Record payout to patient for failure of GP's duty of care to refer to a specialist

Media item: article

Date published: 12 April 2015

Subject: the duty of care to refer

This page records the media item. The original article is the property of its publisher and is not reproduced here, and no party to the case is identified on this page.

The principle, and why it applies to dentistry

The case reported concerned a medical practitioner. The underlying legal duty is not confined to medicine, and it applies to every registered health practitioner in Australia — including dentists.

The duty has two parts:

1. Recognising the limits of your own competence. A practitioner must know what they are not equipped to diagnose or treat.

2. Referring appropriately, and in time. Where a problem is outside a practitioner's competence, or where specialist assessment would change the outcome, the duty is to refer — and delay itself can be the breach, particularly where a condition is time-critical. Why would I need to see a dental specialist? and Specialist Care set out the divisions that exist.

This sits alongside the duty to warn of material risks established in Rogers v Whitaker (1992), covered at Perspective: Dr Kia Pajouhesh. Together they describe most of what a practitioner owes you: tell you what you need to know, and send you on when you need someone else. Understanding Your Treatment is where that consent conversation is set out here.

The Dental Board of Australia's code of conduct states the same obligations in professional terms: practise within your competence, recognise your limits, and refer when appropriate.

Where failure to refer actually causes harm in dentistry

These are the recurring ones.

Oral cancer — the most serious

This is the diagnosis dentistry is best placed to catch and most damaged by missing.

Head and neck cancers are frequently found at routine dental examinations, because a dentist looks at the tongue, the floor of the mouth, the cheeks, the palate and the neck lymph nodes several times a decade in a way nobody else does. Oral cancer: how your dentist can help with early detection describes what that examination covers.

The failure mode is treating a persistent lesion as an ulcer, a denture sore or a trauma spot and reviewing it repeatedly instead of referring for biopsy. The cause of mouth ulcers and their usual treatments explains what an ordinary ulcer does instead.

The rule that prevents it: any ulcer, white patch, red patch or lump that has not healed in three weeks needs investigating — not another review in six months. Risk factors are smoking and alcohol, substantially multiplicative in combination, and HPV for oropharyngeal cancers, but a lesion in someone with no risk factors still needs the same rule applied. See Oral cancer: signs, risk factors and how your dentist can help and What are the causes, symptoms and treatment of mouth cancer?

Early-stage oral cancer is far more survivable. Delay is measured in survival.

Spreading dental infection

A dental abscess that spreads into the facial spaces is a medical emergency. Facial swelling with difficulty swallowing, difficulty breathing, drooling, a stiff neck, fever or a rapidly closing eye needs a hospital, immediately. See Can a dental abscess affect your general health? and Emergency Dentistry.

Prescribing antibiotics and sending someone home is the classic failure here. Antibiotics do not treat the cause and can mask deterioration — I have a toothache. Should I see my GP for antibiotics?

Complex extractions and implant surgery near nerves

Where a lower wisdom tooth or an implant site sits close to the inferior alveolar nerve, the duty is to assess it properly — sometimes with cone beam CT — and to refer where the risk exceeds the practitioner's experience. Permanent numbness of the lip and chin is a life-changing injury, and it is one of the most litigated outcomes in dentistry. Oral and Maxillofacial Surgeons and Who should I see for dental and teeth implants? cover who does this work.

Endodontics beyond a practitioner's competence

A molar with difficult canal anatomy, a retreatment, or a case where a previous attempt has failed. Persisting past the point of competence and creating a perforation or a separated instrument is a different and worse problem than referring. See Endodontists, Endodontist vs dentist for root canal, Why is the microscope so crucial in endodontic treatment? and The risk of broken files during root canal treatment.

Periodontal disease left unmanaged

Failure to diagnose and monitor periodontitis — no probing depths recorded, no bone levels assessed, no periodontal diagnosis given — is one of the most common complaints in dentistry. Bone lost to periodontitis does not grow back, and the harm is entirely in the delay. See Periodontists, Periodontal (gum) disease and Bleeding Gums.

Complex orthodontic and skeletal cases

Attempting to camouflage a skeletal discrepancy that actually needs a specialist orthodontist, or orthognathic surgery. See Orthodontic treatment: general dentist vs specialist orthodontist? and What is orthognathic surgery?

Medical conditions found in the mouth

Oral signs of diabetes, eating disorders, reflux (dental erosion), autoimmune disease, blood disorders and abuse. The duty is to notice and refer, not to diagnose the medical condition.

What referral does and does not mean

Referral is not an admission of inadequacy. It is a professional obligation, and it is the mark of a practitioner who knows the boundary of what they do well. Complex dental cases: what happens when multiple specialists need to collaborate and Complex Dentistry describe how that works in a practice with the specialties on site.

A general dentist may lawfully perform most treatment that overlaps a specialty, and many do it to a high standard. The question is never "are you allowed" but "is this case within what you routinely and confidently do".

And the reverse also matters: referring everything is not risk-free either. It delays care and adds cost, and specialist waiting times are real.

What you can do

Ask directly: "Is this a case you would normally refer?" It is a fair question and a good practitioner answers it straightforwardly — see What makes a truly great dentist?
Ask what the diagnosis is, in words. "We'll keep an eye on it" is not a diagnosis.
Set a review date and keep it — and if a lesion or symptom has not resolved by then, say so and ask what the next step is rather than accepting another review.
Ask for the referral in writing, with your records and radiographs, and follow it up yourself. Referrals get lost.
Get a second opinion if something is not resolving, or if a plan seems out of proportion. You are entitled to your records.
Check registration and any specialist entry free at ahpra.gov.au before complex treatment — the entries held here are listed on Dentists & Registered Specialists and on the individual team pages.

If something went wrong

Raise it with the practice first, in writing.
The Health Complaints Commissioner (Victoria) handles complaints about health services.
AHPRA and the Dental Board of Australia handle concerns about a practitioner's conduct, performance or health. Anyone can make a notification, and it is free.
Every registered practitioner must hold professional indemnity insurance as a condition of registration.
For a claim, get independent legal advice. Time limits apply to negligence claims and they vary by jurisdiction and by circumstance.

Common questions

I have had a sore patch in my mouth for a month and been told to keep an eye on it. What should happen instead?

It should be investigated, and the timeframe you were given is the wrong one. The RACGP's guidance on oral cancer states that “patients reporting any unexplained and/or non-healing changes or symptoms in the mouth for more than two to three weeks (eg a persistent ulcer, red patches, lumps, a sore throat, or erythematous or speckled lesions) should have an oral cancer screen.” A month is past that.

Why the urgency is real rather than defensive: the same source records that oral cancer “has a relatively low five-year survival rate, at around 50%, mostly due to diagnostic delays”, and that “An Australian study showed there was an average diagnostic delay of approximately four months between symptom onset and initial histological diagnosis.” Four months is roughly the length of two “we'll review it next time” cycles. Oral Health Victoria puts the scale of it at “more than 4000 new cases of head, neck and lip cancers diagnosed every year” in Australia, with “an estimated 2642 cases of lip and oral cancers” in 2022, and attributes the low survival “largely due to delayed presentation or diagnosis”.

What a proper look involves is not exotic. The RACGP describes it as achievable “with readily available equipment, including gloves, a mouth mirror, a tongue depressor and a torch”, covering the lips, the lining of the cheeks and lips, the gums, the tongue, the floor of the mouth and the palate, plus the face, jaw, chin and neck — and it notes that “The most high-risk sites for oral cancer are the lateral margins of the tongue and the floor of the mouth”, which is why the tongue gets lifted and moved rather than glanced at.

Two things to say in the room. Ask what the working diagnosis is, in words. And ask what the plan is if it has not healed by the review date — getting that answer in advance converts a vague review into a decision point. Note also that Australia has no population screening programme for this: the RACGP records “limited evidence to implement a formalised population oral cancer screening program”, so nothing will catch it for you on a schedule.

My dentist prescribed antibiotics for a toothache and sent me home. Is that enough?

Usually not, and there is high-quality evidence on exactly this.

A Cochrane review of systemic antibiotics for symptomatic apical periodontitis and acute apical abscess in adults sets out the accepted position: “Clinical guidelines recommend that the first-line treatment for these conditions should be removal of the source of inflammation or infection by local operative measures, and that systemic antibiotics are currently only recommended for situations where there is evidence of spreading infection (cellulitis, lymph node involvement, diffuse swelling) or systemic involvement (fever, malaise).” It then says what happens in practice: “Despite this, there is evidence that dentists frequently prescribe antibiotics in the absence of these signs. There is concern that this could contribute to the development of antibiotic-resistant bacteria.”

On whether the tablets help when the tooth is also treated, the answer is close to no. The review found a pre-operative single dose “results in little to no difference in participant-reported pain or swelling at any of the time points included in this review” when the tooth was cleaned out under local anaesthetic, and was “very uncertain” about a post-operative course. And on antibiotics instead of treating the tooth, the evidence does not exist at all: “We found no studies which compared the effects of systemic antibiotics with a matched placebo delivered without a surgical intervention.”

So the question to ask is not about the prescription. It is: what is being done to the tooth, and when? The recommended treatment, in the review's own patient-facing words, is “removal of the dead nerve and associated bacteria” — either extraction or cleaning of the root canal system. A prescription with no appointment to deal with the tooth is a delay, not a plan. Take any medicine exactly as your prescriber directs and raise this with them rather than stopping on your own; if swelling, fever, difficulty swallowing or breathing develops, that is a hospital, now, as set out above.

What is the real risk of nerve damage from a lower wisdom tooth, and when should someone else be doing it?

There is no single number, and the honest version is a range with the reasons for it. A literature review of inferior alveolar nerve injury after lower third molar removal reports the incidence of altered sensation as “about 0.35 - 8.4%”, and separately cites “1 - 20% temporary and 0 - 2% permanent” for nerve dysfunction, with “the risk of permanent injury, in which sensory impairment lasts longer than 6 months” being “less than 1%”.

The breakdown is more useful than the range, because it tells you which case yours is. From the same review: “The incidence of IAN neurosensory deficit was highest with horizontal impaction (4.7%) and lowest when the teeth were vertically impacted (0.9%). The overall incidence of IAN nerve damage was 2.5% per tooth removal. The lowest incidences were seen when the nerve was either ‘distant' (0.8%) or ‘close' (0.9%), and highest when the nerve was classed as ‘intimate' (11%).” Eleven per cent and 0.8 per cent are the same operation on radiographically different anatomy.

Most injuries settle. “Within 4 - 8 weeks after surgery, 96% of inferior alveolar nerve (IAN) injuries recover”, and “In most cases, IAN paresthesia is temporary and recovers within 6 months.” The warning sign is the calendar: “If paraesthesia is not completely resolved within about 2 months, the probability of a permanent deficit increases significantly.” Where it does persist, outcomes range “from mild hypoesthesia to complete anaesthesia and neuropathic responses resulting in chronic pain”.

Now the part that belongs on this page. The review's own list of factors associated with significantly higher risk is: “patients over the age of 24 years old, with horizontal impactions, close radiographic proximity to the mandibular canal, and treatment by inexperienced surgeons.” Operator experience sits in the same list as the anatomy. That is the duty to refer, stated as a risk factor.

There is also an alternative worth knowing about where roots lie against the nerve. A systematic review of coronectomy — removing the crown and leaving the roots — versus complete removal reported a pooled risk ratio for inferior alveolar nerve injury of 0.11 (95% CI 0.03 to 0.36), with no difference detected in post-operative infection or in pain at one week. Read it cautiously: only four controlled studies met the inclusion criteria, searched to October 2011, and the confidence interval is wide. A separate Cochrane review of third-molar surgical techniques found that its coronectomy trials contributed no usable data on permanent altered sensation, infection, dry socket or bleeding at all. So this is a conversation to have with an oral and maxillofacial surgeon, not a settled answer. What the review does state plainly is the consent obligation: “All patients must be warned of the risks of mandibular third molar surgery, including possible damage to the inferior alveolar nerve, and informed consent must be obtained before the procedure.”

How would I know whether my gums were actually assessed, rather than just looked at?

By whether anyone put an instrument between the gum and the tooth and read numbers out. A review of periodontal disease on PubMed Central is unambiguous: “‘Pocketing' is not evident on simple visual inspection, and assessment using a periodontal probe is essential.” Looking cannot do it, and neither can a photograph.

What is at stake in the difference is permanent. The same paper describes the process: inflammation extends beyond the gum, the collagen fibres of the periodontal ligament break down, a pocket forms, and “the resorption of the alveolar bone ... occurs in parallel with the progressing attachment loss” — and it states that “the tissue destruction that occurs is largely irreversible.” Nothing about that is recoverable later, which is why the delay itself is the harm.

It is also quiet until late. In the early stages the condition “is typically asymptomatic; it is not usually painful, and many patients are unaware until the condition has progressed enough to result in tooth mobility”, and the advanced picture the paper describes — “gingival recession, tooth mobility, drifting of teeth, suppuration from periodontal pockets, and tooth loss” — is the end of a long process, not the start of one.

So the practical test: ask for your pocket depths, in millimetres, and ask when they were last recorded. If the answer is that they have never been measured, that is the thing to fix at the next appointment. See Periodontal (gum) disease and Periodontists.

None of these situations hurt at the start. Is that normal?

It is the rule rather than the exception, and it is the single reason a duty to refer in time exists at all. Three of the conditions above are silent while they are still treatable:

Oral cancer. The RACGP states flatly that “Initial lesions of oral cancer are generally painless” — which is precisely why the trigger for investigation is a lesion that has not healed, not a lesion that hurts.
Periodontitis. In its early stages it “is typically asymptomatic; it is not usually painful, and many patients are unaware” until teeth start to move.
Decay under an existing restoration. There is no hole to see, because a restoration is covering it.

And where pain is present, it can be switched off without the cause being touched. That is the trap in the antibiotic question above: the medicine can reduce the symptom while the source of infection remains, which is why the Cochrane position is that treatment of the tooth comes first and antibiotics are for spreading or systemic infection.

The working conclusion is unglamorous and worth stating anyway. Absence of pain is not evidence that nothing is wrong, and “it stopped hurting” is not a reason to cancel the appointment — in a tooth with a dying nerve it can mean the opposite. The things that catch these problems are measurement and a recorded diagnosis, not symptoms.

Practical details

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This page records a published article and its date, with general information. It is not legal advice, no party to the reported case is identified, and the law varies between jurisdictions and changes over time. It is not a diagnosis or a treatment plan. Incidence, survival and recovery figures are quoted from the published sources described, with their populations and time points, and are not this practice's own results. Third-party published content is not reproduced.

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