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I told the patient….but I didn’t write it down

23 October 2019

Mr L visited his dentist complaining of pain in the posterior maxilla area under his existing partial denture. Clinical examination revealed an area of redness and tenderness over the area of his left upper second molar.

A radiograph taken at the time of the examination revealed a buried root, which was clearly being irritated by the denture. As a temporary measure, the denture was adjusted and Mr L was advised that the retained root should be removed.

The radiograph also showed the floor of the maxillary sinus was very close to the root; however, the root was extracted without too much difficulty. Unfortunately Mr L developed problems associated with the creation of an OAC, but never returned to the practice and obtained further treatment elsewhere. This denied the dentist the opportunity to discuss with Mr L what had happened and to resolve the patient’s concerns. To the dentist’s frustration, Mr L then instructed a lawyer to pursue a claim against the dentist.

Mr L’s lawyer claimed their client was not warned of the risks of developing an OAC and that he should have been referred to see a specialist. The dentist suggested that it was his normal practice to tell patients of such risks; however, neither he nor his team could remember if a discussion had taken place on this specific occasion, and he had not recorded any warnings in the records.

The records and radiographs were examined by one of Dental Protection’s experts and, despite all efforts to assist the dentist in defending the case, the lack of documentation made the case difficult to defend.

In court, the lack of appropriate records meant that it was the patient’s word against the dentist’s – and there is a real risk of a judge preferring the patient’s oral evidence. Because good record keeping is an example of good care, inadequate records could create an impression of poor care, extending to the consent process.

Learning points:

  • 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. It is therefore imperative to record the details of the specific warnings given.
  • We have a legal and ethical obligation to disclose risks to patients and to keep comprehensive records. Without adequate records being made of patients being warned about possible treatment outcomes, it is very difficult to provide a robust defence against a claim or Dental Council investigation, as this case illustrates.
  • A dentist could be tempted to alter or add to a patient’s record should they become aware that the record is to be scrutinised. With modern technology such changes are easily recognised, and the courts and dental registration bodies take an extremely serious view of non-contemporaneous records being submitted as originals in evidence.

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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