The principal difference between oral cancer claims and other types of dental claim is the clinical examination. While a detailed report on examination findings is important for all patients, the only hard evidence that you have not breached your duty of care in the case of a missed diagnosis for oral cancer will be within the clinical records.  

At the very least, the records should show details of your: 

  • examination 
  • findings – negative and positive
  • diagnosis
  • recognition and referral
  • follow-up.

If you detect a suspicious lesion, full and detailed contemporaneous notes are essential, including a detailed record of your telephone (or other) correspondence with patients, relatives and specialists. The factors you must record for any suspect lesion are the duration, size, site, shape, colour and texture of any pathological lesion. 

Ensure handwritten and computer records are clear and detailed, and if possible, keep clinical photographic images of any lesion.

In the event of a claim against you, key to your defence will be evidence that you have recorded the following:

  • identification of risk factors and communication of them to your patients, such as alcohol, smoking, combination of tobacco use and alcohol consumption (particularly implicated in oral squamous cell cancer), betel quid
  • advice on modifying lifestyle.

Currently, 70% of oral cancers are diagnosed at the advanced stage. Early diagnosis significantly increases the five-year survival rate and detection of lesions under 2cm is key.

Five year survival
Stage 1  80% 2cm no spread
Stage 2 76% 2-4cm no spread
Stage 3 41% >4cm or spread to one node 
Stage 4 9% spread to more than one node
Referrals

You should follow the NICE guidelines for urgent referrals (see box below), and your local hospital will have procedures in place for seeing patients within two weeks. 

NICE Guidelines on oral cancer

1.8.2 Consider a suspected cancer pathway referral (for an appointment within 2 weeks) for oral cancer in people with either:

  • unexplained ulceration in the oral cavity lasting for more than 3 weeks or 
  • a persistent and unexplained lump in the neck. [new 2015] 

1.8.3 Consider an urgent referral (for an appointment within 2 weeks) for assessment for possible oral cancer by a dentist in people who have either:

  • a lump on the lip or in the oral cavity or
  • a red or red and white patch in the oral cavity consistent with erythroplakia or erythroleukoplakia. [new 2015]

1.8.4 Consider a suspected cancer pathway referral by the dentist (for an appointment within 2 weeks) for oral cancer in people when assessed by a dentist as having either:

  • a lump on the lip or in the oral cavity consistent with oral cancer or
  • a red or red and white patch in the oral cavity consistent with erythroplakia or erythroleukoplakia. [new 2015] 

We would strongly advise all practices to consult their local hospital about their referral procedures so that the whole dental team know what to do.

Clear, concise referrals to a named consultant or specialist giving the patient's personal details (age, sex, occupation, contact details) and highlighting your concerns, are key to ensuring the prioritisation of waiting lists and facilitating contact. It is, of course, essential that you include your clinical diagnosis (or diagnoses) in order to categorise the urgency of the referral.

Model.Image.Alt

Photo credit: Corbis

In the event of a claim 

If you are unfortunate enough to have a claim brought against you for failing to diagnose oral cancer, failure to refer or inappropriate referral, the records will be key to your defence.  

The claimant will need to demonstrate that you breached your duty of care and 'but for' that breach, they would have suffered less harm. This is know as 'causation' and in claims for oral cancer the claimant will seek to prove the effect of the delayed diagnosis/ missed referral/wrong diagnosis on the disease progression. 

The DDU will fully investigate any claim and seek an expert's opinion on Breach of Duty and Causation looking at the likely outcome for the same patient if there had been early intervention, delayed intervention and no intervention. 

Take a case where there had been a two- month delay in referral for a suspected squamous cell carcinoma. Let us suppose that when the claimant was subsequently operated on it was noted that there were already cervical metastases present. The key question in this example is, "Would metastases have been present two months earlier when the claimant would have had surgery "but for" the negligent delay?" 

In this scenario, the claimant would argue that an earlier referral to secondary care would have materially affected the staging of the tumour and thus influenced the five-year survival rate:

  • Stage II: maximum 75% probability of survival after five years (or minimum 25% probability of dying within that time)
  • Stage I: 90% probability of survival after five years

Therefore despite the delay in referral, on the balance probabilities, the claimant will survive a further five years. 

If you are unfortunate enough to have a claim brought against you for failing to diagnose oral cancer, failure to refer or inappropriate referral, the records will be key to your defence.

Below are examples of claims brought against members which have been settled:

Allegations made as part of a claim
Delay in diagnosing and referral of patient with a squamous cell carcinoma  Settled for £5,400 
Failure to examine or treat mouth ulcer which turned out to be squamous cell carcinoma Settled for £8,000
Failure to diagnose ameloblastoma Settled for £10,500
Failure to refer patient with lump in upper left quadrant of soft palate; subsequent diagnosis of papillary adenocarcinoma Settled for £19,700
Failure to diagnose squamous cell carcinoma of the tongue Settled for £25,500

Summary

The incidence of oral cancer is on the rise and is increasingly observed in young adults, some without a history of predisposing factors. Therefore we would strongly advise members that they never assume that oral cancer will not arise in individuals who do not use alcohol or tobacco or have lifestyles that are not out of the ordinary. 

Your examination or treatment of any patient in the lead-up to cancer diagnosis could result in you being implicated in a claim. Your records are key to any defence, with thorough examination and assessment for each and every patient being essential, including referral and follow-up. 

November 2015 is the British Dental Heath Foundation's Mouth Cancer Action Month. As part of this Cancer Research UK are due to launch their Oral Cancer Toolkit. DDU members are encouraged to familiarise themselves with this updated screening toolkit.  

Members are also advised to familiarise themselves with the Department of Health's Delivering Better Oral health, an evidenced based toolkit, and particularly the sections on smoking and tobacco use, alcohol misuses and helping patients to change their behaviour. 

As you will be aware, since May 2012, Oral Cancer: Improving early detection has been highlighted by the GDC as recommended CPD.  

Dento-legal advice and claims 24-hour helpline 

UK: 0800 374 626  

Ireland: 1800 535 935  

Email: ddu@theddu.com (or use our secure email an adviser form on our website www.theddu.com


This article was correct at publication on 06/08/2015. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

Susan N'Jie

DDU dento-legal adviser

Sue qualified from Guy's Hospital Dental School in 1986 and went into general dental practice in the UK. She spent two years in South Africa helping to set up dental practices in Johannesburg. After 20 years in general dental practice, she joined the Dental Law Partnership, advising on the clinical aspects of negligence claims. Sue joined the DDU in April 2011 and works as a full-time dento-legal adviser.

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