Avoiding Malpractice
Mitchell J. Gardiner, DMD
Dental malpractice lawsuits have become a common occurrence throughout the United States.1 With the number of negligence lawsuits reaching record numbers, it is imperative that the dental clinician practice with a careful approach geared toward managing the risk of becoming a party to a lawsuit. This article will focus on the primary reasons why patients sue their dentists and proven methods to prevent the dental malpractice lawsuit from ever being filed.
Experienced dentists with well established dental practices have an underlying belief that because of their clinical experience and perceived familiarity with their patients, they are protected from being sued. Unfortunately, nothing can be further from the truth. With more than 15 years of experience as an expert witness, I have seen a significant number of lawsuits brought against dentists by long-standing patients. These defendant dentists will often testify to being surprised and traumatized because patients who were treated for many years could and would sue them for negligence. The comfortable familiarity of a long-standing relationship between the dentist and patient can lead to complacency concerning patient treatment problems. When patients feel that their problems are not being addressed adequately by their dentist, they will ultimately turn to someone else for help, which can potentially lead to a lawsuit.
LACK OF COMMUNICATION
A lack of communication between the dentist, including his or her staff, and the patient is the number one reason cited by patients as to why they sue. This communication problem can be often traced to a dentist who is too stubborn to believe that the patient has a problem in the first place. As practicing clinicians, we know that all dental treatment will not be 100% successful. Even when the standard of care is followed completely and the dentist has given the very best effort possible, the guarantee for success can never be taken for granted. There will be times when bridgework does not feel right, when parasthesia follows a properly administered injection of local anesthetic, or recently fabricated dentures are not comfortable. The dentist who is not willing to face these clinical difficulties with an eye toward correcting them will ultimately have an unhappy patient in their office. If a dentist will not acknowledge the problem, either because they truly do not believe a problem exists or they are just not willing to redo treatment, the communication between the patient and the dentist and staff may become strained and could cease altogether.
How the chain of events takes place is all too familiar to dentists everywhere. These dissatisfied patients will show up often as unscheduled emergencies, leaving the dentists little or no time to ameliorate their concern. After a period of time, these unhappy patients feel that the dentist is not concerned about their complaints. They will ask for their records and radiographs and seek help from another dentist. The disgruntled patient will complain to the new clinician that their previous dentist was responsible for their problems. This scenario leads to another primary reason for the upswing in malpractice lawsuits: the opinion of the new treating dentist.
A NEW TREATING DENTIST’S OPINION WILL INITIATE A LAWSUIT
In more than 15 years of reviewing dental malpractice cases and testifying in court, I have experienced many lawsuits that were initiated by the opinions of a new dentist seeing an unhappy patient. When the subsequent treating dentist gives the opinion that the patient’s problems were caused by treatment of the previous dentist, it will many times push the patient over the line into filing a malpractice lawsuit. More times than not this opinion is made without communication with the dentist whose treatment has been brought into question. The continuing breakdown in communication, this time between dentists, allows the malpractice issue to fester. Patients may still be reluctant to force the issue of suing their dentist until they are sent to a collection agency for an unpaid bill. This is the third major reason why patients may sue their dentist: collection of unpaid fees.
SENDING THE UNHAPPY PATIENT TO COLLECTION FOR UNPAID FEES
Patients who are not satisfied with their treatment will often be told by their new dentist that services will need to be repeated at additional costs to the patient. Unhappy patients sent to a collection service for unpaid bills will now decide they have no alternative but to sue the dentist for negligence.
There are practice management techniques that should be used by the new dentist and the established practitioner to minimize the risk of being part of a malpractice lawsuit. There are proven methods to help short circuit the lawsuit being contemplated by the patient. The scope of this article will only allow a brief discussion into this area of prevention. The reader is encouraged to pursue this issue by attending courses that are offered on the subject and by consulting with their malpractice insurance carrier.
ACCEPTED STANDARDS OF DENTAL CARE
One tenant of malpractice law is that for a dentist to be found negligent, it must be proved beyond a reasonable doubt that the dentist in question deviated from accepted standards of dental care. The standard of care in dentistry includes all phases of treatment. Diagnosis, treatment planning, and actual treatment are all considered part of the standard of care. Clinical documentation, proper and timely referrals, and obtaining proper informed consent from patients before treatment all fall under the umbrella of standard of care.
It is incumbent on the practitioner to know what the standard of care is and to practice within the parameters of accepted standards. Professional training in school, continuing education programs, and clinical experience all add to the knowledge necessary to understand the accepted standards of dental care. It is of paramount importance to make continuing professional education a cornerstone of our professional lives as dentistry changes and evolves. By staying current with the most up-to-date techniques and materials, dentists can help to minimize the mistakes that inevitably lead to malpractice lawsuits. Dentists who practice within accepted standards of dental care can still be sued, but they will be much more successful in defending their treatment in court.
Dentists should also make every effort to become familiar with their state Dental Practice Act. These rules and regulations are universally accepted in courts, and they will be used to help determine what the standard of care is in that particular state. This information can be obtained directly from the Board of Dentistry in the state in which you practice.
Lack of communication with an unhappy patient is an important reason why malpractice lawsuits are brought against dentists. It is extremely important for dentists to keep the lines of communication open with a disgruntled patient. The dentist should alert the staff that there is a potential problem because many times a caring staff member can be instrumental in defusing what could become an explosive situation. Instead of scheduling this patient “on the side” during a busy day, it is prudent to schedule a private consultation appointment for the dentist to hear and observe what the patient claims is his or her problem. Patients want the dentist to hear their story and to help them. Without the necessary time for this, the unhappy patient will usually remain unhappy. When the patient’s complaints are subjective in nature and unsubstantiated clinically, it is important for the dentist to be caring and to listen carefully to what the patient is saying. The dentist who is willing to do all that he or she can do to alleviate a patient’s complaint—including re-treatment—is rarely the dentist that ends up with a lawsuit.
When a dentist realizes that an unhappy patient has left their practice for a new dentist, it is important to open the lines of communication with the new dentist. Notification that the patient requests a release of clinical records should be a warning for the dentist, especially if there are questions about the treatment the dentist provided. Sometimes a simple phone call from the dentist will be enough to diffuse what could become a difficult situation. Information can be exchanged that would be beneficial to both practitioners, and in the process stop a lawsuit before it starts.
Sending the disgruntled patient to a collection service when he or she refuses to pay the bill is also a warning sign of a lawsuit. It must be remembered that these patients are dissatisfied with the care they have received, and they are often told by the next treating dentist that they will have new costs for treatment. This is the time for the dentist to analyze the situation from all points of view. When I lecture on malpractice issues to dentists, this question of collecting fees due and returning fees in difficult situations is one area that raises the most questions for dentists. It is an area that has no definitive answers. It is imperative for the dentist to exhibit sound professional judgment in managing the situation so that the patient and dentist can both move on without going to court. When the dentist cannot decide whether to pursue an unpaid fee or to just write it off, it is a good idea to contact the malpractice insurance claims representative for advice. It must be remembered that when collecting a fee is being questioned, the dentist who is being sued can count on many hours and days spent preparing their defense for court. These hours and days are unproductive days to the dental practice. This must be weighed against possibly triggering a lawsuit by pursuing monies owed.
CONCLUSION
The malpractice concerns that dentists face today are complex and difficult to address. It is the hope of the author that this article will allow the reader to look at the dental malpractice issue with a fresh approach in preventing the lawsuit from becoming a reality.
References
1. 2003 annual report. National Practioner Data Bank US DHHS. Available at: https://www.npdb-hipdb.com/pubs/stats/2003_NPDB_Annual_Report.pdf. Accessed July 24, 2006.Mitchell Gardiner, DMD, FAGD, graduated from the New Jersey Dental School in 1977. He practices general dentistry in a multi-specialty dental practice in Fair Haven, New Jersey. For the past 15 years, Dr. Gardiner has reviewed dental malpractice lawsuits on behalf of dentists and patients as an expert witness, often times testifying in court. His experience in the area of dental malpractice is extensive and he has lectured to dental organizations throughout the United States on various areas of dental malpractice.
| About the Author |
 Mitchell J. Gardiner, DMD Private Practice Fair Haven, New Jersey |
