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Selecting an Expert Witness in Dentistry: The Pitfalls

Special Reports

Specialist in restorative dentistry, with over 20 years as an Expert Witness with a specific interest in dental negligence litigation claims, Toby Talbot shares his professional experience by way of guidance for those of you searching for the right expert witness

Minimise cooks, not cost

Many legal firms are initially approached by a Client venting their spleen about dissatisfaction with dental treatment. Un-resolved problems, protracted pain or poor communication are often the main precursors. Surprisingly, if there is a good relationship, patient's will rarely complain, and actually blame themselves for things going wrong. In my experience, it is the fundamental breakdown of the relationship or the failure of its formation in the first place that drives most Claimants to seek legal redress.

After the letter of claim is prepared (with a resumé of the history of the complaint) providing the Claimant's view of events, the dental records of the miscreant are obtained and an Expert Witness opinion is sought.

Not uncommonly, there is a wish to minimise the costs to Claimant and Counsel at this stage. An Expert Witness having been located, an initial screening report which restricts the said Expert to a couple of hours of their time is requested to see if the case has any merit.

Now let's assume the Expert accepts and the letter of claim and dental records are sent. I shall use a real clinical example to proceed…

Take a patient who has been under the care of a general dentist for 20 years before they discover, after attending another dentist, that they have advanced periodontal disease with bone damage that will invariably lead to tooth loss. A review of their dental records by the Expert shows limited documentation related to assessment of the gums, except intermittent advice to ‘brush their teeth a bit more’, and a routine scaling every six months.

When the patient attends another practitioner, they suddenly feel shocked and aggrieved due the ‘failings’ of their previous practitioner. Blame is apportioned, and a screening report follows after the review of the dental records highlights serial omissions.

A-ha! you exclaim. We've got him. Breach of Duty. Now go for the jugular…

In the meantime, the patient (now Client) trots off to a periodontist who reinforces the terrible state of the gums and the enormous costs of complex implant dentistry that is required to put things right. Due to the complexity of the proposed treatment, the former Expert cannot provide an opinion as he/she is a general dentist with no specialist training. In addition, their report did not allow them to examine the patient.

Yours truly is then instructed to examine the Client, perhaps 18 months after they attended the periodontist, to provide the Current Condition, Prognosis and Treatment options in my capacity as a Specialist in Restorative Dentistry. At the consultation, the Client presents with ongoing severe active periodontal disease associated with abundant plaque deposits throughout. It is clear this patient has not taken a blind bit of notice, despite repeated visits to the periodontist, and is quite ill-suited to expensive dental implants. Not only do I consider that he/she is a candidate for conventional dentures, but I consider that he/she shows such a disregard for his own oral health, that in all probability he is behaving as he did with the Defendant, ignoring advice and failing to comply. In essence, the Client is wholly culpable for their own tooth loss. My report has now totally contradicted that of the first ‘Expert’.

It may not surprise the Reader that Counsel are often furious with my conclusions and imply that I have ventured beyond their instructions for the Condition and Prognosis Report. Not so, I point out. My duty is to the Court. Their error is to assume that a second Expert will always agree with the conclusions of a previous Breach of Duty report. The only way to avoid contradictions between the two reports is to ensure only one Expert is engaged. In essence, the screening report was worthless. I advise Counsel not to waste their time (and money) - it rarely is worth the paper it is printed on.

Rather, I’d advise Counsel to always commission the same Expert to provide both Breach of Duty, Causation and Current Condition and Prognosis reports and request that the patient is examined.

If a patient examination is suggested, agree to it.

It is a tooth universally acknowledged that a single failure in good communications can land a dentist in want of a lawyer. Yes, I reside in Jane Eyre country and during my 20 years of practice in Bath and as an expert witness for medico-legal reports, I’ve learned that poor communication is the Northanger Abbey of reasons for patient litigation.

In fact, more than 70 per cent of complaints can be attributed to poor communications, according to a review by a leading UK dental defence indemnity insurer. Their report highlights indelicate vocabulary, brusque delivery and a poor chairside manner as key pointers towards a lack of compassion for the patient.

And with our medical litigation rates knocking the stars and stripes off North America’s figures, this is a very serious matter for me and my fellows in the UK. Here, medical and dental practitioners have a four-fold greater chance of litigation compared with practitioners in New York.

However, communication is a two-way street. And effective communication begins with listening. And listening opens the door to understanding and trust, which is a great start to resolving any cracks that might appear.

Yet while the charnel house of healthcare litigation is piled high with the complaints of patients unhappy with the quality of care, when it comes to the clinching question of trust, things don’t seem quite as gloomy for dentists as they do for doctors.

Research conducted for the British Dental Health Foundation uncovered the warming news that people have more trust in dentists than doctors. 88 per cent of people surveyed claimed a very high degree of trust in their dentist, more so than in their doctor. Twice as many people (19.7 per cent) value their relationship with their dentist over their doctor (9.9 per cent).

So why is it, then, that so many patients fail to act on our advice? I am too often riled when I’m asked to assess a patient for a medico-legal report, only to find that they are suing their dentist for negligence, while at the same time neglecting themselves when it comes to the very basics of dental hygiene – like brushing their teeth regularly. And not smoking.

In one particular case I advised on, a lady was suing her dentist after 30 years of routine care. Finding herself needing emergency treatment, she attended a different dentist, who diagnosed advanced periodontal bone loss and imminent loss of several teeth. The unfortunate woman reported she was wholly unaware of the disease, which is when she commissioned a lawyer to sue for breach of duty for the costs of remedial dental treatment. This would include implants and crown work, which would likely total a five- figure sum.

When I examined the patient, it was clear the disease was at an advanced stage and we discussed treatment options of removable and fixed prosthodontics. The patient was very distressed about losing her front teeth. Both parents had worn complete dentures, which she had been determined to avoid during all those years of giving up smoking. Unsuccessfully. Cigarettes were her comfort for the stresses of life.

When writing my reports as expert witness, it is part of my protocol to ask for the patients’ medical and dental records – including all dental practitioners before, during and following treatment by the defendant.

This gives me the entire story. Regrettably, records showed the defendant was a little too economical with his notes. Although his 2011-14 notes made references to “ANUG” – Acute Necrotising Ulcerative Gingivitis, a serious infection of the gums that causes ulcers, swelling and dead tissues in the mouth – “gingivitis”, “heavy calculus deposits” and level three gum disease, there was no reference to pocket charting, bleeding indices or plaque scores. Schoolboy errors.

Notably, our defendant had specifically recorded gaps between the front teeth that were causing the patient concern. He had clearly instructed her on oral hygiene repeatedly, and performed scaling. At her last visit to him, he again recorded her poor oral hygiene and bleeding.

What he seemed to have missed, however, was the diagnosis the second dentist discovered: advanced periodontal disease. This second dentist referred her to his hygienist for full pocket, plaque and bleeding indices before embarking on a programme of oral hygiene, scaling and root planning.

At this point, dear reader, you may well point your finger and shake your head at the initial practitioner. The indemnity insurers will reach for their cheque books. Settlement figures will be high.

But I had yet to examine her medical records. They made for difficult reading, uncovering a history of long-term depression with anti-depressant medication prescribed over 30 years. The patient had suffered breast cancer with surgery, radiotherapy and chemotherapy in 2011. Her separation from her husband in 2012 quickly led to divorce. Within the year her son would die in a motor bike accident and her daughter would be diagnosed with drug dependency...

And yet after all this, when I examined her, she still had plaque covering all her teeth even after she had been repeatedly warned of the causes of her periodontal disease.

My report ended with conclusions that the patient had continued to ignore oral hygiene instructions by both dentists even after she had been informed about the disease. In all probability, the deterioration of her periodontal disease was inevitable due to poor compliance. Pointing the finger of blame to the first dentist due to her own failings was noted. The case was dropped.

The author avoids desktop commissions only and why it is advised that the patient/claimant is examined for every report commissioned.

Remember who’s working for who

The protocols between warring litigious parties are well established - Counsel represents their Client either acting for the Claimant versus the opposing defendant, practitioner or Health Authority, or for the Defendant in a claim for damages. The Expert acts for the Courts and must remain wholly non-partisan, a fact reiterated each time a report is formally addressed to the Court. But, however clearly drawn the battle lines, there are a several ways they can be so easily blurred...

Experts will be wary of any initial requests for a brief review of any case when only limited documentation has been made available as part of a scouting exercise. This will usually be taken as an indication that Counsel is trying to determine whether a case has a favourable chance of success without spending any more money than necessary. Don’t try to do things on the cheap - it exposes the Expert if that opinion is not addressed to the Courts. If at a later date Counsel goes elsewhere for a more thorough report, the aforementioned Expert can find themselves with a claim against them if the later report contradicts their own. If any report is addressed to the Court, only the Court is able to act against the Expert.

Don’t expect an expert to compile reports unless they have sight of all the relevant original documentation. Summaries and transcriptions by legal and clerical staff are subject to typographical errors and omissions, not least because legal clerics don’t understand medical and dental terms, except at the most basic level.

Many cases are now finding their way to my desk following the outcome of a Conduct Committee hearing conducted by a professional body. This is invariably occurs when a case of Fitness to Practice has gone against the practitioner concerned. Although the Patient has had their day in Court, they still trot off to a Solicitor to sue for damages. What the patient may not appreciate is that Fitness to Practice charges are not the same as the Failure in Duty of Care that has led to quantifiable damages or Causation.

The doctor or dentist may have overlooked certain blood tests or diagnostic x-ray's and is thus subject to criticism by the professional conduct committee, but unless this oversight has led to untoward consequences with subsequent harm or injury, there is no Causation and therefore no consequence of that omission.

It is also worth noting that although a professional body commissions an Expert for guidance, their Expert never examines the Claimant. In my experience this can lead to misguided decisions against practitioners. When I have disagreed with the conclusions of Conduct Committees I have often been told by instructing Counsel that I am not permitted to contradict their findings. A wholly misinformed assumption.

Many an Expert will find themselves instructed to provide only a Current Condition, Prognosis and Future Treatment Report after Counsel have previously obtained a favourable Breach of Duty and Causation Report. Watch out for this. It is invariably made by an Expert who has made conclusions based on the documentation alone without examining the patient. What you might nor appreciate is that the details of the clinical records will invariably influence prognosis. If I review the records and conclude after I have examined the patient that patient compliance is so poor that the previous practitioner was not to blame, then this will invariably influence my own treatment recommendations for that patient.

In one case involving untreated periodontal disease I found in favour of the patient. Subsequent quantum of £3,600 was offered by the indemnity insurers which led me to file the records for archiving. Imagine my surprise when I received a demand for £30,000 from the patient's agents three months later as a consequence of my failure in my duty!

It transpired that during previous meetings with Counsel, the Client’s solicitor had indicated that he could expect a pay out of £35,000. As a consequence, he issued instructions to the same solicitor who had instructed me to sue for the difference of what he expected and what he finally received. The Author invites the Reader to consider whether there is an integrity issue, and whether the solicitor should have referred the case to another firm.

This is not an isolated incident. Over the last 20 years I have received several instructions from one of the larger legal firms in my home city of Bath. They have a dedicated division handling medico-legal instructions. One bright morning my clinic doormat was graced with a letter from them representing one of my own patients pursuing compensation for treatment received. Not only did they not consider the possibility of any conflict, but the patient was a solicitor himself from Dorchester. The case was subsequently dropped. Needless to say, I have refused to accept any instructions from them since.

How to avoid souring the relationship

In my experience, the cause of unhelpful relations between Expert and Counsel are several, but avoiding them isn’t difficult…

1. Pay promptly

I have received no response after sending a report and the anticipated payment of my fee fails to arrive on time. Firms have asked for a precise breakdown of time allocated for the report and then quibbled endlessly about minor typographical errors. Some firms have resisted paying my fees which invariably leads to a claim in the small claims county court and a complete breakdown in our relationship.

2. Avoid ‘scope creep’

One firm forwarded a list of 30+ questions which they stated were necessary because they considered my report failed to clarify certain issues. Furthermore, they did not expect to pay extra for the responses which took more two hours of my time. It was clear that from the questions provided indicated that the solicitor in question had awarded himself an honorary degree in dentistry.

3. Don’t edit

Several firms have asked me to omit certain paragraphs that weaken their case. When I refused, they complained that I had sent the report in pdf format and asked me to re-send the report as a Word document!

4. Bow to experience

Some firms have tried accusing me of venturing outside and beyond my area of expertise. It is to be noted that, as a former hospital consultant and a Fellow of the Royal College of Surgeons, my understanding of general medical and surgical issues is likely to be a little more than the general dental practitioner. I have been responsible for patients undergoing critical care, victims of severe road traffic accidents, and head & neck oncology patients. But I am a dentist!

This old lag isn’t one to offer criticism without advice

To avoid many pitfalls for the office of Counsel, I recommend due diligence is conducted by the solicitors’ office to ensure that the selected Expert can deliver the goods.

If the case is simple and straightforward and thus wholly within the remit of a general practitioner, by all means commission a general dental practitioner. But you may need a dental expert.

The author had a recent conversation with an experienced solicitor who stated that she only commissioned a general dental practitioner as Expert Witness when the complaints were levelled against a general dental practitioner. She had concluded that the Expert would be judging the clinical protocols of the defendant at an appropriate level and not a gold standard as expected from the specialist. I explained to her that few general dentists had the knowledge of the literature with references to confront the advisers commissioned by the indemnity insurance team. It is my opinion that depending upon the main issues in case, a specialist practitioner is better able to support their conclusions with appropriate references that will be robust for presentation to the Courts.

A maxillo-facial surgeon can give you a critical appraisal of a wholly surgical issue. He or she cannot give a dental opinion. If the problems relate to periodontal disease, find yourself a Periodontist. If the problems relate to failed root canal treatments, find yourself an Endodontist. Failed denture or crown and bridgework? Get yourself a Prosthodontist. Is the case multifactorial and covers a broad range of dental problems? Get yourself a Specialist in Restorative Dentistry. They are all dentists, BUT they’re all different creatures.

And don’t forget to checkout whether the Expert is still active at the coalface. The author attended a professional meeting in London quite recently and met a colleague who is very proactive as an Expert Witness. He has just celebrated his 85th birthday having retired as a clinician 20 years ago. How on earth can Counsel expect him to be up to date? He will invariably find himself before a judge (in all probability and ironically of advanced years) giving evidence only to be publicly humiliated when asked the ultimate question by the opposing QC – when did you last undertake a similar procedure?

And finally…

The Reader is reminded of the influence of the Wolfe Report a few years back. Partisan conduct whereby former practitioners would consider it their mission to protect colleagues has been stopped to reflect professional transparency and candour. Gone are the days whereby senior retired medical/dental colleagues can dabble in report writing for a bit of pocket money without finding themselves humiliated in Court, outed for being out of touch with current clinical practice. Court immunity has now become a thing of the past, resulting in a considerable reduction in our numbers. Professional training and registration of Expert Witnesses has at least culled the amateurs.

All the views and opinions expressed by the author are personal but I would welcome public debate on all the issues included.

Read more on my blog at tobytalbot.co.uk

Toby Talbot BDS MSD (Washington) FDS RCS