Claiming for Historical Dental Negligence

A dental expert witnesses role in historical dental negligence

Dentists and other dental practitioners are trusted to look after our oral health, whether carrying out a routine check-up, performing routine or complex procedures, or providing dental advice. In the vast majority of cases, dental practitioners provide a high level of service, but this is not always the case. Acts of dental negligence such as poorly delivered treatment, performing treatments that are unnecessary, and failure to diagnose oral health disease can have serious and long-term consequences. Unfortunately, it may not become apparent for many months or years that dental negligence has occurred. It may be that another dentist discovers the poor practices of another practitioner, or the patient may go on to suffer symptoms which lead them to seek medical advice. Where there has been an extended period of time between a possible act of dental negligence and the discovery of harm to oral health, this delay may pose a problem in a related claim for clinical negligence. Here we will discuss the challenges of delayed claims for dental negligence and how an expert dental witness can ensure a successful outcome for your clients.

Historical Dental Negligence

The Limitations Act 1980

Under the ‘special time limit for actions in respect of personal injuries’ contained in the Limitations Act 1980, all personal injury claims, including for dental negligence, must be brought within three years from:

  • the date on which the cause of action accrued; or
  • the date of knowledge (if later) of the person injured.

This is important because, where a person only becomes aware that they have been injured as a result of dental negligence, they then have three years to bring a personal injury claim. The challenge is often in proving that the individual genuinely only became aware of the injury caused after the initial limitation period.

The Court can exercise discretion as to whether they will allow a claim for dental negligence after the limitation period, but they will only ever do so if there is a strong reason.

An expert dental witness can play a key role in overcoming any challenges regarding the limitation period. They will either provide the necessary evidence that your client only became aware of the act of negligence after the initial three-year cut-off for claims or, where this is not possible, make a case for why the Court should exercise its discretion.

The three-part test for medical negligence

Another key challenge when bringing a claim for dental negligence many years after the event that caused the damage or injury is in satisfying the three-part test. The three-part test for medical negligence claims requires all of the following criteria must be met:

  1. The dental practitioner owed a duty of care
  2. The duty of care was breached, and;
  3. The person suffered harm as a result of this breach.

Given that all dental practitioners have a duty to care, the first part of this test is straightforward to prove. When it comes to the second part of this test, it must be shown that the level of care provided fell outside that of a reasonably competent dental practitioner (the Bolam test). The final part of this test then requires the establishment of a clear link between the malpractice of the dental practitioner that the resulting harm to the patient.

As time moves on, it can become more difficult to prove that a breach of care occurred, especially if medical notes are no longer available or the practitioner is no longer practising. It is also possible that the recollection of events of either party may be challenged. In addition, where a person has gone on to receive a diagnosis of serious disease (e.g. oral cancer), it may be problematic to prove that a dental practitioner failed to take appropriate action several years ago.

Expert dental witnesses understand all of these challenges and know how to find evidence of breaches of duty of care where negligence has been alleged many years in the past. They will look at all of the evidence available from a range of sources (e.g. dentists, other dental practitioners, GP, or other medical physicians) and link these together to gain a complete picture of the series of events. They understand all of the forms of evidence that can be used and those that carry the greatest weight in this type of proceeding.

Our summary

Discovering that harm was caused due to poor medical practice by a dental practitioner many years ago can be deeply distressing for clients. Bringing a clinical negligence case to cover any losses incurred and cover medical treatment to rectify the problem requires the input of a dental expert witness for the reasons outlined above, and this is especially so when the date of knowledge is over three years after the date of the alleged wrongdoing.


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