CHAPTER TWO – BREACH OF DUTY
It is well established in law that a dentist owes their patient a duty of care.
When considering whether a potential dental negligence claim has merit, the lawyer needs to know whether there has been a breach of that duty.
In order to find out whether there has been a breach of duty, an expert must be instructed to draft a report. When drafting this report, the expert is often also instructed to opine on causation (a topic covered in the next chapter).
Upon first receipt of a case, a lawyer may wish to consider instructing an expert to draft a brief screening report to assess whether this is a case which, at first glance, has good prospects of success. In an initial screening report, an expert will take a cursory look at the dental records and make a decision as to whether the case is worth investigating further. Should this report come back positive, then the lawyer can then instruct an expert to draft a more detailed breach and causation report.
It is important to know which expert to instruct to draft a breach of duty report. Lawyers running a dental negligence case need to instruct an expert who will know the standard of care and skill expected of the Defendant, or Defendants, in the case. There are numerous branches of dentistry as well as general dental practice; this will be considered further in the chapter “Which Expert to Instruct”.
The requisite standard of care is primarily described in the case of Bolam v Friern Hospital Management Committee  1 W.L.R. 582. This is a very well-known case. However, the key points can sometimes be overlooked, and therefore they are set out below. See paragraph 586,
“…where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
Thus, take for example a case where it is alleged that there has been negligence on the part of a general dental surgeon. The standard expected of a general dental surgeon is that of a reasonably competent general dental surgeon.
Further, if the dentist can show that he/she acted in accordance with a competent body of professional opinion, this will be a defence to the claim, even if the body of opinion holding the contrary view is a minority one. See Bolam, paragraph 587,
“…if you are satisfied that they were acting in accordance with a practice of a competent body of professional opinion, then it would be wrong for you to hold that negligence was established.”
Thus, as an example, in a claim against a general dental surgeon, a positive breach of duty report would establish that, on the balance of probabilities, the standard of care provided to the Claimant by the Defendant fell below that expected of a reasonably competent general dental surgeon, and no reasonable body of opinion would support any act or omission on the part of the Defendant.
Bolam was considered further in the case of Bolitho v City and Hackney Health Authority  3 WLR 1151 where it was decided, effectively, that as long as a competent reasonable body of professional opinion supports the way in which the healthcare professional carried out their work, and that opinion is not completely illogical, then the healthcare professional has not fallen below the standard expected of him / her. It was emphasised by Lord Browne-Wilkinson at page 243, paragraph C-D that it will “seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable…It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.”
Following (FB (Suing by her Mother and Litigation Friend, WAC) v Princess Alexandra Hospital NHS Trust  EWCA Civ 334), a dentist will be judged in accordance with the standard of reasonably competent practitioners of the same rank in the same discipline. Relevant youth and/or inexperience will not diminish nor increase the required standard.
See Lord Justice Jackson’s comments at paragraph 63,
“The conduct of Dr Rushd in the present case must be judged by the standard of a reasonably competent SHO in an accident and emergency department. The fact that Dr Rushd was aged 25 and “relatively inexperienced”… does not diminish the required standard of skill and care. On the other hand, the fact that she had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard.”
Thus, a general dental practitioner who is newly qualified will be held to the same standard as a general dental practitioner with twenty or thirty years of experience. To look at the other side of the coin, a court won’t expect more of a general dental practitioner with twenty or thirty years of experience; the standard expected will be that of a reasonably competent dental surgeon.
Furthermore, the standard of care expected doesn’t differ between private and NHS work. However, a different standard of care might arguably be expected of a dentist working in a practice holding itself out as, for example, one of the country’s leading implant providers.
Challenges lawyers often face when seeking to establish breach of duty in dental negligence cases
Challenges faced are as follows.
Identifying breaches from the expert report
It is always worth bearing in mind that an expert report may be drafted in such a way that breaches are contained partly within the chronology section and partly within the causation section. When first reading through a breach and causation report, a good starting point is to identify all the breaches which can be found throughout the report and to list them. Whether or not the breaches are causative can be considered at a later stage.
Satisfying the legal test
It is not uncommon for experts to draft an opinion on breach of duty and state that there has been a breach of duty because they personally would not have carried out treatment in such a way, or a reasonable body of opinion would support carrying out treatment in a different way. This, of course, is not the legal test, and at times it is necessary to challenge the expert as to, in the case of a general dental surgeon, whether it is their opinion that the standard of care fell below that of a reasonably competent general dental surgeon, and that no reasonable body of opinion would support the act or omission of the Defendant. If the Claimant’s expert cannot go so far as to satisfy the test on any given potential breach, then that breach naturally falls away. If acting for the Defendant, and the expert says that a reasonable body of professional opinion would support the act or omission of the Defendant, then that allegation of breach of duty can reasonably be defended.
Inherent risks of treatment
There are some potential breaches of duty that typically arise in dental negligence cases which may, in fact, be inherent risks of treatment. Two examples are a fracturing a file in the process of carrying out root canal therapy, or creating a pulpal exposure when preparing a tooth for a filling.
Whilst carrying out root canal therapy, a dentist uses what are known as files to remove nerve tissue. On occasion, a file can fracture in the process, and this is an inherent risk of root canal therapy. However, it can also occur as a result of failing to properly utilise the file. An example would be a case where a dentist has not used lubrication whilst filing. Further, in cases where the dentist has used the file correctly with lubrication, and has therefore not breached their duty of care in that regard, they may have failed to advise the patient that the file has fractured only for the patient to be informed at a later date, perhaps when they experience pain or attend an appointment with another dentist. This failure to advise of the file fracture and manage the situation appropriately would then constitute a breach of duty.
With the example of pulpal exposure, exposing nerve tissue within a tooth (by drilling into the pulpal cavity when using a handpiece to remove caries) which then results in loss of vitality of the tooth is an inherent risk of cavity preparation. However, it may be the case that pre-operative radiographs reveal that the caries was superficial, and therefore on the balance of probabilities, an exposure was as a result of a breach of duty.
These are examples where the possibility of establishing that a breach of duty has occurred requires careful thought. These examples of potential breaches are not clear-cut, but at the same time, they should not be written off as inherent risks of treatment before they have been properly considered.
This can prove to be a thorny issue; see the chapter on Consent for further consideration of the topic.
Breaches which are not properly particularised in the expert report
It is important to ensure that all breaches are sufficiently detailed so that the Defendant will be able to fully consider the case and respond. As an example, an expert may say that a thorough or proper examination was not carried out by the Defendant at any stage. However, if this were to be put to a Defendant in a Letter of Claim or Particulars of Claim, the Defendant is likely to simply not respond and say that the allegation is not properly particularised. What is required is for the expert to say what they would have expected from a reasonably competent general dental surgeon when carrying out an examination (what checks should have been carried out, and what should have been recorded), and how frequently such an examination ought to have been carried out.
Another example is where a dentist has carried out root canal therapy, and it is the expert’s view that this has not been carried out to a reasonable standard. It would not be sufficient for an expert to simply make a bald statement to that effect. What would be required would be for the expert to say why specifically the root canal therapy fell below the standard expected, for example, because the obturation material was short of the apex (the tip of the root), or not properly condensed. This may need to be drawn out of the expert either through written questions or in conference.
Missed breaches of duty
An expert may fail to consider a breach which is in fact relevant and causative. At times this may be because it seems so obvious to them that they simply have not written it down, or it may be that it is something they have not yet considered. Further, given that the condition and prognosis (“C&P”) report is usually drafted after the breach and causation report, there can, on occasion, be something which arises following examination of the Claimant for the purposes of producing the C&P report which an expert then needs to consider as part of their breach report, ie, did any breaches on the part of the Defendant cause this loss?
Breaches of duty which occur over many years
There are cases where a patient’s dental health has been neglected over many years, sometimes over decades. It is then necessary to go through the records and identify each breach and the date on which it occurred. An example would be where a dentist has failed to carry out BPE scoring regularly. A note should be made of each appointment when this was not done when the Claimant says it ought to have been done.
There are also cases where an expert will focus on a specific period of time, and not consider the case as a whole, and it is then necessary to assess the case further, either through written questions or in conference.
Where the alleged breaches occurred over many years and the patient has been treated by more than one dentist in this time, for example, due to attending more than one dentist in the practice and/or having been referred to other dental practitioners, it is important to consider which breaches occurred on the part of each Defendant, and list these clearly.
Poor dental record keeping
Whilst poor record keeping can be a breach of duty in its own right, it can be difficult to establish clearly whether there has been a breach of duty on the part of a Defendant where the standard of record keeping is so poor that an expert struggles to work out what has happened. Poor record keeping can be indicative of a poor standard of care generally on the part of the Defendant, but where it is difficult to work out what treatment was done and on what dates, it can take time to decipher the records and set out a clear case in respect of breach of duty.