SHAH ET AL : MEDICOLEGAL ISSUES IN DENTISTRY WORLD J ADV SCI RES

Medicolegal Issues in Dentistry

Dr. Rohit Shah*

*Reader, Dept. of Periodontology, Terna Dental College, Nerul, Navi Mumbai

Medicolegal is an upcoming branch which involves a combination of issues encompassing the medical
and the legal fields. Practically it involves informed consent, medical negligence, deficiency in service and civil
compensation for the same.

A vast majority of medicolegal cases could be attributed to alleged incompetence of the medical
professional.

Incompetence is the inability to do something successfully. The standards of incompetence could be

listed as follows -

1. Inability to express or communicate a preference or choice.

2. Inability to understand one’s medical condition and its consequences.

3. Inability to understand or comprehend relevant information.

4. Inability to give a (rational) reason for a negligence or a failure

5. Inability to give risk/benefit related reasons.

6. Inability to reach a reasonable decision.

However the key element in medicolegal cases has always been “Informed Consent”.

Consent is to agree or give permission. It is an agreement, compliance or permission given voluntarily without
any compulsion.

Consent has the elements of being voluntary, providing knowledge, the patient having the capacity for decision
making and the patient being competent.

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Commonly consent is implied (understood when patient sits on a dental chair to be examined), expressed
(written or oral), informed (most ideal type), presumed (in emergency cases), tacit (passively or silently),
proxy (parents of children, special child, unconscious patient).

A doctor who does not take consent may be liable both to legal action by the patient and to action by their
professional body (DCI). Touching a patient without a valid consent (in the language that the patient
understands) may constitute the criminal offence of battery.

Patients have a right to know if their lifestyles may be compromised by side effects of the treatment
and this needs to be taken into consideration by the patient before deciding whether or not to proceed with
treatment.

Patients need to have sufficient knowledge of -

1. The purpose of dental treatment

2. The nature of the treatment (what it involves)

3. The likely effects and consequences

4. Risks, limitations and possible side effects

5. Alternatives and how they compare

6. Costs

Blanket consent forms are no longer acceptable. They need to be treatment specific.

The informed consent form should include:

1. Legal name and date of birth of patient.

2. Patient’s diagnosis.

3. Nature and purpose of the proposed treatment in simple terms.

4. Potential benefits and risks associated with that treatment.

5. Professionally recognized or evidence based alternative treatment including no treatment to recommended

therapy and risk(s).

6. Place for patient to indicate that all questions have been asked and adequately answered.

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7. Places for signatures of the patient or legal guardian, dentist, and an office staff member as a witness.

Documentation and good record keeping (case paper, dental casts, dental photographs, xrays) go a long
way in protecting a dentist in medicolegal cases.

Consent should be obtained for any visual or audio recording, including photographs or other visual
images of the patient.

Statements like “I accept this treatment with the understanding that I will hold the doctor harmless for
any negligence in the performance of the treatment” are deemed invalid by most courts.

An individual with capacity is entitled to withdraw consent at any time, including during the performance of a
procedure.

LADA – Leaving against Dental Advise – similar to LAMA – simply means that the patient does not follow the
recommendations of the attending dentist especially in terms of treatment planning.

When a person gives valid consent to an intervention, in general that consent remains valid for an
indefinite duration, unless it is withdrawn by the person.

However, if new information becomes available regarding the proposed intervention, the doctor or
member of the healthcare team should inform the patient and reconfirm their consent.

Similarly, if the patient’s condition has changed significantly in the intervening time it may be
necessary to seek consent again, on the basis that the likely benefits and/or risks of the intervention may also
have changed.

A majority of medicolegal cases also involve the charge of Negligence by the doctor.

Negligence –

Dental Negligence is a civil wrong which means a lack of proper care and attention; culpable carelessness. It is
commonly found to happen when the dentist attempts something heroic - beyond his capacity and/or attempts
something unreasonable in the greed of money.

The three essential components of negligence are:

• Doctor has a duty of care for their patients

• There is a Breach of that care

• There is Resulting Damage due to that breach

A simple lack of care, an error of judgment or an accident is not a definite proof of negligence on part of the
health professional.

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As long as the doctor follows a practice acceptable to the profession of that day, he cannot be held liable for
negligence merely because an alternative course or method of treatment was also available.

A Dentist who undertakes any treatment is understood to be possessing the sufficient skills, knowledge and
training to perform the treatment. (Eg – A clinician placing implants needs to be sufficiently trained in
implantology, weekend Implant Crash Courses may not be accepted as sufficient training by practising Judges).

A professional may be held liable for negligence on one of the two findings:

1) Either he/she was not possessed of the requisite skill which he/she professed to have possessed or

2) He /she did not exercise with reasonable competence in the given case, the skill which he/she
possessed.

• The onus is on the patient to prove not only that they are a victim of negligent service but that they
have also suffered damage in the process.

• A Foreign Body like Amalgam in tooth sockets, broken RC instruments, bur tips in bone can invite
negligence allegations as can accidental ingestion of crowns or dental instruments etc.

• Even in case of cardiac arrest, the dentist must remain with the patient and try for resuscitation.

NON Negligent ACTS

• Not providing an ambulance, due to un-availability.

• Not obtaining a consent form in an emergency.

• Patient’s dissatisfaction with progress of treatment.

• Giving preference of one patient over the other based on priority.

Court Cases have been filed on the following issues -

• Charging what the patient thinks is exorbitant.

• Patient not getting the desired relief.

• Most common malpractice issues involve a failure to diagnose, treat or a timely reference or involving
a general dentist’s attempt to treat beyond their level of competence.

Duties of a doctor include – Duty of Care in deciding whether to undertake the treatment, treatment
planning and administrating ethically morally and wisely the best treatment possible to all of their
patients.

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The dentist is expected to bring a REASONABLE DEGREE of STANDARD of CARE &

COMPETENCE for their patients as required by law.

• A dentist can't be punished for choosing a line of treatment which they felt was better, but failed and
there was an alternate line of treatment option available.

• Tortuous Liability - When a dentist is directly liable for an act of negligence in his clinic or hospital it
is called primary liability and they will have to compensate the victim by paying generally the cash,
awarded by a court.

• Criminal Liability - It is a penal provision and involves punishment in the form of imprisonment or
fine or both. Some of the provisions are -

• Section 304 A Indian Penal Code (IPC) – Negligent homicide.

• Sec 336 (IPC) - An act endangering the life of a person (even if there is no injury), e.g. extracting a
tooth for a patient with valvular heart disease without antibiotic prophylaxis against endocarditis

• Sec 337 (IPC) - A rash or negligent act causing simple injury, e.g. pain and swelling after removal of a
tooth due to a negligent extraction.

• Sec 338 (IPC) - A rash or negligent act resulting in grievous injury, e.g. fracture of jaw during
extraction due to excessive or improper force.

Common Alleged Negligence Examples -

• Complications due to extractions

• Infections requiring hospitalization.

• Sinus perforation

• Extraction of wrong tooth

• Separated instruments in canals, bur tips in bone and amalgam in tooth sockets

• Unrestorable implants

• Failed Implants

• Misdiagnosis and/ or Failure of treatment planning

• Substandard crowns and bridges

• Open margins, overhanging restorations

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• Poor Occlusion

• Deficiency in Care - If the dentist causes a Nerve Injury or carries out a wrong removal of teeth then it
would be termed failure to take care of the patient.

• Abandoning a Patient: The contract between the Dentist and the Patient ends only on completion of
treatment or on referral and acceptance by another dentist.

• A Dentist is duty bound to recognize the need and time to make a referral to a specialist, who shall be
best suited to treat/ manage the patient.

• Similarly the dentist is bound to refer the patient to a physician for medical opinion/ consultation and
treatment of the patient’s underlying systemic status.

• Any act done in good faith for the patient is exempt from clauses of negligence.

• However Failure to adequately explain the procedure and its outcome to the patient in the language
they understand is a negligent act.

• Certificate: Issuing false or incorrect certificates constitutes serious misconduct and criminal
liabilities.

• Confidentiality: The Dentist is ethically bound by confidentiality of their patients and legally also
needs to maintain the same.

• When the patient doesn’t follow instructions and the required post treatment follow-up is not
maintained, it can be termed as Contributory negligence on the part of the patient.

Prevention Against Negligence -

• Be up-to-date and abreast of the current and newer treatment modalities

• Exercise reasonable care and skill

• Keep accurate and complete records

• Employ qualified staff and associates

• Obtain valid INFORMED consent

Complaints – In case of a medicolegal complaint filed, the dentist needs to acknowledge, clarify and
investigate the complaint. If possible, the dentist should compromise, negotiate and settle the matter

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immediately with the patient. If not possible, the dentist should take help from senior colleagues,
association members, an advocate experienced in dealing with medicolegal matters, indemnity advisors
and immediately act on the same. Maintaining followups and confidentiality is the key.

In case of a medicolegal claim, the dentist needs to gather all the documentation of the patient,
their consent form, case records, investigation reports, patient’s xrays. The dentist should not tamper
with any patient records and should not discuss the same, especially on social media. Patient records
should not be misplaced or destroyed. The dentist should avoid discussing with the patient or their
representatives and also avoid arguments and admitting to his faults or offering baits like waiving of
fees. A professional advocate should be consulted and the records produced and the claim should be
handled in the proper legal way.

Conclusion – Dentists now need to understand that facing lawsuits is now becoming increasingly
common in India too and they need to prepare themselves for the same too. Keeping adequate patient
case records, having sufficient medicolegal knowledge, keeping informed consent forms, taking a
professional indemnity insurance policy, maintaining communication with the patient at all times,
having sufficient knowledge, skills, training for the treatment procedures that they employ and
maintaining sufficient precautions is the need of the hour for a successful clinical practice.

References -

1. Medical law for dental surgeon by George Paul, chapter no 5, pg no 29.

2. Nayak RK. Consumer Protection Law in India, the Indian Law Institute, 1991. Tripathi NM Pvt.
Ltd.

Acknowledgement – The author remains indebted to Dr. Bhavdeep Singh Ahuja for being a source
of inspiration and for his support, guidance and mentorship without which this article would not have
been possible. The article remains a brief gist and is an attempt to summarize all his teachings till date.

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