In our country of litigation-happy citizens, it seems that any of us is just one mistake from a lawsuit. Dentists performing exact, highly skilled procedures and services need to be vigilant in assessing risk and in ensuring that they are doing all they can to minimize those risks in their practice. This article will look at some of the ways that a dentist can protect him- or herself from liability and potential litigation in the form of a medical malpractice complaint.
First, a dentist must understand the theory of negligence which is the basis for a medical malpractice claim. Negligence is the failure to act, or the breach of a duty owed to a patient which directly caused injury. The dentist owes a legal duty to the patient under these circumstances, and the dentist breached that legal duty by acting or failing to act in a certain way where those actions or inaction caused the plaintiff's injury and resulted in the patient’s injury or damages.
With that duty in mind, the American Dental Association has a document entitled, Principles of Ethics and Code of Professional Conduct. Members of the ADA voluntarily agree to abide by the ADA Code as a condition of membership in the Association. This code gives the level of acceptable conduct for a dentist and is frequently used when measuring the duty of the dentist and the appropriate standard of care for patients.
Types of Claims
Extraction is one of the top procedures which may result in a greater incidence of legal claims. This is followed by endodontic procedures, dental implants, and crowns and bridges. A dentist will undoubtedly strive to treat all patients with the utmost care, but it is important to note that these procedures can be frequent causes of malpractice claims.
Understanding what is part of the dentist’s practice and what should be referred to a specialist can be critical in avoiding malpractice claims. Those dentists practicing general dentistry must know that there are higher risks for negligence claims when they attempt a procedure in which they are not adequately trained or which they have not performed in the past.
For example, with extractions, there are some general dentists who are extremely capable and comfortable performing this procedure. Many of these dentists have undergone additional surgical training or have extensive extraction experience. A dentist who attempts an extraction but underestimates the difficulty, which results in a complication, should inform the patient and refer him or her to an oral surgeon. This may result in additional dental costs and treatment for the patient, and the dentist should be prepared to accept responsibility his or her actions. Document the procedure immediately and follow up with the patient to be certain that they are referred and receive the appropriate case from a specialist.
Of course, a dental practitioner is required to have malpractice insurance as a prerequisite to practicing. To purchase a policy, a dentist must have a valid license to practice dentistry in that state and a completed application. Most carriers offer two types of malpractice insurance. A new dentist may be offered a first-year claims policy. This can cover the dentist for any claims of a set dollar range, such as from $1 million to $3 million. If a new dentist purchases a claims policy, he or she will be required to also purchase a tail policy. This policy will cover any claims that are pursued after the dentist retires for incidents that happened during practicing. The second type of malpractice insurance is an occurrence policy which covers claims made during practice and after retirement.
Another type of insurance that must be carried is facility insurance for dentists who own their dental offices. Similar to a homeowners’ policy, this will cover injuries sustained from equipment and other incidents that happen on the office premises. As a business owner, a dentist or dental group will have a duty to patients to maintain the property, such as keeping the sidewalks clear of snow or providing railings on steps.
A factor in any procedure is informed consent. Based on the notion of patient autonomy, the patient has the right to make decisions about their health and treatment. Informed consent is voluntary, but in many cases, in addition to injury, there is a lack of proper informed consent. This gives the patient the risks associated with the procedure so that they have a clear understanding of possible outcomes. Also note that an undesirable result doesn’t mean there is liability. A plaintiff must prove all four elements of negligence to succeed on a claim.
As a professional, it is important to receive regular training and to provide up-to-date training for staff members.
In one survey, a breakdown of communication was found to be a major component in many malpractice claims. For example, the research cites that in a majority of crown and bridge suits, patients remarked that they would not have sued if they had received a refund of their money. In addition, these patients felt ignored by the receptionist and staff.
With all of the news of malpractice lawsuits, many dentists may feel that they are best served by remaining silent and not admitting a mistake. True, in court an admission to the fact that there was an error or a breach in the duty of care would be detrimental to a malpractice defense. However, in the moment, honesty might go a long way to resolving the problem. This doesn’t mean begging for forgiveness, but rather calmly telling the patient that there appears to be a complication and that you will make sure that everything is resolved. Professionalism should not be scuttled for the sake of a defense, but can be maintained so that you keep control of the situation and continue to care for your patient.
Medical malpractice lawsuits have the reputation of million-dollar jury awards. These verdicts are given considerable news coverage. But in fact, the reason for the attention is that they are extremely rare. Refer back to the four elements of a malpractice claim. The first question that an attorney on either side of case will ask is “What are the damages?” If there’s a complication with an extraction, and the patient must be driven across town to an oral surgeon for a procedure the next day that alleviates the issue, there is very little in the way of damages for that patient. This doesn’t mean the patient shouldn’t have the issue addressed by the dentist—refunding the charges and covering the oral surgeon’s work would make the patient about whole. A few years of free dental exams may help with the rest.
Negligence and malpractice are concerns for every dentist. But applying common sense and professionalism, in addition to maintaining a fully-trained staff, can avoid some of the potential for litigation if something goes wrong in the practice with a patient’s care.