Dental Records in Dental Negligence Claims

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If you are looking into the possibility making a claim for dental negligence due to poor, inadequate or downright incompetent treatment from your dentist, then click here to go to our dedicated Dental Negligence page.

Below you will find some information on Dental Records, which you may also find interesting and useful.

Dental Records

For medico-legal purposes dental negligence and personal injury cases are treated as a sub-division of medicine. However, the historical entrepreneurial culture of dentists makes dentistry almost a separate discipline.

There are three main reasons for this. The first is that unlike family doctors, over 92% of all dental care is carried out by general dental practitioners who work in a genuine independent contractor cottage industry environment. Doctors work in multi-disciplinary teams and are subject to more management control. The second is the cash nexus of dentistry where an increasingly greater proportion of services are provided under private contract and where even NHS non-priority adult patients pay 80% of statutory fees which can reach a ceiling of £325. The last reason which perversely make the expert's work easier is that dentistry is measurable both quantitatively and qualitatively over a period of time. Check-ups are actively marketed by dentists whereas the majority of the population only see a GP or hospital doctor with a specific problem.

Gathering the evidence
The most important stage in preparing precise and unambiguous dental reports is gathering the evidence. This means disclosure of dental record cards and x-rays. An NHS dental card is the property of the Secretary of State for Health but it is left to the individual dentist or his/her protection organisation to decide on disclosure. A private contract record card belongs to the dentist. X-rays do not belong to any patient. They are diagnostic tools which assist the dentist to make treatment plans, consider options and audit completed treatment. Original x-rays belong either to the dentist or the practice and professional protection organisations will advise their members that originals be retained. However, for pre-action disclosure duplicate x-rays have to be provided in the same way as other records under the Access to Health Records Act 1990 or Supreme Court Act 1981, section 33. With the exception of some personal injury claims where there are no issues of liability, a dentist receiving a request for pre-action disclosure will invariably contact his/her protection organisation. They will ask their member for the record cards, x-rays, associated correspondence and forward copies to solicitors after retaining duplicates for their own files. The protection organisation will charge solicitors for this service. In the rare occasions that a dentist forwards records directly to a solicitor it is essential to make sure that the cards are copied front and back and all x-rays are properly dated. Since it is still much easier to change dentist than doctor it is inevitable that in many cases of alleged negligence there will be a second opinion and/or remedial treatment done by another general dental practitioner or specialist. The second dentist will feel much more secure in forwarding records since he is not a party to any possible dispute. Indeed, if such a dentist is a general practitioner he/she will often end up in completing the remedial work his/herself and retaining a new client. Dental records usually come in 10" x 6.5" envelopes. Inside there may be medical history sheets, indices of gum condition, referral letters to specialists, associated reports, dental laboratory worksheets together with small x-rays in packets and large x-rays loosely inserted. Very occasionally for personal injury cases there may be colour photographs. Diagnostic or working models because of their bulk have to be kept separately. Their existence will be confirmed on the record card. The reverse side of the card is very important since it shows the charting of teeth together with confirmation of distinct courses of treatment as opposed to just appointments. There is more useful information on a dental record card than on a GP's because of the different systems of remuneration. In the NHS dentists receive 90% of their remuneration from a fee-per-item system where each and every procedure or service has to be recorded.

Pre incident records
For the expert the most useful disclosure is contained in records before the date of the incident that is the subject of the report, especially in personal injury cases. This makes report writing much easier than in medical cases because the majority of the population have check-ups and x-rays which are an integral part of a dental examination. Probity of claims is also important. It is not unknown for patients, who have been advised that some sort of restorative treatment of an elective nature, usually anterior crowns, would be desirable have delayed proceeding with treatment for one reason or another. They are then involved in some type of accident in which teeth have been damaged. The question which then has to be asked is, how much of the remedial treatment is causal to the accident and how much was necessary in the event?

NHS complaints
For dental treatment provided under NHS terms of service, claims often follow successful complaints to the patient's local Family Health Services Authority (Health Authority from 1.4.96) where a locally constituted Dental Service Committee (Independent Review Panel from 1.4.96) has found against the practitioner. The important finding is that the dentist did not 'employ a proper degree of skill and attention'. Whether a withholding of remuneration (effectively a fine) or a warning is recommended is irrelevant. The Authority has a statutory duty to send the complainant patient a copy of the adopted report and it will usually contain both a report from an independent dental officer from the Dental Practice Board and a separate report from the professional assessors of the investigating committee. Their separate opinions together with any final decision on appeal, assuming that one has been made, are invaluable documents for the expert. At the present there is no such procedure for private patients and they have no recourse but to go straight to a solicitor. From the expert's point of view, one of the most frustrating aspects of writing dental reports is finding half way during preparation that an important piece of known evidence is missing. This necessitates going back to the instructing solicitor with the invariable wait for further disclosure. By the time the expert receives further documentation, the minutiae of detail is lost and the expert has to start again.

Edgar Gordon MSc DDS BDS MGDS RCS FFGDP (UK)
www.dentmedneg.co.uk

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