Jul 24, 2024
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If you choose to enter a healthcare profession — any healthcare profession — you’re opening yourself up to potential medical malpractice lawsuits. Whether or not you do something wrong, there’s always a chance a patient will be dissatisfied and will file a claim against you or your practice.
For dentists, these lawsuits can carry significant financial risk, so it’s important to know how frequently you could find yourself faced with a legal situation. What puts you at risk, and how should you handle it? Being armed with this information can help you protect yourself throughout your career.
Even though the dentist chair isn’t the first thing people think of when they hear “medical malpractice,” dentists do get sued. Fortunately, the number is relatively small compared to other specialties.
That said, all dentists should be prepared if a claim were to happen. According to malpractice payment statistics from the National Practitioner Data Bank (NPDB), there have been 139,774 individual medical malpractice payments reported across all medical specialties between 2010 and 2021. Of these claims payments, dentists and dental hygienists were responsible for 16,118 —roughly 11.5%.
It’s important to remember that this is only the number of reported payments to the NPDB. It does not include the number of claims filed, adverse actions, lawsuits in which providers were dismissed, or any other type of incident that might require defense expenses.
The good news is the rate of these payments has been holding steady — except for the past two years when there was a significant drop-off. This was probably an effect of the COVID-19 pandemic, as dentist offices were forced to close and people put off their normal dental visits.
“You have to remember that most patients who have a dental gripe have pretty small damages,” said Jeff Tonner, J.D., one of the few full-time dental defense attorneys in the United States. “Usually, they don’t get the attention of the plaintiff’s lawyers, and they’ll file a dental board case instead,” he added.
According to the American Dental Association, there are several reasons behind dental claims and lawsuits, including:
Medical malpractice lawsuits that specifically name a dental hygienist are extremely rare, Tonner said. Although it can happen, the dentist is, by and large, the individual who will be the focus of the legal action. It is common, though, for dental hygienists to be included as an additional party in the lawsuit.
Although it is impossible to prevent every patient from ever filing a lawsuit, it’s important to know what can put you at risk. Dental attorney Jeffrey Tonner says being aware of these five common risks — and how to side-step them — can help you in the long run.
If you don’t get the patient’s permission for a treatment or procedure, they can accuse you of malpractice. For example, a patient must agree to X-rays that are needed to diagnose a condition, and they must also give you permission to perform any procedures.
Prevention Strategy: Be sure you get informed consent. Present your patient with a written document that details the requirements for treatment, Tonner said. Walk them through it verbally to ensure they understand what you will do and the intended results, and have them sign the document.
Missing or overlooking a problem is one of the most significant malpractice risks, Tonner said, particularly with oral cancer.
Prevention Strategy: Always make oral cancer screening part of every patient appointment, and verbally explain to the patient what you’re doing and why, he said. Even then, he said, you could face a suit.
“Most general dentists carry a $1 million policy in coverage,” he said. “You can hardly go over that amount even if you screw up an entire palate and need to replace all the teeth. But for detectable oral cancer, you will need it.”
These risks emerge from tooth damage or injury that results from root canals, implants, veneers, restorations, and crowns that go awry. Patients can also make this type of malpractice claim if you miss any type of deterioration, decay, or inflammation during your exam. In many instances, these smaller problems can lead to bigger issues with more involved procedures later down the line.
Prevention Strategy: Creating a checklist of “must-do” steps for each procedure can help you ensure treatment successes as much as possible. It can also assist you with reminders to check for any type of decay or inflammation that could lead to more significant future problems.
These types of claims emerge when your patient feels you did not give them sound direction on their dental health. Perhaps you didn’t discuss every aspect of a condition or treatment. This could also be a problem if they believe you should have referred them to a specialist.
Prevention Strategy: Write down the advice you give patients in their medical record, Tonner said. Be as detailed as possible and include any mentions of specialty referrals. A pro tip to ensure your patient hears and understands your advice is to have him or her repeat back to you when you’ve said.
Lasting damage to the lingual or inferior alveolar nerve from a tooth extraction or anesthesia administration can be a fundamental reason behind a medical malpractice lawsuit.
Prevention Strategy: Be sure you’re using infiltration techniques and adjusting anesthesia levels appropriately based on each individual’s characteristics. This can limit the risk of causing nerve damage.
Even though you face several risks, there are risk management steps you can take to help prevent a medical malpractice case, Tonner said. Keep these in mind, and you will have a better chance of avoiding legal action.
Take copious notes during every patient appointment and include them all in the patient’s chart, he advised.
“Almost all dentists need to chart better,” he said. “When they are sued or if it’s a dental board case, the dental chart becomes the most important defense evidence of what they did and didn’t do and what they did and didn’t tell the patient.”
Include everything, even noting your mistakes and how you corrected them, in the chart (and verbally tell the patient during the appointment), Tonner said. Above all else, never delete anything from the patient record. That will always be a red flag.
Frequently, when you complete a major procedure, such as an implant or extraction, Tonner said, a patient might think they’re free and clear from seeing you again. They need to understand that’s not the case. Explain what their procedure means and the continuing dental services they will need. This sets the expectation for the patient that they are responsible for returning for cleanings and other needed services.
Never dive in on a treatment without discussing it with your patient first. You can’t assume they know what you’re doing or why. Walk them through procedures in plain language and give them the opportunity to ask questions. This is a great time to present them with informed consent forms, Tonner said.
It’s no secret that lots of patients are lost to follow-up. Either they cancel their appointment, or they just don’t show up. Don’t let that slide. Create a written policy that requires your office staff to reach out to patients who are no-shows. It could be for a routine cleaning or a cavity fill. Do your best to stay in contact with all your patients so you don’t miss valuable opportunities for diagnoses.
According to Tonner, each dentist can anticipate between three-to-five malpractice claims during their career. When that happens, you’ll get a letter from the Dental Board. Take it seriously even if you feel you’ve done nothing wrong. Provide all requested information and cooperate with their investigation. It’s a good idea to reach out to your insurance company, too, just in case. They may also be able to suggest legal representation if you need it.
Despite being a small part of your dental career, medical malpractice lawsuits can present a very real risk. When you walk into every patient appointment, keep the top risks in the back of your mind to ensure you provide the best patient care you can. Create a workflow and develop relationships with your patients that can help you side-step the threat of legal action as much as possible.
And, as an added layer of defense, consider an insurance policy that will offer you the greatest level of protection. Such a policy should cover your practice, your assets, and even your reputation should you find yourself named in a lawsuit.
Image courtesy of istock.com/LightFieldStudios
Last updated on Jul 24, 2024.
Originally published on Jan 25, 2022.
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Whitney Palmer is a contributing writer for Berxi. She is a 20-year veteran healthcare journalist with experience writing for a variety of healthcare provider audiences via trade and advocacy publications. Throughout her work, she has covered a variety of healthcare topics, including optometry, pediatrics, rheumatology, radiology, women's health, and more.
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