Dental negligence for failure to detect oral cancer Enore Panetta, Panetta McGrath Lawyers

Oral cancer errors and dental negligence may arise where patients suffer from a failure to diagnose or a delay in diagnosis of cancer, resulting in detrimental consequences for the patient. These can involve more extensive treatment than would have been required if there had been earlier referral and treatment, or reduction in the chances of survival or cure. Dentists are well-trained to identify potentially malignant oral lesions and are usually the first line of defence against detecting and confirming oral cancer. A comprehensive oral cancer examination serves as the most effective mechanism for protecting your patient’s health, and reducing exposure to claims against you for failing to diagnose properly.

ADA Policy Statement 6.10 ‘Oral Cancer’

(24 March 2023) recommends that patients attend a dentist annually for comprehensive examination. It also mandates that dentists make screening for oral cancer part of any oral examination.

Oral cancer screening exams can detect cancer at an early stage and therefore improve clinical outcomes for patients.

Elements of a cause of action in negligence

To establish a claim in negligence, the plaintiff must show:

• a breach of duty of care – departure from the required standard of care

• damages / injuries

• causation – that the damages / injuries resulted from the breach of duty

The most common allegations in dental negligence claims for oral cancer are:

• Failure to diagnose cancer in its early stages

• Failure to seek advice and / or refer to a specialist for diagnosis

• Delayed diagnosis and progression in stage of disease

• Failure to perform a biopsy when indicated

• Complications associated with cancer treatment

• Failure to follow up

Such claims can result in large awards for damages based on the treatment expenses, pain, suffering, permanent injuries (e.g., facial disfigurement, inability to eat or speak normally, hearing loss), loss of earnings, and potential death.

What is the standard of care?

The standard of care expected is that of a reasonable and prudent dentist (or endodontist, prosthodontist, orthodontist, etc.) exercising ordinary skill and care in the circumstances, the determination of the relevant standard of care being a matter for the court.

In determining the standard of care the court will have regard to matters such as current practices, research, literature, guidelines, and expert opinion.

An expert will probably give evidence that the majority of dentists perform oral cancer screening on their patients, and that the literature and guidelines (including the ADA’s Policy) require that practice, so it is the standard of care for a dentist. Ultimately, the court must decide if there has been a breach of the standard of care.

A court will take into account matters such as the clear risk to the patient if oral cancer is not diagnosed early, the low cost of a screening, and the minimal inconvenience and time it takes.

Suggesting that an abnormal clinical finding was an oversight or did not seem to warrant further investigation would not provide a good defence.

Recommendations to reduce the chances of being sued

Oral cancer screening: A thorough extraoral and intraoral examination should form a part of the dentist’s routine clinical examination.

• Good communication with patients: Even when oral cancer screening is part of an examination, many patients are unaware that it has been performed. Tell the patient that you are doing a thorough and comprehensive screening examination, which includes screening for oral cancer. Dentists should also facilitate patients’ informed decision-making by providing relevant information regarding the risks and benefits of attending (or not attending) a recommended test (such as biopsy), referral to a specialist or follow-up appointment.

• Obtain a good history: Gather a history of tobacco and alcohol use by the patient and inquire as to other risk factors (including sun exposure (relating to lips), herpes simplex infection, human papilloma virus infection, family history of cancer, diet). Ask questions as to whether the patient has any new developments or concerns regarding their oral health.

• Be diligent in maintaining an index of suspicion: If anything abnormal or unusual appears during your examination – whether it is a sore, irritation, lump, swollen tissue, discoloration, or hoarseness - arrange to re-examine the patient within 2 - 3 weeks to see if the problem has resolved itself within that time. If an abnormal area is still present at the time of re-examination, oral cancer should be suspected and steps taken to achieve a definitive diagnosis, or the patient should be referred to a specialist for urgent review and/or biopsy.

• If in doubt, refer the patient for a second opinion: Stay within your scope of practice, training and skill level.

• Referral should be to a specific and clinically appropriate specialist: This should be to an oral pathology and oral medicine specialist, maxillofacial specialist, ENT surgeon or when required, a dermatologist. It is inadequate to rely on the patient selecting an appropriate specialist. The patient may also be lost to follow up if you do not know who the patient has consulted.

• Follow-up: Have procedures in place that provide for follow up of recommendations, referrals and failures to attend appointments - and document the arrangements for a follow-up or review appointment.

• Document, document, document: Document all cancer screening exams. Keep accurate and contemporaneous records of the history obtained; the patient’s subjective symptoms, what you observe during a clinical examination (location, size, colour, texture of the lesion); your advice and recommendations to the patient.

• Photograph any suspicious lesion: If a lesion or other suspicious area is identified, a photograph should be taken to document the exact size and establish a baseline so that later changes can be noted.

• Stay current: Keep up-to-date with continuing professional development, journals and education courses, some of which concentrate on or broach the subject of oral cancer.

The content of this article is intended to provide a general overview and guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Is your practice accredited?

There are many advantages of getting your practice accredited, with the ADAWA team here to help you along the way. We look into the process and the benefits.

What is practice accreditation?

“Practice accreditation is a process that practices can have to keep track of how they do things consistently,” explains Andrea Andrys. Andrea says going through processes enable practices to have consistent processes.

Why get your practice accredited?

Getting your practice accredited demonstrates your commitment to maintaining a high level of standards for the dental profession, as your practice meets the requirements of the National Safety and Quality Health Services Standards. It is relevant for both General Dental and Specialty practices.

Andrea adds it is also very helpful when onboarding new staff. “Accreditation gives people who are new to the practice a place to start on learning how the practice has its policies and registers set up,” she explains. “It allows a consistent process, not only for new but for existing staff. It is also helpful if a scenario occurs that does not happen very often but with these processes in place, the staff can identify in a policy that this is our process, and this is how we deal with it.”

It is also beneficial for both new and established practices. “It is a great thing to do for a new practice because it help them get everything set up as it should be – and for an established practice it helps them refine their processes so they are consistent and so everyone is doing things consistently,”

Andrea says.

She adds getting your practice accredited is also good for staff morale. “It is positive for staff that they know they are working at a practice that is meeting standards that are set nationally.”

The process

The accreditation program allows completion over a 12-month period, giving practices the flexibility to compete the components at a time that is most convenient to them, although Andrea says she has seen practices knuckle down and finish their accreditation within a few months.

Accreditation templates are provided, making the process easy and structured to create your written policies.

Andrea says it is important to know you do not have to have everything together before you start accreditation.

“Many practices they think they have to have all their ducks in a row to register for accreditation and that is not the case.”

“The accreditation process helps you get everything in place so you can monitor, maintain and review your process,” she says. Andrea adds the accreditation process is easier than people often think it is going to be. “Often they think it is going to be someone coming into their practice and auditing them and saying they have to do things this way or that way,” she says.

“Where really it is giving them templates to record things they are already doing, and helping them refine those processes so they can have better outcomes and reduce risk and to ensure they are meeting national standards.”

Once a practice passes their accreditation, QIP provides decals for the practice to use on their website and ADA provides digital resources that the practice can use within their practice and in their emails to show they are an accredited practice. It is something to be proud of!

Support available

Accreditation support staff are available to help practices every step of the way (at the WA branch the accreditation support staff member is Andrea Andrys). “If practices have any problems with the QIP platform there is also a QIP liaison officer to help once a practice has submitted their application so the practice can get everything they need, as they need it,” she says.

Andrea also recommends registering for accreditation via the ADA website. “As an ADA member, when you register at ADA.org.au you get a 50 per cent discount off the registration fee for accreditation,” she says.

Further details

Go to ada.org.au/practice-accreditation or for help and support, contact Andrea Andrys at andreaa@adawa.com.au