Breach of Care
Before any case commences, a patient must prove there was a breach of duty of care in failing to reach the standard of care expected and that they suffered harm/losses as a result (causation), and that the harm was foreseeable and not to remote.
The key issue is what the standard care pertaining to the time for that particular clinical situation was and whether the dentist did something a reasonable dentist would not have done, alternatively did not do something a reasonable dentist would have done in that particular situation. This is the ‘Bolam Test’ and still a relevant standard that applies some 60 years after the judgment was handed down.
The Bolam test is applied in law to assess whether or not the defendant in question has committed a breach of duty, and is guilty of negligence. It clearly states that a dentist is not deemed to have been negligent if he/she has acted in accordance with a practice accepted as proper by a responsible body at the time the event occurred.
The law does not expect the dentist to be aware of every recent development in medical science but they would however expect that the procedure or technique has become well proven and well accepted before it is adopted.
The GDC however expect clinicians to provide good quality care based on current evidence.
Causation
Proving negligence is only half the battle though. Once negligence has been identified, the claimant then has to prove causation. This is why the experts report is required.
Identifying causation is the most important factor in a case and is often overlooked by some experts. Each expert must understand that it is not enough to simply just to deal with liability, for the case to have merit. The claimant must prove that the patient would have had a much better prognosis but for the defendant’s negligence.
The but-for test is used to identify causation. I.e. but for the negligence, the resulting outcome would have been far better/ the injury would not have occurred. Thus the negligence in question made a material contribution to the severity of the injury.
If a defendant is deemed to have been negligent, but the resulting damage would still be the same, then there is no case as causation has been disproved.