Navigating dental malpractice lawsuits — part 1

Kristin Tauras, JD, guides dental specialists through the legal elements

Dental specialists are increasingly being sued for professional malpractice. As one plaintiff’s counsel explained, it is easier to get a dental specialist to settle than any other medical professionals these days. While most other medical professionals are aware that they are the target of lawsuits and have themselves been sued or see their colleagues getting sued, the same cannot be said for the dental profession. While not new, dental malpractice lawsuits are still a novelty to most in the profession. Dental specialists are unprepared for the havoc a lawsuit can cause in their practice, are embarrassed when they are sued, are less likely to tell colleagues that they have been sued or seek advice, and are more apt to settle quickly and quietly than fight what is oftentimes a defensible case.

Dental specialists are unprepared for the havoc a lawsuit can cause in their practice. …

The term dental specialist used throughout this article encompasses all dental and medical providers who treat diseases and problems of the teeth, gums, and jaw — including dentists, cosmetic dentists, pediatric dentists, prosthodontists, periodontists, endodontists, oral and maxillofacial surgeons, and orthodontists. This also encompasses the liability of the dental specialist’s staff — including dental hygienists, dental assistants, nurses, anesthesiologists, and other medical providers who assist with the dental treatment and potentially can be named in a dental malpractice lawsuit.

Proving professional malpractice

In every state, a patient may pursue a malpractice claim against a dental healthcare provider if the healthcare provider causes injury or death to the patient through a negligent act or omission. In dental treatment, professional malpractice is defined as any act or omission by a dental specialist, or someone under their direction, during the treatment of a patient that deviates from the accepted standard of care and causes harm to the patient.

To recover for alleged dental malpractice, the plaintiff must allege and prove that the dental specialist (or someone under his/her supervision) was negligent in the treatment of a patient, and that the negligence caused harm to the patient. The elements may be broken down further:

• Duty of care owed by the dental specialist to the patient
• Breach of duty of care by the dental specialist
• Injury caused to the patient by the breach of duty of care by the dental specialist
• Damages to the patient

Duty of care

First, the plaintiff must establish that the dental specialist owed the patient a duty of care. This first element requires that there is a relationship between the dental specialist and the patient. Usually this element is easily proven through the use of medical records showing that the dental specialist treated the patient.

Other times though, the patient relationship falls within a gray area — for example, where the patient does not return for the treatment, the dental specialist declines or refuses to treat the patient for a dental issue, or the dental specialist refers the patient to someone else before the malpractice occurs.

It is also important to note that dental specialists are also liable in most states for those who work under their supervision with them and, in some cases, those to whom they refer cases. Just because the dental professional did not cause the injury, he/she may still be liable for the acts of others. This includes their dental hygienist, nurse, or anesthesiologist.

Breach of duty of care

Second, the plaintiff must establish a breach of duty of care. To do so, the plaintiff must establish the standard of care. The standard of care is a “reasonable person standard,” which is a legal fiction, created by laws, referencing a standard of care that all dental professionals in a similar situation and similar locale should follow. A breach of the standard of care occurs when the provider fails to act as a reasonably prudent and trained dental professional would under the same or similar circumstances when treating a patient. Both the standard of care and the breach of the standard of care must almost always be established through expert witnesses. The exception is where the breach is of such an obvious nature that the breach speaks for itself.

Breach of standard of care

Third, the breach of the standard of care must cause an injury. A plaintiff must prove that the healthcare provider caused the injury or made an existing condition worse by his/her action (or inaction). The patient must show a direct relationship between the alleged breach and the subsequent injury. This is known as “proximate cause.” The malpractice must proximately cause the injury suffered by the patient.

Damages

Fourth, there must be damages. Damages can be in the form of medical bills (the cost of medical treatment and corrective treatment), disfigurement, pain and suffering, loss of normal life, and economic losses (lost wages).

When dental errors result in permanent disability or death, family members may also, in most states, recover for the “loss of society” and/or wrongful death of the patient.

In rare cases, punitive damages may also be awarded. For this to occur, there must usually be malfeasance or malintent alleged.

Types of dental malpractice

Any deviation from the standard of care can constitute malpractice if it proximately causes a patient injury. There are an infinite number of ways dental practitioners can deviate from the standard of care. Examples of deviations from the standard of care that may result in a malpractice claim follow.

• Ignoring the current standards when recommending or pursuing a course of treatment.
• Improperly treating or failing to treat the dental condition.
• Failing to accurately diagnose an infection, lesion, cancer, periodontal disease, or other oral diseases.
• Causing an infection.
• Failing to adequately supervise employees under their direction or control.
• Improperly administering anesthesia that leads to complications such as brain damage or death.
• Causing nerve injuries that lead to complications such as neuropathy or paralysis.
• Causing damage to bone or soft tissue.
• Drilling too deeply, resulting in permanent injury to the tooth.
• Performing an improper extraction.
• Misaligning the teeth by improperly fitting fillings, crowns, or implants, resulting in issues with bite and
• Using excessive force on patients.
• Recommending unnecessary dentures or failing to correctly fit dentures.
• Using improper instrumentation, improperly maintained instrumentation, or using outdated tools.
• Failing to consider a patient’s existing medical conditions, allergies, and physiology before treating the patient.
• Recommending and performing treatments that are not medically necessary.
• Failing to refer the patient to the proper dental specialist such as an oral surgeon or an endodontist.
• Failing to obtain informed consent and failing to explain the risks of the procedure to the patient in a manner and language in which the patient can understand.

Art of dentistry

Dental specialists are familiar with the term art of dentistry. Despite enormous advances in the practice of dentistry, the personal encounter between patient and physician remains the cornerstone of dental care. The dental professional becomes the diagnostic and therapeutic expert who applies the knowledge and skills of dentistry. It includes not only what is required for a diagnosis and healing, but also the ability to apply the generalized knowledge of dentistry to individual patients. Dental specialists should not allow the fear of a malpractice suit to hamper their judgment and their application of the art of dentistry, but they should be aware of the types of claims so they may make sure to protect themselves against a claim that they committed dental malpractice.

Best practice

Dental specialists should make sure they chart their thought processes, conversations with patients, and treatments thoroughly so that they may defend themselves against claims of malpractice.

The lack of charting is not listed as a basis of the typical allegation of negligence against a dental specialist, but lack of adequate charting may be a factor in a lawsuit against the dental specialist. A plaintiff’s counsel may argue that if it wasn’t charted, it didn’t happen; or if it wasn’t charted, it wasn’t considered. The failure to chart essential aspects of the patient’s care may lead to difficulties in defending the dental specialists’ reasons for their decisions and treatment.

While all dental specialists know that a substantial part of their treatment of a patient is the “art of dentistry,” taking into account the patients they see, their knowledge, training, and expertise, it makes it easier to defend their actions when these considerations are included in the chart.