Many Perth dentists go through their entire career without ever having faced any legal action from a patient; however, that does not mean to say that the thought that it might happen never crossed their mind. Of those dentists currently working in their dental practice, 99.99% are skilled and dedicated professionals; despite this, the threat of being sued remains for them.

That is not to say that every dentist should be working under a cloud, but rather that they are aware that the possibility of legal action such as malpractice exists and, as such, should ensure that they do all that can to ensure it never happens.

One principle in the law relating to malpractice has meant that was an additional reason why a patient might sue, and that legal concept is called ‘loss of chance’.

Today, if a patient were to bring a malpractice claim against a dentist, in order to win their case, they and their legal representatives would primarily have to prove that two things existed. The first is negligence, which would be that their dentist failed to show a duty of care to their patient.

The second that has to be proven is causation, and by that, it means it has to be proved that any harm or injury suffered by the patient was caused by the dentist’s negligence. It is important to note that if either negligence or causation are not proven, then the malpractice case is likely to fall.

So, if the patient has an injury but their lawyer cannot show that the dentist acted negligently, then there is no case. Likewise, if it cannot be shown that the cause of that injury was negligence, then again the malpractice case is not likely to succeed.

The level to which the patient’s lawyers have to show that the dentist’s negligence was the cause is based on the balance of probabilities, and thus it does not need to be shown to be 100% of the cause. In other words, even if a dentist’s negligence is shown to be 51% of the cause of a patient’s injury, then the patient is likely to win the case, and as such be entitled to full compensation.

With the loss of chance previously being a cause for the patient to sue their dentist, it brought a heightened risk of legal action. The reason was that loss of chance gave the patient the right to sue for having lost the chance of a better outcome due to their dentist’s negligence. In other words, no injury need have occurred, only the patient‘s belief that the outcome could have been better.

This clearly meant dentists were at risk of being sued, due to the fact that if a patient thought that their treatment should produce a better result than had occurred they could seek damages. An example would be dentist implanting crowns for a patient, but the patient believing that the crowns looked wrong and felt the dentist had been negligent in fitting them.

That was the legal situation that dentists found themselves in until a medical negligence case in 2010 called ‘Tabet v Gatt’. The court rejected the negligence claim, as it was based on the loss of a chance of a better outcome. Instead it ruled that loss of chance was not permissible as a reason for court action, and that the probability of damage, or injury due to negligence, had to be shown.