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Successful $330,000 Medical Negligence claim against regional Dentist

We acted for a Plaintiff who received very poor management and treatment by a Dentist in her local town. Unfortunately, the Defendant Dentist would not provide any clinical notes, however we were able to successfully obtain a report from her current Dentist, detailing the poor management and work done by the Defendant Dentist.

We secured a report from a local Dentist who provided his Medico Legal opinion that the work conducted by the regional Dentist fell below the standard of care for professional as set out in Section 50 of the Civil Liability Act 2002, below:-

Section 50 Standard of Care for Professionals

  1. A person practising a profession does not incur liability and negligence arising from the provision of a professional service, if it is established that the professional acted in a manner that (at the time of the services was provided) was widely accepted in Australia by peer professional opinion as competent professional practice….

At no time did the Defendant, in this particular case make any attempts to correspond with our office or try to resolve the claim without proceeding to Court. It was a decision to fast track this claim to commence proceedings in the District Court Sydney, alleging medical negligence against the Defendant Dentist on the following basis:-

a)    Failing to train or adequately train its staff;

b)    Failing to inform treating staff including the Defendant of the purpose of the Plaintiff’s attendance at the surgery;

c)    Failing to administer treatment to the Plaintiff’s lower teeth;

d)    Failing to examine the Plaintiff’s lower teeth adequately or at all prior to treatment;

e)    Failing to sufficiently illuminate the Plaintiff’s lower teeth during or prior to treatment;

f)     Building up the front teeth without proper cause;

g)    Failing to consult with other staff prior to building up the front bottom teeth;

h)    Failing to determine prior to building up the front bottom teeth whether such building up was in any case necessary;

i)      Failing to warn the Plaintiff of the risk to her of building up the front bottom teeth; and

j)      Failing to obtain consent from the Plaintiff prior to building up the front bottom teeth.

We relied on a recent Court of Appeal decision in the matter of Dean V Phung [2012] NSW Court of Appeal 223 which relates to the provision of dental treatment found to be objectively unnecessary and without therapeutic effect.

As there was no appearance by the Defendant a Notice of Motion seeking default Judgment against the Defendant was filed in Court and the matter was listed for an Assessment Hearing before a District Court Judge.   

At the assessment Hearing, again there was no appearance by the Defendant and we were successful in our argument that the Civil Liability Act 2002 did not apply “in respect to an intentional act that is done by the person with attempt to cause injury” (Section 3B Civil Liability Act). As we were successful in arguing that the conduct done by this particular Dentist was intentional, we were able to escape the cap on damages in the Civil Liability Act and received an extraordinary Judgment in the sum of over $330,000.00 plus costs.

© 2021 
Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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