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May 30th 2017

Dental Negligence

Greater scrutiny must fall on dentists’ indemnity cover to better protect patients – not the legal support they receive

Michelle Tebbutt

Michelle Tebbutt

Associate Solicitor, Clinical Negligence

Greater scrutiny must fall on dentists’ indemnity cover to better protect patients – not the legal support they receive

Dental negligence claims | Man receiving dental treatment

Dental negligence claims | Man receiving dental treatment

Given a recent rise in enquiries from concerned dental patients now is a good time to revisit The Dental Defence Union’s (DDU) September 2018 article in which it squarely blamed legal costs relating to cases alleging the negligent treatment of patients as a reason for many dentists not taking out indemnity cover.

It was quite an astonishing claim.

Let’s not forget, the DDU recently chose not to represent the infamous Nottinghamshire-based dentist Dr Desmond D’Mello, despite providing ‘discretionary indemnity’ to him before the bombshell of his mistreatment of patients emerged.

Dr D’Mello was subsequently suspended by the General Dental Council (GDC) over allegations of failing to wash his hands, change gloves or sterilise instruments between seeing patients.

It led to more than 22,000 of his former patients being written to and offered testing for blood-borne viruses such as HIV, hepatitis B and hepatitis C.

Facing the potential of scores of legal claims being made against him, the DDU said at that stage that it would not assist him with any such claims.  Consequently those  affected by his actions are unlikely to recover for their losses.

The DDU was able to do this as the UK allows such ‘discretionary indemnity’ agreements in dentistry, whereby defence organisations can simply refuse to help their dentist should they be subject to a claim for negligence.

You may ask what is the point of such indemnity cover being in place at all?

Since July 2014 Dentists have been legally required to have some form of indemnity cover, but as specialists in supporting victims of dental negligence at Hudgell Solicitors, we know this is a loosely regulated area.  It wasn’t until November 2015 that the General Dental Counsel updated its Standards and guidance to reflect this legal requirement.  Sadly there isn’t a legal or regulatory requirement for a Dentist to inform their insurer about a potential claim.   We have seen to many cases where dentists fail to notify their indemnity provider of claims made against them.

As a consequence of this landscape, as happened in the above example, the likes of the DDU are permitted to opt out of indemnifying an individual if the case is too difficult for them to handle.  They are permitted to choose not to indemnify if it will cost them too much despite receiving premiums.

They are allowed to opt out of doing their job despite getting paid. They leave injured and disfigured patients with absolutely no means of getting their lives back in order.

There have been many cases where dentists simply suddenly disappear completely, perhaps moving abroad.  When this happens, it makes it very difficult to trace a dental defence organisation and make a successful claim.

All of this means that dental patients are some of the least protected in the UK when things go wrong. As a result, they can find themselves facing a battle to secure any compensation at all when they have been harmed by a dentist negligently.

In many cases, remedial dental procedures required after negligent treatment can cost thousands of pounds and it is only through legal support that patients have any hope of covering that cost with a compensation package to assist them.

Therefore, we’d say the DDU is missing the key issue completely when urging the Government to cap legal costs in such cases.

The law lacks the teeth to deal with this. Parliament ought to legislate so that all dentists have the relevant indemnity insurance in place should errors be made, and also put measures in place to prevent insurers from choosing not to represent negligent dentists when patients have suffered harm at their hands. The DDU and the like should take a look and self-evaluate.

It should be looking inward and taking steps to ensure the public are protected from dentists like D’Mello.

Blaming Claimants in the way the DDU did is totally disingenuous and demonstrates an obvious lack of understanding.  The reality is that legal costs in these cases are generated as a consequence of negligent dental treatment.

To have any meaningful impact on reducing legal cases the DDU and its associates should train, employ and indemnify better dentists.

When it goes wrong the DDU should simply be getting on with doing its job properly.  In the longer term, root and branch reform of the dental and dental insurance industry is needed.

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