Reducing risks of malpractice claims

Kristin Tauras, JD, outlines the steps dentists can take to avoid a malpractice claim.

Kristin Tauras, JD, offers direction on how to avoid a malpractice claim

It is impossible to avoid all lawsuits. As a defense attorney, we often tell our clients there is a low threshold for a malpractice suit to be filed against a professional. In Illinois and 32 states, all it takes to file a suit is the payment of a filing fee and the attachment of a certificate of merit by a health care provider in the field of dentistry. Eighteen states do not even require a certificate of merit. Nevertheless, there are things that a dental specialist can do to lessen the risk of being sued or, if sued, lessen the risk of a large adverse judgment.

Clearly communicate with your patient

Most patients are not well-versed in dental care and rely upon their dental specialist to tell them what they need to know. The dental professional has a duty to make sure the patient understands the treatment or procedure that is being proposed, and how the patient should continue to care for their condition once they are home. More importantly, they should want to provide the best care possible to the patient.

The communication should be patient-focused. Specialists who practice patient-focused communication know it is most important to practice the following behaviors:

  • show respect and empathy
  • listen attentively
  • draw out and respond to their patients’ fears and concerns
  • answer even the most difficult or emotion-laden questions honestly
  • fully inform patients about their treatment options
  • involve patients in the treatment decisions
  • demonstrate sensitivity and respect for the patients’ social, familial, religious, cultural, and ethnic diversity.

Dental specialists should explain the continuing treatment with the patient as well, including their at-home treatments. Patients need to understand why medicines or certain therapies or behaviors are being prescribed or discouraged, the proper dosing of pain medication and antibiotics, and why they should take their pain medication and antibiotics. They should also take the time to explain why certain other OTC medications and/or alcohol may compromise their treatment. What may seem obvious to a dental specialist is not always obvious to their patients.

Take the time to know your patient

As a caveat to clearly communicating with the patient, it is essential that the dental specialists get to know their patients to provide the type of communication necessary to forge a positive relationship. Patients who have a long-standing positive relationship with their dental care providers rarely sue. If dental specialists and their staffs take the time to get to know their patients and develop a relationship with them, there is less likelihood that they will sue for something minor. Dental specialists may not avoid the larger suits, such as a permanent neuropathy or wrongful death case, but it may lessen the chance of being sued for something that is correctable.

Obtain informed consent

Prior to any dental procedure, the dental specialist should provide thorough information and obtain written informed consent. Informed consent is not simply a form that the patient signs. Informed consent includes:

  • a verbal explanation of what the dental specialist intends to do
  • why they intend to do it
  • the risks of both doing the procedure and not doing the procedure.

It also means that the dental professional should ask the patient if they have any questions and make sure they answer their questions thoroughly.

This information must be in both terms that are understandable to the patient and in a language that the patient understands. If the patient does not speak the same language as the dental specialist, a family member or outside interpreter should be brought in to assist with providing informed consent.

There are things that a dental specialist can do to lessen the risk of being sued or, if sued, lessen the risk of a large adverse judgment.

Be thorough in updating patient history

Missing or overlooking a problem is one of the most significant malpractice risks. A patient’s medical history is always evolving. At every appointment, the dental specialist should take the time to update the patient’s medical history, including changes in medical conditions, medications, and allergies. The update should include the patient’s history of smoking, drug and alcohol use when relevant. The dental specialist should also ask about other information that relates directly to the patient. For example, if the patient is going through an emotionally difficult time, this fact may impact whether a dental condition or pain is the result of a disease as opposed to stress.

Be thorough in examining and screening the patient

As a part of being thorough, the dental specialist should make cancer screening a part of every patient’s appointment. If there is something suspicious, the dental specialist should either perform a biopsy if they are qualified or send the patient for a follow up to a specialist that deals with oral cancers.

Dental specialists should also inform the patient of the need to follow up with their medical doctors when there are signs that the patient is potentially suffering from the following:

  • Heart disease: Symptoms of gum disease (red, inflamed, bleeding gums) can affect the patient’s heart.
  • Diabetes: Receding gums, dry mouth, bad breath, and loose teeth can be signs of diabetes.
  • Osteoporosis: Bone loss may be due to osteoporosis.
  • Cancer: Sores and growths can be signs of cancer.

While dental professionals do not treat the underlying conditions, the conditions may impact the diagnosis and treatment of the patient, and they may be the first health care provider to notice the symptoms of these serious underlying diseases that, if caught early, could increase the chances of a positive outcome. The dental specialist should check for other medical conditions that may be evident in their exam of the patient and recommend that the patient follow up with their general practitioner or specialist.

Refer when appropriate

Dental specialists should refer, when necessary, especially where they are hesitant to do the treatment or know that there are other specialists better able to address the problems. Today, more than ever, dentistry is specialized. Dental specialists should refer the patient to those specialists that are best equipped to address the patient’s dental condition.

Chart everything

Charting is the key to successfully defending a dental malpractice action. The dental specialist, or their office staff, should make a note on the chart of the following:

  1. updating medical and social history
  2. performing an oral exam
  3. the patient’s complaints
  4. the diagnosis
  5. the tests and x-rays performed or captured
  6. the treatment provided
  7. the treatment postponed or referred, and the reason for that decision
  8. informed consent
  9. anything else significant in the treatment of the patient.

Remember to err on the side of over-charting.

Follow up

Following up with the patient not only helps develop an excellent relationship with the patient, but it also provides valuable information on whether the course of treatment is working or whether there are additional problems that need to be addressed. Patients will often cancel the follow-up appointment or fail to show up because they think that they are better and do not want to waste the time or money, or think that the dental specialist made them worse. Either way, following up with the patient is advised because it permits the dental specialist the opportunity to develop good will with the patient and provides the opportunity to correct a reversible mistake or misdiagnosis.

Contact your malpractice attorney and/or malpractice carrier

When a patient is threatening to sue, or a suit has been filed, the dental specialist should immediately contact his/her attorney and/or malpractice insurance carrier. They are best equipped to assist in how to address the problem. Just as dental specialists deal with diseases of the teeth, jaw, or oral cavity, attorneys and insurance companies are well-versed in handling dental malpractice actions.

As stated above, a dental specialist may not be able to avoid every lawsuit, but they may be able to prevent some suits or lessen the liability when a suit is filed.

For more information from Kristin Tauras on how to avoid a malpractice claim, check out the first part of her article, “Navigating Dental Malpractice Suits” at

Kristin Tauras, JD, is a partner in the law firm of McKenna Storer in Chicago, Illinois. She has a litigation practice in the areas of employment law, insurance coverage, and professional malpractice. McKenna Storer is a fullservice law firm providing legal services to individuals and small-to-midsize companies, including defending professional malpractice negligence lawsuits and Illinois Department of Professional Regulation investigation, as well as advising dental and medical professionals regarding business and employment matters.

Alexandra Tauras, a biochemistry and molecular biology student on the pre-medicine track at the University of Iowa, assisted with drafting the article.

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