LegalMD Newsletter - June 2018

30 June, 2018

MEDICAL NEGLIGENCE IN DENTISTRY
 
INTRODUCTION

A dentist is a healthcare professional who provides care to the patient and there is a duty imposed upon the dentist to practice dentistry at the certain standard of care. A breach of this duty that results in injury to the patient is called negligence, which can result in lawsuit against the dentist. Negligence can occur in any aspect of professional practice, whether history taking, advice, examination, testing or failing to test, reporting and acting on results of tests, or treatment.

Public awareness of medical and dental negligence in India is growing and hence the dental practitioners must be aware of the legal elements, as there are greater possibilities of dentist encountering such cases.
NEGLIGENCE
 
All medical professionals, doctors, nurses, and other health care providers are responsible for the health and safety of their patients and are expected to provide a high level of quality care. Failure to use the degree of care considered reasonable under the circumstances, resulting in unintentional injury is negligence.
For an act to be considered negligent, the following aspects must be present: 
  1. Dentist owed  certain standard of care
  2. Dentist did not maintain that standard
  3. There was an injury resulting from the lack of care
  4. There should be a connection (proximity) between the negligent act and the resultant injury
A breach of this duty gives the patient right to initiate action against negligence. However, the onus is on the patient to prove that not only that he is the victim of negligent service but also has suffered damage in the process.
ACTS FALLING UNDER THE PURVIEW OF DENTAL NEGLIGENCE
 
  1. Failure to explain the procedure and possible outcomes may be considered a negligent act
  2. Failure to give advice clearly results in complication and instructions regarding diet and postoperative care
  3. Responsibility to prevent cross infection between patients
  4. Failure to attend an emergency is negligence. A patient cannot be refused treatment on the ground that it is a medico legal case and therefore to be seen in a government approved hospital
  5. Another cause of negligence usually involves general dentists′ attempt to treat beyond their level of competence and failure to refer cases to the appropriate specialist
  6. Lack of informed consent as in if there is a procedure, which has complications or undesirable consequences, which a prudent patient does not anticipate, it is necessary to get an informed consent
  7. If prescriptions are not clear and if they do not have proper instructions
  8. Failure to give proper advice, making defective dentures, accidental ingestion of crowns, dental instrument, teeth etc. can also be considered as negligence
ACTS NOT FALLING UNDER THE PURVIEW OF NON-NEGLIGENT ACTS
  1. Not obtaining a consent form in an emergency is not negligent
  2. Patient′s dissatisfaction with the progress of treatment cannot be called negligence
  3. Not getting desired relief is not negligence
  4. Charging, what the patient thinks is exorbitant is not negligence
  5. When patient does not follow advice of the doctor and does not get satisfactory results, dentist cannot be held negligent
 
CONSENT IN DENTISTRY
 
A dentist must ensure that the following points are discussed and clarified before giving the desired treatment to the patient:
  • There must be understanding of problem, that is, a diagnosis
  • As there are often a number of different ways of treating a particular dental problem, the patient must understand all of the options available and be able to choose the treatment he/she would like
  • The proposed treatment, the risks involved and the possibility of any alternative treatment must be fully explained
  • Authorization must allow for a change in plan if an unproposed circumstance arises
  • Discussion of all sequel and side effects of proposed/current treatment plan must be given
  • The patient must be given clear preoperative and post-operative instructions in writing
ALLEGATIONS FACED BY THE DOCTORS
 
Actions against dentists are often brought by patients who, sometimes wrongly, attribute less than ideal treatment outcomes to negligence. The doctors face a number of allegations while treating a patient. Some of which are enumerated below:
  • inadequate workup
  • improper diagnosis and treatment planning
  • compromised treatment
  • failure to diagnose and/or treat periodontal disease
  • post-operative infection
  • wrong tooth extraction
  • implant failure
  • loss of teeth and improper implant restoration
  • adverse drug reactions, sedation and anesthesia complications
LIABILITY OF THE DENTIST
 
Who is liable?
  • Dentists with independent practice rendering only paid services
  • Private hospitals charging all patients
  • All hospitals having free as well as paying patients; they are liable to both
  • Doctors/hospitals paid by an insurance firm for treatment of a client or an employer for the treatment of an employee
Who is not liable?
  • Dentist in hospitals which do not charge of their patient
  • Hospitals offering free services to all patients
STEPS TO BE TAKEN BY A DENTIST IN ORDER TO AVOID LEGAL HASSLES
 
Mistakes are common in every profession, as it occur in life. It is the duty of the individual to avoid errors and foresee the potential for mistake but, on occasions, it may become unavoidable. Unfortunately, in the health profession mistakes could result in serious consequences for the patient and, in turn, lead to the doctor/dentist being made answerable.

While taking decisions, courts consider whether the health practitioner in question has undertaken the procedure with a fair, reasonable, and competent degree of skill. Supreme Court states that doctor profession is the noblest of all, and that there is a need to protect them from frivolous prosecution, it is implicit that doctors/dentists must be aware of the continued goodwill towards them in society, and that it is their duty to practice in the best interest of the patient, upholding concepts of righteousness and service.

When something untoward happens following a diagnostic or therapeutic procedure, or when a patient or relative makes a complaint, the dentist must take appropriate steps, some of which may be:
  1. Know your job and act in good faith and follow the code of conduct and Dental ethics in letter and in spirit
  2. Maintain confidentiality
  3. Never guarantee a result
  4. Managing patient expectations: It is important that the patient understands the diagnosis and treatment options, the practitioner’s recommendation, what can go wrong and how much it may cost in the worst case scenario
  5. Documentation: No matter how detailed the discussion with the patient, the fact that it took place may be hard to prove months or years afterward. And many patients do not remember or refuse to acknowledge having been told of the risk of a complication once it occurs. Only the written records prove health care professionals innocence when something goes wrong. Complete the patient′s record and recheck the written notes
  6. Good communication: All information must be explained in comprehensible nonmedical terms, preferably in patient’s local languages about the diagnosis, nature of treatment, risk involved, prospects of success, prognosis if the procedure is not performed and alternative methods of treatment
  7. Never forget to take the appropriate type of consent whenever indicated. Take informed consent if any invasive dental procedure and/ or local anesthetic agent is being used; preferably in the local language or in the language patient can read
  8. When a patient refuses to consent for a treatment which the doctor feels necessary, an informed refusal of the consent must be taken in written format from the patient, in the presence of some independent witness and to be authenticated. The refusal consent should be obtained after fully explaining to the patient/ relatives the risk and consequences of refusal of procedure.
  9. Answer all the queries of patient and do not mind their repeated questioning
  10. Performing investigations: Whether a member performed appropriate investigations is also an important factor in determining if a matter should be settled or defended
  11. Knowing one’s limitations:  The number of actions against general dentists venturing into specialized areas of dentistry, e.g. endodontics and implant surgery, is on the rise, and more of those have to be settled than cases against specialists performing the same work. Before straying into unfamiliar territory, all dentists should realistically assess their competence and experience. Knowing when treatment is beyond one’s abilities and referring the patient to a colleague with the appropriate expertise can prevent problems before they start.
  12. Have a professional indemnity insurance of appropriate value and ensure its timely renewal
  13. Know the legal provisions in favour of medical profession. Defamation is dealt by IPC Section and it can be used to counter malicious charges by patients intending to spoil the good name of the doctor
CASE LAW
 
TANVIR MALIK V. DR. HARVANSH SINGH JUDGE INSTITUTE OF DENTAL SCIENCES AND HOSPITAL, CHANDIGARH (STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UT CHANDIGARH)

ORDER DATED: 24.04.2017
 
On 6.9.2015, the Appellant (Complainant) went to the Opponent’s Institute for the treatment of his braces. The doctor after the examination decided to remove his tooth no. 28 and 38, however, instead of tooth No.28, the doctor extracted tooth No.27. Later the patient filed Complaint for Medical Negligence.

The District Forum allowed the complaint and granted the compensation of Rs. 25,000 and Rs. 10,000 towards litigation cost on account of the suffered dual loss, one of his permanent Tooth and later his precious time which he had to devote to rush for the present litigation. However, the Complainant being aggrieved by the amount of compensation granted, filed the appeal for enhancement of the same.
 
The State Forum rejected the content of the appellant regarding the amount of compensation. In addition to that, the contention of the Doctors that tooth No. 27 might have been extracted due to some emergency, was rejected by the forum, for want of any documentary evidence /note.
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