The American Board of Legal Medicine reports that just over 13% of all professional malpractice claims are filed against dentists. From 2004 to 2014, there were more than 32,000 claims of malpractice brought against dentists, resulting in a malpractice payment in nearly 17,000 cases and an adverse action in roughly 13,500 more. These figures are significant enough for all dental professionals to be aware of the most common types of malpractice claims and the riskiest procedures for claims against dentists.
Remember that to bring a successful case for dental malpractice, an injured patient must satisfy these four elements of negligence:
A dentist-patient relationship;
The appropriate medical standard of care under the circumstances;
A breach in the standard of care that caused harm to the patient; and
Injury to the patient.
Without clearly establishing or proving each of these four elements, a patient will not be able to recover damages. Even so, a complication or injury resulting from a dental procedure could mean potential litigation, a blemish on the dentist’s record, and added expense and time away from the practice.
Common Procedures Can Be Risky Procedures
One author’s research of court proceedings shows that some of the most common types of dental malpractice are infections caused by the improper sterilization of equipment, the failure to diagnose and treat periodontal disease, and the misdiagnosis of some other dental condition.
This research lends itself to the contention that many incidents that result in a dental malpractice claim aren’t the most complex or difficult dental procedures, like a dental surgery. For example, one of the most common procedures found to be the source of medical negligence claims against dentists is a complication from a tooth extraction. In many instances, a complication arises in this procedure, the incident is exacerbated by the dentist failing to provide the opportunity for informed consent from the patient, or the absence of proper referral protocols if there’s an injury during the extraction procedure. Let’s look more at tooth extraction and other risky procedures.
Another recent study found that out of nearly 250 cases of dental malpractice, the most common malpractice claim stemmed from a tooth extraction procedure. From those 63 cases, many of the incidents involved infections (23)—all of which necessitated the patient’s hospitalization. In fact, in Dentistry IQ, eight of these cases resulted in the death of the patient. Less severe, but quite serious injuries from tooth extractions included severed lingual nerves, severed inferior alveolar nerves, sinus perforations, fractured mandibles, TMJ injuries, and the extraction of the wrong tooth.
The second most common alleged negligence was from an endodontic procedure. Infection was the leading injury in claims arising endodontic therapy or root canal therapy. The Dentistry IQ research showed several life-threatening infections, with four fatalities. Of those life-threatening infections, seven were caused by brain abscesses and one was due to osteomyelitis. Four of these eight infections were fatal, and the other four caused irreversible brain damage. Other complications from this type of procedure are instruments left in canals, perforation of the sinuses or nerve damage, as well as air embolisms.
Endodontic procedures made up the second highest number of malpractice claims against general dentists in the Dentistry IQ study. Similar to tooth extraction preparation, teeth requiring endodontic therapy should be examined for possible curved or hooked roots, calcified canals, proximity to nerves and sinuses, and other potential complicating factors. On that note, one more factor in this type of claim was the fact that many of the defendant dentists were general dentists, rather than specialists. Failure to refer the patient to a specialist is also a contributing factor in an injury from an endodontic procedure.
Dental Implants, Crowns, and Bridges
Treatment planning was one of the most common allegations in this type of malpractice claim by patients, along with post-op infection. Again, many of these procedures were performed by general dentists, rather than specialists. Claims for injuries from crown and bridge procedures have a variety of complaints, such as open margins, overhanging restorations, and poor occlusion. Nonetheless, overall the claimants alleged a universal lack of treatment planning in these cases, with all of the defendants being general dentists.
In addition to the procedures discussed above, these are also some of the more common causes of dental malpractice:
· The failure to diagnose a condition, such as oral cancer, gingivitis, cavities, periodontal disease, or TMJ;
· The failure to properly supervise an employee’s actions in a patient’s treatment;
· Error in the administration of anesthesia;
· The failure of a technique, like the improper use of formaldehyde-based root canal filling material;
· The intended dental procedure wasn’t performed;
· A contra-indicated procedure was performed, e.g., the removal of a healthy tooth by negligently misreading an x-ray or other dental records.
The Riskiest Procedures
As the research bares out, many of the most common dental procedures, such as teeth extractions and endodontic treatment can, in fact be the most susceptible to malpractice claims. Without proper planning and care, these are the riskiest procedures for a dentist to perform. A dentist’s failure to develop and follow a treatment plan and his or her failure to recognize a complication are two components of nearly all of the claims examined. Without these, many patients develop post-surgical infections, which can lead to further injuries.
A smoking history should also be taken, as many of these individuals are more susceptible to infection and complications from procedures. Research showed that a significant number of patients alleging malpractice smoked, resulting in infections that required hospitalization. A major oversight by dentists is the failure to take a history of smoking and to plan treatment accordingly.
A word of advice is to take an ounce of prevention. Dental malpractice claims are increasing, as the payment ratio for dental claims is significantly higher than that of physician malpractice. Over 41% of dental claims are paid indemnity to patients—10% higher that medical claims resulting in payment. In other words, malpractice claims against dentists are more successful than those against physicians in the past several years. With this in mind, dentists should review their procedures and techniques, especially knowing how to recognize potential complications and guarding against infection, as well as administrative requirements beyond dental treatment, such as the office protocol for obtaining informed consent and treatment planning for every case.