A brief overview CLINICAL LEN D’CRUZ A “tort” is a civil (as opposed to a criminal) wrong for which the law provides a remedy TORT LAW Tort Latin word “tortus” meaning crooked or twisted A cyclist is knocked down and killed by a speeding car

A junior doctor mistakenly injects their patient with the wrong antibiotic causing permanent paralysis

An elderly woman breaks her hip tripping over a raised paving outside her local shop

A young child falls down a manhole left uncovered by post office employees earlier in the day and seriously injures his leg Trespass to Clinical land and negligence nuisance

Product Defamation liability

Vicarious Employers liability liability • A neighbour discovers that you are a dentist, and rings you one evening to ask your advice about appropriate mouthwashes. You recommend a product and the neighbour subsequently purchases it. However, it transpires that she has an allergy to one of the components of this mouthwash and develops multiple painful mouth ulcers.

Does she have a claim in negligence against you? Whilst polishing a patient’s teeth after scaling , the end cap of the handpiece drops off and lands on the patients tongue. The hygienist sits him up but he swallows it. He is not distressed, he is given an explanation and he leaves after paying.

Has the hygienist been negligent? If the patient sues who will be liable? In the case of swallowed foreign bodies, the complications of intestinal obstruction, perforation with subsequent abscess formation, haemorrhage, or fistula and failure of objects to progress, may occur.9 The majority of foreign bodies that cause obstruction lodge in the upper oesophagus. This can lead to oesophageal perforation with secondary mediastinitis and oesophageal obstruction with the risk of aspiration. Thus, swallowed foreign bodies retained in the oesophagus should be urgently removed using fibre-optic endoscopy. Once a foreign body has reached the stomach however, there is a greater than 90% chance of the object being passed from the gastrointestinal tract

Ingested foreign bodies associated with orthodontic treatment: report of three cases and review of ingestion/aspiration incident management T M Milton1, S D Hearing2 & A J Ireland3 British Dental Journal 190, 592 - 596 (2001) PROBLEM

COMPLAINT

HA/PCT

CLAIM PERFORMANCE REVIEW

GDC What is negligence

In everyday language it means “carelessness” or lack of proper care Loosely used by patients when something has occurred accidentally or a dentist has made a mistake “Negligence” has a very specific meaning in law What is the legal purpose of suing a dentist?

Criminal law purpose is to punish the offender because they have broken a public law and the State prosecutes the defendant

Civil law compensation (quantum) is paid to the claimant who has suffered harm -the intention of the compensation is put the patient (Claimant) in the same position as they would have been if the negligence had never occurred What is negligence

To prove negligence a patient must demonstrate, on the balance of probability that: a) the dentist owed a duty of care to the patient b) there was a breach of that duty by not exercising reasonable skill and care and c) damage flowed from that breach either directly or indirectly Duty of care

Breach of standard of care Duty of care

Breach of Damages standard of care Donoghue v Stevenson (1932)

• Mrs Donoghue drank from a bottle of ginger beer which contained the decomposing remains of a dead snail. • The defendant , Stevenson who manufactured the ginger beer, argued that the claimant had not purchased the drink (for it had been supplied to her by a friend) and that there was therefore no duty of care in contract law. • The Court, however, dismissed this argument, holding that a duty of care is owed to anybody who is affected by another’s actions or inactions.

When does a duty of care exist After drinking tea, three night watchmen started vomiting and attended the casualty department. The nurse telephoned the on call casualty doctor Dr Banerjee who told her to tell them to go home and call their own doctors. He did not examine the men who later died from arsenic poisoning. One of the men's wife's sued the hospital Decision in Barnett v Chelsea and Kensington Hospital Management Committee [1969]

It was held that Dr Banerjee had undertaken to exercise reasonable care and owed the men a duty of care which he had breached by failing to examine them himself.

“It is unfortunate that Dr Banerjee was himself at the time tired and unwell, but there was no none else to do that which it was his duty to do” Foreseeability of harm

Duty of care

Fair, just Proximity of and relationship reasonable A duty arises when:

• It is foreseeable that the claimant would be affected by the acts or omissions of the defendant • There is sufficient proximity between the Caparo Industries v parties Dickman [1990]1 All ER 568 • The court considers that it would be fair, just and reasonable to impose a duty in all circumstances of the case • Pregnant woman who was asthmatic called a GP to her home as she was very wheezy • The GP called an ambulance asking them to come “immediately please”. • Despite a second call the ambulance took 35 minutes to travel the 6 miles • In the ambulance the woman was given intermittent oxygen but shortly after arriving in hospital she suffered respiratory arrest that resulted in serious brain damage and a miscarriage Decision in and the London Ambulance Service[2000]

Court of Appeal held that the London Ambulance service had a duty to attend within a reasonable time once it had accepted the call The delay in attending which was unreasonable and unexplained and led to further injuries The mother was awarded damages Duty of care

Patient Mr MacKinlay had vasectomy operation in 1985 and was advised that he no longer needed any form of contraception.

In 1988 Mr MacKinlay began a new sexual relationship with claimant who subsequently became pregnant

Gave birth to healthy daughter but sought damages three years later for the delivery and upbringing of the child on the basis that she had relied on the negligent advice given to by them to Mackinlay .

Decision in Goodwill v British pregnancy Advisory Service [1996]

Court of Appeal held that the BPAS had no duty of care to someone other than their patient Mr Mackinlay who was not his wife or current partner

“Miss Goodwill was not an existing sexual partner of Mr Mackinlay but was merely .like any other woman in the world, a potential future sexual partner of his” What is a duty of care

Quite extensive

Covers obtaining consent,, confidentiality, record keeping, diagnosis, advice, treatment planning, execution of treatment, post operative instructions and management of the patient.

When does a duty of care arise? • On your way to work, you pass a road accident and notice that a man is still trapped in a vehicle. Do you, as a healthcare professional, have an obligation to stop and render first aid? If you do stop and help and something goes wrong, would you be liable? Medical or dental practitioners owe no legal duty to offer assistance in an emergency outside of their own practice

No Good Samaritan law in England but there is in many European jurisdictions with criminal and civil sanctions Richardson v LRC Products The claimant sought damages for Ltd loss of earnings, pain and suffering an the cost of bringing up her daughter after the condom worn by her boyfriend split during sexual intercourse.

The claimant argues that the condom was damaged by ozone.

The company argued she should have taken the morning after pill and that the ozone damage occurred whilst it was stored in the bathroom cabinet after it split.

The case was brought under Consumer Protection Act 1987 consumer protection legislation but the judge held that the claimant had failed to prove that the condom was defective under the act

Duty of care

Breach of Damages standard of care The man on the Clapham omnibus is a hypothetical reasonable person, used by the courts in where it is necessary to decide whether a party has acted as a reasonable person would – for example, in a civil action for What standard is negligence. The man on the expected? Clapham omnibus is a reasonably educated and intelligent but nondescript person, against whom the defendant's conduct can be measured. How does one determine the standard of care? • A psychiatric patient,John Bolam was receiving electro-convulsive therapy (ECT), but the anaesthetist did not administer a muscle relaxant or warn about the 1-2% risk of fractures if not restrained. • As a result, his body went into severe spasm and he suffered hip fractures and dislocations. • The defendant argued that, although some anaesthetists did administer muscle relaxants, it was not common and universal practice amongst the profession. Bolam v Friern HMC (1957) The Bolam Test

• “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.” (McNair, J) The Bolam Test

• …putting it another way round a man is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion who would take a contrary view” (McNair, J) You are a dentist in general practice and you refer a 13 year old boy to the specialist orthodontist for an opinion on the patient’s developing malocclusion. The orthodontist works part time in the same practice. She refers the patient back to you advising you to take out all four second premolars. You correctly take out the lower second premolars but mistakenly take out the upper first premolars. You realise your mistake but do not tell either the patient or his mother who attended with him.

You approach the orthodontist rather sheepishly the next day and tell her what has happened.

She advises you that the treatment will take about 4 months longer to close up the space but aesthetically there will be no downside.

Q. Would the incorrect extraction be considered negligent?

Q. Should you tell the mother?

Duty of care x

Breach of duty x

Damages x

Would the wrong extractions still be negligent if the orthodontist did not take an extra 4 months to complete the treatment? Can a mistake be negligent?

High risk pregnancy and child was born with severe and irreparable brain damage

Mother had been in labour for 22 hours and six attempts at normal delivery using forceps had been tried.

Mother claimed damages arguing that the obstetrician had been negligent in pulling too hard and for too long and should have proceeded to a Caesarean sooner Decision in Whitehouse v Jordan [1981]

“An error of judgement may, or may not be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional….then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence”

Lord Fraser Checklists seem able to defend anyone, even the experienced ,against failure in many more tasks than we realised. They provide a cognitive net. They catch mental flaws inherent in all of us-flaws of memory and attention and thoroughness. CLASSIFICATION OF PROBLEMS

• SIMPLE • COMPLICATED • COMPLEX • Few basic • Can be broken • Problem is techniques to down into steps unique learn but once • No • Expertise mastered straightforward valuable but following the recipe may not be recipe will bring • Often require sufficient high chance of different • Outcomes success people and remain specialist uncertain knowledge • Importance of • Unanticipated teamwork difficulties • Discussion frequently with colleagues • Once learnt can to problem do it again solve Fallibity of memory and attention with routine matters

Skipping steps even when you know they should be done-you think they don’t matter because problems have not occurred before • Perform task from DO- memory and experience then stop and check CONFIRM • Eg sending off lab work

• Carry out tasks as they check them off READ-DO • Eg new patient consultation, pain history ENDODONTIC TUB

Rubber dam Apex locator Gates Glidden burr Safe end cutting burr File lubricant Endodontic motor Rotary files

Procedural tubs SLIPS and OMISSION MISTAKE VIOLATIONS LAPSES Use a Education Don’t take Concentrate checklist and training chances

Have a Avoid Know the Audit protocol distractions rules

Have a Avoid time Set an prompt Peer review pressure example Heinrich Ratio

1 major injury

29 minor injuries

300 near misses

600 unsafe acts WHAT’S TRENDING IN CLAIMS?

50 o Perio cases cover extended periods often stretching back many years , involving more than one practitioner and hygienist

o More than half DPLs high value perio cases included treatment carried out in the 1980’s and 1990’s

o Law firms place “advertorials” in local papers naming the dentist whom they have won perio claims against and invite other such patients with bleeding gums to contact them 12

3 1 o The end of item-of –service and the detailed fee scale narrative that went with periodontal claims for treatment disappeared with the UDA system o The SDR narrative required BPE scores and other indices to be measured for different levels of exams and perio treatment (10c)

o 10 years worth of the 2006 contact and the unintended consequences of it will cost millions to resolve o Future treatment costs are large and there are more of them. Most claims cost between £25,000 and £75,000 to settle but many of them cost £100,000 or more o Record keeping does not match what the dentist and hygienists say they told the patients about OHI, smoking , risk factors and progression of the disease o Few clinicians can be entirely confident that no such cases are lurking in their filing cabinets from 10- 20 years ago Common allegations

• Failure to diagnose periodontal disease • No evidence of periodontal monitoring or risk assessment made • No periodontal treatment carried out • No referral made

54 “Registrants who do not place or restore implants may see patients that have implants in-situ and they could be vulnerable to a complaint or a claim, if they do not diagnose in a timely manner the development of peri- implantitis” Dental Protection 2015

Peri-implantitis - >1mm of bone loss after the first year of installation together with bleeding and/or suppuration (Sanz & Chapple 2012)

SHOULD YOU BE CHECKING FOR POCKETS AROUND IMPLANTS WITH A METAL PROBE? YES YOU SHOULD

55  Adequate screening (BPE)  A diagnosis and INFORMING What is THE PATIENT  Reasonable standard of NSPT expected  An assessment of the tx outcome of a GDP?  A long term plan/long term care  Referral if necessary  High standard of record keeping

No BPEs No measurements for codes 3 and 4 Lack of and poor quality radiographs 15 min S/P is not adequate RSI Poor quality OHI and lack of Dento-legal smoking cessation Can not just ‘ref to hygienist’ GDP risks for the needs to take control/ over see care NHS Vs PVT hygiene appointments GDP? No definitive decisions or assessments made about where the patient is going Ignoring implants WHEN SHOULD WE CHANGE OUR CLINICAL PRACTICE ?

Periorbital emphysema during endodontic retreatment of an upper central incisor: a case report

A. Al-Qudah, F. Amin & Y. Hassona

Discusses how subcutaneous emphysema could arise in endodontic treatment. Stresses that in endodontics, subcutaneous emphysema is caused mainly by the use of air syringe to dry canals and is mostly a preventable complication. Highlights that the majority of cases are managed conservatively, but complicated cases require immediate medical attention.

BDJ November 2013 - Vol 215 No 9 Does the harm have to be physical?

• Two former patients brought an action against an oncological surgeon in Baltimore , alleging that he operated on them in 1989 without informing them that he was HIV positive.

• The surgery itself was performed with skill and care.

• Almarez was diagnosed with full blown AIDS in 1989 and died in November 1990.

• The claimants found about this from a newspaper article and obtained tests

• Both tested negative for the virus; but they claimed that they suffered mental distress, headaches and sleeplessness before the result was known.

Faya and Rossi v Almarez (1995) Vicarious liability

An employer is liable for the negligent acts of its employees if they are acting in the course of their employment. Thus, the victim of negligence will usually sue the employer rather than the individual practitioner responsible. Duty of care

Breach of Damages standard of care Has the negligent act caused the harm or injury for which compensation has been sought The “but for” test

The Court ask: would the claimant have suffered the injury but for the defendants negligence

If no then the defendant is liable Barnett v Chelsea and Kensington Hospital Management

Even if Mr Barnett had been admitted by the doctor on call the effects of the arsenic poisoning were so advanced , their effects could not have been reversed by the antidote.

Therefore though the Dr Banerjee failed in his duty of care to examine Mr Barnett the case failed on causation ie his injuries were not caused by the doctor’s negligence Material contribution

An employee brought a case against his employer for failing to have proper washing facilities

He had to cycle home covered in brick dust which caked his skin and led to dermatitis

He was obviously allergic to the dust but the House of Lords held that the employers failure to provide washing facilities materially contributed to the dermatitis

McGhee v National Coal Board[1972] Several causes

In Martin Wilsher’s case there were five possible causes of the blindness including the negligent act of providing too much oxygen

All the other four natural conditions could equally have been the cause.

House of Lords concluded that since the negligent act could not be proven to be more likely a cause than the other Martin Wilsher could not win his case.

Breaking the chain of causation

The new act “novus actus interveniens” has to be unconnected with the original negligent act and not be foreseeable.

A woman sued the hospital after falling pregnant following a failed sterilisation operation.

The claimant had in fact known that the sterilisation had failed at the time of sexual intercourse and therefore the hospital was not liable as the chain of causation had been broken.

DEFENCES TO NEGLIGENCE

Contributory • Failure to follow advice • Pidgeon v Doncaster –failure to have negligence further smear test

• Morris v Murray-passenger joyriding in light aircraft with drunk pilot Consent • In healthcare a patient does not consent to negligent act

• Three years from date of knowledge Limitation Defences to clinical negligence • Consent (volenti non fit 1) The defence of consent applies when the claimant voluntarily injuria) agrees to run the risk of injury 2) Where the claimants is proved to have contributed to the injury by • Contributory negligence failing to take proper care for his own safety-untested in courts in health care cases • Illegality (ex turpi causa 3) defence of illegality very seldom raised in healthcare issues non oritur actio) 4) Three years from date of knowledge • Limitation of action

(Limitation Act 1980)

75 76 The Professional Duty of Candour

. Put patients’ interests first- Principle one . Be honest and act with integrity-Standard 1.3 . Offer an apology and a practical solution if a patient makes a complaint-Standard 5.3.8

Being open and honest with patients Before treatment starts: • Obtain valid consent

78 Being open and honest with patients

When things go wrong: you must • Tell the patient • As soon as you realise that something has gone wrong with a patient’s care which has caused them harm or distress, or which could do so in the future • What has happened, what has been done to put matters right and what it means for them • Respect patient’s decision if they do not want to know the details • Record the discussion

79 Being open and honest with patients

When things go wrong: you must • Apologise • As soon as possible • An apology is more likely to be meaningful to the patient if it is personal to them and relevant to what has happened, rather than being a general expression of regret You should explain: • What happened • What has been done or can be done to put matters right • What will be done to stop the same thing occurring • Record the apology in the patient’s notes 80

The Professional duty of candour What are the consequences of non-compliance? The Indicative Sanctions Guidance used by the Professional Conduct Committee(PCC) in fitness to practise hearings provides that the PCC should take very seriously, when considering what sanction to impose, any finding that the dental professional ‘’took deliberate steps to avoid being candid with a patient or to prevent someone else from being so’’

81 Statutory duty of candour

“registered person”

“provide an account”

“apology”

“notifiable incident”

82