Most dentists view patient lawsuits as something that will never happen to them. But we have news for you: It can happen to you. And if you lose your case, you may be looking at a punishing financial settlement. How can you avoid patient litigation? By getting serious about malpractice risk management. This article explains four fundamental ways to safeguard your future.
Risk management tries to prevent adverse events in your practice while limiting damage from those that occur. It consists of four powerful techniques:
- Avoiding risks– Understanding which dentist actions raise legal exposures and then not doing them.
- Reducing risks– Lowering malpractice potential by following best practices, such as universal or general precautions and informed consent.
- Transferring risks– Buying insurance to move losses to an insurer and/or refer high-risk patients to dental specialists.
- Accepting risks– Proceeding with risky patients if the rewards are substantial.
Let’s explore each strategy.
Risk is an integral part of dentistry. That’s because people react to dental procedures in unpredictable ways. Plus, since dentists are humans, not machines, the same procedure can have various outcomes, possibly resulting in poor results. Given this reality, risk avoidance is a powerful method of lowering your legal risks.
Operating within the scope of your dental license is an essential risk-prevention strategy. This might be difficult when market forces “encourage” you to offer services for which you lack training or experience. Ask your state dental board if ancillary services violate your state license. If they don’t, remain cautious about letting other providers work in your office. This might create vicarious liability (responsibility for a third party’s error).
Dental risk-management experts recommend the following tips to avoid scope-of-practice problems:
- Don’t order medicines without a legitimate medical purpose and for which you lack appropriate licensing– Even though prescribing antibiotics for tooth abscesses falls within your scope of practice, prescribing for other medical concerns is not.
- Avoid out-of-scope dental procedures– For example, amalgam removals to improve multiple sclerosis do not fall within the purview of dentistry. Since the underlying illness falls outside your scope of practice, removing fillings to address that condition is prohibited. Similarly, diagnosing and treating sleep apnea with dental appliances are outside your domain. However, making an appliance for a physician who diagnosed the ailment is acceptable.
- Avoid performing face, lip or tongue anesthesia during lipstick tattooing or tongue piercing procedures– Although you can legally provide anesthesia, doing it in the context of lip tattooing or tongue piercing isn’t wise. If an issue were to arise later with a patient’s tattoo or piercing, the person might take legal action against you.
- Don’t let dental auxiliaries perform procedures or tasks your state regulations prohibit– For example, suppose a dental hygienist or assistant hurts a patient while performing an unauthorized service. In that case, the patient might file a negligence claim against you and a complaint with your state dental board.
Another risk-avoidance technique is knowing where your malpractice risks lie and avoiding them. For example, legal experts say performing treatments and managing treatment plans produced the highest volume of claims and settlements. Therefore, risk avoidance should focus on high-quality treatment plans and treatment execution. Furthermore, procedures such as ill-fitting prosthetics, root canals by general dentists and complications from extractions and implants pose high risks.
What’s more, be careful when doing high-risk dental procedures, such as:
- Pulling bony-impacted or partial bony-impacted teeth.
- Performing endodontic work, molar or otherwise.
- Placing implants surgically without supporting technology.
- You may also want to refer high-risk individuals— i.e., those with significant co-morbidities— to a specialist.
For most patients and treatments, the best strategy is risk reduction. Here, you proceed with the treatment but take steps to prevent bad outcomes. Below are some standard techniques to consider:
- Discuss your diagnosis, prognosis, treatment need, alternatives, risks and finances. Then get a signed consent form on a legally approved form.
- When people refuse treatment, review the pluses and minuses of not receiving care and pursuing another therapy. In these cases, getting a written informed refusal will prevent malpractice litigation if the non-treatment course doesn’t work out.
- Consider patient safety implications before doing procedures. Then mitigate expected risks. If you have a negative result, report it and then discuss the incident to evaluate what went awry.
- Determine treatment appropriateness in terms of science and clinical practice guidelines.
Two other risk-reduction practices can be helpful: universal precautions and staying current. Universal precautions trace back to 1987 when regulators established standards to lower transmission of blood-borne pathogens. They apply to all individuals, especially dental patients undergoing treatments that produce blood or blood-contaminated saliva. In 1996, the Centers for Disease Control (CDC) developed standard precautions. Universal and standard precautions reduce exposure of patients and dental professionals to all body fluids, not blood alone.
These precautions are necessary because patients sometimes don’t reveal their infection status, either because they don’t know it or because antibodies or other infection markers aren’t detectable. According to the CDC, standard precautions include:
- Hand washing
- Using personal protective equipment (PPE)
- Respiratory hygiene and cough etiquette
- Handling sharps (from engineering and use perspectives)
- Giving safe injections
- Using sterile instruments and devices
- Cleaning and disinfecting environmental surfaces
For more guidance, see the CDC report, Summary of Infection Prevention Practices in Dental Settings.
Staying current with contemporary clinical practices is crucial. Since the half-life of dental-school knowledge is about five years, failure to keep up with science will put you at a disadvantage. With time, your knowledge will grow outdated, increasing your malpractice risk. Here are several strategies to prevent this from occurring:
- Join or form a study group– Finding compatible practitioners to discuss dentistry advances is an effective way to stay current. Although meeting for breakfast or lunch is possible, social media activities are more time efficient. So are teleconferencing applications, such as Zoom.
- Complete dental continuing education (CE) courses– Even though CE is mandatory in most states, don’t complete your credits in a clockwork fashion. Focus on them to derive full benefit.
- Remain a dentistry student– Although your life has many demands, always reserve time for reading professional journals. Be a constant dentistry student and keep your reading backlog small.
- Attend professional seminars or college courses– In addition to doing CE, reading journals and speaking with colleagues, attend industry seminars frequently or sign up for college courses. These more formal options will demand more of your time; however, deep encounters with dental innovations might be worth the effort.
- Consider dental associations– Associations do a great job of providing current professional resources. Many host regional or national events with guest speakers to provide relevant, state-of-the-art dental education.
Transferring your risks to an outside entity is the safest strategy. There are two options:
- Moving your malpractice risks to an insurer
- Moving some patients to a dental specialist
Malpractice insurance is the foundation of risk management. Insurance protects you when a patient claims you made a professional mistake that harmed them. Your malpractice insurer will respond by providing funds to hire a defense attorney. It will also pay for covered financial judgments, settlements, expert-witness fees and court-related costs. Your malpractice policy will also protect you when patients complain to your state dental board.
Having peace of mind is the most significant benefit of having malpractice insurance. Being insured means you won’t have to worry about a large malpractice judgment consuming your assets. You can enjoy dentistry without worrying about litigation at every turn.
Referring patients to a dental specialist may be helpful with complicated extractions, endodontic procedures and implants. Because another dentist will join the case, establish protocols for explaining the referral need and handing off the patient. Here are some helpful pointers that promote smooth and safe referrals:
- Explain to the patient why the referral makes sense and why not receiving specialized care is not a good idea.
- Prevent care delays by making referral appointments while patients are in the office.
- Advise patients that you will coordinate specialist care and that they will return to your practice after the other dentist completes the procedure.
- Review the specialist’s background to assure the person is appropriately licensed, can handle the procedure and has a spotless record.
- Don’t rely on patients to communicate treatments to specialists. Provide a written document summarizing the patient’s history and fully explain the care needed.
- Remind the specialist you will require a report of examination, diagnosis, prognosis and treatments and a date after which you’ll resume treating the patient.
- Request full information about complications, adverse outcomes or other problems that might spark malpractice litigation.
- Finally, record all specialist conversations in patient files.
Be careful when patients insist you do their procedure. They trust you; they know you’re capable of doing it, but don’t let their loyalty sway you, as your risk is substantial. Courts have repeatedly ruled that patients are ill-equipped to evaluate your skills. Only you know your limitations. Once you have decided to refer, don’t let patients persuade you otherwise.
The final strategy is risk acceptance. For example, you might believe the surgical placement of implants poses a risk of malpractice litigation and higher insurance premiums. But after you weigh those risks, you decide it’s reasonable to offer implants because the revenue justifies the added danger. As long as you make an informed decision, it’s reasonable to accept extra risk to advance your business.
Continuous Risk Evaluation
Dental risk management is not a “one-and-done” matter. It is a process that applies to each patient and procedure in your practice. We have provided four ways to secure financial security: avoiding, reducing, transferring and accepting risks. By implementing effective risk mitigation in your dental practice, you’ll increase the likelihood of enjoying a long and successful career, while avoiding punishing legal judgments.