Dentist drilled for trespass

The NSW Court of Appeal has held a practitioner liable to trespass in respect of what was considered unnecessary dental treatment (Dean v Phung [2012] NSWCA 223).

Most significantly, it was held that the practitioner could not defend himself from the claim by arguing patient consent (to the trespass) and that the Civil Liability Act 2002 (NSW) did not apply to limit the scope of the award of damages to the patient.

The patient had suffered injuries to his chin and front teeth in a work accident. The dentist had undertaken root canal therapy and fitted crowns on all his patient's teeth during 53 consultations over the course of a year. The cost of the treatment amounted to $73,640. The damages awarded in favour of the patient, including exemplary damages, amounted to $1,743,000.

Why?

The patient had sued for both negligence and trespass in respect of unnecessary and ineffectual dental work. The practitioner argued that he was not guilty of trespass based on the patient's consent. He did, however, admit negligence and therefore that any damages awarded against him should be calculated in accordance with the Civil Liability Act. Had the practitioner's argument succeeded in this regard, the non- economic loss damages (i.e. other than the $73,640 treatment costs) payable by him would have been limited to a percentage of a most extreme case and exemplary damages excluded.

It was held that the Civil Liability Act did not apply to limit damages payable as it was found that he probably did not believe at the time that he carried out the treatment that it was necessary given the injury suffered by the patient.

It was also held the defence of consent did not apply to protect the practitioner from liability under trespass because he had not informed his patient that the treatment was unnecessary prior to obtaining his consent to perform the unnecessary work.

So what?

This matter raises some serious issues and you should ensure you are clear about how you manage the following:

1. What your insurer indemnifies you for and what you would personally be liable for;
2. Unless it is clearly understood by your patient that your treatment be cosmetic, for example, then your recommendations and treatments should only ever be in strict accordance with your patients therapeutic requirements;
3. Your patient's consent should always be obtained for your proposed treatment; and
4. If you are in any doubt as to whether your proposed treatment will be generally considered unusual for the particular condition or it will be significant and irreversible in nature, then ensure that you first seek a specialist's opinion.

In respect of points 2-4 above, your own professional ethics and competence, your colleagues and the Association all create the framework within which the standards of your practice are constantly objectively refined. Those points should simply serve you as reminders.

With regard to point 1 above, it is an issue of reviewing your policies. It is difficult to speak generally about the coverage each individual dentist holds or indeed, what the practitioner in question held, so my following comments will be relative to the common form of Medical Malpractice Civil Liability Insurance.

The fundamental coverage most Medical Malpractice Insurance policies adopt is to indemnify the practitioner for all sums that they become legally liable to pay as compensation for civil liability including legal defence costs in respect of claims against them. Note that the nature of liability covered is civil liability and as such, the determination of indemnity would follow the Civil Liability Act amongst other considerations. In this particular case, it may be unlikely that indemnity would be provided based purely on the decision that the Civil Liability Act did not apply.

Furthermore, Malpractice Insurance traditionally excludes claims arising out of dishonest, fraudulent, criminal or malicious acts or omissions committed by an insured with reckless or wilful intent. It would appear that the decision also shows that the practitioner acted without consent and as such may have practised in a dishonest and wilful manner for financial gain. This in itself would also be a reason for declining indemnity.

Finally, an important exclusion under a malpractice insurance policy is the exclusion of fines, penalties, punitive or aggravated damages. As such, even if indemnity was provided by the insurer no cover would exist for any exemplary damages.

Garry is a Partner at Clark & Jacobs and can be contacted on (02) 9264-1111.