• Caught in the middle of feuding parents?

    Avoid being caught in the middle

    Generally, people under the age of 18 years are capable of consenting to health treatment if they understand the nature, consequences and risks of the treatment. Whether the child has capacity to consent will depend on the age, maturity and intelligence of the particular individual and the nature and seriousness of the treatment.

    Where the health practitioner concerned is of the opinion that the child is not capable of consenting, then either of the parents (or guardians) may consent to treatment, unless there is a Parenting Order to the contrary.

    In most instances, it will be the parent and not the child who is paying the costs of treatment. For this reason, in cases where there may be disagreement about the course of treatment to take and who will cover the costs, it is good practice for practitioners to draw up a treatment plan setting out the proposed treatment, the estimated costs, and who will be responsible for payment. The treatment plan can then be signed by the consenting parent and kept on the file.

    Practitioners should keep in mind that even where only one parent has consented to the treatment, both parents have the right to request access to the child’s clinical records (absent any Parenting Order to the contrary). By having a written treatment plan to hand, you can demonstrate to another parent (or guardian) who disagrees with the approach to treatment, that valid consent to the treatment has been given.

    This article contains information of a general nature only, and is not intended to constitute the provision of legal advice.

  • A reminder to ensure the dental justification for treatment plan is clearly recorded

    Author: Tamir Katz, Special Counsel, Meridian Lawyers

    In this case, the Dental Board of Australia conducted an investigation after a patient notified the Australian Health Practitioner Regulation Agency (AHPRA), alleging over-diagnosis by a dental practitioner.

    The key facts:

    • A patient presented in 2015 for extraction of a heavily filled tooth which was now fractured and un-restorable.
    • The tooth was extracted simply and without complication.
    • The patient had enough funds to pay for the tooth extraction only.
    • The patient’s last attendance with a dentist was in 2010/2011 when he received treatment under the then current Medicare Chronic Dental Diseases Scheme.
    • The dentist took the opportunity to provide general advice to the patient regarding his dentition and referred the patient for an OPG radiograph at a local imaging practice. This cost was covered by Medicare.
    • The patient returned to the dentist the same day, for review of the OPG, and for an oral examination, scale and clean and further advice.
    • The dentist reviewed the OPG radiograph and diagnosed a number of carious lesions based on a thorough clinical examination and with the use of a Microlux Transilluminator.
    • The practitioner made the following entry in the clinical records:

    Checked for caries using microlux light. Full mouth charting done.
    Rads not taken as pt did OPG earlier in the day.
    diagnosis: caries in the 16,14, 13, 47, 22, 23, 26, 37, 34, 33.

    Treatment plan:

    Appointment 1
    531 16 P, Adhesive restoration. 1 surface posterior tooth
    531 14 M, Adhesive restoration. 1 surface posterior tooth
    531 47 M, Adhesive restoration. 1 surface posterior tooth
    521 13 B, Adhesive restoration. 1 surface anterior tooth

    Appointment 2

    521 23 B, Adhesive restoration. 1 surface anterior tooth
    532 37 DB, Adhesive restoration. 2 surface posterior tooth.
    534 26 MODP, Adhesive restoration. 4 surface posterior tooth
    531 34 M, Adhesive restoration. 1 surface posterior tooth
    521 33 B, Adhesive restoration. 1 surface anterior tooth
    521 22 M, Adhesive restoration. 1 surface anterior tooth

    • The patient was unable to pay for any bitewing or periapical radiographs, and the practitioner could not recall whether these were in fact recommended.
    • The patient was unable to pay for the restorative treatment that was recommended. He therefore did not receive any treatment for the carious teeth. The Medicare CDDS did not exist by the time of the 2015 attendance.
    • The patient reportedly attended another dental practitioner who reportedly diagnosed fewer carious lesions.

    The patient made a notification to AHPRA alleging over-diagnosis by the first dental practitioner.


    The Dental Board of Australia conducted an investigation into the notification and expressed concern that the practitioner the subject of the notification had diagnosed caries without the benefit of bitewing radiographs. The Board was clearly concerned that the practitioner may not have appreciated the diagnostic differences between an OPG radiograph and a bitewing radiograph for diagnosing caries. The practitioner’s records unfortunately did not record whether bitewing radiographs were recommended or offered and whether the patient had refused based on cost.

    On the contrary, the clinical records unfortunately gave an inference that the practitioner had relied upon the OPG radiograph for diagnosing caries. The records did not record details of any conversation between the practitioner to the effect that any diagnosis may be compromised without the benefit of bitewing radiographs, which is relevant to informed consent.

    The investigation concluded on the basis that the Board cautioned the practitioner to in future always ensure he uses appropriate diagnostic radiography including bitewing radiographs for caries detection as part of a comprehensive examination.

    Discussion and message to practitioners

    Health practitioners can fall into traps when it comes to treating friends, or when favours are requested of them, or when treating impecunious patients. Practitioners are reminded to be especially vigilant in these circumstances, and particularly when a patient presses a practitioner to provide a compromised treatment, which goes against the practitioner’s better judgement.

    Vigilance in these circumstances means:

    1. Stay true to your training and best practice for diagnosing and treating patients. Just because a patient has the right to determine their treatment does not mean that the practitioner has an obligation to provide a treatment which goes against the practitioner’s better judgement.
    2. A patient has the right to select his or her treatment after having been provided information regarding treatment options and advice explaining the pros, cons and risks of each (particulars of which must be recorded in the records). But a practitioner has the responsibility to provide advice and a reasonable standard of care. In the above case scenario, this may have included refusing to provide a diagnosis or a treatment plan for the restoration of teeth which required a bitewing radiograph to properly assess the presence of caries.
    3. A treatment plan, even if the most compromised of a number of options, must still be a reasonably acceptable treatment plan for the presenting clinical circumstances. It must be treatment that a significant cross section of the profession would support, and if carried out it must be performed to a reasonable standard. If the treatment plan was not a reasonable treatment option, then the fact of the patient having consented to it will, not of itself, justify the treatment.
    4. Finally, the importance of good dental records in the above circumstances cannot be overstated. Records should include details of the precise advice given to patient including details of the risks and compromises associated with the treatment. If a patient elects treatment which is the lesser of a number of treatment options and which possibly goes against the practitioner’s better judgement to carry out, then this should be a red flag to the practitioner to ensure the records are exceedingly thorough.

    In the above case, the practitioner diagnosed ten carious teeth without the assistance of bitewing radiographs.

    The cost of treatment to address the caries was in excess of $1,500 – for a patient who could afford neither the restorative treatment nor bitewing radiographs to support the diagnosis that underpinned the treatment plan.

    This raises questions whether the diagnosis was or could have been accurate, and hence whether the treatment plan was reasonable.

    Had the following information been recorded in the notes:

    • For those teeth that objectively required treatment details of the clinical findings that underpinned the recommendations;
    • For those teeth that appeared to require treatment, but for which bitewing radiographs were required, a notes of the fact, and of the advice to the patient.

    But even if the information appeared in the clinical record the practitioner is unlikely to escape an adverse finding and sanction from the Board, unless the treatment plan was reasonable and clinically supported.

    For further information, please contact Tamir Katz, Special Counsel.

    Download this article.

  • Repair dentistry – stitch in time or supervised neglect?

    The patient was a 40-something single mother in the country. She had survived the good times and the bad, during which she attended the same family dentist since her teenage years. She had good rapport with her dentist and had received regular treatment. As a result, she felt that she was in good hands and believed him when he said that ‘all was well for the time being’.

    Circumstances change and she moved to the city, soon after which she developed a toothache and contacted a local dentist in her new suburb. Her new dentist diagnosed pain in the same tooth that had been recently restored in the country and on further investigation discovered caries and pulpal involvement. Dressings were placed for sedation on this tooth and other dubious looking lesions. A thorough examination of the whole mouth with radiographs was also recommended.

    At the consultation appointment (after the initial investigations), a treatment plan was outlined. This consisted of several restorations, some extractions of compromised teeth, and a number of endodontic therapies with subsequent full coverage as things progressed. A quotation of up to $20,000 was estimated to bring the dentition up to manageable status. That is, on the proviso that the patient maintains excellent home care, regular maintenance and adherence to a long course of dental therapies in specialist and general dental care.

    The patient was naturally alarmed by the progress of her dental disease. Not surprisingly, she needed some answers as to why things had, in her mind, deteriorated so rapidly after having had regular dental care all her life.

    Investigation of her previous dentist’s records and reports revealed a number of pertinent issues, which became quite confronting for the dentist. This can also serve as quite a lesson in how we treat our patients and what their later perceptions might be.

    The dentist’s recollection differed markedly to the patient’s. He mostly saw her in emergency situations because she was a nervous patient to handle. Therefore there were constraints on how much pain relief treatment he could provide in any one appointment, perhaps looking forward to continuing treatment in the future. There were always time constraints because of the patient’s work commitments. The dentist was well aware that he was never on top of total conservation, he was merely putting out spot fires while the forest continued to smolder.

    The practice was further limited, in that endodontic, crown and bridgework were regularly referred to a small number of specialists in the rural region. Travel to the city was not an option. He felt that he was doing all he could given the restrictions placed on him for many reasons. The region was unfluoridated, and oral hygiene and diet were varied and questionable.

    The dentist in the city now finds that the patient has improved her oral hygiene routine and diet. Plus, since she has been totally compliant with her treatment plan, her dental restoration is now progressing. She has a better appreciation of her dental situation, and has been introduced to treatment modalities which she would not have had access to with her former dentist. She is now well into the total conservative phase of treatment, and beginning to entertain the concepts of ongoing care and prevention.

    The matter was ultimately settled for a sum amounting to several thousand dollars.

    Key learnings:

    1. Patients being treated over a long period of time are not static in their ideas of how the practice of dentistry should continue on their behalf. The presence of the media, the internet, and the experiences of peer group are all powerful influences that we can never underestimate. We need ongoing professional development –the patient already has it.
    2. Repair of a broken tooth may be prudent in the case of a clean cusp fracture when no caries is involved, occlusion is not compromised, and the future full coverage is described and prescribed for its midterm management.
    3. Circumstances and patient requirements can change, and prescription has to change with them. What may have been adequate in the past may not be acceptable now.
    4. Either we elect to do endodontic treatment properly or not at all. A root canal dressing to relieve pain is fine, but needs to be followed up with a definitive conclusion. A patient will have no appreciation of a treatment done hurriedly or to save a referral, if retreatment has to follow – even years later.
    5. Communication is, as ever, the key to the ongoing practice of dentistry. However, it gathers new meaning as the years go by. A recall appointment should perhaps be now looked upon as the ideal opportunity to discuss ongoing goals in a revised interest in the patient’s needs.
    6. Nothing stands still – neither should we.


    Dr Geoff Andrews
    Community Relations Officer / Professional Consultant
    ADAVB Inc.

  • A bridge too far

    ‘A Bridge Too Far’ is the title of Cornelius Ryan’s epic reconstruction of the British Army’s parachute and armoured thrust across Holland to the Rhine and Germany in late 1944. If it had succeeded it would have shortened the war and incidentally but not coincidentally, made it a British rather than an American victory. In making this thrust, Montgomery ignored his lifetime’s instinct and training and launched this campaign with minimal planning, minimal consideration of the risks, minimal consideration of other options and put the plan into action in less than two weeks. To succeed, the plan required faultless military intelligence, every phase to work perfectly with no breakdowns and the weather to remain fine. Early in the piece one of the parachute generals opined that “it was a bridge too far” but was ordered to get on with it. The general was aware that they had ignored the advice of the Free Dutch Forces, and most of the troops were keen and eager but lacked combat experience. It’s a matter of history that the essential elements all broke down despite the heroism of the frontline troops. There was much pain, sacrifice and loss, the war was lengthened and the Americans re-exerted their dominance.

    So, how do the lessons of this military experience relate to Dentistry? Recently, there have been discussions of how on the one hand you should listen to the advice from Guild Insurance warning about the risks of practitioners exceeding their scope and capacity, but on the other hand, if you can’t develop your skills in general practice then you remain professionally underdeveloped. It is accepted that although you can be taught the relevant principles in Dental School, you must be able to enhance your actual skills after registration and indeed, for the rest of your practising life.

    Aspects of this were illustrated in a recent interstate medico-legal case in which I was involved as an expert. (The key facts are accurate but it has been modified to protect those involved). A 40ish successful business woman asked a young dentist as to whether anything could or should be done about a single edentulous first molar space in the mandible. The tooth had been extracted long ago but it was only recently that she had the time and finance to do anything about it. The dentist replied that indeed, things could be done, a bridge was the answer and why not start today, so they did. During the bridge construction the lady asked if ever anything went wrong with bridges and was told that “nothing could go wrong”. Indeed it did and was followed by three years of pain and loss, multiple visits to the dentist, various medical and dental specialists and many treatments without result.

    Eventually, an interstate expert, an Oral and Maxillofacial Surgeon (guess who) said to her that if the pain had started with putting the bridge in let’s take it out. “At last”, said the lady, so the bridge was removed. Soon after the patient’s pain went but the dentist’s pain commenced as lawyers were consulted. The legal pain went on then for a further three years but wisely just before it came to trial, the matter was settled out of Court.

    What are the lessons from this? Although it was quite a nice bridge that the dentist had made he had erred in a number of places. He certainly failed to give the lady the full range of options; namely do nothing as she had been like it for a long time and there would be no problems with doing nothing. This was not an aesthetic issue, minimal (less than 5%) reduction in chewing ability and healthy adult teeth do not drift. A removal or partial denture could be made but is a poor option for a unilateral single tooth loss. A bridge is an option but with some risks and a significant failure rate over time. Alternatively, a single tooth implant could be made but is associated with increased risks. Essentially, the dentist gave her only one choice which is not a choice. Thus legally she could not give informed consent.

    He knew that the lady was a bruxist before he started the bridge and learned much more about her intense personality and bruxing habits when she was in pain and in legal pursuit. He also knew that she had a skeletal class three malocclusion with a cross bite but failed to take this into account and in particular, to understand the extreme lateral loads which could be generated by her bruxing on the bridge and its abutments.

    He failed to give the lady time to consider the options. Indeed, as a savvy business operator she would have had no difficulty in travelling a few hundred kilometres to a metropolitan specialist for an implant. With careful research, she could have found one with the necessary skills and training not to screw the implant into the mandibular nerve and to graft sufficient bone to replace the marked alveolar atrophy. A specialist in prosthodontics should have been involved to ensure that the crown was not overloaded by her malocclusion and bruxing. Alternatively, as a smart lady, she may well have decided that doing nothing really was the way to go.

    Lastly, although the dentist could demonstrate that he had made a number of bridges, he could not demonstrate that he had attended any courses in bridgework, occlusal problems or TMD since he had graduated. He had become comfortably isolated as ‘the expert’ in his solo practice. Interestingly, once the bridge was made and the pain started he, and indeed, all of the dental specialists she variously consulted were keen to keep the bridge in situ. Most looked at it as a bridge with the patient’s mouth wide open, rather than infunctional (dysfunctional) occlusion. It took a non-restorative specialist from interstate to indicate that “if in doubt, out”.

    So what does a military strategy to end World War II and this dental case have in common? Both failed to adequately consider the options, effectively plan and train and to change the plan when things went wrong. Both did go horribly wrong with much pain and suffering to those involved, one on a macro scale and the other on a micro scale.

    So, what should a general dental practitioner do to help their patients with complex problems and to develop their scope? On the one hand, one does need to read and think about the advice given by the dental liability organisations regarding risk. If however a practitioner wants to broaden their scope and knowledge then they should carefully think, plan and improve their skills by attending hands on courses and working with specialist mentors. Indeed, most commonly, the practitioner who gets into trouble doesn’t do any of those things and plunges in with supreme over confidence. If you have reached this spot in the article, congratulations, you probably are already a careful and prudent practitioner. So, you are less likely to attempt a “bridge too far”.

  • The wisdom of Solomon

    The Biblical figure King Solomon lived between 1000 BC and 931 BC. The Bible portrays him as great in wisdom, wealth and power. One of the qualities most ascribed to Solomon is his wisdom. There is a famous account demonstrating this, wherein it was said that Solomon suggested dividing a baby in two to determine its real mother. In this often-quoted passage, two prostitutes came before Solomon to resolve a quarrel about which of them was the true mother of a baby. The other’s baby died in the night and each claimed the surviving child as hers. When Solomon suggests dividing the living child in two with a sword, the true mother is revealed to him because she is willing to give up her child to the lying woman rather than have the child killed. Solomon then declares the woman who shows the compassion is the true mother and hands the child to her.

    An oral surgery mentor of mine once replied to my question “Why are third molars called wisdom teeth?” with the answer “Well, in my opinion it is because you need the wisdom of Solomon sometimes to know which ones you should remove and which ones you should leave”.

    The wisdom of Solomon

    In any event, we have to say that wisdom teeth are not like Mt Everest! The celebrated mountaineer, George Leigh Mallory, is famously said to have replied to the question “why do you want to climb Mt. Everest?” with the retort: “because it is there”. Well, certainly third molars don’t necessarily need to be taken out, just “because they are there”! The decision to surgically remove or not to remove wisdom teeth is sometimes a complicated one, given the many factors which may be relevant to the decision. Fortunately, if I am proud of one thing about the dental profession, it is the universal willingness of experienced practitioners to assist their colleagues when they ask for help. Perhaps the reason for this may lie in the universal wish to help them avoid the same mistakes that they themselves may have made in their younger years!

    But I digress. This article is a case report of a recent case concerning a Dental Board complaint which was lodged by the family of a young man who had presented with some anterior crowding in the upper arch. His mother was especially concerned about a buccally drifted upper anterior tooth, tooth 21.


    To address the patient’s chief complaint, the dentist, Dr X, discussed various options to correct the rotated and labio-versed tooth 21. The patient stated his aversion to full fixed orthodontic therapy. Further orthodontic options were given, which were not well received. Finally the mother and the boy decided that the only acceptable option for them was to have the four impacted wisdom teeth surgically removed. They were both keen to have this done as soon as possible, notwithstanding the approaching HSC examinations.

    In discussions with the practitioner, it is interesting to note the mother of the boy was advised that it was not medically or dentally necessary to surgically remove the wisdom teeth, as the teeth were not causing any pain or infection. The dentist’s advice was that it was the mother’s decision entirely as to whether to have the four wisdom teeth surgically removed. The dentist suggested that any such operation should of course be left until after the HSC exams. However, the boy stated that he preferred it to be done before the HSC as he was going on a “schoolies’ cruise” immediately after the HSC. At this consultation appointment, the OPG was displayed and the relationship between the mandibular canal and the apex of the lower wisdom teeth was demonstrated to them. At this time, the practitioner warned of the risks of the operation. He stated:

    “When we take out the wisdom teeth there is a small chance of damaging the nerves to half of your face, lip and tongue, including taste. If this happens, you may end up with numbness to these areas. Whilst this may last for only three to six months, in the worst case, it may be permanent”.

    The patient’s family was then given the opportunity to ask questions, and then finally signed the hospital GA consent form, which stated in simple terms that they understood and accepted all the risks of the operation and consented to it, having had the opportunity to ask questions which were answered to their satisfaction.

    The procedure

    Some two weeks later, the operation was carried out under in hospital under general anaesthetic. The surgery was uneventful as they were routine surgical extractions in a young patient with minimal bone removal. No tooth division was necessary. Regarding the removal of tooth 48 (the tooth in question), the dentist raised a standard envelope flap, removed some buccal bone with a surgical handpiece under saline irrigation, after which the tooth was then elevated out quite easily using a Coupland elevator. Two silk sutures were placed over the wound. The patient was discharged with oral antibiotics and anti-inflammatories.

    Post operation

    The practice (a member of the staff) called the patient the following day but was unable to speak to him and so left a message on the home phone. The patient returned the call subsequently and attended for review four days later. The sutures were removed. Whilst there was no sign of any infection, the patient reported “tingling and numbness” on the right hand side of his tongue. It was noted that there was no numbness associated with the lip, chin or face. The dentist considered that the numbness was likely to be temporary, and he informed the patient that this was most likely due to the post operative inflammation around the lingual nerve. The dentist reassured the patient and his mother that the sensation would likely return in three to six months as explained prior to the surgery.

    One week later, the patient attended reporting that the numbness had improved since last time. The dentist noted that there was normal sensation in the region of the anterior distribution of the nerve. This reinforced his view that sensation would continue to improve and was only due to post operative inflammation around the lingual nerve.

    A subsequent review appointment was made three months post- surgery but this appointment was never kept.

    The Dental Board complaint

    The mother of the patient lodged a complaint with the NSW Dental Board. In the complaint, she stated that she had subsequently sought a second opinion from an Oral Maxillofacial Surgeon, and that opinion seven months post operatively was that the numbness suffered was permanent. In the complaint, the mother stated that her son had missed a “window of opportunity” to have the nerve surgically rejoined, which she had learned was a period of some four to six weeks. She further stated that at no time was she informed by Dr X that the numbness was permanent.

    In response, Dr X countered that the patient was seen five days post-operatively, and again one week later. At this second post-op visit, it was noted that the numbness had improved about 30% since the last visit. This reinforced Dr X’s view that the numbness was due “to the post operative inflammation around the lingual nerve” since there was normal sensation in the anterior region of the nerve distribution. The patient was then seen again some three months post operatively. Dr X’s practice also called the patient to review progress on a couple of occasions within this time period. In relation to the mother’s statement that she had not been informed that such injury might be permanent, Dr X countered that this very possibility had been explained to them on the initial consultation prior to the surgery.

    The Board referred the matter to the Dental Care Assessment Committee for investigation. The matter was referred to an experienced independent assessor, who was critical of Dr X’s management, stating:

    ’….if recovery had not been noted within a four week period, further evaluation of the injury was warranted…..the opportunity to evaluate the injury should have been given to the patient through timely referral and in this regard I find the required knowledge of nerve injury management was lacking in our colleague. The risks and benefits were not for him to decide upon and timely referral would have been the correct procedure…..It is my opinion that Dr X underestimated the nerve injury and appears to lack appropriate knowledge as to nerve injury physiology and prognosis…..On the challenging subject of prolonged paraesthesia and nerve repair, I believe that Dr X has to update/revise existing knowledge relating to the treatment of neural complications.”

    The Committee was further critical of Dr X’s decision to remove the teeth, stating that there was little or no evidence to support the notion that third molars contribute to crowding particularly of upper teeth, and that he should at least have sought a second opinion prior to making a final decision. The Committee further opined that, far from acceding to the patient’s subjective choice if he wanted the wisdom teeth removed, the dentist had every obligation to refuse treatment if there were grounds for doing so, as they felt there were in this case. They were also critical of the decision not to refer on when the patient experienced post operative numbness.

    The Committee recommended to the Board that Dr X refund his fees and undertake a refresher course in “applied anatomy”, to be determined by the Board. They called Dr X to a meeting of the Board where they would be considering whether this matter constituted “unsatisfactory professional conduct.”

    The Board hearing

    Dr X, with the assistance of the DDAS Peer Advisor, had prepared a Statement to be read out to the Board. Dr X stated his case and was able to explain his treatment decisions. He gave evidence that, rather than ignoring the paraesthesia, there was quite a reasonable follow up of the patient after the surgery. He restated that he was of the view at the time that the paraesthesia would continue to improve and therefore deemed that no referral to a specialist colleague was necessary. However, Dr X did acknowledge that he had learned from the experience and he now recognized that he should have referred the patient for timely investigation in regard to the paraesthesia within the first few weeks.

    Dr X was subjected to what could only be described as a barrage of questions from a number of the Board members. The questions included his understanding of the path of the lingual nerve. He was asked to describe his surgical technique in this case. He was questioned about the appalling timing of this operation, shortly before the HSC examinations. He was asked whether in his opinion that the teeth needed to be removed at all. He was informed that literature reviews since 2000 have consistently stated that there was no evidence of a connection between wisdom teeth and upper anterior crowding. When asked why he had delayed referring the patient to a specialist surgeon, Dr X said that it was his training as an undergraduate (less than 10 years experience) to allow some three to six months for these injuries to repair. Dr X was able to quote a study which indicated that such injuries usually resolve over this time period and that surgical intervention was not required. The response of the Board to this was that this study was now considered to be out of date and the knowledge in this area had changed.

    After considering their verdict, the Board resolved that the complaint did not raise issues of unsatisfactory professional conduct, and therefore dismissed the complaint. However, they issued Dr X with a strong reprimand. On one hand, the Board said that they accepted that Dr X had provided options for treatment. They accepted that in the circumstances of the case that it was not outside the parameters of accepted treatment that such surgical removal should be or could be performed by a general dental practitioner. They were of the view that the complaint was not about a lack of surgical skill nor was there any statement from the independent assessor that an inappropriate incision or surgical technique was used.

    However, the Board commented that Dr X needed to be aware of the following:

    1. That the timing of the operation, coming just before the HSC, was appalling and should have been avoided, notwithstanding the patient’s direct request.
    2. That in such a situation, it would have been better if Dr X, as a relatively inexperienced practitioner, had sought a second opinion from a more experienced colleague before deciding to go ahead with the procedure given the circumstances of this case.
    3. That is was not only appropriate to refuse to carry out the treatment for the patient, but that Dr X should accept that he owed the patient the professional responsibility of not performing a procedure that he didn‘t feel was or might not be in the patient’s best interests. The Board stated that this was especially the case when considering surgical treatment where there was likely to be little benefit for the patient.

    In saying this, there is always the decision to be made that the benefit of the treatment outweighs the potential risk. Whilst in this day and age this is indeed in part a consumer’s right to decide, it is behoven upon all practitioners to accept that sometimes no treatment may be the best treatment in situations where there is little or any benefit likely to be gained by carrying out any given procedure.

    The Board made reference to the 2002 annals of the Royal Australasian College of Dental Surgeons, and that Dr X, as a Fellow of the College, should study four articles published therein. I have taken the liberty of locating those and some additional relevant articles and have included these as a reading list at the end of this article. They are available through the ADA NSW Library. Members can contact the Librarian, Gael Ringuet on 8436 9960.


    Lingual nerve injuries present one of the most compelling dento-legal issues. The issue stimulates intense debate. Reports from previous studies have indicated a large variation in the incidence of nerve injuries ranging from low of 0.6% to a high of 22%. In general, studies from the UK have indicated a higher incidence of lingual nerve injuries than those from the US or Australia. This has been attributed to the technique of raising lingual flaps[3] and the popularity of the lingual split technique. Some oral surgeons believe that damage to the lingual nerve, of itself, indicates negligence in the procedure. However, the majority of oral surgeons consider that lingual nerve damage can happen in the most competent of hands, but is less likely to happen in the hands of a skilled and experienced oral surgeon. Certainly the experience of the DDAS is that such injury does occasionally happen in the very best of hands, and for reasons which are not clear to the operator.

    There is considerable evidence that the lingual nerve is variable in its size, shape and course. All clinicians working in this area must assume that the nerve is very close to the lingual plate of bone and the gingival margin of the lower third molar. In a comprehensive study of 34 dissections and 256 cases of mandibular third molar extractions[2], 17.6% of lingual nerves were at the level of the alveolar crest, or higher! The study found that 62% of lingual nerves contacted the lingual plate of the lower third molar. These data provide sobering evidence that the lingual nerve is highly vulnerable in this area, endangered so frequently during routine third molar surgery.

    Nevertheless, general dentists and specialists alike usually express complete surprise at the lingual nerve being damaged, despite the use of standard, accepted techniques. In light of the uncertain occurrence of this complication, the duty to warn is paramount. Ask yourself – what would a patient want to know about this? Would you want to hear about absolutely every possible unfortunate sequelae, no matter how minor? I would suggest no. Would you want a lesson on the path and morphology of the lingual nerve? Maybe perhaps. But in reality most patients would want to know what may happen and what they will feel like if it does happen. Leggatt[8] has suggested the following warning:

    “The lingual nerve supplies sensation to the front two thirds of your tongue. You have two of them, one on either side. Occasionally, they can be damaged during extraction of your lower wisdom teeth by instruments coming into contact with the nerve. This can cause temporary or even a permanent change in or loss of sensation to this area. This means that you could have a numb tongue for the rest of your life. There is a small risk of this happening. That risk could be further reduced if you wish to consult an expert Oral Maxillofacial Surgeon.”

    Obviously, the last part is for general dentists only, but again this stresses an important point. As a patient, is it not reasonable to know that there are specialists who can do the same procedure? To quote Leggatt[8]again:

    “This is at the core of most dental and medical litigation. Most patients with a damaged lingual nerve understand that mistakes can happen. What they do not readily comprehend and have difficulty in accepting is the feeling of being lied to. Of not knowing that this is a recognized complication. Of not knowing that there were specialists who could have possibly reduced the risk.”

    In the Board case referred to above, the Board was critical of the lack of a written warning. Dr X relied on verbal information and referral to a website. He was told by the Board that this was inadequate in this day and age and that it was the standard of care to provide such warnings in writing. Therefore dentists should consider having the patient sign a form acknowledging the warning provided as part of the consent process.

    On this note, the DDAS often receives requests for a “pro-forma” consent form that will provide dentists with complete protection against such complaints. There is no such thing. In the words of Prof. John de Burgh Norman, informed consent “is a process, not a form”. The issue is to communicate with the patient so that they can accept what has happened to them if their lingual nerve is damaged.

    The DDAS Peer Advisors can be contacted through our office Coordinator, Katherine O’Sullivan, on 8436 9944. We are available at any time to discuss this and the other many issues which arise during the day-today running of a busy dental practice. We look forward to speaking to you!

    Dr Roger Dennett (Peer Advisor)
    Dental Defence Advisory Service, ADA NSW

    Bibliography – Third molar and nerve injuries – Annals of the RACDS 2002.

    [1] The effect of orthodontic treatment on third molar space availability: a review. 
    Sable Daniel L
    School of Dental Science, University of Melbourne, Victoria.
    Annals of the Royal Australasian College of Dental Surgeons ( Australia )   Oct 2002 ,   volume 16 pp156-157

    [2] Anatomy of the lingual nerve in relation to possible damage during clinical procedures. 
    McGeachie John K
    Oral Health Centre of Western Australia. johnmcg@anhb.uwa.edu.au
    Annals of the Royal Australasian College of Dental Surgeons ( Australia )   Oct 2002 ,   volume 16 pp109-110

    [3] Nerve injuries following the surgical removal of lower third molar teeth. 
    Rix L
    Department of Oral Surgery, United Dental Hospital, Dental Faculty, University of Sydney.
    Annals of the Royal Australasian College of Dental Surgeons ( Australia )   Oct 2000 ,   volume 15 pp258-60

    [4] What is the future of third molar removal? Removal of impacted third molars–is the morbidity worth the risk? 
    Woodhouse B
    Annals of the Royal Australasian College of Dental Surgeons ( AUSTRALIA )   Apr 1996 ,   volume 13 pp162-163

    [5] What is the future of third molar removal? A serious presentation for not performing the removal of third molars. 
    Sinclair J H
    Annals of the Royal Australasian College of Dental Surgeons ( AUSTRALIA )   Apr 1996 ,   volume 13 pp158-161

    [6] What is the future of third molar removal? A critical review of the need for the removal of third molars. 
    Anker A H
    Annals of the Royal Australasian College of Dental Surgeons ( AUSTRALIA )   Apr 1996 ,   volume 13 pp154-157

    [7] The mandibular infected buccal cyst–a reappraisal. 
    Thurnwald G A; Acton C H; Savage N W
    Royal Brisbane Hospital, Australia.
    Annals of the Royal Australasian College of Dental Surgeons ( AUSTRALIA )   Apr 1994 ,  volume 12 pp255-263

    [8] The legal implications of lingual nerve injuries. 
    Leggatt David
    Phillips Fox, Melbourne, Victoria.
    Annals of the Royal Australasian College of Dental Surgeons ( Australia )   Oct 2002 ,   volume 16 pp115-117

  • Case study – the importance of performing a thorough examination and not just the requested treatment

    The case:

    The patient attended the general dentist seeking treatment for multiple broken and sore teeth. The initial treatment plan was to extract the 44 root stump, place a crown on the 14 and make an upper and lower denture. The upper denture was to support the missing 15 tooth and the lower denture was to support pontics/false teeth in the 37, 36 and 44.

    The treatment plan was revised after the dentist examined the OPG and following further discussion with the patient. The patient said he did not want an upper denture and preferred something permanent so the dentist suggested he was a suitable candidate for a bridge. The patient also preferred not to have the 44 root stump extracted so the dentist said he would try to smooth down the root stump so as not to interfere with the lower denture. The dentist said he warned the patient that leaving the stump could ‘cause trouble’ with the denture.

    The dentist took impressions for the upper bridge and lower denture and the upper bridge was eventually cemented. The lower denture was fitted and all seemed ok. The patient did not return for the planned 6 month check-up.

    The patient’s complaint to the Health Commission painted a very different picture of the treatment provided by the dentist. The patient did not return to the dentist because he says he was so upset by the final product of the upper bridge and lower denture.   He says that the upper bridge had never felt right since it was placed.

    The patient ended up attending a public dental service a little over 7 days after the upper bridge was cemented and lower denture issued. He was found to have a severely infected 47 which required extraction. Further radiology showed that the 17 had a periapical abscess and was also extracted.

    The dental service found that the bridge was in “hyper-occlusion and high in normal occlusion/bite”. The dental service adjusted the bridge abutment on tooth 16. The dentist’s opinion of the restorative treatment performed on 16 was that the “bridge in this section appears not to be have been seated properly or too large (poor fit) for tooth preparation”.

    A subsequent review by an independent expert found that the dentist had failed to examine and treat the underlying infections to the patient’s teeth in the upper and lower right quadrants. These teeth required extraction shortly after the treatment was completed by the dentist and the expert reached the conclusion that there must have been signs of infection apparent at the last consultation with the dentist.

    With respect to the upper bridge (which was to replace the missing 15) it was noted that the dentist did not conduct vitality testing to the abutment teeth 16 or 14. The dentist says he did test for vitality but was not in the practice of recording that he had done so in his notes (unless there was a problem finding).

    The expert was critical of the dentist for failing to take a periapical radiograph to review the root filling on the 14 prior to bridgework. The expert queried why the dentist had gone ahead with the bridge ‘when visible apical radiolucencies were associated with teeth 17 and 47 both of which subsequently required extraction’. The dentist was forced to concede that he did not take x-rays of the area where the bridge was being placed because it was his practice to only take x-rays if the OPG showed areas of concern.   This explanation was not accepted by the expert.

    The independent expert ultimately found that the 14 should not have been used for the bridge because it was a root-filled tooth and too weak to be an abutment tooth.

    The 16 was used to support the bridge’s ‘rest’ and that failed due to the nature of the patient’s oral condition. It also appeared that no recess was made available in the filling of the tooth 16 to accommodate the bridge’s rest, with the result being a rest that sits ‘above’ tooth 16 rather than sits passively ‘within’ the tooth as a stress-breaker. Either way, the bridge was found to have failed and the 16 required urgent attention because of its use as a rest tooth for the bridge.

    The expert expressed the opinion that the dentist’s justifications for his treatment choices “demonstrated a basic lack of comprehension of pulp sensitivity testing and raised real concerns about the dentist’s ability to even understand basic endodontic diagnosis”. The expert found the dentist’s choice of bridge design was “difficult to justify” especially because the practitioner could not produce treatment records to support his explanations, and because there was no evidence of charting and no study casts.

    The outcome

    The case eventually settled for approximately $15,000 which included an allowance for pain and suffering (given the amount of time the patient had the unsatisfactory bridge and denture placed) and the costs of restorative treatment involved in the placement of the bridge.

    Lessons to be learned

    • It is expected that practitioners’ records will record the advice given to the patient on treatment options and the patient’s consent. It is important that the records contain all diagnostic information relevant to that discussion. Working casts for items such as a bridge ought to be retained and practitioners must be able to demonstrate that the bridge design and insertion produced an appropriate fit for the patient.
    • The case reinforces the expectation that general dentists must be competent with their diagnostic skills including radiographic interpretation as part of treatment planning.
    • It is crucial that the treatment records include proper charting and the diagnosis following radiographic evaluations and all diagnostic tests, including vitality tests, percussion tests etc. and even where the results are ‘normal’.

    It was noted that this dentist’s CPD activities consisted exclusively of on-line podcasts with his peers. The expert commented that practitioners benefit from interaction with their peers and attending education events in person can be of “immense benefit”.

    Caroline Tuohey
    Senior Associate
    Meridian Lawyers

    Kellie Dell’Oro
    Meridian Lawyers


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