IDENTIFICATION OF POTENTIAL LOSS EXPOSURE

The initial task is to evaluate the practice to detect liability exposures. Dentists need to decide why someone might sue them. They need to examine the dental procedures they do. Removing a deep bony third molar impaction that wraps around the mandibular canal exposes a dentist to more risk than if they refer that procedure to an oral surgeon. Emergency department patients are notorious for failing to follow up on treatment, resulting in poor treatment outcomes and possible claims of professional negligence. If a practitioner collects accounts aggressively, they may encourage retribution (through a lawsuit) by dissatisfied patients. If a practitioner has inadequate or outdated patient record systems, they may have difficulty proving that an event or conversation occurred. If a practitioner does a procedure so seldom that they are not proficient at it, or if they continually have less than optimum outcomes with a particular procedure (e.g. an endodontic technique), the dentist may be open to a claim of bad work. If a practitioner has an older facility, they must keep it in good repair. The ultimate risk avoidance technique is to quit practicing dentistry. Nobody will sue a dentist for dental malpractice or business negligence then. Most practitioners agree that they can accept a certain amount of risk if they can manage it effectively. Risk is often expressed as a combination of two variables, likelihood and impact. Graphically, this is shown in Figure 28.1. Some risks may be likely but carry a low impact. For example, the possibility that a patient may inadvertently walk out with a pen is high, but the financial cost is low. On the other hand, the possibility of a fire destroying the office and a dentist’s livelihood is low, but the impact is extremely high. Practitioners would have a different way of managing the two risk exposures. The area of most concern is the area of high impact and high likelihood. Risks in this quadrant need immediate attention and review. Dentists should try to lower the impact, the likelihood, or both. Risks in the high‐impact, low‐likelihood areas often require insurance to cover the loss. Dentists typically manage the risk of low impact and high likelihood by using risk management techniques (such as staff training) to lower the likelihood of occurrence. Identification of potential loss exposure requires practitioners to honestly evaluate themselves and their staff members’ skills and abilities. Occasionally, that evaluation may identify problems or deficiencies that the dentist does not want to confront. (These may be clinical, interpersonal, or management related.) However, the dentist must face them. Dentists must remember that recognizing areas of vulnerability to a liability claim is the first step to reducing the likelihood and severity of a claim against them.

EVALUATION OF RISK MANAGEMENT CONTROL TECHNIQUES

A control mechanism ensures that a dentist’s process works as designed and intended. Several categories of control techniques exist:

• Risk avoidance negates a potential loss because a practitioner avoids or does not do the risky procedure. If a dentist refers all bony third molar impactions to an oral surgeon, they avoid the risk associated with that procedure. An oral surgeon accepts that risk because of their generally higher level of skill, training, and expertise in that specialized area. Practitioners often use this technique for risks that have a high impact.
• Risk (loss) prevention reduces the possibility that a loss will occur. This technique occurs before a potential loss, and is therefore preventive in nature. If a practitioner keeps excellent patient records, including notes of clinically relevant telephone conversations with patients, they may prevent a malpractice action. Removing snow from steps in the winter prevents this as a source of negligence. Using this technique moves the risk from a high likelihood to a lower likelihood category.
• Risk reduction is like prevention but instead decreases the severity of a loss. If dentists decrease the impact that a loss may have, the resulting patient damages will also be less. If the practitioner has a current emergency kit, they must know how to use the drugs and materials. If the practitioner and staff members are currently trained in cardiopulmonary resuscitation (CPR) and other emergency protocols, then they have reduced the risk of a claim of negligence by a patient in case of a medical emergency. Dentists taking continuing professional education courses sharpen their skills and knowledge in challenging clinical cases. In both examples, proper preparation has decreased potential loss. This technique moves the risk from a high‐impact to a lower‐impact category.
• Risk transfer implies assigning the risk to someone else. The most common form of transfer occurs when a practitioner buys insurance coverage for a possible professional negligence suit. Here, the dentist has contractually transferred the financial loss to the insurance company in exchange for annual insurance premiums. Risk transfer can also work against the dentist. If they participate in managed care contracts that require them to sign a “hold harmless” clause, then they have increased the practice’s liability exposure by not allowing a transfer of risk to the managed care company. This technique is used for risks with a high impact but low likelihood.

SELECTION AND IMPLEMENTATION OF CONTROL TECHNIQUES

Once a dentist identifies the risks associated with the practice, they need to decide which techniques can prevent, reduce, or avoid the liability and resulting loss. The selection and application of such techniques depend on the practitioner’s assessment of the effectiveness and cost of each when applied to a potential loss. Examples of controls include:

• Training staff in medical emergencies and CPR.
• Securely transmitting electronic data.
• Locking sensitive paper documents in a cabinet.
• Using password protection and encryption for computer files.
• Buying appropriate insurance.

REASSESSMENT AND REEVALUATION OF TECHNIQUES

Practitioners must regularly reassess and reevaluate risk exposures and techniques for managing them. As a dentist grows professionally and financially, and as the practice grows, they will need to adjust methods and techniques to manage risk exposures and potential losses.

BUSINESS LIABILITY INSURANCE

The grouping of business liability insurance covers the proactive owner–dentist like any other business owner. Some practitioners advocate not carrying general or professional liability insurance, hoping not to get sued, or trying to hide assets so that the injured party cannot collect significant amounts. This is a dangerous strategy. Lawyers and judges are adept at piercing through these veils of protection. The practitioner may find themselves facing large legal and damage payments. The cost of insurance is insignificant compared with the cost of losing a liability suit. Most insurers will develop packages of business liability insurance for practitioners. These packages will cover the office owner for the risks they perceive as important, with coverage in appropriate amounts.

BUSINESS PREMISES AND PERSONAL INJURY INSURANCE

A general liability policy (GLP) for the office covers the practice owner in the event they are negligent and that action leads to injury of a patient or other person in the dental office. This is often called “slip and fall” insurance, from the common occurrence of someone slipping on ice or water, falling, and getting injured. This covers the business owner as a general business, not from professional liability. As explained in Chapter 14, a business owner must first be negligent before they are liable for damages. As a rule, $2 million per occurrence and $4 million aggregate coverage is presently adequate.

Practitioners can buy many additional coverage policies or “riders” for liability insurance. A practitioner wants to be sure that their policy covers employees in their cars or in the dentist’s car while doing work‐related errands. If an employee runs a case to the lab and has an accident, it is the dentist’s accident. Many states allow a liquor legal liability rider. Suppose a dentist entertains at a place where they serve alcohol (such as at a staff Christmas party or drinks after a continuing education course). In that case, they may be liable if someone has an accident. The dentist may also purchase a business umbrella liability policy, like personal excess liability coverage. Like all these riders, a practitioner needs to decide how much risk they are willing to take and how much they are willing to pay to sell that risk to an insurance company.

EMPLOYMENT PRACTICES LIABILITY INSURANCE

Employment practices liability insurance (EPLI) protects practice owners from legal and settlement costs that might result from an employee suing for many work‐related grievances, including sexual harassment, discrimination, slander, or wrongful termination. This is especially important for small businesses, such as dental practices, that do not have an employee manual or a human relations (HR) department to manage employee hiring, pay, benefits, complaints, or other problems. Using good and fair employment practices, including hiring, disciplining, and record‐keeping to help prevent problems, is the first step to gaining protection. Buying insurance coverage is the next step.

EPLI coverage is often a policy endorsement added to the business owner’s general business liability policy. Like other insurance policies, the owner’s employment history (such as the number of employees, established rules and handbooks, past suits, and employee turnover) will affect the rates they pay. Many of these policies are issued on a claims‐made basis. Like a malpractice claims‐made policy, the business owner is only covered while the policy is in effect. Since a claim or suit may happen long after the alleged incident, owners should be sure to keep the policy current and purchase a tail policy if they leave or end the practice.

PROFESSIONAL LIABILITY INSURANCE

Because professionals have a special relationship with their clients (i.e. the dentist–patient relationship), a dentist needs to carry professional liability (malpractice) insurance to cover this possibility. Professional liability (malpractice) insurance is separate from a general (slip and fall) liability. This is a specialized insurance field, so few companies write this type of insurance. A later section in this chapter discusses this insurance in more detail.

LOSS‐OF‐USE INSURANCE

A couple of insurances cover practitioners in case they lose the ability to practice in the location. These are beyond a personal income disability policy, which is described in Chapter 8.

PROPERTY INSURANCE

If the practitioner owns the building they practice in, they must insure the physical structure. Commercial property insurance covers the building in much the same way that homeowner’s insurance covers a home. The practitioner must be sure to insure the replacement value of the building. The price of constructing a new space can appreciate quickly. If the building is in an area prone to floods, storms, wildfires, or earthquakes, they should be sure to include coverage for those events.

BUILDING CONTENTS INSURANCE

Practitioners need to insure the physical contents of the practice, whether they own or lease the space. This type of insurance covers dental equipment, supplies, leasehold improvements, patient records, furniture, and fixtures in case they are damaged or destroyed. What could damage them? Fire, water damage from fighting a fire, theft, explosions, broken water pipes, or any of a host of problems can damage property. Building contents insurance seems like an expensive luxury until a dentist gets to the office and finds that a water pipe has burst, flooding the reception room and business office. Often lenders will require that dentists purchase this insurance to cover them in case of loss.

Practitioners have the option of covering their equipment at its present (current) value or at replacement value. The present value is the value of the equipment when the loss occurs. Assume that a dentist purchases a dental chair for $10 000 and insures it for the present value. If the chair is destroyed the day after it is insured, the present value is what the dentist paid for it. However, assume that the accident causing the loss did not occur for five years. That same dental chair may now have a present value of only $3000, yet to buy a new one (replacement value) would cost $12 000. Although replacement policies are more expensive, they are generally worth the extra premium paid.

BUSINESS OVERHEAD EXPENSE INSURANCE

If dentists are unable to practice because of a disability or other reason, office costs continue regardless. Although the landlord may be pleasant, they are not going to forgo the rent because someone cannot practice. Likewise, the banker needs the loan payment, and the staff still need to be paid if they are to stay in a dentist’s employ. An office, or business, overhead expense (BOE) policy helps a practitioner to pay many office costs if they are unable to work. The dentist needs to carry personal disability income insurance to be sure that they provide for the family budget in case of disability. BOE policies do much the same for the office costs. Premiums are deductible, so benefits are taxable. Because the benefits go to pay deductible expenses, the deductible expense offsets the additional taxable income.

Business interruption coverage is the core of BOE insurance. This coverage pays the practitioner either direct costs or a set amount if they must shut down the business. If a practitioner has a major loss (such as a fire), they may have many months without practice income while they repair and refurnish the office. The practitioner needs to ensure that the policy covers them for interruption causes that are outside the building, such as a citywide power loss. Many do not.

Some practitioners opt not to carry BOE insurance. Instead, they plan to use their accounts receivable to pay office costs if they are unable to work. This is a risky plan. Typical accounts receivable may equal 1–1.5 months’ billings. If the disability lasts longer than this (and many do), then the practitioner would run out of money to pay the bills. At that point, the practitioner would need to tap into personal savings or income to make regular payments. If they do not keep the staff on the payroll, the staff will probably leave, looking for employment elsewhere. Even if the practitioner weathers this storm, they will then have a cash‐flow problem when they reopen the office. The practitioner will have used up their accounts receivable, so no cash flows into the office. It will be just like starting up again. The practitioner will need to go to the bank and borrow working capital, and then pay off the loan.

INSURANCES PROVIDED FOR EMPLOYEES

Practitioners need several insurances to provide for employees. If a dentist does not have employees, they obviously do not have to provide these insurances. As a proprietor or a partner in a partnership, practitioners do not cover themselves for (or receive any benefits from) these insurances. If a practice is a corporation, then the dentist is an employee of the corporation. The corporation must provide these insurances for them, the same as all other employees. They may also receive the same benefits if qualified.

WORKERS’ COMPENSATION INSURANCE

This is an insurance that business owners must, by law, carry on all of their employees. (It is optional in some states, but business owners are still responsible for any claims.) It covers a business owner if an employee is injured on the job. This insurance covers medical expenses that are injury related and provides some disability payment (lost wages) if the accident disables the worker. Workers’ compensation is a pure no‐fault system. It does not matter whose fault the injury was. Workers’ compensation pays for it because the injury occurred while the person was on duty. In return for the no‐fault provision, workers’ compensation laws have virtually eliminated the ability of the injured worker to sue the employer for negligence.

Specific workers’ compensation rules vary state by state, but they all have several common elements:

• Workers’ compensation provides benefits for accidental injury while on the job. The definition of an injury usually includes repetitive trauma, such as carpal tunnel syndrome. The compensation also includes occupational diseases, such as black lung disease for a coal miner or hepatitis for a dental worker who contracted it through an accidental needlestick.

  Benefits include lost wages (about one‐half to two‐thirds of weekly wages), medical benefits, and death benefits.

• This is pure no‐fault insurance. Whether the employee’s actions caused the accident or the employer did nothing wrong (had no fault), the insurance still pays benefits.
• The employer pays the entire cost. The cost of coverage may not pass to employees. There are stiff fines if the employer does not provide this coverage.
• Employees generally give up the right to sue employers for negligence if workers’ compensation insurance covers the accident. This is called the compensation bargain.

Workers’ compensation provides four types of benefits:

• Medical payments pay for physician services, durable medical equipment, prescriptions, and most other conventional medical treatments, such as psychological therapy. This is without a limit and a waiting period or copay.
• Rehabilitation services may be physical or vocational rehabilitation and are beyond medical payments. The worker may also receive disability benefits during the rehabilitation phase of treatment.
• Death benefits go to survivors of someone killed in a work‐related accident. These include both a lump sum and a weekly income benefit.
• Disability payments pay a worker who is disabled while on the job.

A business owner’s payment (or premium) for workers’ compensation insurance is based on the number of employees and the annual payroll. Workers’ compensation is a federally mandated system operated by the state. Each state has different rules concerning eligibility for benefits, costs, and owner requirements. A business owner can find a private insurance company that writes these policies. Many office liability carriers will include a workers’ compensation policy in a package of insurance. These packages may be more expensive, but they are easier for the practitioner. The question becomes a cost‐versus‐convenience trade‐off.

Whether worker’s compensation insurance covers the owner–dentist depends upon the form of the business and the state in which the dentist practices. Many states allow business owners to be covered if they want. If a practitioner is a proprietor or a partner, they are an owner, not an employee. Therefore, in most states the owner–dentist does not fall under the workers’ compensation laws. (Their employees are covered.) Such dentists do not pay premiums on themselves and they are not eligible for benefits. If, on the other hand, a dentist practices as a corporation, they are an employee of the corporation (though also an officer) and must be part of the workers’ compensation system unless they opt out. Worker’s compensation rules for limited liability company (LLC) members, family members, and employees also vary by state. Finally, worker’s compensation generally does not include independent contractors. Again, each state is different and specific applications of the rules are confusing. Practitioners need to check with their workers’ compensation carrier in the state of practice to know how these specifics apply.

UNEMPLOYMENT COMPENSATION INSURANCE

Unemployment compensation is a tax, but it operates as an insurance product. This is another joint federal–state program. Practitioners pay two unemployment taxes, State Unemployment Taxing Authority (SUTA) and Federal Unemployment Taxing Authority (FUTA). Practitioners pay state “contributions” (taxes) monthly. At the end of the year (January 30 the following year), the state checks to see how much the business owner paid into the state unemployment pool the previous year. If the amount was less than the federal requirement, the owner makes an additional payment to the federal government to make up the difference. Dentists only pay FUTA once a year, and the amount depends on the amount they have paid to the state (SUTA).

The system is complex. However, the total premiums paid are small. Payments will vary depending on the practice’s history regarding staff unemployment. Generally, the employer can take a credit against FUTA for contributions to state unemployment (SUTA) funds up to a certain percentage of employee earnings. An accountant or payroll manager will provide this information. If a practitioner’s staff has many claims, the business owner becomes a higher risk and rates go up. If there are few or no claims, rates and payments go down. This insurance, like worker’s compensation, varies somewhat between states.

OTHER INSURANCES

Practice owners may also provide other forms of insurance for employees as employee benefits. These may include medical, disability, or life insurance. Business owners can check Chapter 26 for a detailed look at those insurances.

PROFESSIONAL NEGLIGENCE AND LIABILITY

Professional risk management closely aligns with quality assurance in the office, although risk management takes a more realistic view of the problem. Dentists must identify potential sources of professional risk exposure, train themselves and their staff to reduce the number and impact of these exposures, and continually work to improve the quality of dental care delivered in the office.

Negligence is the failure to act as a reasonable and prudent person in a similar situation would act. As described in Chapter 14, this definition is not absolute and opens the door to interpretation and changing definitions as social customs change. If a dentist’s negligence causes an injury to someone, then the dentist is liable or must restore that person’s loss. This generally means that the dentist must financially reimburse the injured person for the damages that the dentist’s negligence caused. This may be through personal or insurance sources.

ELEMENTS TO PROVE PROFESSIONAL LIABILITY

The same cause‐and‐effect relationship exists in professional liability issues. If a dentist is negligent in the delivery of healthcare, they may be liable for the damages that result. These damages may include repair of the problem, lost earnings from missing work or reduced performance or ability, and pain and suffering experienced by the injured patient. (Obviously, significant discretion is available for judges and juries in awarding damages.)

An additional level must be satisfied in professional liability to prove professional negligence. The idea is similar but with a different “twist.” Someone must prove each element to establish professional liability.

• Creation of duty

  When professionals agree to treat a patient, they create a practitioner–patient relationship. When this relationship exists, the practitioner has a legal duty (obligation) to act according to the standards of care for the profession. These standards involve using the required skill, knowledge, and care that members of the profession display. If a practitioner does not accept a person as a patient, they have not created a practitioner–patient relationship and therefore have no duty.

• Breach of duty

  If a practitioner fails to possess or use the skill, care, and knowledge that a reasonably well‐qualified member of the profession would display under similar circumstances (i.e. fails to live up to the standards of care), then they have breached the duty owed to the patient. This is equivalent to the idea of negligence in a civil liability case.

• Causation

  If the breach of duty leads to injury or harm to the patient, then causation has been proved. The connection between the breach and injury must be both “actual” and “foreseeable.”

• Damages

  The patient must establish that an actual loss occurred from the injury. That loss may be either monetary (e.g. lost wages) or personal (e.g. disfigurement, pain, and suffering).

STANDARD OF CARE

Malpractice actions do not hinge on the absolute notion that any injury is malpractice. Instead, these actions are based on what a “reasonable and prudent” professional in a similar situation would have done. This is known as a standard of care. These standards cover the practitioner’s knowledge, skill, care, and judgment. They involve the technical level of expertise needed to complete a procedure successfully, the knowledge of how to interpret signs and symptoms, the behavioral accomplishment of treatment, and the ability to diagnose and properly plan for a patient’s treatment. So, the standard of care involves both the technical performance of an extraction and the knowledge and judgment of when an extraction is and is not appropriate therapy.

There are no written standards of care published by the American Dental Association (ADA) or other professional organizations. (Some organizations are trying, with mixed success, to compile them.) These standards evolve over time. The technology and knowledge of the profession influence them as well as the wants, needs, desires, and sophistication of the public. Posterior composites, gold foil restorations, silicate restorations, and implant prostheses all enter current standards of care in a dynamic interchange. Standards are not an absolute definition or a “prescription” for how dentists must handle every patient procedure. Instead, they are a set of expectations for how a “reasonable and prudent” dental practitioner would behave in a similar professional situation.

Although the standards of care are constantly evolving, they are determined by a consensus of “experts” in the field. Experts have background and training that gives them an actual or inferred level of professional expertise. In a malpractice case, both sides bring experts to the trial to bolster their points of view. The experts who interpret the prevailing standards are often specialists in their field. To this extent, the law holds generalists to the standards that a specialist would hold. For example, if a case involves extracting an impacted third molar, the experts are usually oral surgeons. The courts would then hold the generalist to the same standard of care as the surgeon.

Standards of care vary by state or region, although these differences are becoming smaller with time. Some practitioners in rural, inner‐city, or poverty‐stricken areas claim that the standard of care is different in those areas. The standard of what is proper care is the same in all areas; patient acceptance of treatment may be different. With the increased speed of communication, ease of travel, and increase in third‐party payers, these arguments are becoming less viable as well.

INFORMED CONSENT

For a dentist to have true informed consent from a patient, they must prove each of the following points concerning the treatment:

• Capacity

  The patient must have the capacity to make healthcare decisions for themselves. From a legal perspective, this means (in most states) that the patient must be at least of legal age (18 years old) or an emancipated (married) minor. From an ethical standpoint, the patient must have the mental ability to decide. These decisions can be difficult for the patient who is in emotional turmoil or physical pain or is approaching senility and is intermittently capable but at other times incapable.

• Information provided

  The dentist must provide information concerning the proposed treatment. This includes the nature of the treatment, the proposed time, and the cost to complete the procedure. Treatments within the general understanding of the patient from past treatment history do not need to be explained. The patient’s treatment decisions will consider the risks involved in the treatment. To that end, dentists must discuss complications that commonly occur because of the procedure. They should also inform the patient of reasonable alternatives to the proposed treatment and the associated risks. Dentists do not need to discuss every alternative and every risk of every alternative. However, they must discuss the material and foreseeable risks in which a reasonable person would be interested. There is some room for interpretation in what is “material,” “foreseeable,” and “reasonable.” That is what juries are for.

• Patient comprehension

  The patient must comprehend (understand) the information provided. Dentists must use uncomplicated language to discuss the treatment and alternatives, not technical dental terminology or jargon. Suppose the patient does not understand the language. In that case, the practitioner must get an interpreter to ensure that the person understands the oral description and has a chance to ask questions about the proposed treatment. Dentists may use written communication and other visual aids as appropriate to supplement (not replace) oral discussions.

• Voluntary agreement

  The agreement must be voluntary, without coercion, deception, duress, or other influence. A patient cannot be tricked or coerced into agreeing. An oral agreement is adequate. A written (signed) agreement supplements an oral agreement, but it is not an ironclad defense for the dentist. (The patient can say “I didn’t really understand what I was signing.”)

• Patient authorization

  The patient must positively authorize the treatment. In effect, the patient must positively say “Yes, do the treatment.” If they are uncertain or do not affirm the desire for treatment, the practitioner has not gained informed consent. The dentist should not do anything the patient has not authorized, even if they believe it is in the patient’s best interest. The law says that what to do with a patient’s body is their decision, not the dentist’s. If a practitioner does dental work that the patient did not authorize, they may be guilty of malpractice and assault.

A patient may not legally consent to malpractice. If a dentist advocates or does a procedure they know is not within the standard of care, then the dentist has committed malpractice. This happens whether the patient has consented to the treatment or agreed not to hold the practitioner responsible. So, suppose an 18‐year‐old patient with healthy teeth and periodontium requests full‐mouth extractions and dentures and the practitioner performs the requested service. In that case, they are committing malpractice and are liable for the results, even if the patient signed in the record that they understand this and will not hold the dentist responsible. This extreme case is straightforward. The problem comes in interpreting the standards of care in borderline cases.

Dentists must also allow informed refusal. Informed refusal means that the patient fully understands the treatment, the alternatives, and the outcomes, but they refuse the dentist’s advice about treatment. If the patient is making a truly informed decision, the dentist must accept that decision. The practitioner needs to explain the possible outcomes of the lack of treatment. If the patient still refuses the advice (even after adequate explanation), the practitioner needs to document the advice and refusal in the patient’s record. Even after this initial refusal of treatment, the dentist must again recommend treatment at subsequent follow‐up or recall visits for as long as the condition remains and the dentist–patient relationship exists. Some dentists dismiss patients from the practice who do not accept their full advice. They believe that this opens them to charges of “supervised neglect,” in which they know of a problem and are guilty of negligence because they contributed to the problem by allowing the patient to continue to decline under their care. If practitioners adequately express and document their recommendations, they will be on a sound legal footing.

COMMON AREAS OF PROFESSIONAL RISK EXPOSURE IN PRIVATE DENTAL PRACTICE

Several areas of common professional risk exposure happen in the dental office. These may result in resolution through any avenue described later in this chapter.

POOR WORK

Poor work is a simple failure to do a procedure at the level of the standard of patient care. It can occur for a variety of reasons, even to competent practitioners:

• Poor technique occurs when the technical aspects of a case are not up to the standard of care. If a dentist leaves an overhanging margin on an alloy or crown that can lead to future caries or a periodontal problem, they have committed bad work.
• Failure to diagnose a disease or problem is a common source of poor work. A dentist must give the patient a diagnosis of any disease within their area of expertise. They may be liable for the results if they fail to diagnose periodontal disease and inform the patient of the problem and likely outcomes. Often a dentist may claim that they did a proper exam and found everything to be within normal limits but did not document that fact. An example is an oral cancer screening. If a practitioner finds no oral cancers in an intraoral exam, their record should note that fact. This will help protect them from a future claim of “failure to diagnose” if someone later finds intraoral cancer in the patient. The dentist reminding a patient of needed or suggested treatment at each recall visit supports an ongoing diagnosis.
• Failure to refer to a specialist is another form of bad work. Although the courts understand that some diagnoses or technical procedures are out of the scope of a typical generalist, they also understand that practitioners need to recognize these cases and refer them to a specialist for evaluation and possible treatment. Dentists must be most interested in improving patients’ health, not their personal pocketbooks.
• Equipment failure may be outside the dentist’s control, yet still their responsibility. If a practitioner is doing an endodontic procedure and the file becomes lodged in the canal and breaks, they have had an equipment failure, considered poor work. As a rule, the practitioner is responsible for any equipment or supplies they should have known might be defective.

POOR OUTCOMES

A poor outcome does not necessarily involve poor work. It may involve a patient who is not satisfied with the result. Dentists have all seen denture cases in which the technical denture is clinically acceptable. The patient is simply not satisfied with the results. (The dentist might have had a suspicion when the patient walked into the office with a bag of seven other dentures that did not “work right.”) A dentist may have also seen the opposite case of a patient with an anterior crown that looks terrible to their eye, yet the patient is delighted with the outcome, although the technical work was poor. This category of risk exposure is difficult for many dentists to accept, yet the courts have ruled that it is real and valid.

Poor outcomes are widespread in cases that involve patient values, such as esthetics. A practitioner’s notion of what is acceptable may differ entirely from the patient’s. Patient communication is a critical issue in these cases.

PATIENT COMMUNICATION PROBLEMS

Communication is a two‐way street. Dentists may believe they have adequately expressed their side of the issue, but the patient either did not truly understand or did not adequately express their side of the issue (Box 28.1).

Patient communication problems fall into the following categories:

• Lack of treatment plans

  Lack of a plan is the basis of most patient communication problems. Without a treatment plan, patients do not know what to expect and may be surprised by the treatment or its cost. Detailed and written treatment plans are one of the best methods of avoiding dental malpractice litigation.

• Unrealistic patient expectations

  Being unrealistic often leads to liability problems. These expectations may be the result of the patient not adequately expressing goals and desires concerning their dental treatment, or the practitioner may make implied or actual promises of treatment that they do not fulfill. Either way, it is in the practitioner’s interest to ensure that the patient has realistic expectations of the outcomes before beginning treatment.