How a changing industry could affect dental negligence claims

Friday, 11 June 2021

Introduction

Thanks to the COVID-19 pandemic, it seemed like a long winter, but we can finally see the light at the end of the tunnel. However, what awaits us in the new normal may not be quite what we expected when it comes to our dental treatment. As waiting lists grow and fewer dentists accept NHS patients, a scarcity of treatment is precluding people from affordable care and could lead to more dental negligence claims, potentially in the guise of delayed treatment.

Background

With waiting lists at some dental practices now as long as 3 years and more dental providers becoming entirely private, patients are facing a “twin crisis” of access and affordability, which could lead to a glut of claims against the dental industry.

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The British Dentistry Association reported that between March and November 2020 19 million fewer treatments occurred in England alone, which could lead to “an oral health crisis”.

There were some calls to provide legal immunity from clinical negligence claims to treatment providers at the beginning of the COVID pandemic, these were resisted as, presumably, it could have endangered patients rather than protect clinicians.

Unlike Hospitals and GPs, dental practices can, to a much greater extent at least, manage their patients throughout the pandemic, as a patient with COVID will not be seeking treatment with a dentist.

That’s not to say dentists aren’t feeling the strain during COVID, nor is it to say that the industry was in good shape before COVID struck.

A complicated and historic nexus of issues, including Brexit, has led to local dental committees to call on the government to tackle the recruitment and retention crisis.

Healthwatch England, the independent body championing healthcare improvements, have called on the government to speed up reforms to NHS dentistry which would make “access to NHS dental services equal and affordable for everyone, regardless of where people live, their income and ethnicity.”

Effects

With longer waiting lists and no relief in the form of legislation in sight from central government, the pressures on dentists are here to stay. Even before COVID was part of our day-to-day lives, almost half of dentists wanted to reconfigure their practices as private. As certain common treatments such as root canals can be up to 300% more expensive at private providers compared to NHS tariffs, many people are being priced out of the market.

Where does that leave a patient who believes that their treatment was not up to a reasonable standard and may not have the recourse of remedial treatment available? Negligent treatment is one thing but bad treatment that led to potential negligent problems due to lack of remedial treatment, that could be a grey area of concern. These are potentialities which may find their way through the courts in the coming years.

Although there has been some temporary tinkering around the edges in how clinical negligence claims are run, inter alias encouraging various “positive behaviours” and a more digital outlook, for the time being the rules of engagement are the same.

The decision to make a claim of clinical negligence is rarely taken lightly. For anyone who is considering making a claim, it is important to consider that when mistakes have been made, the system should be geared up to prevent that same mistake from reoccurring.

Anyone who believes that their dental treatment has fallen below a reasonable standard, should at the very least bring the incident to the attention of their dental practice. Even though complaints procedure were paused in 2020 and a backlog will undoubtably exist, patients should still be encouraged to get their complaint on record. If any patient wants to escalate the situation from there, legal recourse will be available.

Reluctant claimants should also be made aware that English common law will eventually reflect the fact that the pandemic has left medical professionals working in incredibly stressful conditions, and mitigating factors would be factored in to defences.

Comment

Dental insurers were wise not to continue lobbying for a “negligence amnesty” throughout the pandemic, as this would have left patients in a redemptive no-man’s-land and would not have cultivated high standards.

Due to the added pressures for dentists during the pandemic and beyond, it is not pessimistic to assume that more mistakes could be made.

Clinical negligence practitioners should also be ready to assess how any treatment delays may affect the basis of a claim, which in turn may change the way claims are vetted.

It could be an age (or a waiting list) before we see any substantial changes to dentistry in the UK, but with dentists facing "an uphill struggle to restore services and get on top of an ever-growing backlog"" and a reluctant government hesitating on investment, the post-COVID new normal could be a petri dish for new dental negligence litigation.