As Medical Negligence and Health lawyers, we frequently encounter errors in dental treatment, resulting in extreme pain, poor outcomes, and avoidable expense for the patient. We find that a common concern is whether the dental treatment was justified in the first instance. These issues were recently considered in the case of Dean v Phung  NSWCA 223, where the dental surgeon, Dr Phung, took ‘overservicing’ of a patient to its extreme.
Mr Dean suffered minor injuries to his chin and teeth when struck by a piece of falling timber. His employer arranged for him to attend Dr Phung for treatment. In just over one year, he was treated on 53 occasions, costing his Workers Compensation insurers $73,640. During that time, Dr Phung carried out root canal therapy and fitted crowns on each and every one of Mr Dean’s teeth.
The Civil Liability Act 2002 does not cover liability arising from the actions of an individual intended to cause injury. Any plaintiff who has suffered intentional harm is entitled to claim additional compensation for punitive or exemplary damages. Therefore when Mr Dean became aware that he had been unnecessarily treated, he sued Dr Phung, for both Negligence and exemplary damages. Dr Phung admitted liability for his negligence, and conceded that the treatment was unnecessary, but denied that he had intentionally caused any harm.
When the case came to trial, the judge found Dr Phung to be incompetent but was not satisfied that he had been fraudulent or dishonest. Mr Dean appealed this decision, arguing that he had been deceived into giving his consent to the treatment. Furthermore, since Dr Phung’s sole motivation for this treatment was financial, there was an intention to cause injury, and was liable for trespass, in treating him without proper consent.
The Court of Appeal took this opportunity to lay down some broad principles in respect of consenting to medical treatment:
- If the procedure is unrelated to the medical condition, there cannot be any informed consent.
- The practitioners’ motive for the treatment must be examined.
- Whenever there is a dispute in respect of informed consent, the burden of proof lies with the medical practitioner.
They concluded that the dentist probably did not believe the treatment to be necessary.
Furthermore, Mr Dean could not consent to treatment that he did not need, and Dr Phung had
therefore committed an act of trespass, for which exemplary damages of $150,000.00 were
awarded. In total, Mr Dean was awarded $1,743,000. This must have been a kick in the teeth for
Dr Phung, but more importantly, it establishes the principle that where treatment is known to be
unnecessary, extra compensation can be awarded.