How to Sue a Dentist for Negligence: Wrongful Extraction and Nerve Damage Claims in Hong Kong

Disclaimer: This does not constitute legal advice. Consult a solicitor for your specific case.

The Dental Council of Hong Kong received 174 complaints against registered dentists in 2023, the highest annual figure in five years, according to its 2023 Annual Report. A significant portion of these complaints involve allegations of clinical negligence, including wrongful tooth extraction and permanent nerve damage. For patients, the distinction between a poor clinical outcome and actionable negligence is critical. The law provides a route to compensation, but the procedural hurdles are distinct from other personal injury claims. This article outlines the legal framework and procedural steps for pursuing a dental negligence claim in Hong Kong.

The Legal Basis for a Dental Negligence Claim

The Bolam Test in Hong Kong

Hong Kong courts apply the Bolam test to determine clinical negligence. This standard, established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and affirmed by the Hong Kong Court of Final Appeal in Lai Yuen Cheung v Tang Kim Hung (2002) 5 HKCFAR 238, asks whether the dentist acted in accordance with a practice accepted as proper by a responsible body of dental professionals. The test is not whether the dentist made a mistake. The test is whether the dentist fell below the standard of a reasonably competent practitioner in the same field.

To succeed, a plaintiff must prove two elements on the balance of probabilities. First, the dentist owed a duty of care to the patient. This is established by the dentist-patient relationship. Second, the dentist breached that duty by failing to meet the required standard of care. A bad outcome alone is insufficient. The court requires expert evidence from another dentist to establish what a reasonable practitioner would have done in the circumstances.

Common Types of Dental Negligence

Wrongful extraction occurs when a dentist removes a tooth that could have been saved with reasonable treatment, or removes the wrong tooth entirely. Nerve damage, particularly to the inferior alveolar nerve or lingual nerve during lower molar extractions, is another frequent claim. The plaintiff must prove that the extraction was not clinically justified or that the nerve injury was caused by a technique falling below the accepted standard.

Other recognised grounds include failure to diagnose periodontal disease, negligent root canal treatment leading to infection, and failure to refer a patient to a specialist when a general practitioner’s skill level is exceeded. The Court of First Instance has held that a dentist’s duty includes obtaining informed consent. In Wong Tak Yue v HKSAR [2004] 3 HKLRD 213, the court stated that a patient must be warned of material risks inherent in the proposed treatment.

Pre-Action Protocol and Evidence Gathering

The Duty to Preserve Evidence

A plaintiff must preserve all dental records, X-rays, and correspondence with the dentist. The Limitation Ordinance (Cap. 347) provides that a personal injury claim must be brought within three years of the date of the negligence or the date of knowledge of the injury. For dental negligence, the date of knowledge is when the plaintiff first realised the injury was significant and attributable to the dentist’s conduct.

The plaintiff should obtain a complete copy of the dental records from the treating dentist. Under the Personal Data (Privacy) Ordinance (Cap. 486), a patient has the right to access their medical records. The dentist must provide these within 40 days of a written request. If the dentist refuses or delays, the plaintiff may apply to the Privacy Commissioner for enforcement.

The Letter of Claim

Before issuing a writ, the plaintiff’s solicitor should send a letter of claim to the dentist. This letter must set out the allegations, the injuries suffered, and the quantum of damages sought. The dentist has 21 days to acknowledge the letter and a further three months to investigate and respond. This pre-action protocol is not mandatory under legislation, but the Practice Direction on Personal Injuries Actions (PD 18.1) encourages parties to follow it. Failure to comply may result in adverse costs orders.

The letter should include a request for the dentist to disclose their professional indemnity insurance details. Most Hong Kong dentists carry professional indemnity cover through the Hong Kong Dental Association or private insurers. The insurer will typically appoint a solicitor to defend the claim.

Court Proceedings and Forum Selection

Which Court Has Jurisdiction?

The choice of court depends on the quantum of damages. The District Court (Cap. 336) has jurisdiction over personal injury claims up to HK$3 million. Claims exceeding HK$3 million must be commenced in the Court of First Instance of the High Court. The Small Claims Tribunal has no jurisdiction over personal injury claims.

For most dental negligence claims involving nerve damage or wrongful extraction, the quantum of damages for pain, suffering, and loss of amenity may fall below HK$3 million. However, if the plaintiff has lost income due to the injury, or requires future dental treatment, the total claim may exceed the District Court limit. The plaintiff’s solicitor should assess the likely quantum before issuing proceedings.

The Role of Expert Evidence

The court will not decide a dental negligence claim without expert evidence. The plaintiff must instruct an independent dentist to provide a report on the standard of care. The expert must be a registered dentist in Hong Kong with relevant clinical experience. The report must state whether the defendant’s conduct fell below the accepted standard.

The defendant will instruct their own expert. The court may order the experts to meet and produce a joint statement identifying areas of agreement and disagreement. This process is governed by Order 38 of the Rules of the High Court (Cap. 4A). If the experts disagree on a material point, the court will resolve the issue at trial.

Damages and Costs

Heads of Damage

The court awards damages to put the plaintiff in the position they would have been in but for the negligence. The heads of damage include:

• General damages: Pain, suffering, and loss of amenity. The court refers to the Personal Injuries Tables published by the Judiciary. For permanent nerve damage causing numbness or pain in the lip, chin, or tongue, the guideline award ranges from HK$100,000 to HK$300,000, depending on severity.
• Special damages: Out-of-pocket expenses, including the cost of corrective dental treatment, medication, and travel to medical appointments.
• Loss of earnings: If the injury prevents the plaintiff from working. The court calculates this from the date of injury to the date of trial, and for future loss, applies a multiplier based on the plaintiff’s age and working life.
• Future medical expenses: The cost of ongoing dental care or surgery to repair the damage.

Costs Risks

The general rule in Hong Kong is that the losing party pays the winning party’s costs. This is a significant risk for plaintiffs. If the claim fails, the plaintiff may be ordered to pay the defendant’s legal costs, which can exceed HK$500,000 for a High Court trial. The court may make a costs order on an indemnity basis if the plaintiff rejected a reasonable settlement offer.

Conditional fee agreements are not permitted for litigation in Hong Kong, except for arbitration and certain insolvency proceedings. Third-party funding is also prohibited for litigation. The plaintiff must fund the case themselves or through legal aid. The Legal Aid Department may grant legal aid for dental negligence claims if the plaintiff meets the financial eligibility limits and has reasonable grounds for the claim.

Key Takeaways

• A dental negligence claim in Hong Kong requires proof that the dentist fell below the standard of a reasonably competent practitioner, not merely that the outcome was poor.
• The plaintiff must issue proceedings within three years of the date of knowledge of the injury, and should obtain dental records under the Personal Data (Privacy) Ordinance (Cap. 486) immediately.
• The District Court handles claims up to HK$3 million; claims above this amount must be filed in the Court of First Instance.
• Expert evidence from an independent registered dentist is mandatory, and the court will not proceed without it.
• Costs risks are substantial, and the plaintiff should assess eligibility for legal aid before commencing proceedings.