Standard of care and causation in the context of dental medical malpractice

This article was produced in partnership with Bogoroch & Associates.

Mallory Hendry of Canadian Lawyer sat down with Mahsa Dabirian, partner at Bogoroch & Associates, to discuss how the firm approaches these cases of professional negligence.

While many people dread their annual teeth cleaning or having a cavity filled, going to the dentist becomes even more of a concern when professional negligence occurs.

Injuries can stem from teeth extractions, root canals, insertion of fillings, crowns, bridges, veneers, dental implants, infections, injuries to oral nerves or anaesthesia complications in cosmetic dentistry. There can also be failure to diagnose a condition, such as oral cancers, and patients can suffer injuries at the hands of not just dentists, but any dental care provider including oral surgeons, orthodontists, periodontists or hygienists.

“Dentists have an obligation to provide services that meet the standard of care for all patients, and when they fail to do so malpractice can occur,” says Mahsa Dabirian, partner at Bogoroch & Associates LLP. “Dental malpractice is one version of medical malpractice, and though it follows many of the same principles, these cases do have some unique considerations.”

Like other areas of medical malpractice, the Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sched. B establishes a two-year limitation period from the date that the claim is discovered. To be successful in a professional negligence suit, plaintiff-side lawyers must prove there’s been a breach of the standard of care. Another dental professional needs to provide an expert opinion that the defendant dentist breached the applicable standard of care and that this breach caused the plaintiff’s injuries.

To do that, plaintiff lawyers follow similar steps as in other medical malpractice cases: that is to gather the clinical notes and diagnostic imaging and retain an expert with similar qualifications as that of the defendant to opine on the issues of standard of care and causation. The legal standard for dentists, like other professionals, “is that they must provide dental services to their patients in a reasonably competent and prudent manner.”

“Regardless of whether the dentists has significant experience or very little experience, or whether they practice in a rural or urban setting, the dentist is going to be held to the same standard of care as his or her peers in examining their technique, education, judgment and diligence,” Dabirian says.

Dentists are required to keep records that contain treatment plans, a clear chronology of events, important communications with the patient, consent forms, the patient’s history and notes at the time of the patient’s treatment. In her experience, Dabirian finds dentists may not always be as thorough in their record keeping as other medical professionals, which can be “quite damaging for their defence.” 

The records are provided to an expert for review to determine whether there has been a breach in the standard of care. It is incredibly important to retain highly qualified experts who are credible, Dabirian says, because their opinion will be given great weight at trial. As in other areas of medical malpractice, Bogoroch retains leading experts to provide a fair and objective analysis of the issues.

Once a breach has been established, it becomes a question of causation. The plaintiff lawyer needs to prove on a balance of probabilities that the defendant caused or contributed to his or her injury. One of the issues with dental malpractice is that depending on the facts, damages can be modest – making it even more critical in these cases to gather evidence of all economic and non-economic damages including lost wages, medical expenses, pain, physical suffering, or psychological damage such as anxiety or depression.

“Dental malpractice cases can result in a great deal of restorative or reconstructive work that can become extremely expensive for the plaintiff,” Dabirian says. “All out-of-pocket expenses and receipts should be meticulously tracked in order to recover the plaintiff’s full damages.”

The specialized nature of dental medicine has led to provincial self-regulatory bodies prescribing, interpreting, and enforcing standards for dentists. For instance, the Royal College of Dental Surgeons of Ontario (RCDSO) sets out the professional standards of practice for dentists in Ontario. The College has disciplined dentists for professional misconduct such as, displaying a lack of knowledge, skill or judgment; failing to refer to a specialist; failing to obtain informed consent from a patient; falsifying records; providing unnecessary dental service; and failing to consider patient health issues, amongst other examples of professional misconduct. These disciplinary records can assist the lawyer in identifying issues that can translate into a breach in standard of care and causation.

Over the course of her career, Dabirian has successfully litigated several dental malpractice cases. She finds cases involving delayed diagnosis of a tongue or oral cancer, can be particularly devastating for a patient. Dentists have a duty to check for any growth, lesions or signs of oral cancer at each routine check-up. Dabirian has had clients with oral cancers that went undetected for years, resulting in metastatic spread to lymph nodes necessitating multiple surgeries, chemotherapy, radiation and causing life-altering complications.

Bogoroch fields many dental malpractice inquiries of patients who are dissatisfied with their dental care and are experiencing symptoms that can be minor or temporary in nature, such as numbness or pain. Given the costs of litigation and the modest damages often associated with dental care, the firm has to be selective in the cases it takes on.

Dabirian notes Bogoroch’s commitment to access to justice in respect of these cases remains steadfast. The same principles apply to any medical malpractice case: “Retain highly qualified experts in the industry, conduct effective examinations for discovery, work up damages to create maximum exposure, and efficiently advance the file to mediation or pre-trial. It follows the same approach as any other medical malpractice case we take on, which is to advocate to the best of our abilities for our clients,” she sums up.

Mahsa is a committed advocate on behalf of injured clients in all areas of personal injury litigation, with a focus on medical malpractice proceedings against physicians, hospitals, nurses and other health care professionals. She has experience in medical injuries arising from surgical error, misdiagnosis, delayed diagnosis, birthing trauma and prescription drug errors.