The limitation period and maintaining proper records

Not only is it good practice to maintain records of dental treatment, it is required by Regulation 33 of the Dental Practice Regulation 2004 (NSW) for a period of seven years, and there are similar provisions in other states and territories throughout Australia.

The importance of maintaining patient records for at least the statutory minimum requirement is imperative. This is evidenced by a District Court case arising out of the performance of root canal treatment and crown and bridge work in a patient who had been receiving treatment over several years.

The root canal treatment in question was provided in the period 1992 to 1998 and 2003. The crown and bridgework, the subject of the litigation, was performed in the upper left quadrant in April 2001 and in the upper right quadrant in February 2004. The bridgework placed in the upper right quadrant was replaced in December 2004. Initially a 3 unit cantilever bridge spanning teeth 24 to 26 was placed in April 2001. Then in February 2004 a Maryland type bridge with a crown on tooth 14 was wrapped around the lingual of the tooth 13 which was of a small size.

By November 2004 the patient had returned complaining of failure of the Maryland bridge spanning teeth 13 to 14. Accordingly a second bridge was prepared in 5 units spanning teeth 13 to 16 with an additional pontic post at the side of tooth 13 given its congenitally small size.

This second bridge was cemented in December 2004. The patient returned in January 2005 to consult with the dental surgeon for the smoothing of a small chip on the distobuccal cusp of 16. This was the patient's last consult with the dental surgeon.

Shortly thereafter the patient consulted with another dental practitioner as she was unhappy with the second bridge. This practitioner upon objective examination was concerned about marginal deficiencies and therefore referred the patient to a prosthodontist. The prosthodontist formed the view that the bridgework performed by the dental surgeon was not in accordance with accepted standards of dental treatment and recommended its replacement with six implant supported crowns. This work was embarked upon, in conjunction with an oral surgeon over a 12 month period from late 2005 until late 2006.

The Claim

In August 2007 the dental surgeon received a letter from the patient's solicitor enclosing a Statement of Claim which had been filed in the District Court that same month. The patient alleged that the dental surgeon inserted a bridge spanning teeth 13 to 16 which failed as a result of poor marginal fit and over contoured retainers, inserted a bridge spanning teeth 24 to 26 which failed as a result of poor marginal fit and over contoured retainers and performed inadequate endodontic treatment of teeth 15, 16, 17 and 26. The patient alleged that as a result of the dental surgeon's negligence she was required to undergo further surgical intervention and substantial rectification costs.

The Defence

Thankfully the dental surgeon had maintained thorough clinical records, but over the passage of time some radiology had been misplaced. In addition, all of the dental work undertaken by the dental surgeon had been replaced. We sought to allege that the patient had failed to institute proceedings within three years of the cause of action having accrued to her as required by the Limitation Act 1969. Given that the patient did not seek the Court's leave pursuant to the Limitation Act 1969 to commence proceedings, we asserted that the patient's claim was not maintainable and that this was a case where a defendant dental surgeon would suffer real prejudice by reason of any extension of time. This argument was made on the assumption that negligent acts had occurred prior to August 2004. Given that the patient had since had restorative dental work it was simply impossible for the dental surgeon to investigate, analyse and otherwise arrive at a properly informed expert opinion regarding the alleged inadequacy of his work.

The patient's solicitors sought to allege that the patient did not have the requisite awareness that the dental surgeon had caused injury until consulting with a prosthodontist in May 2005 and in those circumstances the limitation period did not commence to run until May 2005, so that proceedings had been commenced within time.

Nevertheless, expert opinion obtained in defence of the proceedings did suggest that the dental surgeon did not perform crown and bridge work in accordance with acceptable standards. This was because despite the work having been replaced thereby preventing us from assessing the patient, the prosthodontist had performed x-rays and photographs which allowed the expert to form an opinion as to the standard of care.

The parties were ordered by the Court to organise a Mediation due to the clinical complexities of the case. At the Mediation the plaintiff's barrister argued that the cause of action was one based on a beach of agreement rather than breach of duty of care, in order to overcome the limitation issue. Therefore no claim for general damages was made and the plaintiff confined her claim to a refund of past treatment fees and rectification costs. It was on this basis that the proceedings resolved and a reasonable outcome was achieved.

Key learnings:

• The case is an example of how maintaining clinical records for at least the minimum required by statute, is an effective risk management tool and can allow claims to be defended a number of years subsequent to dental treatment.
• The importance of maintaining patient records for at least the statutory minimum requirement is imperative, however it is equally important to ensure the quality of these records is maintained. In this case the dental surgeon had maintained thorough clinical records, but over the passage of time some radiology had been misplaced potentially damaging the practitioner's defence.

Fiona Dransfield, Principal Solicitor, Meridian Lawyers