Many people fear a visit to their dentist, but apparently dentists themselves fear an increase in dental negligence claims. This is according to Dental Protection, an indemnity insurance company for dental practices, which surveyed 1,100 dentists and found that 89% of them were ‘increasingly fearful of being sued by patients’.
Dental Protection is calling for changes in the law, to reduce the amount they (and other indemnity insurers) pay in legal costs and compensation for dental negligence claims.
Whilst you may not have much sympathy for solicitors losing out on costs, victims of dental negligence stand to lose much more if the changes are implemented. The proposals could drastically affect people’s ability to enforce their legal rights to compensation.
Dental negligence claims
Dental negligence can encompass many different situations including:
- Dental procedures carried out incorrectly or carelessly
- Delayed diagnosis
- Failing to obtain informed consent
If you have been a victim of dental negligence, making a claim offers a way to redress the injustice you have experienced – a way to obtain financial compensation for harm you have suffered through no fault of your own.
Dental professionals are legally required to have indemnity insurance in place in order to practice. This means that in dental negligence cases, as in other kinds of medical negligence, compensation and legal costs are not directly paid by the dental practice or the dentist concerned. Instead they are paid by the indemnity insurers. The dental practice or dentist may notice a rise in their insurance premiums, but the bulk of the money paid will come from these insurance companies. In other words, companies like Dental Protection.
Indemnity insurers have a very clear interest in reducing the costs of claims and compensation. The true nature of who actually pays compensation and costs in a successful claim is often overlooked. After all, which is likely to evoke the most sympathy – the idea that the NHS and dental practices are under financial strain from claims, or that insurance companies are?
The proposed changes
Dental Protection proposes reducing solicitors’ legal fees in several ways:
- Increasing the value threshold for what is classed as a ‘small claim’. At present, dental personal injury claims worth £1,000 or less are dealt with under the small claims procedure. As a result of proposed changes this would rise to £5,000 to include many more claims. Legal fees are severely limited in small claims cases.
- A fixed cost scheme for cases valued above the small claims threshold.
- A minimum threshold for cash compensation relating to claims for minor injuries.
These proposals aren’t new to the personal injury world. Similar changes, driven by the Association of British Insurers, have already been approved by the Government in relation to road traffic accident claims. They are currently expected to come into force in 2020 after several delays.
How victims of dental negligence could be affected
Dental negligence claims are often complicated and involved procedures, requiring skill and professional expertise to run successfully. At present, claimants can often fund claims through arrangements like Conditional Fee Agreements (sometimes called ‘No Win, No Fee’ Agreements). These allow access to legal services without many of the financial risks, with claimants usually only paying a portion of their compensation towards legal fees if they are successful in their claim.
However, if the proposed changes come into effect, funding a claim would be much more difficult. The unfortunate truth is, if providing this service is no longer financially viable for law firms – perhaps only receiving a fixed fee for work which can take anywhere from 6 months to several years to complete – then the availability of legal representation will be severely restricted. Claimants will either have to foot the bill themselves, or they simply won’t have access to legal support.
Neither of these options is acceptable. Legal costs to pursue even relatively straightforward claims could easily run much higher than the compensation being sought. Similarly, bringing a claim without legal representation invites disaster.
An unrepresented claimant would find themselves in a ‘David and Goliath’ situation. Facing off against insurance companies (represented by their solicitors), they would be greatly outmatched in terms of specialist knowledge and resources of time and money.
The changes would affect a wide range of claims too, including claims for significant injuries. The Judicial College Guidelines on personal injury compensation, which are used as a general starting point for valuing personal injuries, can provide a rough idea of what a dental injury valued at around £5,000 might look like. If a claimant has suffered the loss of, or serious damage to, two front teeth as a result of dental negligence it would be valued between £3,810 and £6,690.
Building a claim around injuries of this extent is likely to be a major undertaking – involving gathering evidence to support the injury and proving that a dental practitioner was at fault for causing it. Could an injured claimant do this without professional legal support, whilst potentially financing the claim itself as well as their own recovery, or corrective treatment?
Naturally, this is an ideal situation for indemnity insurers. If potential claimants are unable to pursue or enforce their legal rights it means claims are ended before they have even begun.
It is uncertain whether dentists would see any reduction to their insurance premiums should the law be changed.
A better alternative: working to prevent negligence
Rather than trying to change the law in a way which would disadvantage legitimate claimants, insurers would be better served focusing their resources on trying to avoid negligence from occurring in the first place.
Accidents will happen, but training and support from insurers for their dental practice clients, could reduce the number of instances of negligence and therefore the number of victims suffering harm and the number of claims.
Given the choice, someone who has suffered harm from dental negligence would likely prefer to go back in time and stop it from ever occurring, rather than experiencing the consequences and claiming compensation. Sadly, this is impossible. But these changes risk making the only realistic option – claiming compensation – beyond the reach of many victims of dental negligence.
If you would like to discuss anything in this article, or you believe you may have grounds for a dental negligence claim, please do not hesitate to contact us. Healys medical negligence solicitors have an excellent track record of recovering significant sums in compensation on behalf of clients who have made dental negligence claims.
Call now on 01273 838734 if you think that you may have a claim for dental negligence. We don’t charge for providing you with initial advice about making a claim. It is entirely obligation free advice too. If after discussing with one of Healys medical negligence specialists, you decide to pursue a claim, we are likely to be able to offer to act for you under a No Win, No Fee arrangement.