Medical Negligence and Dental Negligence

Protect Your Dental Practice Against Negligence Claims

Denvak software protects the dentist and their dental practice at the first instance by helping the dentist in digital patient dental record which is legally valid with the inbuilt features of written informed consent which is procedure specific.
Secondly, Denvak gets the best professional indemnity insurance coverage of 50 lakhs INR/year in case of negligence proven in the court of law.

Medical Negligence /Dental Negligence

Negligence

can be defined as a failure to take due care and as a result of which injury occurs.

Medical negligence

any negligence by an act or omission of a medical practitioner in performing his/her duty.

Dental negligence

any negligence by an act or omission of a Dental practitioner in performing his/her duty.

What acts/omissions by the Dentist are negligent?

Incorrect diagnosis/failure to diagnose.
Not getting a second opinion when required.
Under-investigation or over-investigation.
Failure to refer the patient to a higher centre when indicated.
Wrong treatment.
Not obtaining informed consent.
Failure to note allergies resulting in damage.
Prescription of improper dosage of drugs.
Use of substandard material in treatment/surgery of the patient.

How to prove Medical/ Dental Negligence?

To establish the tort of negligence the following have to be proved

that a Duty of Care was owed by the doctor to the patient.
that the doctor violated the applicable Standard of Care.
that the patient suffered a compensable injury.
that such injury was caused in fact and proximately caused by the substandard conduct of the doctor.

Who has to prove Medical/ Dental Negligence?

With few exceptions, the burden of proving each of the four elements is on the patient.

Res ipsa loquitur – the facts speak for themselves.
Example: foreign objects, surgical instruments left in the patient during the surgery, surgery done on the wrong side of the body, Drugs prescribed in the wrong dose.
This maxim can be invoked when it is really obvious that, the negligent act of the defendant has caused the damage alleged.
If the maxim applies, the defendant (doctor) has to rebut the presumption that they were negligent and it is a difficult task to do so.

What is Bolam test?

Advocated by justice Mc.Nair in BOLAM VS FRIEN HOSPITAL MANAGEMENT COMMITTEE.
The court in this case through JusitceMc.Nairsaid that “ the test is the standard of the ordinary skilled man, exercising and professing to have that special skill.
A man (doctor) need not possess the highest expert skill; it is well established law that it is sufficient if he (doctor) exercises the ordinary skill of an ordinary competent man exercising that particular art.

Negligence Means

Failure to act in accordance with the standards of reasonably competent medical men at the time.
There may be one or more perfect proper standards and if he conforms to one of these standards(set by a proper body or council), he is not negligent.
Higher standard for a specialist over and above a general practitioner and for a consultant over a house surgeon.
A novice must recognize his limitations and seek instructions or refuse to undertake the work he is not competent to do. In certain cases, it may well be negligent not to obtain a second opinion.
It is incumbent upon a practitioner to keep abreast of the advances in knowledge and technique within his area of expertise as they become disseminated through the medical journals.

What is the cost of Medical/Dental Negligence?

In law, damages are an award, typically of money, to be paid to a person as compensation for loss or injury.
Once the negligence has been proved, the court has to award damages based on certain principles.
The basic principle in awarding compensation is to put the plaintiff in the position he would have been in, had the tort not occurred.
The supreme court has given a method of calculating the same in the case of, Mrs.Sudha Rasheed Vs State of Karnataka.
Damages may be awarded under the head of

pain and suffering
loss of amenity (under this the plaintiff (patient) iscompensated for loss of any facet of life;which he will not be able to enjoy anymore, because of the accident)
loss of future earnings

How to prevent Medical/Dental Negligence?

Document and maintain (minimum for 3 years) – medical records of all patients – at times one doesn’t know who can file a negligence case.
Take good case history –medical health records and seek advice of physician where required.
Know your strengths and weakness – take up the cases only which you are capable of managing.
When required refer to case to specialist or assign the job to specialist.
Investigation –should be adequate as per the case, not excess nor less.
Consent- individual procedure specific and not blanket consent.
Keep abreast with the medical knowledge in your field.
If the patient not improving for the treatment – revise your diagnosis and treatment plan, seek help of senior members, specialists.
Follow rules and regulations of dental council, state and central government.
Have a professional indemnity insurance.

How to protect from Medical/Dental Negligence?

Documentation –patient records (case sheets, investigation reports, consent, Rx done and follow up records)
Ethical guidelines -DCI
Registrations and licenses – state dental council registrations, local body trade licenses, pollution control board permissions,
Professional indemnity insurance
Medico-legal advisor consultation

What laws are applicable for dentist in India?

Medical/dental professional are bounded by following laws.

Civil Law
Bharatiya Nagarik Suraksha Sanhita 2023 (Criminial Law –Cr.P.C1973)
Bharathiya Nyaya Sanhita 2023 (IPC 1860)
NMC Act 2019 (MCI Act 1956), DCI Act 1948
CPA 2019 (1986)
Environment Protection Act 1986
AERB 1962
DCIR 2014, Regulation 3.9 -Dentist Should Be Cooperative In Observance And Enforcement Of Sanitary Laws And Regulations In The Interest Of Public Health.
Drugs And Cosmetics Act, 1940;
Pharmacy Act, 1948;
Narcotic Drugs and Psychotropic Substances Act, 1985;
Environmental Protection Act,1986;
Drugs And Magic Remedies (Objectionable Advertisement) Act, 1954;
Persons With Disabilities (Equal Opportunities and Full Participation) Act, 1995
Bio-Medical Waste (Management and Handling) Rules ,1998 And
Acts, And/ Rules, Regulations Made By The Central/State Governments Or Local Administrative Bodies Or Any Other Relevant Act Relating To The Protection And Promotion Of Public Health.
Judge Made Laws – Precedence.

Dental Negligence Case Laws

Navneet Kaur v/s Sri Guru Harikrishan Sahib, State Consumer Disputes Redressal Commission, Punjab(https://indiankanoon.org/doc/105937232/)

Case Summery

Orthodontic treatment
Impacted canine 13 (OPG),
No movement even after 1 ½ year of Rx.
Patient visits another dentist where CBCT advised shows additional tooth beside impacted canine 13.
Since the first Doctor did not review the case with additional investigations like denta scan (CBCT) which would have revealed the cause, the court observed that the Doctor was negligent for not adequately investigating the patient.

Dr. Ashima Kohli vs Poonam Devi , State Consumer Disputes Redressal Commission, Chandigarhon 16 February, 2011

Case Summery

The patient alleged the Doctor removed /extracted the wrong tooth.
1st visit Chandigarh govt hospital – diagnosed infected tooth 36, medicines were advised.
3 months later, gets pain & swelling in same region, visits another dentist, patient diagnosed with infected tooth 37, given medicine and advised for extraction of 37 tooth, patient informs about tooth 36 diagnosis at CG hospital. Dentist assures it will be taken care.
Extraction of tooth 37 was done, pain does not subside.
Patient alleges wrong tooth was extracted.
The Dentist claimed that the tooth 37 was carious and was indicated for removal and the same was done.
The court observed that before doing extraction, the Dentist did not take X-ray of the tooth to show it had caries and if tooth 37 was being extracted, there appears no reason why the tooth 36 was also not removed by the Dentist at the same time when the other was removed. The Dentist was held to be deficient in rendering proper service to the patient.

Lisie Hospital vs T.V. Ajayakumarand Ors. Kerala High Court, on 16 December, 2003

Case Summery

In this case, the patient’s son alleged that the Dentist was negligent in prescribing the penicillin medicine when the patient had given a clear history of allergy to penicillin medicine.
The patient visited the hospital with the complaint of discomfort in the region of head where the Dentists examined her and told her that there is a cyst in the lower part of the gum which needed surgical opening and surgical removal of cyst was done. The patient informed the Dentist that she is allergic to penicillin. Acting on this information the Dentist prescribed tablet Resticlin 500mg (tetracycline) for four days. Patient visited the Dentist after 4 days complaining about the swelling in the same region for which the Dentist intervened surgically at the original site and prescribed the same drug for four more days.
After two months the patient again visited the Dentist with the pain and swelling in the same region. The swelling was surgically opened and tablet Pentid 800mg (penicillin G) was prescribed for 3 days.
The patient took the Pentid 800mg tablet and developed allergy within few minutes and became unconscious for which she was brought to same hospital where she died in few hours.
In this case, the court observed that Doctor prescribing penicillin knowing that the patient is allergic to penicillin resulting in death of the patient is negligence. The Court awarded a compensation of Rs. 1,50,000/-

Dr.K.C.Nasa v/s Sahib Chand Sharma, 18th June 2003, State Consumer Disputes Redressal Commission New Delhi 2003 Indlaw SCDRC 17824, 2003(3) CPJ 622.

Case Summery

In this case, the patient alleged that the Dentist was deficient in service, fabricated a defective and loose denture.
The patient visited the Dentist and got the dentures fabricated for her, upon noticing itching in the lower gums on using the denture, patient revisited the Dentist who tried to rectify the defect by grinding the denture. But after removal of the defect, the grip of the denture became so loose that not only during eating but also while talking, the denture used to come out.
In spite of the twelve repeated visits to the Dentist, he could not rectify and the patient visited another Dentist and got the new denture done.
In this case, the court observed that, it was bounden duty of the Doctor to have explained that the patient had a flat ridge before preparing the denture and hence was held to be deficient in service.

Ambalappa v/s Sriman D. Veerendra Heggade 1999(3) CPR 72 (Bangalore)

Case Summery

In this case, the needle got detached from the syringe and slipped into the throat of the patient. The court observed that the Doctor was negligent for not exercising the due care and skill at the time of irrigating the mouth of the patient by applying the principle of res ipsa loquitur (the fact speaks for itself), as the Doctor could not explain as to why the needle was detached from the syringe while irrigating the mouth of the patient.

Diane Green v/s Dental Care

Case Summery

In this case, the patient a British national came to India for dental implant treatment and alleged that improper and ineffective treatment was performed by the Doctors.
In its defence the hospital very clearly stated that the patient was explained the proposed treatment to be undertaken in detail, with the help of a software, showing exactly how the implants would fit, covering each and every detail of the proposed surgery.

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