Niche expertise for risk assessment in dental claims

I’ve come across a number of cases recently where good claims nearly didn’t get off the ground because they were screened by people who lacked sufficient niche knowledge to risk assess a potential dental claim.  Fortunately, I was able to  assist, given my dental background:

  1. An ATE insurer turned down a case where a numb lip resulted from removal of a lower wisdom tooth without consent or even good reason, on the basis that the tooth was  diseased and needed to be taken out.  It was neither – it was the tooth in front which was diseased and needed to be taken out.  As I’ve said elsewhere – the numbering system(s) for teeth can cause all sorts of problems.  I was able to provide a positive prospects of success advice which enabled the case to be taken on for the claimant.
  2. A panel solicitor turned down a case involving undiagnosed gum disease, where reference in the records to “apical periodontitis”, which usually describes a problem having affected  the nerve of a tooth – an endodontic problem, affecting one specific tooth –  was misunderstood as being a reference to “periodontitis” ie gum disease.  I was able to clarify the true position and the claimant subsequently achieved a very favourable  out of court settlement.
  3. Solicitors consulted by an insurance company  for a client who had BTE insurance expressed the view that there would be “difficulty in proving causation” in a case where a dentist had failed to do anything about a poorly fitting complex bridge for approximately 18 months, by which time one of the supporting teeth was decayed beyond saving. The client appealed to the insurance company who said that if she obtained supportive advice from a barrister regarding foreseeable causation, they would instruct  another solicitor with the requisite “dental” expertise  to take the case, as they did not have a solicitor on their panel with this knowledge.  I was able to provide a supportive positive assessment of prospects and advise on next steps having assessed the papers, and the insurance company reimbursed the client for the cost of obtaining my advice accordingly.

A preliminary advice on merits from an experienced dental barrister can assist with investigating a potential claim and advising on next steps accordingly.

Contact Heather Beckett:

Instructing solicitors, insurers and potential direct public access clients are warmly invited to contact Heather at Goldsmith Chambers:

h.beckett@goldsmithchambers.com

Phone: 0207 353 6802, requesting to speak to one of the Civil clerks

Or e-mail my clerks on clerks@goldsmithchambers.com

 

 

Why dental negligence claims are “different”

A solicitor once said to me that they needed a barrister who “got” dentistry. They had a point.

For a start, there is the need to get your head around the nomenclature. There are at least three ways of tooth notation in common use in this country and that’s without the problem that arises when one of the molar teeth (the big ones at the back) is removed and another shifts along to take its place. What specific teeth are we looking at now – a first and second molar, a first and third molar, a second and third molar ? and anyway, which one of those was the one which had the treatment in question three years ago?

Then there’s the problem that, unlike with a person’s NHS GP records, dental records don’t usually follow a patient from practice to practice. So when investigating a dental claim, it’s sometimes necessary to trawl back in time.

The majority of dentists in general dental practices are self-employed, even if they are not the practice owner. That’s not always the case, but most of the time it is. So whereas it’s perfectly reasonable for a patient with a complaint to use the practice complaints policy first of all, when it comes to making a legal claim, it is most usually necessary to bring it against the specific dentist or dentists, not simply the practice.
And then there’s the problem which is like the one where you take your car for a service and it breaks down a week later due to something that the service simply could not have revealed or prevented. There are plenty of things that should be checked during a dental examination, but there are some things that simply can’t be found out. If nature lets you down a week after your check-up, it may just be one of those things.
A preliminary advice on merits from an experienced dental barrister can assist with investigating a potential claim and managing expectations appropriately.

Read about a recent case where the client benefitted significantly from my specialist dental input to her case here

Contact Heather Beckett

Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers:

h.beckett@goldsmithchambers.com
Phone: 0207 353 6802
e-mail:  clerks@goldsmithchambers.com

The value of legal representation at GDC FtP proceedings

It has recently been reported that a Freedom of Information request by Dental Protection to the General Dental Council has illustrated an apparent significant discrepancy between the level of sanctions applied to practitioners who are legally represented and those who are not.  The general suggestion seems to be that substantially more dental professionals  whose fitness to practise is found not to be impaired are legally represented than not.  In addition, it seems that many more dentists erased from the register (and therefore unable to continue to practice) following a hearing are unrepresented.

Read more here:

Reference to the GDC “Outcomes and Appeals list” which gives details of the outcomes of FtP hearings (although does not give information about  matters concluded before reaching the stage of a hearing) tends to  bear this out.  It is apparent that the problem is not restricted to dentists, but also other dental care professionals, including  hygienists, dental nurses and quite markedly, dental technicians, who  do not seem to make up a very great proportion of those FtP hearings reported but for some reason often appear either to be unrepresented at FtP hearings or fail to attend at all.

Read my recent research article on the published outcome of Dental Technician FTP hearings during 2019 here:

This latest information follows a Freedom of Information request by Medical Protection to the General Medical Council reported towards the end of 2018, which confirmed a similar effect of professional legal representation at Medical Practitioners Tribunal Service hearings and also Interim Order Tribunals.  Unrepresented GPs appear to fare particularly badly.  It therefore appears that it is important for GPs to continue to have membership of a medical defence organisation, even after introduction of the new Clinical Negligence Scheme for General Practice which will only cover GPs for NHS- contracted primary medical services and not any private work or matters brought before the regulator.

Read about a recent successful case of restoration to the Dental Register where I represented the applicant  here:.

 

I am a Public Access qualified barrister. I am also a registered Specialist in Restorative Dentistry and I have extensive experience in general and hospital dental practice as well as giving evidence at FtP hearings.

Read more about the direct Public Access here:

If you are facing FtP proceedings without any legal representation, contact me at h.beckett@goldsmithchambers.com or contact my clerk at clerks@goldsmithchambers.com Telephone 0207 353 6802.

 

Duty of Candour

The General Dental Council, along with all other  eight UK healthcare regulators has now published its guidance on “Duty of Candour”.  The guidance takes effect from 1st July 2016 and therefore becomes part of the “Standards for the Dental Team”, regulatory standards for dental care professionals.

The GDC has chosen to describe the duty of candour in its guidance as “Being open and honest with patients when something goes wrong”.  Quite properly, in my view, it explains that this description provides better clarity of meaning.

The GDC makes clear that telling a patient about something that has gone wrong and apologising is not the same as admitting liability.  This has long been the view of the indemnity providers also. It is important to remember that just because a dentist has said sorry to a patient this does not automatically mean that a negligence claim will be successful.

Likewise, if a dentist has breached their duty of candour, it is important to remember that breach of this regulatory standard does not necessarily lead to loss, sufficient to found a negligence claim.  As ever, all the pieces required, breach and causation, must be present. So once again, it is important to make sure the correct standard is being applied for the cause of action alleged.

You can read the GDC’s advice to accompany their guidance here  and the guidance itself here .

Contact me at h.beckett@goldsmithchambers.com or contact my clerk at clerks@goldsmithchambers.com Telephone 0207 353 6802.

 

Direct Public Access to a specialist Dental Barrister

It is possible for members of the general public seeking legal advice or representation to approach a barrister directly, without having to go through a solicitor. In an appropriate case, this can be efficient and save costs. Information about how the Public Access scheme works from the client’s perspective is available here and also here.

I am a Public Access qualified barrister. I am also a registered Specialist in Restorative Dentistry and I have extensive experience in general and hospital dental practice.  I can advise you on your potential dental claim, what you can do for yourself and the professional assistance which would be in your best interests. I can then assist you accordingly with appropriate aspects.

Fees for Direct Access Personal Injury cases

If you have had an accident which was not your fault and you wish to make a personal injury claim, or someone is claiming against you and it wasn’t your fault, I can advise and represent you, subject to the rules of the public access scheme for barristers.

Click here Public Access PI fees for more information.

Contact me at h.beckett@goldsmithchambers.com or contact my clerk at clerks@goldsmithchambers.com Telephone 0207 353 6802.

Mediation in dental negligence claims

Whilst most dental negligence claims settle without reaching court, negotiation can sometimes become “deadlocked”.  Mediation can, in selected cases, be a valuable ADR method to bring about a successful resolution or at the very least narrow the issues.  It can also create innovative solutions, cost savings and a speedier outcome than protracted litigation in the right case.

A party which unreasonably refuses to engage in mediation may face costs sanctions and it is now established that silence in the face of an invitation to mediate will generally be seen as an unreasonable refusal.

I have recently been involved in two dental negligence cases which successfully employed mediation to resolve the claims.

In the first, the claimant was a “celebrity”.  Both parties were very keen that confidentiality be maintained at all times.  Mediation was the ideal solution for both the claimant and the defendant dentist.

In the second, a retired defendant rather unusually did not appear to have adequate “run-off” indemnity cover and was faced with the prospect of having to fund his own defence.  Understandably keen to contain costs, mediation provided the opportunity for a relatively early resolution with which the claimant was satisfied.

As a mediation advocate in this scenario, I am able to combine my expertise as a barrister with my detailed understanding of the dental issues, both clinical and practical, in order to represent my client during principled mediation negotiation.

 Contact Heather Beckett

Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers h.beckett@goldsmithchambers.com:

Telephone:  0207 353 6802
e-mail:  clerks@goldsmithchambers.com

 

Help to get the expert you need for your dental negligence claim

Selecting the right expert, first time, is important, not only for reasons of cost and time, but it may well save having to “back-track” later.  As a barrister with experience as a general dentist, specialist dentist and expert witness myself, I can help.

In addition to general dental practice, there are a number of dental specialties registered by the General Dental Council. Some, but not all, registered specialists also have sufficient experience of general dental practice to enable them to provide expert evidence of both.

All registered dentists are entitled to style themselves “dentist”, “dental surgeon” or “dental practitioner”, and all are entitled to call themselves “Doctor”, as long as they ensure that the title is not used in a way which could mislead the public, for example by giving the impression that the dentist is a registered medical practitioner if they are not.

However, simply being expert at what they do doesn’t mean that a dentist will be the expert witness you need. Since it is very unusual indeed for a dental expert witness to actually have to give evidence in court in a clinical negligence or personal injury claim, many have never done so. An expert may have had extensive experience of providing reports for Low Value RTA claims but a clinical negligence claim is a different ball-game.   For a start, there is likely to be another expert opinion to contend with. Those experts who have had experience of providing expert evidence in regulatory matters are more likely to have had direct experience of cross examination, and with that often comes a revised and appropriately measured approach to expert witness work.

I have seen expert reports which could well leave that expert vulnerable to criticism of lack of independence, stepping outside their area of expertise and simply failing to comply with CPR 35 and the Practice Direction. I have even seen this when the report writer has undertaken training in report-writing.

As a dental barrister, I can help you identify the appropriate dental sub-specialty and assess the quality of an expert report at a draft stage, assisting with management of client expectations in the longer term.

 

Contact Heather Beckett

Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers:

h.beckett@goldsmithchambers.com

Phone:  0207 353 6802
E-mail: clerks@goldsmithchambers.com

Early advice to minimise costs in dental negligence claims

As a dental barrister, with my particular skill-set, I am ideally placed to assist you.

You cannot expect a potential defendant in a negligence claim to make out your claim for you.  A Letter of Claim alleging multiple breaches of duty which have no bearing on causation will invite a robust denial from an experienced claims handler at one of the dental professional indemnity providers.

On the contrary, a well-crafted, targeted Letter of Claim will leave them in little doubt as to whether their client is vulnerable.

It is important to ensure that the correct set of standards is being applied to avoid wasting time, costs and the opportunity to invite an offer to settle a legitimate claim at the pre-action stage.

Early advice before sending the Letter of Claim and careful framing of allegations can therefore pay dividends.  That’s where a barrister who is also an experienced registered dentist and understands the necessary legal tests can help keep costs down.  Sometimes taking this approach will avoid having to instruct an expert witness formally and the whole case can be settled without having to issue proceedings.

I can also suggest the appropriate dental expert sub-specialty, point you in the direction of experienced experts and identify areas where additional records are required if the need arises.

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Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers:

h.beckett@goldsmithchambers.com

Telephone:  0207 353 6802
e-mail:  clerks@goldsmithchambers.com