Court finds arguable case for policy to respond

An insurer has been forced by the NSW Appeal Court to indemnify a now-retired dentist being sued by a patient for unnecessary treatment, assault and performing procedures without anaesthetic.

Guild Insurance Ltd appealed against District Court Judge Sharron Norton’s decision the former’s dentist’s insurance policies were valid, despite the insurer’s insistence it was not liable because the dentist’s cover had expired before the legal action was taken by former patient Mary Hepburn.

Judge Norton said the insurance was in place when the alleged assault and mistreatment took place and the cover’s “retired dentist” clause took effect. She ordered Guild to indemnify Dr Jasmin White during the on-going trial.

Guild became a party in the trial after Dr White indicated she was not financially able to pay damages should a judgement go against her.
Guild appealed against the order, arguing that while Dr White was covered when the disputed treatment took place, her cover had lapsed before the legal action was launched. Guild argued the “retired dentist” clause was irrelevant as Dr White was still practising when she treated Ms Hepburn.

Appeal Court Justices Robert Macfarlan, Anthony Meagher and Fabian Gleeson agreed Judge Norton erred by including Guild using the “retired dentist” clause. However, they said she was entitled to reach the decision to include Guild on other factors.

In particular, the appeal could be dismissed if evidence established Dr White had a reason to expect her patient might complain and take legal action at the time of the treatment, and was in a position to inform her insurer of the potential to be sued. That held even if the doctor decided not to advise her insurer of a potential problem.

“An inference is arguably available in the present case that Dr White was aware her conduct might give rise to a claim,” Justice McFarlan said. “In particular, the ‘excruciating’ pain Ms Hepburn would have suffered [because] of procedures, including extraction of a tooth, being undertaken without anaesthetic must have been obvious to Dr White and could thus constitute a basis for drawing that inference.”

Justice Meagher agreed. He said records showed Ms Hepburn saw Dr White on 16 separate occasions and the patient was never given any anaesthesia for pain relief even though the procedures included surgical extraction of a tooth or tooth fragment and 13 fillings.

Ms Hepburn’s statement of claim said she had “screamed in agony” when treatment was taking place. Expert opinion was that Dr White’s treatment was not in accordance with peer professional standards.

“[Dr White] knew no form of anaesthesia had been provided and, it might be inferred, also knew that the absence of her doing so was at least questionable and resulted in the [patient] experiencing significant discomfort and pain,” Justice Meagher said.

“That evidence provides sufficient basis for a conclusion it was arguable the insured was aware those circumstances were likely to give rise to a claim against her.”

That knowledge alone, regardless of any “retired dentist” provisions, was sufficient to include Guild.

(Guild Insurance Ltd v Hepburn [2014], NSWCA 400, 24/11/2014)