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It’s my word against yours

15 July 2014
Without adequate records being made of patients being warned about possible treatment outcomes, you’ve little chance of defending yourself in court, as this case illustrates...

An elderly patient attended complaining of pain in the posterior mandibular area under her existing partial denture. Clinical examination revealed an area of redness and tenderness over the area of her lower right wisdom tooth.

A radiograph taken at the time of examination revealed a buried root, which was clearly being irritated by the denture. Although the dentist adjusted the denture, the patient continued to experience discomfort and was advised that the retained root should be removed.

The dentist was aware of the probably friable nature of the mandible and advised her that there was always the possibility of a fracture and indeed interference with the inferior dental nerve. The dental nurse recalled him discussing this with the patient, but unfortunately no note was made of the warnings in the patient’s dental records. The procedure apparently was uneventful, but the patient experienced post-operative anaesthesia of her tongue subsequent to the operation.

The dentist referred the patient to a consultant oral surgeon who considered there was little likelihood of the inferior dental nerve regenerating and the patient was advised that normal feeling would be unlikely to return to her lower lip.

The patient’s lawyer claimed their client was not warned of the risks and possible chance of post-operative anaesthesia. The dentist rebutted this allegation and was quite vehement, as was his assistant, that warnings had been given.

The patient, together with the records and radiographs, was examined by one of Dental Protection’s experts and it was understood that the dentist had carried out a number of other surgical procedures that same day. It was considered that it would be difficult to defend this matter in court due to the lack of documentation to support the dentist’s insistence that warnings had been given to the patient.

As stated above, it was thought likely that the patient’s word would be given greater credence than the dentist’s. The matter was settled on behalf of the dentist with no admission of liability.

Another difficulty can arise when a dentist feels the need to re-write his or her records. There is no such thing as the perfect record and it can sometimes be due to embarrassment that some dentists alter or forge their records. With modern technology this is easily recognised and the courts and the dental registration bodies take an extremely serious view of non-contemporaneous records being submitted as originals in evidence.

Learning point:
If there is a lack of documentation that warnings had been given to the patient, in a dispute it becomes the patient’s word against the dentist’s and the patient will often have greater credibility

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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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