Edgar Gordon - Dental Claims and ComplaintsEdgar Gordon - Dental Claims and Complaints

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Edgar Gordon - Dental Claims and Complaints
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The First Stage

dental complaints

None of the options in making a dental complaint can be considered until you have first given the dental practice the opportunity of addressing your concerns. No statutory authority, regulatory body or solicitor will assist you until an attempt has been made.

This first stage is governed by both the NHS Primary Care Trust's contract with dentists that every practice appoints a designated complaints manager and the General Dental Council's insistence that a dentist respects the patient's right to complain. The ground rules are that complaints should be acknowledged within three days and there should be a full response within ten days.

Unless there are very special circumstances, you should make your complaint in writing. The letter should be as short as possible with the main concerns summarised using bullet points and asking direct questions. Try not to use emotive words or make judgements. The letter should be a simple fact finding exercise. You want reasons why things went wrong. Delay the decision on whether to go back to the same practice until after you receive the response. Remember to open a file and keep photocopies.

There can be three outcomes.

  1. The practice apologises and your questions are answered. Perhaps remedial treatment is offered at no further cost, either with the same dentist or another dentist in the same practice, or there is an offer to refund of fees as a gesture of goodwill. Whether you accept the apology and offer is your decision. It must depend on what you want to achieve.
  2. The practice apologises but the questions are not answered or not answered satisfactorily. There is no return of fees. You then proceed to one of the three options outlined in the second stage below.
  3. The practice neither acknowledges receipt of your letter or replies. You might want to be generous and send a photocopy with a reminder. If this still fails you can go directly to the General Dental Council (www.gdc-uk.org tel: 0207 887 3800 and complain. However, the Council will only deal with the failure to adhere to their complaints guidelines. They will not deal with the actual complaint itself at this stage.

The Second Stage

dental complaints

There are several options and some can run concurrently. All have advantages and disadvantages in terms of time costs and stress.

NHS Patient Advice and Liaison Service (PALS)
This option is only available for dental treatment carried out under NHS regulations of the General Dental Services. It is organised around local NHS Primary Care Trusts. Telephone numbers and addresses can be found on www.pals.nhs.uk.

The efficiency and proper investigation of dental complaints by PALS staff varies depending on the local NHS Primary Care Trust bureaucracy and how much local managers understand clinical dentistry. This is generally not very much. The main concerns of dental leads of Primary Care Trusts are whether dentists have fulfilled their contracts by ticking the right boxes. While you can be assured of eventually being told the outcome of an investigation and a thank you for bringing the matter to their attention, their remit does not allow them to address the issue of fees or costs. You can of course use an adverse report from PALS as the basis for taking your complaints further.

Dental Complaints Service
This option is for treatment provided either wholly or partly under private contract. It is a very effective and efficient telephone or e-mail service run by trained complaint advisers (www.dentalcomplaints.org.uk tel: 0845 6120 540) who only deal with dental issues. It is basically a conciliation operation. It handles over 11,000 calls a year and closes two third of the complaints within a week. In 2008-09 the total amount of refunds to complainants was £106,811. The maximum level awarded is limited to twice the fee under dispute. If the complaint advisers cannot resolve a complaint then parties are invited to meet with a local panel of trained volunteers - two lay and one professional. Only eight complaint panels met last year. This option cannot be taken concurrently with litigation in the Courts.

The County Court
Now a relatively simple DIY procedure with user friendly County Court brochures (www.hmcourts-service.gov.uk). This option is particularly useful for dental laboratory items which can be considered under the Sale of Goods Act 1979 (amended in 1994). www.consumereducation.org.uk). This law allows dentures, crowns and bridges to be considered as goods which have to be of satisfactory quality and fit for purpose. A new non-immediate denture that is loose, a bridge of poor colour or a crown that keeps coming out does not need an expert report. In such a claim there is no remedial treatment resulting from damage. It is merely a matter of going to another practice and having the work redone. Since the maximum NHS patient charge is £198 (2009) the court fee is a modest £30. This is recoverable. The prospective thought of waiting in the corridors of a County Court for a case to be called concentrates the mind of most dentists.

A Solicitor

dental complaints

Litigation should always be the final resort. In spite of the 1999 reform of the Civil Procedure Rules insisting on proportionality, pre-action protocols, timetables and employing single joint experts, it is still a long hard road. It takes time and is not without anxiety. The only redeeming feature is that virtually all meritorious dental complaints are settled. The angry dental complainant who wants his day in court is very likely to be disappointed.

Solicitors specialising in dental cases are likely to be members of the Association of Personal Injury Lawyers (www.apil.org.uk ) tel: 0115 958 0585.

The solicitor you instruct will first want a summary of what the complaint is about. Your original letter to the dental practice and their unsatisfactory response might be all that is needed. This initial overview is necessary for the solicitor to decide whether to accept your case on a' no win - no fee' conditional fee arrangement (CFA). Under these business terms solicitors agree what is called a success fee with their clients. This can be up to 50% of their normal fee. Solicitors will deny cherry-picking cases but it is safe to assume they will not want to accept risky cases. In the absence of a CFA you can expect up front payments irrespective of the outcome.

The next stage is for the solicitor to obtain all your dental records, dental X-rays and each and every reference concerning your dental treatment. If you have seen another dentist, specialist or gone to a dental department of a hospital these records also have to be sought. Disclosure of records has its own regulations and locating them takes time.

Finally an independent dental expert has to be found and instructed. The expert's duty is sole duty to the Court (although as already stated his evidence is unlikely ever to be tested). Generally there will be two reports but occasionally they can be rolled into one. The first report deals with causation. This is prepared using the disclosed records. Causation can be an incredibly difficult issue. Essentially it is about A causing harm to B without the involvement of C or perhaps D. An example may be a dentist's failure to diagnose over a five year period long standing gum disease in a 45 year old patient smoking 10-15 cigarettes a day. Causation is deciding how much gum damage would have occurred in any event because of the smoking? To make matters more complicated, a view has to be taken on how much gum damage was already present when the complainant first visited the dentist.

The second report is on condition and prognosis. By definition this requires the expert to examine the complainant and take further X-rays. It is a factual report in which the expert describes what he sees. These reports include the cost of remedial treatment and an approximation of how long it will last. Costs are always based on private fee guides. These are prepared from an annual survey of UK dental practices based on expenses and dental laboratory costs.

There is always the possibility that the first report concludes that there is nothing the dentist did or did not do that could not be supported by a responsible body of other dentists acting in similar circumstances. That the treatment failed is unfortunate. However, this is not the same as a failure in the duty of care. There may be all sorts of other reasons why treatment failed. As in other form of healthcare, guarantees do not exist in dentistry. If the expert cannot support the allegation the complaint simply folds.

On the other hand, if the report is supportive, the solicitor will begin the long and tedious correspondence with the dentist's professional defence organisation and their solicitors. It is quite possible that they will want their own expert to examine you and you will have to make yourself available. It is not the purpose here to go through the legal skirmishing that follows but contrary to claimant's perceptions, it is in the interests of all parties to reach a settlement. This has to be for both general and special costs. These may require a meeting of experts to decide on what and what will not be agreed in court. A day may even be scheduled for trial but, as already stated, an agreement is invariably reached. It is in no one's interest to go to trial for in the world of dental litigation, settlements are modest compared with medical cases.

At this stage it might be helpful to a potential complainant to understand the dynamics of the patient-dentist relationship. At its core is a matter of trust. It is expressed by good communication. Dental professional behaviour is at its apogee at the very first examination. What follows is basically a safe pair of hands working under contract in a business setting. At the first appointment options of treatment are given, foreseeable and material risks explained, questions are answered and costs are negotiated transparently. Communication is the key. What follows, irrespective of a one-off simple intervention or a lengthy course of complex treatment, is a matter of trust. Blaming patients for unrealistic expectations is not the issue. The issue is poor communication.

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