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A question of consent

Dental tools

4 December 2013

A patient was referred by the local dental hospital for extraction of the LL8 to a dentist, a DDU member, with a special interest in oral surgery. She was suffering pain and discomfort from the wisdom tooth, which was impacted. The dentist assessed the tooth and discussed the treatment plan with the patient. He advised the patient of the risks associated with removal of the tooth, including possible nerve damage.

The dentist carried out the extraction a few days later. As far as he was aware, the surgery was successful. The patient returned complaining of numbness of the lower lip, although at subsequent appointments it appeared to be steadily improving.

Two years later the dentist received a notification of a claim against him from the patient's solicitors. The claim alleged that he had not obtained valid consent for the extraction of the LL8 before carrying out the surgery.

It was also alleged that he had failed to use reasonable skill and care in the assessment and extraction of the impacted tooth, and had not advised the patient of the heightened risk of nerve injury, or offered a coronectomy as an alternative treatment. The claimant stated the dentist should have referred her to a specialist for the extraction.  It was alleged that avoidable nerve injury had been caused as a result.

Having obtained expert opinion from a specialist in oral and maxillofacial surgery which supported the dentist's treatment, the DDU served a letter of response denying liability on behalf of the member. The response stated the patient had signed a consent form confirming there was a risk of nerve injury, the tooth had caused repeated problems and its extraction was justified and, having been referred to the member by the local hospital, a specialist referral was not required.

The claimant did not withdraw her allegations and issued legal proceedings.  The DDU instructed solicitors and further expert opinion was obtained from an oral and maxillofacial surgeon. The defence was served, denying liability on the basis that the risks of the procedure were properly assessed and the patient had provided informed consent. This was supported by the expert opinion.

Experts for both the claimant and the dentist met to discuss their opinions. They agreed it was not mandatory to offer a coronectomy and that the extraction was within the remit of a dentist with a specialist interest in oral surgery. They also agreed that 50% of dentists would have sectioned the tooth first, including the patient's expert, and 50% would not, including the DDU's expert.

The case proceeded to trial. The claimant's solicitors withdrew almost all of the allegations made and confined their case to the dentist's assessment of the risk of nerve injury and the extraction technique employed.

Initially, the claimant's barrister sought to argue that by not sectioning the tooth, the dentist was negligent. The court noted that, based on the joint meeting of experts, a finding of negligence in this regard would affect half of dentists in the country. On consideration, the claimant did not pursue this allegation. Following three days of submissions, the court found the patient was aware of the risks of nerve injury, had consented to the procedure and that the dentist had carried out that procedure reasonably.

The claim was dismissed and the claimant ordered to reimburse the dentist's legal costs, which had all been paid by the DDU.

Samuel Hedges
Lead claims handler

This guidance was correct at publication on 04/12/2013. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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