An Explanation of Breach of Duty & Causation in Dental Claims

 

Dental negligence is a complicated area of law, but in essence, a dentist will be negligent if they provide you with treatment which falls below the minimum standard of care, or skill, which the dental profession would regard as being acceptable in your case.  The dentist is therefore judged by the standard of the average competent dentist.

What is Dental Negligence & Causation?

​In order to claim damages from your dentist for negligent dental treatment, you need to be able to prove three things:

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1. That you have suffered a dental injury

2. That your dentist did something to your teeth that he or she was not supposed to do, or in fact failed to do something to your teeth that he or she was in fact supposed to do; (a breach of duty of care – the actual dental negligence)

3. That the dental injury you suffered was caused by something that the dentist did or failed to do (causation of injury)

Breach of Duty, Causation and Injury – must all be proved, usually using evidence in the form of an experts report from an independent dental negligence expert (not your treating dentist as they will be seen as partisan or “on your side” because they are already treating you) in order to make a valid dental claim for dental neglect. The dental negligence expert will be asked to criticise the treatment that has been carried out in the form a independent dental negligence report.  The reports will cover breach of duty of care along with causation of injury and the medical expert will also usually be asked to examine you and carry out a condition/prognosis report at the same time.

It is quite common to find in dental negligence claims that a breach of duty has occurred, or rather that the dentist has acted (or failed to act) in a way in which was substandard.  However, it is not enough in dental negligence law to prove that the negligence made a difference to the outcome, this has to be proved “upon the balance of probabilities”. i.e, a greater than 50% chance.  Caselaw suggests that the “but for” test should be applied to causation.  Essentially to establish causation of injury, the Court must ask  the question: “If it were not but for the defendants actions (or failure to act) would the claimant have suffered the injury that they did?”  If the answer is “yes” then the claimant will succeed in his/her dental claim.  This can be a complex area as there may be multiple causes of an injury.  The Claimant does not have to prove that the defendants breach of duty was the main cause of the damage provided that it “materially contributed” to the damage.  It is sufficient to show that the defendants breach of duty made the risk of injury all the more probable.

Some dental negligence claims which are strong upon liability/breach of duty can fail upon causation, and this argument is often put forward by the legal teams acting for the dentists accused of negligent treatment.

For example, in a periodontal dental negligence claim or a claim for gum disease, it is quite often argued by the dentists insurers that the patient failed to regularly attend dental appointments or failed to listen to the dentist when he or she was advising them to see a hygienist more regularly or perhaps gave advice to see a periodontist which was ignored.  These types of legal arguments are commonly raised when running a dental claim for periodontal or gum disease to try and help the dentist accused of dental negligence limit their liability.

I understand that bringing a dental claim and the issues surrounding breach of duty and causation are complex, but you can rest assured that I shall explain matters more fully at the appropriate time in your dental case.

Do you believe you are the victim of dental negligence? You may be entitled to claim compensation. Get in touch with Dental Law Claims today to book your FREE dental claim consultation.