Avoiding Dental Malpractice – February 2009

With the high costs of dental malpractice insurance that dentists face every period for renewal, it is important that to avoid premiums from going up further all dental offices realize that there are significant steps that can be taken to avoid malpractice cases from being filed in the first place, or to limit liability if they are commenced.

Dental malpractice actions usually are initiated when there is negligence by the dentists or dental office employees which results in injury or negligence that are not present ,but there are results which are unsatisfactory to the patient. In either case, it is important to discuss with the patient both the probability of successful treatments and the risks involved in a particular dental procedure. Also it is important for the owner dentist or individual dentists to shield themselves from liability of other dentists in the practice by setting up legal disclaimers in a partnership or associate agreement so that each dentist is responsible only for individual negligence resulting in a malpractice action.

First it is important to have documentation within the dental office of all procedures, both successful and unsuccessful. This includes keeping track by either the dentist or other office staff such as hygienists of any changes in medical history of patients. This should be done in every visit the patient makes to the office for treatment in case there are particular medications that the patient is taking that have effects on their oral health or may interact with substances used during procedures. Dental office personnel should make sure to be readily informed that such documentation must be clearly legible and not capable of resulting in the accusation that changes occurred which may have been added to the dental charts or records after a complaint is filed. Notations in the margins of dental records, or using white out to make changes in the recorded medical history or all dental procedures is a red flag that can be used to alert patients or their attorneys that malpractice has occurred. If amendments must be made, it is a sound practice to use additional sheets of paper so that any changes, procedures or patient compliance or noncompliance with suggested instructions are legible and clear. Appointment books should include notations such as cancelled or no show appointments, rescheduling or emergency visits.

If a dentist makes a mistake during procedures or treatment results in an unsatisfactory outcome for a patient, corrective action should be started without delay. This must include discussions with the patient about revisions to procedure that are planned or referrals to specialists if necessary. It is not appropriate to wait until the patient starts not paying a bill because of suspected mistakes or unsatisfactory results.

Nonpayment of bills sometimes lead to malpractice actions if collection actions do not take into consideration the correct laws that apply to debt collection. It is important to consult an attorney in these cases to make sure any outstanding bills are collected with reference to what is allowed in trying to obtain payment on a debt.

If a patient serves a complaint for a malpractice suit, a dentist must immediately consult with an attorney or the dentist’s malpractice insurer as an answer must be filed within 20 days after the complaint is served. The attorney or insurer can review the malpractice agreement to see if there is coverage for the particular cause of action as well as determine of any particular statute of limitations applies, such as the three year limitation on actions in Massachusetts. This is another reason why the dentist must immediately document the discussion with the patient after a particular cause has been diagnosed, for the statute starts to run right after the patient discovers there may be a basis for malpractice. If the insurer states that the coverage may not extend to this particular situation, it still may provide an attorney under a “reservation of rights” clause that allows for the defense of the dentist without a subsequent guarantee of liability if a case is lost. The dentist must be sure to follow the instructions of the insurer right after notification to insure an adequate defense is available. In that way, the dentist may be able to avoid any unnecessary increase in premiums due to the loss of any malpractice action