offers peace of mind, and in this instance, meant that Dental Protection were still able to provide assistance, at no further expense to the dentist.

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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