Practising dentistry is an increasingly hazardous business. The cause, as so often, is multi-factorial.
Dental techniques are becoming more sophisticated, especially in the field of cosmetic dentistry, which inevitably increases the risk of error, consumers of dental and medical services are becoming ever more knowledgeable and demanding of high standards and the opportunities to fall foul of Hong Kong Dental Council’s Code of Professional Discipline in relation to the dissemination of information are expanding in line with the inexorable trend towards increased communication in general, and electronic communication in particular. In short, dentists are having to up their game if they wish to avoid a brush with the law.
If a patient is unhappy with the dental care or treatment he or she has received and the matter cannot be resolved amicably, there are two options. Either s/he can instruct a solicitor to investigate a claim in negligence, or s/he can lodge a complaint with the Hong Kong Dental Council. (Actually, there is a third option too, which is that s/he can do both, but let’s keep things simple).
By instructing a solicitor, the patient hopes to obtain financial compensation and perhaps an admission of liability.
By complaining to the Dental Council, s/he is asking it to investigate whether some sort of disciplinary action in respect of the dentist is appropriate. The Council makes it very clear that the purpose of a disciplinary order is not to punish the dentist but to protect the public and maintain public confidence in the dental profession. What the patient can hope to achieve by reporting an incident to the Council is reassurance that as a result of closer monitoring of that dentist, the mistake will not be repeated. The public at large is the direct beneficiary of a disciplinary order, not the reporting patient, who is hardly likely to seek further treatment from that same dentist.
Broadly speaking, dental negligence claims fall into the following categories: Alleged failure to explain risks properly, failure to carry out proper pre-operative assessments or treatment plans resulting in inappropriate treatment, sub-standard surgical technique and inadequate follow-up. To succeed in a negligence claim, the patient has to establish that the standard of care s/he received fell below that of the reasonably competent dentist and that it caused damage.
To assess the merits of a claim, the dentist’s lawyer will take a detailed statement from her or him to find out exactly what happened and will then usually seek an independent expert opinion as to whether that particular dental practice was acceptable and whether it caused harm. Depending on that opinion, efforts will be made to get the claim withdrawn or, if the expert is critical of the care provided, to settle the case under a denial of liability if possible.
Traditionally, dental cases have tended not to get as far as the Court door, probably because the sums involved are usually fairly modest and the financial and emotional stakes of taking a case to trial are considerable. There have been a few exceptions in recent years, two of which related to cosmetic dentistry.
In 2005 a Court awarded HK$1,770,000 in respect of damage resulting from excessive trimming down of 11 teeth and poorly performed root canal treatment, leading to the need for root canal treatments on 10 teeth, toothache, headache and psychiatric damage. And in 2010 a Court awarded HK$400,000 in respect of sub-standard cosmetic orthodontic treatment leading to poor occlusion, poor spacing and gingival recession.
A review of decisions by the Hong Kong Dental Council since 2009 shows a predominance of complaints relating to dental implant surgery - all of which were upheld – as well as complaints relating to registration issues, incorrect administration of drugs, inappropriate delegation of work and improper publication of articles. The test applied by the Council is whether conduct is considered "disgraceful and dishonourable by registered dentists of good repute and competency". If so, the dentist will be found guilty of unprofessional conduct and liable to anything from a warning to removal or suspension from the register, with perhaps the requirement that s/he undergoes additional training.
Is a finding of negligence tantamount to professional misconduct? The Council’s 2010 Inquiry into the care provided by a dentist suggests this may be the case. When planning implant surgery, the dentist took an x-ray which did not clearly show the location of the inferior dental nerve canal at the relevant region. He claimed that pre-operatively he took extensive alternative measures to map out the surgery, including tracing the IDN canal on an implant overlaid grid, but the Council was not convinced by his explanation. It was held:
"We are satisfied that the Defendant, in failing to take a pre-operative radiograph...has not met the standard required of registered dentists in performing implant surgery. Such conduct would reasonably be regarded as disgraceful and dishonourable by registered dentists of good repute and competency, and therefore constitutes unprofessional conduct".
Increasingly these days, it is not sufficient just to take good care of one’s patients. Dentists need to be constantly on their guard in relation to the regulations prohibiting dentists from canvassing for patients by deliberate solicitation for business, especially in view of the all too easy dissemination of material via the internet. Two dentists have come unstuck in recent years; one for thinking (or at least arguing at the Inquiry) that an article which urged the children of elderly parents to show filial piety by paying for computer-guided dental implant surgery for their parents constituted an article for the purposes of dental health education, and the other for failing to stop his hospital’s marketing department from seeking to publish a promotional article by him in a well-known newspaper, despite evidence that he was not aware of the department’s intentions.
Council in the former Inquiry remarked that since the Court of Appeal’s 2006 ruling in the case of Dr Kwok Hay Kwong, which dealt with public health education, some dentists had resorted to advertising under the disguise of public health education. It concluded: “We must send a clear message to the profession that such disguised advertising will not be tolerated”, which perhaps helps to explain the arguably harsh latter decision. What is abundantly clear is that dentists (and indeed doctors) must exercise great caution when deciding to put material into the public domain.
What then should dentists do if they are on the receiving end of complaint? Much can be done to diffuse patient dissatisfaction if dealt with skilfully and promptly – patients often escalate informal complaints because they feel that their concerns are being ignored - and a dentist should obtain legal advice early to help limit damage.
If a claim or Dental Council Inquiry does materialise, managing that process properly often determines how smoothly it runs; the way a dentist conducts him or herself in relation to a Dental Council Inquiry itself, for example, can have an impact on sentencing. In short, being the recipient of a complaint is one thing.
Dealing with it properly is another, but arguably just as important.