Dento-Legal Issues: Understanding Liability In Dental Negligence

Dental negligence claims are not uncommon in Malaysia, with legal actions being initiated against dentists over the years. Patients have several avenues to pursue claims of alleged negligence, including filing a civil lawsuit or lodging a complaint with the Malaysian Dental Council. Additionally, dental practitioners and/or dental clinics may face criminal prosecution for negligent misconduct1. Legal proceedings can have serious consequences for dentists, including reputational damage and professional embarrassment. Therefore, it is essential for dentists to have a comprehensive understanding of their legal liabilities in the event of any adverse outcome.

Duty And Standard Of Care

It is generally undisputed that dentists owe a duty of care to their patients which stems from the doctor-patient relationship. In simple terms, once the patient walks into the treatment room to seek treatment from the dentist who holds himself out as one, a duty of care is imposed on the dentist. The next step in determining liability in negligence is whether the dentist has breached that duty. To answer this question, dentists must know the standard of care that is being placed on them.

As with other registered medical practitioners, the duty of a dentist can also be classified as23:

Examples Of Dental Negligence

Common examples of dental negligence include:

· Delay or incorrect diagnosis

· Substandard root canal treatment

· Substandard crown and bridge work

· Failures with cosmetic dentistry

· Wrongful extraction of teeth

· Substandard orthodontic treatment

· Inadequate history taking

Dento-Legal Cases In Malaysia

Case 1: Chai Hoon Seong v. Wong Meng Heong [2010] 8 MLJ 104

This was an appeal to the High Court against the decision of the Magistrate court that allowed the plaintiff’s (Wong Meng Heong) claim against the defendant (Dr. Chai Hoon Seong), a dentist, for negligence in dental treatment, namely crowning on the plaintiff’s tooth. The plaintiff claimed that as a result of the defendant’s negligence, she has endured pain and suffering where the said tooth has lost the ability to hold and chew food and there was infection at the root of the tooth.

The appeal was allowed by the High Court and the claim for negligence was dismissed on two grounds:

(i) there was no breach of duty; and

(ii) failure to prove causation.

Regarding breach of duty, the High Court found that the Magistrate had erred in determining the appropriate standard of care for a dental practitioner. The court clarified that the defendant should be held to the standard of a general dental practitioner in a private clinic practicing prosthodontics, rather than that of an endodontic specialist, as crown fitting falls within the scope of prosthodontics.

On the issue of causation, the High Court held that the alleged breach of duty (which was not proven) did not result in a reasonably foreseeable harm to the plaintiff. This finding is based on the expert evidence tendered that the said crown was not the cause of the plaintiff complaint. Instead, such injuries were related to the root canal treatment performed by another dentist.

Case 2: Dr. Tan Ah Ba v. Dr. Wong Foot Meow [2012] 7 MLJ 467

The plaintiff (Dr. Tan Ah Ba) sued the defendant, a consultant oral maxillofacial surgeon for breach of professional duty of confidence. The plaintiff’s claim stemmed from the issuance and alleged disclosure of the dental report prepared by the defendant to the third parties. The plaintiff contended that the said report which was issued in the year 2010 was prepared by the defendant without his express knowledge, consent or approval. Further, the plaintiff contended that the sole purpose for the issuance and disclosure of the report by the defendant was to defeat his claims against Dr How Kim Chuan for the negligent implant treatment done by Dr How. The plaintiff contended that this amounted to bad faith on the part of the defendant, a breach of the defendant’s professional duty of care and confidentiality owed to the plaintiff, and also a breach of contract.

On the issue of breach of professional duty of confidence, the court found in favour of the plaintiff. The existence of a doctor-patient relationship between the plaintiff and defendant has been established where in the course of his consultations with the

defendant, confidential information has been disclosed. The defendant has also made his conclusions and findings on the plaintiff’s dental condition and this according to the court, constituted “confidential matters which the doctor in the relationship owes to the patient keep confidential”.

Case 3: Manjit Kaur Pertap Singh v Dr Nagasparan Natchappan [2024] 1 CLJ 709

This was an appeal to the Court of Appeal against the decision of the High Court that dismissed the plaintiff’s/appellant’s claim against the defendant/respondent (Dr. Nagasparan), where the allegations of negligence were:

(i) failing to diagnose the appellant to ascertain whether she was allergic to penicillin-based medicines, which in this case was lignocaine and amoxicillin; and

(ii) failing to have the necessary equipment to stabilise the appellant’s condition or to resuscitate her and to arrange and supervise her transfer to the hospital properly.

The Plaintiff, an elderly female, had gone to the defendant’s dental clinic with her daughter to seek treatment for her toothache. The defendant undertook an intraoral examination of the plaintiff and advised the plaintiff to extract one of her molars. The defendant then injected a local anaesthetic known as lignocaine into the plaintiff’s gums and also gave antibiotic tablets (amoxicillin and flagyl) and paracetamol tablets for the plaintiff to swallow. After the plaintiff had swallowed the tablets, she suffered breathing difficulties. The defendant performed the Heimlich manoeuvre on the plaintiff which seemed to have relieved the plaintiff. The defendant proceeded to call for an ambulance. The plaintiff and her daughter then made their way downstairs out of the clinic while the defendant was on the phone calling for an ambulance but was told that none was available. The plaintiff and her daughter then went to the hospital, ferried by a good Samaritan. The defendant followed suit in his car. Upon arrival at the hospital’s emergency department, the plaintiff suffered a cardiac arrest. She was successfully resuscitated but suffered what was known medically as hypoxic-ischemic encephalopathy, a type of brain damage.

The High Court held that the injury suffered by the plaintiff was not due to the medications that the respondent had given. As to the pivotal issue as to whether the plaintiff had walked out from the clinic without the respondent’s knowledge or consent, or whether she had done so at the respondent’s behest, the court accepted the defendant’s version that the plaintiff’s daughter had led her out of the clinic whilst he was calling for an ambulance and that he had no opportunity to attend to the appellant.

Accordingly, the High Court held that the plaintiff’s well-being was no longer in the defendant’s control as the plaintiff’s daughter had decided to take her own course of action. The High Court also ruled that the respondent had done the necessary by calling for an ambulance and that there was no need for him to perform cardiopulmonary resuscitation as the plaintiff was not unconscious when she was in the clinic or on the ground floor before she was taken to the hospital. The High Court dismissed the plaintiff’s claim.

The Court of Appeal in a majority ruling, affirmed the High Court’s finding.

Commentary

Dental negligence claims in Malaysia have evolved alongside the broader landscape of medical negligence. As seen in the cases discussed, plaintiffs must establish not only a breach of duty but also a clear causal link between the alleged negligence and the harm suffered.

The decision in Dr. Tan Ah Ba highlights the professional duty of confidence owed to patients. Manjit Kaur Pertap Singh underscores the critical role of clinical judgment, proper record-keeping and timely patient management in mitigating liability risks.

Looking ahead, dental practitioners must remain vigilant in adhering to best practices, maintaining comprehensive documentation, and ensuring that patients receive adequate information on treatment risks. The evolving jurisprudence in this field serves as a reminder that professional accountability must go hand in hand with patient safety and trust in the dental profession.

[1] Court of Appeal upholds RM220,000 fine imposed on dental clinic after it was found guilty in connection with the death of Syed Alman Zain Syed Alwi (https://www.freemalaysiatoday.com/category/nation/2022/11/10/court-upholds-rm220000-fine-on-dental-centre-in-death-of-zahids-son-in-law/)

[1] Bolam test: “... in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent …”

[1] Rogers v Whitaker test: “A risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is, or should reasonably be aware that the particular patient, if warned of the risks would be likely to attach significance to it.”

26 March 2025