This article is written by Kellie Dell’Oro, Principle – Meridian Lawyers

Case scenario: The patient issued proceedings seeking compensation for the cost of ongoing periodontal maintenance, and the cost of further dental treatment. The patient expressed significant upset with having been to see the practitioner for more than 10 years and then another practitioner advised that she suffered severe gum disease requiring periodontal treatment and potentially, implants and crowns.

Why was the claim difficult to defend?

It was difficult to defend the claim due to the following reasons:

1. The patient was a regular attendee at the practice, at approximately six monthly intervals.

2. The patient had an OPG which showed severe bone loss. The OPG formed part of the patient file but there was no record of the interpretation. There was also no record of the advice given to the patient.

3. The patient had a further OPG two years later which showed additional bone loss. Again, there was no record of the practitioner’s opinion following the OPG review. There was also no record of the advice to the patient.

4. The practitioner stated that he consistently advised the patient that she had a gum problem and it was important that she visit a specialist but that the patient did not want to see a specialist. However, of the 46 consultations spanning the period there were only two references to her condition, ‘gum inflammation’, and both were very early in the relationship. There were two references to the patient being advised to see a periodontist but only one of these references, late in the relationship, documented the patient’s response: ‘does not see any reason’. And there was no record of the details of the advice given to the patient.

In summary, the patient had the benefit of being able to establish that there were signs of advanced periodontal disease and progressive bone loss, from the two OPGs that were taken during the period of care. Comparing the results of a later OPG, the patient was able to demonstrate even further bone loss. This formed the basis for her claim that had she been appropriately advised and managed, her condition would not have progressed to the stage of her having to consider extractions of two teeth.

A practitioner demonstrating reasonable care should potentially have:

• advised the patient she was suffering from advanced bone loss, noting there was more than 50% bone loss evident around two teeth, from the OPG, and that two teeth had a questionable prognosis as the bone loss was irreversible;

• documented the results of the clinical examination, including a check of mobility and regular checks of the pockets as this could provide a baseline to measure any deterioration of the patient’s condition;

• recommended the patient see a periodontist from at least the time of the first OPG and explained the reasons why that was important; that there were signs of irreversible severe bone loss and two teeth had a questionable prognosis but the risk of losing teeth could potentially be minimised by addressing the inflammation.

In this case, we were unable to demonstrate from the practitioner’s recall or the records, that appropriate advice had been given. We were also unable to demonstrate that the outcome for this patient would probably have been the same, regardless.

Meridian Lawyers formed the opinion there was a risk that the patient could establish that the practitioner had not provided reasonable advice and management and as a consequence, that she had suffered additional loss and damage.

In this case the practitioner maintained the patient had gum issues throughout the period that she was seen. Had the practitioner documented the results of the clinical examination, including the results of regular testing (as well as his conclusions and advice), this may have provided a further basis to defend the claim, if it supported there having been minimal decline in the patient’s clinical condition.

Checklist

Practitioners need to be extremely mindful of the need to make a careful record of the advice given to patients, and particularly for those patients suffering from periodontal issues.

At a minimum this should include:

• the conclusions drawn from any OPG and the comparison with any previous OPGs;

• the results of all clinical examinations, including any check of mobility and pocketing checks;

• the advice given to the patient at each consultation;

• any recommendation to see the periodontist and the details of the advice (i.e. why they would benefit from a referral) and the patient’s response;

• ensuring that referrals are written.

If a patient is refusing to follow advice, it is recommended that practitioners consider providing a letter to the patient setting out their advice, the reasons and consequences of failing to follow that advice. If the patient, having been properly being informed of the risks, decides not to see a specialist or to follow their advice regarding oral hygiene management, then it may be possible to argue that any decline in their oral health as a result, is due to their own failure.

Disclaimer: This information is current as of June 2017. This information does not constitute legal advice. It does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon this content.