Medical Negligence Lawyer

Overservicing by dentist amounted to an assault, not mere negligence and therefore an entitlement to more compensation

Dean v Phung [2012] NSW CA 223

Medical negligence is not confined to the negligence of doctors.

Other health professionals such as physiotherapists, dentists and chiropractors can be sued if they do not meet the necessary standard of care they owe to their patients.

The case of Mr Todd Dean is an extreme example of overservicing by a dentist, Dr Phung, and whether Mr Dean had consented to the treatment administered by Dr Phung. Critically, Mr Dean could only consent to such treatment if it was “reasonably necessary” as represented by Dr Phung.

The Facts

Mr Dean was injured in a work accident in December 2001. A piece of timber struck him on the chin which caused minor injuries to his front teeth. His employer arranged for him to see Dr Phung. Over a period of just over 12 months the dentist carried out root canal therapy and fitted crowns on all of Mr Dean’s teeth. The treatment took place over 53 consultations and cost $73, 640.

The Trial Judge’s Decision

Mr Dean sued for negligence and ‘trespass to the person’ (which is a common law ‘assault’). The ‘trespass to the person’ attracts greater damages (it allows a judge to award ‘exemplary damages’).

The dentist admitted negligence but claimed a defence of ‘consent’ in relation to ‘trespass to the person’. The trial judge found in favour of Mr Dean. The trial judge awarded Mr Dean damages for the negligence of Dr Phung. However, he found that the Civil Liability Act 2002 (NSW) applied to Mr Dean’s case and that Mr Dean was not entitled to exemplary damages. He awarded $1,388,615.20. The Civil Liability Act would not have applied if Dr Phung had effectively assaulted Mr Dean by way of a “trespass to the person”.

The Court of Appeal’s Decision

Mr Dean appealed to the NSW Court of Appeal [CA], arguing that the Civil Liability Act (NSW) did not as there was no valid consent to the dentist treatment, and therefore the dentist had committed a “first pass to the person” and therefore Mr Dean was entitled to exemplary damages.

The Court of Appeal agreed and awarded Mr Dean a further sum of $345,384.80 by way of exemplary damages, bringing the total award up to $1,734,000.

Conclusion

Mr Dean’s case illustrates the necessity for an individual to seek advice from a legal practitioner with expertise in the area of medical negligence.

Over-servicing by a treatment provider is not uncommon, and if it is agreed to on the basis of a false representation that it is “reasonably necessary” or similar, then it may and live in a claim of “trespass to the person” in a greater entitlement to compensation than that available under the Civil Liability Act.

See Also: The Medical Negligence Process – What do I do?


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