Medical malpractice claims and dental malpractice claims are the same. The only difference is that dental malpractice refers specifically to negligence on behalf of dental professionals including dentists, dental assistants, orthodontists and oral surgeons.
In Warlow v. Dr. Sadeghi 2019 BCSC 463, the injured claimant suffered permanent and debilitating nerve pain when her dentist injured the nerve while removing a wisdom tooth. The dentist was sued in negligence. The main issue for the trial judge to determine was whether the dentist obtained informed consent from her before the surgery. More specifically, the issue concerned whether the dentist expressly disclosed the risk of permanent nerve pain to her before the surgery so she could make an informed decision about whether to proceed with it. See our previous blog post for more information on medical malpractice claims and informed consent. Informed consent requires proof of the following:
a material, special, or unusual risk was not disclosed in advance of the medical procedure; and
a reasonable person in the injured claimant’s position would not have agreed to the medical procedure had he/she been sufficiently advised of such risk
The trial judge dismissed the claim finding that:
- there was no evidence that the dentist knew or could have known the risk of permanent and severe nerve pain arising from lower wisdom tooth extraction
- the possibility of permanent nerve damage was considered so remote that it was not required to be disclosed and it was not reasonably foreseeable
- that an adequately informed reasonable person in the position of the injured claimant would have chosen to go ahead with the surgery
The injured claimant appealed. In the court of appeal decision (Warlow v. Sadeghi 2021 BCCA 46), it was argued that the trial judge erred in finding that the claimant would have proceeded with the surgery if properly advised of the material risk of permanent nerve damage. In particular, it was argued that the trial judge misinterpreted the evidence of the injured claimant on that point and misapplied the legal test (modified objective test). The dentist argued that the injured claimant did not identify any error of fact or law that would permit the appeal.
The modified objective test is a test of causation. It asks whether a reasonable person in the injured claimant’s circumstances would have consented to the proposed treatment if all the risks, benefits, and alternatives had been disclosed. The test relies on a combination of objective and subjective factors to determine whether the failure to disclose actually caused the harm or damage.
The court of appeal dismissed the appeal concluding that no palpable or overriding error was found in the trial judge’s findings relevant to the modified objective test.