Maintaining good oral hygiene is vital to one’s health and regular dental checkups is part of our overall wellbeing. When we book an appointment with a dental practitioner we have an expectation that we will receive professional treatment and care, unfortunately that may not always be the case. So how do we know whether what we are experiencing is in fact negligence, malpractice or just a bad experience due to dental complications that lead to costly procedures?
Dental negligence is a growing problem in South Africa and globally. According to the South African Dental Journal (volume 74 Number 6, July 2019) dental malpractice and negligence complaints are on the rise and include confidentiality breaches, lack of valid informed consent, fraudulent medical qualifications, violation of dental regulations and fraudulent claims for services not rendered. Research indicates that South African dentists were most commonly charged with clinical complaints (59%) whilst 29% of dental cases and 46% of dental therapist cases were for fraud.
Many South African’s are becoming more and more aware of their medical rights, not only with regards to clinical procedures but also fraudulent activities within dental practices. This article aims take you through the process required to claim for dental malpractice in South Africa.
What is Dental Negligence?
Dental negligence, also known as dental malpractice occurs when a dental practitioner fails to competently perform their duties based on the professional standards provided by the Health Professions Council of South Africa (HPCSA). Negligence occurs when a practitioner’s conduct does not meet the standards established by law and results in unreasonable risk or harm of a patient. Malpractice is a legal term that is considered the overarching legal practice area and medical negligence is one element within the medical malpractice claim.
Malpractice may be categorized as follows:
- Clinical Malpractice Namely Prosthodontics, Orthodontics, Oral Medicine, Operative dentistry and Oral Surgery.
- Unprofessionalism occurs when the dental practitioner does not act according to the norms and standards set out by the Health Professions Council of South Africa (HPCSA) and may include lack of confidentiality, poor record keeping, poor communication, failure to disclose risks of procedures, lack of consent, failure to follow up after procedure or referral to name a few.
- Fraud occurs in a variety of ways namely: Qualification Fraud (when the dental practitioner does not have the necessary qualification and is practicing out of scope or employs unqualified dental employees), Claim Fraud (Claiming for services not rendered or split billing, over-charging misleading or inaccurate statements).
Some examples of clinical malpractice:
- Failure to provide a treatment plan: When a dental practitioner does not provide preventative or oral hygiene advice.
- Extraction errors: When a dental practitioner does not competently perform an extraction procedure resulting in a botched extraction that may leave the patient with an infection, damage to surrounding teeth, jaw fractions and nerve damage. Furthermore, if the practitioner extracts the incorrect tooth which will lead to further medical expenses and result in a painful implant procedure.
- Failure to diagnose: When a dental practitioner misses or fails to provide a diagnosis that may lead to serious health issues in the future that could have been treated or prevented.
- Failure to communicate accurate health reporting: Inadequate radiology or imaging provided by dental practitioner.
- Complications of an endodontic procedure (root canals): Endodontic procedures (root canals) are delicate operations. If you or your loved one has suffered any type of medical complication as a result of a root canal, you should speak to an experienced dental malpractice lawyer immediately.
- Anesthesia errors: Anesthesia is commonly used by Dental Practitioners and administering this drug incorrectly may but the patient in harm.
- Oral Infections and Nerve damage. Permanent nerve damage or oral infections caused by a dental practitioner by overly rough treatment or failure to correctly sterilize dental equipment.
Injuries caused by the malpractice above usually result in further damages in the form of further financial expanses, pain and suffering, loss of wages, disfigurement, future health complication and diminished quality of life.
What Compensation is available to you as a victim of dental malpractice?
As a victim of dental malpractice you should first report the malpractice to the Health Professions Council of South Africa (HPCSA). The HPCSA however does not handle the issues of compensation but merely deals with the breaches of ethical conduct within the health profession. You can then institute a civil case in either the Magistrate’s Court or the High Court against the practitioner to claim for damages. When the case of malpractice occurs in a private or State hospital, the hospital may assume liability rather than the particular Dental practitioner.
What is required in preparation of a dental Malpractice Lawsuit?
When it comes to Dental procedures, like with most medical procedures there is no guarantee that the procedure will go according to plan. Therefore, it is vital that a patient who suffered clinical or non-clinical malpractice after receiving dental treatment has sufficient proof to build their case.
A victim of dental malpractice must be able to prove that complications or injuries occurred as a result of substandard care they received from the dental practitioner. It is vital that you contact a reputable medical negligence attorney to represent you as in most cases the insurance companies that defend malpractice claims are likely to challenge your claim by undervaluing the damage in settlement negotiations.
Before contacting a medical negligence attorney, ensure you have the following evidence ready:
- Evidence that a hospital or dental practitioner undertook a legal duty to care or treat you
- Evidence that the hospital or dental practitioner breached this duty and did not provide the relevant level of care or treatment
- Evidence that this breach resulted in a direct injury to you
- Evidence that this injury led to a financial, physical or emotional loss
Do you need help with your personal injury claim?
What do I do to build my case and what can I expect?
As indicated earlier you should first report the malpractice to the Health Professions Council of South Africa (HPCSA) within 3 years of the incident. You are required to download a form from the HPCSA website (www.hpcsa.co.za) or collect it from their head office in Pretoria (553 Corner Hamilton & Madiba Streets, Arcadia, Pretoria) and send it to the HPCSA; either by
- General Mail: P O Box 205, Pretoria 0001;
- Hand Delivery: 553 Corner Hamilton & Madiba (Vermeulen) Streets, Arcadia, Pretoria; or
- Fax: (+27) 12 328 4895
- complete an online complaint form directly on their website
Your complaint must
- State clearly that you wish to complain against a healthcare professional and that the HPCSA should investigate your complaint;
- Identify the healthcare professional against whom the complaint lodged, by including his/her surname, initials, practice address and practice registration number;
- Detail the nature of the complaint, including all relevant dates and facts as well as supporting documentation were available;
- Be signed by you, your legal representative or any other person lodging the complaint on your behalf; and
- Include full contact details for correspondence purposes (such as requesting additional information regarding your complaint).
The HPCSA complaints process is as follows:
- Within seven (7) days of receiving your complaint, the Registrar forwards your complaint to the healthcare professional concerned and requests a written explanation from him/her.
- Your letter of complaint together with the healthcare professional’s explanation (if submitted) is referred to the Professional Board concerned for consideration.
- Should the Board decide that there are grounds for complaint, a Professional Conduct Committee will hold a professional conduct enquiry, during which oral evidence is presented, often including independent, expert witnesses.
- Should the professional conduct enquiry find the healthcare professional guilty of misconduct, the committee’s decision is final, unless either party lodges an appeal.
- A healthcare professional found guilty of professional misconduct may be subject to the following penalties:
- A caution or a reprimand or both;
- A fine;
- Suspension for a specified period from practicing his/her profession;
- Removal of his/her name from the relevant register;
- A compulsory period of professional service; or
- Payment of the costs of the proceedings.
It is advisable to appoint a medical malpractice attorney once you have reported your malpractice incident to the HPCSA so they may start investigating the malpractice and build your case for court.
What does the legal process entail?
Your attorney will request all your medical records to review your evidence and will send a letter of demand to your dental practitioner. In cases of emotional or financial strain you will have to disclose psychological and/or financial reports to your attorney to prepare your case. The Letter of Demand states what monetary compensation you are requesting and gives a time frame in which to satisfy that demand.
Should the Practitioner not reply to the Letter of Demand, the practitioner will receive a Summons from the court which lays out the details of the claim. If the Practitioner responds, your attorney will determine whether the matter needs to go to trial or can be settled out of court with the practitioner. In most cases it is ideal to settle the case out of court as the court proceedings may take months and in some cases more than a year to settle.
Should your legal representative take the case to court other medical practitioners may be brought in to testify on your case and in most instances you will need to testify as well. The trial has both claimant and defendant lawyers presenting their side of the case, witnesses are called and cross-examined.
Should your claim be successful, the judge may grant a monetary compensation equivalent to what she or he deems adequate and may include loss of income, legal fees and any other relevant costs incurred due to the malpractice. The amount will be determined by the judge and determined by how the negligence affected you and how much can reasonably be claimed from the dental practitioner.
Is it worth bringing a lawsuit?
Our health is the one thing that matters long term – work, finances, family and personal circumstances change from year to year but our physical and emotional wellbeing is what matters in the long run. As individuals we rely heavily on qualified medical professionals to diagnose, treat and care for our wellbeing. That is why when they do not uphold the ethical and medical standards they are governed by our lives can easily turn from life/business as usual to an unraveling emotional and financial pitfall.
Medical practitioners have taken an ethical oath “first do no harm” and when harm does occur it is up to their patients to notify the boards where they are registered and governed by and to take action to legally rectify the damage that was caused during their care.
Should you be questioning the medical treatment you received then take the accurate steps to rectify it, whether it results in a suspension, deregistration of practice for the practitioner in question or compensation it is your right to receive professional, ethical and quality medical services.
Don’t do it alone, contacting medical attorneys may be daunting at first but many do work on cases without fees until the case is won and are able to give you honest, clear and straightforward advice on your rights and what to expect while building your case.
The vast majority of law firms in South Africa who specialize in dental negligence will set up a first meeting to discuss your medical claim and take you through the strengths and weaknesses of your case, discuss your potential compensation, legal processes, timeframes and funding options available.