Your records are key to your defence

Some of you may have read about this case, which was ultimately decided in the Consumer, Trader and Tenancy Tribunal in NSW. For all other readers it is an excellent example of just how critical your records can be to your defence, and an opportune reminder to all of us of the importance of record keeping.

Quite often, the decision as to whether to defend a matter is based on a number of factors including the quality of the patient records, the quality of treatment performed, quality treatment planning, options, informed consent being given and peer opinions to name a few. However, the written word is absolutely critical and is there for all to see.

In this case the patient first appeared in 2005 with pain from pressure and sensitivity to cold stimulus. On examination, it was noticed that there was a fractured DO restoration on tooth 36. Extensive caries was under the restoration which was duly removed and a resin restoration with a GIC liner placed.

The patient returned two months later stating that there was still pain when cold was applied. Once again the patient was advised that RCT may be required and the tooth may take longer to settle as the restoration was very deep. Three weeks later the patient requested the radiographs and went to seek a second opinion. Discussion was held between the two dentists and it was decided that the restoration would be removed and a sedative dressing placed by the first dentist. The tooth settled down and an amalgam restoration placed but the pain returned and the patient was referred to an endodontist. The patient did not attend the endodontist but went elsewhere taking the X-rays with him.

Eight months after the patient had first attended, a phone call was received by the dentist alleging negligence saying that RCT and a crown had since been carried out and that the dentist should cover the costs of that treatment because she could afford it as she was a rich dentist.

A letter was forwarded to the patient mentioning that it was regrettable that the tooth required endodontic therapy and was not caused by any treatment rendered by the dentist and as such she could not accede to his request for out of pocket expenses that he had incurred.

Not accepting the content of the letter, the patient fired in another alleging that the dentist who completed treatment had said that the

RCT would not have been needed had the first procedure been completed correctly. The dentist replied stating very succinctly in lay terminology, reiterating her previous letter and expressing her surprise that the dentist that the patient had seen since could pass accurate comment to him when he would not have been aware of the initial presenting situation. The dentist wondered whether she would be better off just refunding the money requested after asking the patient to sign a Deed of Release.

Next thing the dentist gets is a Dental Board letter attaching the complaint of the patient; some issues being "not removing the old filling with precision to avoid touching the nerve; not using amalgam; not drying the tooth properly before filling with white material". The refund claimed had jumped by another $1200.

The dentist responded to the complaint addressing all grievances that the patient had expressed after obtaining approval from Guild Legal as to content. The Board informed the dentist that the complaint did not raise issues of professional misconduct and that the complaint be dismissed and the matter closed. Eighteen months had passed since the initial consultation.

The patient was not satisfied that he had received natural justice and decided to pursue the matter via the Community Justice Centre which stated that the patient wished to arrange mediation with the dentist but that it was voluntary. The dentist informed the Centre that the matter had been determined by the Dental Board and she was not interested in mediation.

What happened next? A letter was received from the Consumer, Trader and Tenancy Tribunal (CTTT) in the form of a Notice of Conciliation and Hearing with a date set down to attend. The dentist was very reluctant to attend because of the time that she would have to spend out of the surgery and not wishing to have to confront the patient. Whilst understanding her attitude, it was stressed that considerable effort had been put into managing this matter and her case was very sound. Backing off at this stage by not attending would undoubtedly influence the Member of the Tribunal in making a finding for the complainant and no doubt word would get round that dental matters are an easy touch when bringing complaints against dentists.

For the information of those who have not had to attend a hearing date at the CTTT*, you have to first pass through a security screening. There are a number of cases that are brought before the Member (about 6-8 cases) and, after ascertaining who is present, the two parties are sent to a meeting room in order to attempt conciliation. There are roving conciliators who call in frequently to see if they can be of help and to find out whether there is any likelihood of resolution. If a decision can be reached, this is written down and presented to the Member who makes a binding order.

In this case, no progress was made as the complainant wanted a total refund because he believed that the dentist had been the cause of him requiring a root canal therapy. The two parties then went back to the Member informing of such and the matter was set aside to another date for a formal Hearing. On occasions, it may be possible for the Hearing to be conducted on the initial date but this is quite rare. Prior to the hearing date, the two parties have to exchange documents between one another and submit a copy of every document to the CTTT that they wish to rely on. These documents have to be furnished by a date laid down by the CTTT about 2-3 weeks prior to the Hearing date. Witnesses can also be brought to the Hearing.

The complainant wanted to get affidavits from two other dentists that he had seen and there was a need by the dentist to obtain X-rays and have them copied. The complainant advised the CTTT that he needed more time as one dentist had gone on holidays and he would be unable to obtain the affidavit by the due date. The CTTT granted the complainant an extension of time. Unfortunately for the complainant, he was unable to present any statutory declarations from the dentists possibly because the declaration would not be helpful to the patient's case. He did however attempt to present a seven page statutory declaration setting out the situation as he saw it. It contained nothing new in evidence but was a rehash of the complaint and in fact, whilst being provided to the CTTT within the time stipulated, it was not given to the dentist until two days before the Hearing and did not comply with the CTTT orders. The dentist wrote to the CTTT along the lines of:

" I am the respondent to the complaint which is listed for hearing on...At the first meeting, the Member ordered the parties to serve all relevant witness statements and witness lists on the other party and submit a copy to the Tribunal on or before...The complainant sought and was granted an extension of that order to a week later. The complainant did not serve me with any witness statements or witness lists during that period.

* Note: This for New South Wales only.

Two weeks after the extension date, the complainant attended my practice and presented me with a seven page affidavit. The purpose of this letter is to object to the Tribunal accepting and/or filing any further evidence from the complainant. He has been given one extension and I would submit that fairness dictates that this complaint proceed to hearing on...based on the evidence filed within the complying period.

If it is the case that the Tribunal will consider accepting further evidence from the complainant, then I would appreciate receiving written notice as I will need to consider my response and what prejudices I have suffered as a result of the complainant's non compliance."

The CTTT replied acknowledging the dentist's concerns and that the issue of non compliance should be raised at the Hearing. Guild Legal advised the dentist and DDAS that:

" Whilst the affidavit is more like a submission document, it is clear that the complainant has received the assistance of a lawyer to draft the affidavit. If the CTTT is to accept that affidavit into evidence, then the dentist should be given the opportunity to reply to that document. In order to do that, there will need to be an adjournment of say two weeks.

If the CTTT accepts his argument, then the dentist should ask the CTTT whether it would be willing to make a costs order against the complainant. The dentist should explain the time that she has taken off work etc.

If the CTTT decides to accept the complainant's affidavit into evidence and the dentist does not wish to adjourn the Hearing, she should understand that she has my (and Guild Insurance Limited's) full support."

The dentist, within the complying period, obtained an affidavit from an independent dentist who was shown an x-ray of the tooth which stated:

" I have viewed an x-ray marked X supplied by...taken on...prior to treatment of the patient and confirm that there is deep caries on the distal aspect of tooth 36. Due to the close proximity of the caries to the pulp my recommended treatment to the patient would be to restore the tooth immediately with a warning that root canal therapy might be required at a later date."

The dentist was briefed on the day of the Hearing and it was decided that unless the complainant brought forward further claims in his evidence, that the dentist would not mention failure to comply in relation to his affidavit. This was decided upon on the basis that the dentist had an excellent case and that she did not wish to spend any more time through having the Hearing deferred again.

Two hours had been set aside for the Hearing. The Member of the Tribunal ran through the procedural issues stressing not to interrupt the other person giving evidence. The Member asked who was with the dentist and was advised that they were a representative of the ADA (NSW Branch) Ltd acting as an observer. The Peer Advisor was instructed not to prompt the dentist or assist her by any other means. The complainant was asked if he was willing to resolve the matter by further conciliation to which he replied in the negative. It was pointed out to him that by electing not to conciliate the matter would mean that one of the two parties would be disappointed at the end of the day. The complainant then reconsidered and informed the Member that he would be willing to accept a compromise of half the amount claimed. Because the case was so strong for the dentist, it had been agreed that she would not conciliate the matter and so the Hearing proceeded after both parties were sworn in under oath.

The Member took time to read the affidavit provided by the complainant after it was referred to many times when he gave evidence. The Member referred four times to the dental records of the patient which stated at the initial appointment, "warned very deep; possible endodontic therapy". The patient was asked a number of times where was there evidence from other dentists to support his claims as she, the Member, couldn't find any. The patient appeared to become confused about who said what and whether the account from other dentists related to the RCT that was necessary. After one hour of the Member trying to encourage the complainant to bring forth further evidence, she sked both parties to wait outside for fifteen minutes.

On return to the Hearing, the Member did not ask the dentist to produce any of her evidence and proceeded to address both parties and handed down her decision. Part of the Order handed down stated:

" there is no evidence before the Tribunal, apart from the applicant's own assertion, that the procedures performed by the respondent caused the need for the applicant's root canal treatment. Notwithstanding that the applicant attended other dental professionals in relation to his difficulties, none of the material before the Tribunal from these dentists supports an inference that the restorative work done by the respondent led to the necessity for root canal treatment. Rather, the only inference the evidence does give rise to is that the applicant may have required root canal treatment in any event. On the evidence before it, the Tribunal cannot be satisfied to the civil standard required that there is any liability which falls to the respondent to pay for the applicant's root canal treatment. Nor is there sufficient evidence before the Tribunal to satisfy me to the civil standard required that the dental work performed by the respondent was carried out incorrectly. Accordingly, the application is dismissed"

At the end of the day, it appeared that the dentist was disappointed that she did not have the opportunity to bring forth evidence as she had been all keyed up to go and had been well advised by Guild Legal. As a reward to herself, she decided to take an overseas trip the following day.

All up, this matter took two and a half years to reach finality. The dentist is to be congratulated on resisting the temptation to pull the pin on the whole issue and just refund the money sought by the patient.

Dentists are warned that not all cases would be managed such as this. You see, it is the records that spoke on behalf of the dentist. Just those couple of words at the initial appointment, "warned very deep; possible endodontic therapy" directed the way that the matter could be handled. It cannot be stressed enough time and again that records are one of the best forms of evidence available to defend the dentist.

Key learnings:

• Quite often, the decision as to whether to defend a matter is based on a number of factors including the quality of the patient records.
• The written word is absolutely critical and is there for all to see.
• It is the records that spoke on behalf of the dentist. Just those couple of words at the initial appointment, "warned very deep; possible endodontic therapy" directed the way that the matter could be handled.
• Records are one of the best forms of evidence available to defend the dentist.

Dr Peter Crozier Peer Advisor, Dental Defence Advisory Service (DDAS), Australian Dental Association NSW

AUTHOR SUMMARY

Dr Peter Crozier has worked in the dental industry since graduating from Sydney University in 1967.

For nearly thirty years he worked in private practice before providing locum services to rural dentists throughout Australia, recognising a need for his colleagues to have a break from practice, particularly in areas where there was only one dental service provider.

Peter became a member of the ADA NSW Council in 1986, becoming President in 1994. He was made an Honorary Life Member of ADA NSW in 2002 when he joined DDAS, firstly as the State Risk Manager and then as a Peer Advisor.