What to do if you have a dodgy dentist

Monday 27 August 2018
Janet Tucci

If a dentist performs dental work that is sub-standard or that raises some concern for you, you can and should complain.  There are also some circumstances where it may be appropriate to sue for medical negligence compensation.

Can I sue my dentist?

Yes, but only when you have suffered a permanent and significant injury as a result of dental negligence.

You most likely cannot sue for the following common but unsatisfactory outcomes:

  • you felt excessive pain at the time of the treatment but it has now settled
  • you developed an infection requiring antibiotics but that has now resolved
  • you feel that another tooth is loose but it is not causing you any problems
  • the dental nurse didn’t remove all liquid out of your mouth quickly enough
  • you did not like the way that the dentist or their staff spoke to you
  • you were unhappy about the fees charged
  • you felt that a number of unnecessary x-rays were taken to increase the amount payable.

These types of complaints are better served by contacting the Health Complaints Commissioner (HCC).

Injuries that have resulted in compensation are generally associated with permanent nerve damage, altered speech and/or taste, damaged bone structures or jaw deformity and ongoing disease or severe psychological trauma.

To succeed in a legal medical negligence claim against your dentist you will need to establish:

  • that you have suffered a significant injury (as assessed under the AMA Guides; greater than 5% whole person impairment);
  • that your dentist performed treatment in a way that was below the required standard of an adequately trained dentist (negligence); and
  • that you suffered a permanent harm as a direct result of the dentist’s negligence.

Case studies

Robinson v Ng [2014] ACTSC 227

During the course of an attempted molar extraction, part of the root of the tooth was pushed upwards through the roof of the mouth and was lodged in the sinus.

The plaintiff required remedial surgery and claimed damages arising out of those events, including a substantial claim for economic loss. Ms Robinson was awarded $808,114.

Paterno v Hookey [2009] VSCA 48

A woman was left with severe ongoing pain following dental surgery to correct a malocclusion.  The judge held that the surgery was carried out without due skill and care, and that the patient was not adequately warned of the risks. 

The plaintiff required five corrective surgeries, and was left with permanent nerve damage.  Damages were awarded in the sum of $1,057,833.

Avenues of complaint

AHPRA

Health professionals are governed by a code of conduct and their practice and registration is regulated by the Australian Health Practitioner Regulation Agency (AHPRA). 

The code of conduct requires health providers to:

  • Provide health services in a safe and ethical manner
  • Obtain consent to perform the work
  • Conduct themselves appropriately
  • Report concerns about the conduct of other health providers if it is a serious risk
  • Take appropriate action in response to adverse events
  • Adopt standard precautions for infection control
  • Take appropriate steps to prevent their own health conditions being transmitted to a patient
  • Not make false claims about what their service can achieve
  • Not misinform clients about their skills or qualifications
  • Not practice whilst under the influence of alcohol or unlawful substances
  • Not provide treatment unless physically and mentally sound to do so
  • Not financially exploit a client
  • Not engage in sexual misconduct
  • Comply with relevant privacy laws
  • Keep appropriate records
  • Be covered by insurance; and
  • Provide clients with access to the code of conduct and complaints mechanisms.

If a health professional breaches the above code of conduct, a complaint can be made to AHPRA by calling 1300 419 495 or by making a web enquiry at www.ahpra.gov.au.

AHPRA will investigate the complaint, and has the power to fine, suspend, limit or cancel a practitioner’s registration to practise by referring the practitioner to the Dental Board for formal review. They can also obtain an explanation and possibly an apology for what has occurred during your treatment.

HCC

The HCC is a government body who also deals with complaints about health service providers. They too address concerns regarding any breach of the code of conduct. 

The HCC considers the various avenues to satisfy dissatisfied clients. The body is not just focused on monetary payouts but can also work towards obtaining refunds, advice and/or an explanation for what has occurred, allow access to denied health records, or possibly even obtaining an apology.

The HCC is a free service that can be contacted on 1300 582 133 or at https://hcc.vic.gov.au.

Free legal advice

There are strict time limits that apply to bringing a legal claim so you should consult an expert medical negligence lawyer as soon as you discover that a permanent injury has occurred.

Adviceline Injury Lawyers act on a “No Win, No Fee” basis – meaning that if we proceed with a claim you will only have to pay our legal costs if you successfully receive compensation.

To book your free appointment, call our Adviceline on (03) 9321 9988. When you call you will speak directly with a lawyer, not a call centre.

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