Not many people relish the thought of a trip to the dentist’s office. It is usually done grudgingly, with the end being the highlight. There are a wide range of services and procedures offered at a dentist’s office. As with any other medical genre, it is imperative that you go to a licensed and experienced dentist because your health and well-being depend on it.
In Canada, a dentist can be held professionally and civilly liable for any mishaps during your treatment. There are institutions that monitor the licensing and continued practises of Dentistry in order to keep consumers safe, as well as to ensure that all registered dentists are afforded the ability to work within the industry without fear of being targeted for malpractice. Errors can happen during procedures and the Royal College of Dental Surgeons of Ontario offers a risk management program, namely the Professional Liability Program (PLP), which ensures that these dentists have access to beneficial legal resources and their patients are afforded compensation if they are harmed in any way.
If you believe that you have been harmed during a procedure with your dentist, you have two main options. The first and most advisable is that you consult with a reputable personal injury lawyer who can advise you on what steps you can take to have your desired outcome. The second option is to give the dentist written notification of your issue and your expectations. Your practitioner then has the option to contact his legal department for advice.
There is a time limit of two years offered to patients who choose to seek compensation. It begins from the time of the incident or from a reasonable time thereafter when injuries related to the procedure became obvious.
A recent case of note was that of Guerrero v. Trillium Dental Centre. E. Guerrero (the plaintiff) chose to have an elective dental procedure (teeth whitening) at the Trillium Dental Centre. She was not well that day and had a frequent cough that erupted at points during the sessions, which consisted of three fifteen minute treatments.
The procedure was performed by a dental hygienist on staff at the time who was employed with the Centre, and many precautions were taken to ensure that the whitening serum would not come into contact with any area in her mouth with the exception of her teeth.
The plaintiff was now seeking damages for injuries she claimed she received during the procedure.
A motion was brought forth by the defence to have the plaintiff’s claim dismissed based on their versions of evidence.
The first summary judgment that the defence is seeking, is to have the plaintiff support her claims of breach of procedure with the testimony from an expert witness. They believe it is the only way to establish true medical malpractice.
The second issue at hand is whether or not the patient gave an informed decision of consent to carry on with the procedure.
The plaintiff counters the first objection citing the Regulated Health Disciplines Act which does not make teeth whitening a controlled act to be performed only by licensed individuals. Her legal counsel asserts that it therefore is not a case of malpractice but a simple commercial transaction which does not need the assertion of an expert witness.
Regarding the second concern of the defence, the plaintiff claims that she was not made aware of the chance of burns or any other issue that may arise from the whitening serum or that she should avoid contact with it. She claims that she was openly coughing before and during the procedure and nothing was said to her about it affecting the procedure.
The Judge did not agree with the plaintiff’s assertion that an expert witness was not needed. He saw that the procedures for teeth whitening was not common knowledge that everyone would possess. In order for her to claim that standard of care was breached, she had to prove that the hygienist did not follow correct procedure. The only way to do that was with the opinion of an expert witness.
Concerning the second summary judgement, the Judge did not agree with the defence’s view that the client was well informed of the risks associated with going forward with the procedure at that time. According to the notes provided by their hygienist, she was fully aware of the patients cough before and during the procedure, and warned her that if she continued to press her lips together that she could run the risk of burns. She also notes that the patient started complaining of pains in her teeth and asked that the procedure be stopped.
The procedure could have easily been postponed by either party since it was elective, and it cannot be said with certainty that any individual would have still gone through with it whether or not the risks were explained.
The plaintiff’s claim for medical malpractice without the use of an expert witness was dismissed, but the Judge allowed for the fact that the Dental Centre could be held liable for their employee’s lack of informing the patients of all the risks, including the ones that could have been avoided.