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Icon of dentist with a tooth

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.

Our medical negligence experts can provide free initial advice on your situation to assess the options open to you. We run claims with no upfront costs and no win, no fee.

Check your rights to a dental negligence claim with our medical negligence experts now for free.

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What are common forms of dental negligence?

Research provides us with information about common issues that arise in dental negligence claims in the courts. These can be divided into three categories:

1.   Poor outcomes or complications

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:

  • damage to nerves
  • the use of excessive force during treatment
  • the treatment impacting nearby joints
  • postoperative infection that’s not properly diagnosed and treated

2.   Inappropriate treatment plans

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:

  • failed to diagnose a medical problem that a prudent dentist would have
  • made the wrong diagnosis
  • performed unnecessary or inappropriate treatment

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.

3.   Inadequate patient information

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.

How do I complain about a dentist?

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.

How is dental negligence proven?

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:

  • That the dental services provider owed a duty of care to the injured person
  • That they breached the duty of care
  • That their lack of appropriate care caused the injuries suffered
  • That the injured person has suffered a loss that was reasonably foreseeable

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:

  • failing to warn patients of risks
  • failing to suggest seeing a more experienced dentist or a specialist in complex cases
  • performing surgery without the necessary skills, experience, or training
  • failing to follow-up with patients to check for complications
  • failing to take a radiograph or x-ray prior to treatment, to clearly see what nerves might be affected by the treatment

Can I sue my dentist for nerve damage?

Dental nerve damage illustration

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:

  • you were not properly advised about the risks of nerve damage from the procedure
  • you were not properly advised about the consequences of nerve damage like ongoing pain, loss of sensation, and neuropathic pain elsewhere in the body
  • you were not advised that it may be more appropriate for a specialist or maxillofacial surgeon to perform the procedure
  • the nerve damage resulted from the procedure being performed without reasonable care and skill, for example, if the dentist used excessive force or didn’t conduct a radiograph to check the location of the facial nerves

Wisdom teeth removal nerve damage compensation

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 reason is that this procedure is conducted in close proximity to several branches of the facial nerve. Damage to the nerve can occur from a number of factors, including:

  • cutting the gum in the wrong direction or position, or too deeply
  • instrument slippage
  • overly forceful removal of the tooth
  • compression of the nerve due to postoperative inflammation

How are dental negligence claims calculated?

Compensation calculator icon with money and calculator

The amount of compensation you are awarded in a dental negligence claim will depend on a number of factors, including:

  • the seriousness of the injury you have suffered
  • your prognosis - that is, whether you are likely to recover fully or suffer ongoing issues
  • future treatment or therapies you may need
  • your personal circumstances before and after the injury

Compensation awards in dental negligence cases are generally based on:

  • medical expenses already incurred, including consultations with dentists, doctors, and specialists
  • likely future medical and dental costs, including dental surgery to correct or reduce damage if required
  • past and future cost of medication
  • lost wages or earnings if you are unable to work temporarily or permanently
  • lost superannuation for any period you are unable to work
  • pain and suffering

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.

Time limits for dental negligence claims

Clock with alert symbol to show concussion compensation time limits

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.

Posted by Chris McMahon Special Counsel

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Disclaimer: Please note, this content is designed as general information only and does not constitute legal advice. While we make every effort to fact check and keep items up to date, legislation may change from time to time. For advice on your specific situation then please contact us.
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