Should dental practitioners brace for a surge in professional negligence claims?

David Hallsworth, a solicitor at BLM specialising in healthcare claims, discusses a potential surge in future dental claims as a result of thousands of children missing crucial check-ups during the pandemic.

COVID-19 drastically influenced the health of millions of people, even those fortunate enough not to have contracted the virus. As healthcare providers raced to reduce transmission, care for the infected, and protect non-COVID patients, many treatments and check-ups were put on hold. Having dealt with the immediate pressures brought on by the pandemic, medical practitioners are now finding themselves facing the substantial challenge of huge treatment backlogs. It’s particularly true within dentistry.

The dental sector was one service that experienced a drastic reduction in regular check-ups. Although people of all ages are waiting for appointments, it was and still remains that children have been impacted the most: the number of appointments for under 5s has fallen by 60 percent, from 1.2 million in 2019 to 468,000 in 2020.

Tooth decay was already the most common reason for children to be admitted to hospital with many needing dental surgery under general anaesthetic. It has potentially been exacerbated by the delay to treatment. By missing crucial check-ups, it is possible that a large number of children will suffer as a result of a failure to detect early signs of tooth decay, with delays causing unnecessary pain or, in some cases, complicated conditions and loss of teeth.

As the pandemic has led to many children not receiving the check-ups they would have otherwise needed, dental practitioners could therefore be at risk of experiencing claims relating to negligent treatment, long after the treatment in question.

What does this mean for practitioners and practice managers? When it comes to making personal injury claims relating to professional negligence, the injured party has a period of three years from the date of their injury to bring the claim before court. This three-year period is known as the primary limitation period. When it comes to children’s health, the limitation period only starts when they turn 18. Effectively, this means that a child has until their 21^st birthday to bring forward a personal injury claim. It is therefore vital that dentists take precautionary measures and plan effectively with their insurance and indemnity providers in how to best deal with this future risk, given the lengthy claim time period we are looking at.

If claims-made insurance for dental cover is purchased, a long retro-active date to cover historic treatments may well need to be considered as this offers protection on past events, including treatment of adults up to the age of 21 who bring claims relating to dental care provided when they were under the age of 18.

Furthermore, due to the way in which some claimant firms are now presenting claims, if a dental practice owner is presented with a claim, the practice will also need to make sure that they have vicarious liability cover for those working for them.

As it currently stands, dentistry is facing a potential wave of future claims as a result of delays to treatment, and not just with regard to younger patients. The reasonableness and length of any delayed treatment would be dependent upon the circumstances in play at the time, so it is crucial that practitioners have sufficient indemnity cover in place to anticipate such future claims.

The impact of the pandemic has placed the dental sector in a potentially fragile position, even as it resumes treatments in a more routine way and embarks upon recovery. With this claims landscape looming over dental practitioners, it is crucial that measures are taken now to prepare for this potentially costly risk.

David Hallsworth

Solicitor

BLM