How Dental Malpractice Lawsuits Arise and How to Prevent Them

Some dentists worry about getting sued for malpractice. Then they worry some more. A better approach is to learn how malpractice litigation arises and then to adopt risk-mitigation practices. Get pointers in this article.

It’s not unusual for patients to become angry with their dentists. Fortunately, not every grievance has a pathway to litigation. For that to happen, a dispute must have four features:

  • A dentist/patient relationship must exist.
  • A relevant professional standard of care must apply to the situation.
  • There must be a basis for alleging the dentist violated the care standard and that the breach hurt the patient.
  • The injury must be serious enough to merit adjudication.

The most crucial requirement is proving that a dentist’s failure followa professional standard of care caused a patient’s injury. This can involve the dentist making an incorrect diagnosis or providing a flawed treatment. Failure to diagnose a condition or to apply treatment in a timely manner can also provide grounds for legal action. The point is, patients can’t just express dissatisfaction and expect a court to automatically grant them a hearing. They must meet the above four tests and then come to court with evidence backing up their allegations. 

The fact that patients—and their lawyers—have a high evidentiary hurdleto clear works to your advantage. They must prove you were clearly responsible for providing sub-standard care and for causing a material patient injury. Meanwhile, since dental malpractice cases leave a long data trail, you have ample opportunity to learn where care breaches are most likely to occur. You can also determine which types of dental malpractice claims are most frequent and most severe and then modify your professional behavior accordingly.

Learning from Malpractice Allegations

One way to protect yourself is to understand the types of plaintiff allegations that account for the most claims (frequency) and generate the highest payouts (severity). Industry claim surveys suggest that the top five allegation types that generate the highest percentage of closed malpractice claims include (in descending order of frequency) include:

  • Failing to successfully treat a condition
  • Performing a procedure improperly
  • Taking inadequate precautions to prevent patient injury
  • Performing the wrong procedure
  • Treating the wrong tooth (or teeth)

Each of the above points suggests mitigation steps. For example, you might brainstorm your most common treatments to determine how and why they fail. Understanding those issueswill allow you to revise your care practices to minimize future problems. 

Another way of viewing allegation type is by claim severity. Claim studies show that the five allegations that produce the highest average claim payouts (in descending order of severity) are:

  • Inadequate radiographs
  • Anesthesia complications
  • Failing to prescribe a needed treatment
  • Getting an inadequate patient consent
  • Failure to correctly diagnose a condition

As with claim frequency, brainstorming the above rankings can help you reflect on the types of allegations that generate the most punishing claim expenses. Each of these errors highlights opportunities for case analysis and continuing education to prevent these allegations from happening again.

Learning from Procedures Gone Wrong

Another way to understand the origins of malpractice lawsuits is to view them through the lens of procedures delivered. As with allegations, claim studies provide useful information about both the frequency and severity of malpractice claims, by treatment type. Here are the top five therapies that account for the most closed claims (in descending frequency):

  • Root canal therapies
  • Surgical extractions
  • Implant surgeries (placement)
  • Crowns
  • Extractions

In terms of claim severity (as expressed by average claim payout), the five most expensive malpractice claims, by procedure type, are:

  • Surgical extractions
  • Comprehensive orthodontics
  • Clinical oral examinations
  • Implant surgeries (placement)
  • Veneers (laboratory fabricates)

Clearly, some dental procedures are riskier than others. The riskiest ones tend to cause the most negative outcomes. However, claim frequency and claim severity don’t always perfectly align. Regardless, perusing these “winner” lists should help you devise strategies for keeping your dental practice safe in these hyper-litigious times.

The best way to do that is to create a robust risk-management plan. What is risk management? Simply put, it’s the process of identifying, assessing and reducing the likelihood of adverse events happening during the practice of dentistry, while lowering the frequency and severity of those that do happen. Risk management consists of four essential approaches:

  • Risk avoidance—knowing which risks expose you to significant liability and then avoiding them 
  • Risk reduction—following best practices such as universal or general precautions, informed consent and others 
  • Risk transfer—buying malpractice insurance from an online provider such as 360 Coverage Pros to transfer risks to an insurance company and/or referring high-risk patients risks to dental specialists 
  • Risk acceptance—Deciding to treat high-risk patients or perform risky procedures because the anticipated reward exceeds the risk

Let’s quickly take a look at each of these approaches, laying the groundwork for future study on your part.

Risk Avoidance

The practice of dentistry will never be entirely free of risk. That’s because patients react to dental interventions in different ways. Plus, since dentists aren’t machines, their actions can’t be standardized, which can produce variance in how some procedures are performed. This can lead to negative outcomes. For these reasons, risk avoidance is a powerful techniquefor reducing your malpractice liabilities.

One important way to limit risk is to operate within the scope of your dental license. This might not always be easy, as consumer demand may tempt you to provide services that attract new patients (examples: “spa dentistry,” massage therapy, Botox treatments and more). Check with your state dental board to see if ancillary services violate your scope of practice. 

Dental risk-management experts suggest the following techniques for avoiding scope-of-practice violations:

  • Don’t prescribe medicines that lack a therapeutic rationale and for which you are not licensed to prescribe. For example, even though prescribing an antibiotic for a tooth abscess is within your scope of practice, prescribing one to address bacterial pneumonia isn’t, since treating pneumonia isn’t part of dentistry. 
  • Don’t practice medicine without a license. For example, beware amalgam removals designed to improve conditions such as multiple sclerosis. Since treating the underlying condition falls outside your scope of practice, removing amalgam to address that issue is also outside scope. Similarly, diagnosing sleep apnea and then creating treatment appliances for it are also considered outside the scope. However, fabricating the appliance at the request of a physician who diagnosed the ailment would be appropriate. 
  • Do not perform face, lip or tongue anesthesia to facilitate lipstick tattooing or tongue piercing. Although you’re licensed to provide anesthesia, doing it to make lip tattooing or tongue piercing more comfortable is problematic, as is doing such procedures. If a problem were to occur later with the patient’s tattoo or piercing, the person might file a board complaint against you. Since the anesthesia was part of a non-dental procedure, you might be found guilty of providing an out-of-scope service. 
  • Avoid letting dental auxiliaries perform any procedure or task that falls outside your state’s dental regulations. For example, if you let a dental hygienist or assistant provide an unauthorized service that ends up hurting a patient, not only might the patient have cause to assert negligence against you, the person could also file a complaint with your state dental board. Upshot: you might end up losing your license to practice dentistry in your state.

Risk Reduction

For most treatments and patients, the best risk-management strategy is risk reduction. This means going ahead with the treatment, but with mitigation to decrease the likelihood of bad outcomes. Here are some common measures to consider:

  • Communicate fully with the patient about the diagnosis and prognosis, the need for treatment, the alternatives, the procedure risks and the financial considerations. Then secure a signed consent form that has been approved by your legal counsel. 
  • When a patient refuses treatment, help the person weigh the pluses and minuses of getting treated versus not getting treated and of pursuing an alternative therapy. In such cases, securing an informed refusal in writing is essential to avoid future malpractice litigation if the non-treatment decision backfires. 
  • Consider the patient-safety implications of the procedure before doing it. Then take steps to mitigate the anticipated risks. If you have a negative outcome, report it and then debrief the incident to determine what went wrong. 
  • Determine the appropriateness of the procedure in terms of current science and clinical practice guidelines.

Risk Transfer

The least risky strategy is to transfer your risk to an outside entity. There are two possibilities:

  • Transferring your malpractice risks to an insurance company
  • Transferring some of your risks (i.e., selected patients) to a dental specialist

In most cases, malpractice insurance should be the foundation of your risk-management program. This coverage protects you when patients allege you made a professional mistake that harmed them. In response, your malpractice insurer will provide funds to hire an attorney to represent you. It will also pay for any covered financial judgments or settlements (an average payout of $79,000 according to the National Practitioner Data Bank), as well as for expert-witness and court-related costs. Finally, your policy will protect you in case a patient files a dental board complaint against you.

However, here’s the most important benefit of having dental malpractice insurance: peace of mind. With an insurance safety net in place, you’ll never have to worry about a large malpractice judgment depleting your business and personal assets. You’ll be able to enjoy the practice of dentistry again rather than second guessing your every clinical decision.

Referring patients to a specialist dentist is warranted in high-risk cases such as complicated extractions, endodontic services and implants. Because another dentist will be involved, it’s important to have robust protocols in place for explaining the need for a referral to your patients as well as for making the specialist handoff. 

Risk Acceptance

The final strategy is accepting risk when the benefits of doing so outweigh the negatives. For example, you might realize that the surgical placement of implants poses a higher risk of malpractice litigation and increased insurance premiums. But after weighing the risks, you decide it’s worthwhile to offer implants because the revenue benefit outweighs the added risks. As long as you make an informed risk/benefit calculation, it’s fine to accept higher risk to advance your practice. However, don’t accept so many risks at once that you open yourself to catastrophic litigation.

In conclusion, it’s vital to recognize that dental-practice risk management is a complicated process. It is not “one and done,” now let’s practice dentistry. It is a process that must be considered with each patient and with each procedure in your practice. I have provided basic information about malpractice claims frequency and severity, along with four main paths to malpractice prevention: risk avoidance, risk reduction, risk transfer and risk acceptance. By implementing an effective risk-management process in your practice, you’ll increase your chances of enjoying a long and profitable dental career while minimizing the likelihood of experiencing punishing legal setbacks.

Having dental malpractice insurance is an essential element of every dentist’s risk-management program. Learn more about the [Dentist Malpractice Insurance Program from 360 Coverage Pros.]