Proving clinical negligence

Understanding how clinical negligence claims can be brought is important in knowing how to deal with them appropriately.

For a claim for clinical negligence to be successful, the claimant - often, but not always, the patient - must prove there was some failure by the dental professional to provide adequate care.

This can include any instances involving incorrect, delayed or poor treatment that led to further injury or suffering.

The claimant must prove it was more likely than not that:

  1. the defendant dental professional owed them a duty of care
  2. there was a breach of duty, which means the care fell below the standard expected
  3. avoidable harm followed as a result.

The patient must prove breach of duty of care and causation (that the breach of duty caused the injury or loss in question) for a claim to succeed.

Breach of duty and causation do not always go hand in hand. For example:

  • a patient could be harmed without the dental professional having been negligent - such as developing a dry socket after an extraction
  • a dental professional can be in breach of duty without any harm to the patient - such as in the failure to diagnose very early caries, which does not progress.

Clinical management and the Bolam test

  • Just because something has gone wrong or does not meet the patient's expectations, it doesn't mean the dental professional has been negligent.
  • The patient must provide evidence that a dental professional's clinical management or performance has fallen below a reasonable standard.

Whenever we help members in investigating a claim made against them, the clinical management of a patient is assessed by one of our dento-legal advisers and/or an independent dental expert against the Bolam standard. See our separate guide for more information on how we investigate a claim.

For dentists, the Bolam standard is that of 'a responsible body of dentists' practising in the same field, though this does not have to be the standard of the majority. For dental hygienists, it will be 'a responsible body of dental hygienists', and so on.

In the highly unlikely event that the claim went to court, the judge may decide not to accept an expert's evidence if it does not stand up to close inspection. It is up to a judge to decide if the standard of care is reasonable.

Consent issues

For any type of treatment, individual, valid consent should be obtained and any risks appropriate the patient explained. If problems occur and the patient was not warned of the risk, they may seek compensation.

Seek help from the DDU

Unfortunately, things can and do go wrong in practice, but we appreciate that is no consolation if you have just received a solicitor's letter, full of allegations of negligence and consequences for their client.

Of course, the allegations may be unfounded or incorrect and not all claims will proceed.

Seeking our professional help is essential at the first sign of a claim so we can provide you with the guidance and support you need at this difficult time.

This page was correct at publication on 05/01/2023. Any guidance 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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