"*" indicates required fields
While we don’t want to suggest in any way that regular dental visits are not necessary and important, this article will explore the relatively rare situation where a visit to the dentist or a dental specialist has gone wrong.
We think it’s important for you to understand that if you have suffered an injury as the result of negligence from dental work conducted in Queensland, you may be entitled to compensation.
Many procedures come with a certain amount of risk, and many unwanted outcomes are not due to negligence. However, when harm is caused to the negligent acts or omissions of a dentist before, during or after a procedure then there may be cause for compensation.
Research provides us with information about common issues that arise in dental negligence claims in the courts. These can be divided into three categories:
The most serious complications found to be due to negligence tend to be caused by surgical errors in procedures like a root canal operation or wisdom tooth removal. A surgical error can have devastating consequences, for example damage to facial nerves leading to a loss of sensation or paralysis in part of the face.
Surgical errors can occur because the treating practitioner has insufficient skills or experience, is using incorrect or inadequate equipment, or lacks necessary specialist training. For example, a general dentist in Australia may not have the level of training required for complex oral surgery or placement of dental implants from their degree alone.
A failure to properly perform a dental surgery or treatment can result in excessive or ongoing pain. Ongoing pain or discomfort can result from:
Dentists and oral surgeons have a responsibility to take reasonable care in assessing your oral health, diagnosing conditions, and formulating a treatment plan.
A dental negligence claim may be available if your dental service provider has:
One example of failure to diagnose could be that a dentist you see regularly does not
properly check for oral cancers, and misses one developing, resulting in you needing
surgery or chemotherapy that you would otherwise not have had if the cancer was found earlier.
A treatment might be unnecessary or inappropriate if it involves more complex and
intrusive work than is required. For example, a patient might be advised to have
surgery where there is a non-surgical option or to have treatments that are actually
unsuitable for them because of their age or other medical history.
A dentist or surgeon advising about the options for a patient’s dental care should give them warnings about material or significant risks of the proposed procedures. This includes many of the risks discussed earlier in this article:
Warnings are especially important when the treatment is for cosmetic purposes rather than work that is necessary to maintain a patient's health.
Failure to give suitable warnings can constitute dental malpractice or negligence. Generally a claim will arise if a patient would have chosen to refuse the treatment or choose a different option if the warnings had been given.
Often a useful first step in making a complaint is to speak to the dental service provider involved. Some issues can be resolved quickly, for example a dispute over costs. If there is a relatively minor issue with a treatment outcome, it may be fixed from an additional visit to the dentist or a further procedure.
If you are too distressed to speak to the provider, or if discussing the matter with them hasn’t worked, you can make a complaint to the Health Ombudsman. You’ll need certain information to hand when you make your complaint. This will include an explanation of what happened and supporting documentation, such as a written treatment plan if you have one.
We provide a useful step by step guide to making a health care complaint in Queensland.
If you have suffered more serious injuries, or have given the dental practitioner the opportunity to correct any issues without success, it’s important to seek legal advice about your rights.
Dental negligence is a specific type of claim of negligence. There are a range of circumstances in which a dentist, orthodontist, or dental surgeon may be found to have been negligent.
The factors that need to be proved for a successful negligence claim are:
All dental practitioners owe a duty of care to their patients. That duty has been described by the courts as being a duty to exercise reasonable care and skill in the provision of professional advice and treatment. When looking at what is reasonable, the court looks at what would have been done by an ordinary skilled dental practitioner performing the treatment.
Some examples of dental practitioners breaching their duty of care include:
Nerve damage is one of the common negative outcomes from dental procedures. This is because many procedures, especially complex surgeries, involve work near some major branches of the facial nerve.
In some cases, nerve damage is a likely consequence of a treatment and you choose to take the risk after being given comprehensive advice.
However, you may be entitled to compensation if:
Some types of dental treatment carry particularly significant risk of nerve damage. One of these is the removal of one or more of the third molars, commonly known as the ‘wisdom teeth’. Effects of nerve damage in wisdom tooth removal include difficulties with speaking, chewing and swallowing, pain and loss of sensation.
The amount of compensation you are awarded in a dental negligence claim will depend on a number of factors, including:
Compensation awards in dental negligence cases are generally based on:
The amount of damages for pain and suffering is called ‘general damages’ and is set by law. It relates to the seriousness of the injury in terms of its ongoing effect on the injured patient.
Subject to meeting certain criteria which we can explain, you can also usually claim a contribution towards your legal costs if negligence is proven.
Dental negligence claims are a type of personal injury claim.
To claim compensation where you have suffered a personal injury, you generally need to file the claim in the court within 3 years of the injury occurring. Often, though, there are steps that you need to take over the weeks and months prior to filing your claim in court, like notifying the responsible person that you intend to make a claim.
It’s important to seek legal advice as soon as you can after realising or being advised there is a problem. A dental negligence lawyer will be able to discuss your claims and can handle the preliminary steps to preserve your rights.
See our time limit page for more detailed information.