It is to be hoped that you will never be involved in a dental malpractice lawsuit. Approximately one in seven dentists is sued annually. Of course, some dentists may never be sued, while others, as we saw in True Case 6, may have many lawsuits. It should be pointed out that you do not have to have done anything wrong to be sued. Keep in mind that anyone can sue anybody for anything at any time for any amount, if a lawyer can be found to take the case (usually not a difficult task). I have found that good communication with the patient helps create a solid and trusting doctor–patient relationship, from which misunderstandings leading to lawsuits may be avoided. Patient communication will be covered in Chapter 8 and Chapter 22. The doctrines, rules, and definitions discussed will provide a fundamental understanding that will help you make decisions regarding your dental practice or a possible legal case.

Negligence is a building block of most malpractice lawsuits. Negligence is a lack of ordinary care or the failure to use reasonable care that results in harm to the patient. Malpractice is a special form of negligence. It is that negligence arising out of the doctor-patient relationship that results in an alleged malpractice lawsuit. There are acts of commission, which is the performance of an act that a reasonably prudent dentist would not have done, and there are acts of omission, which is the failure to act as a reasonably prudent dentist would have. So, it is not only what you have done that could be found to be professional malpractice, but also what you failed to do. Hence, professional malpractice is based in the concept of negligence. There are four components to negligence that must all be met in order for the patient/plaintiff to prevail in a dental malpractice lawsuit. These components are:

A “duty” arises when a dentist acts in such a way that his or her actions give rise to a risk of harm to the patient. In other words, when a dentist treats a patient or even consults a patient, the dentist has a duty to be reasonably prudent in his or her care and not to cause the patient harm. Ethically this is referred to as nonmalfeasance, as will be discussed in Chapter 17. So the duty begins when the dentist and the patient voluntarily enter into a doctor–patient relationship (to be further discussed in Chapter 4). This occurs whenever the dentist undertakes to render care, including giving professional opinions that may affect a patient’s care or healthcare decision, thereby creating a professional relationship with a corresponding “duty to care” for the recipient patient. Therefore, when providing an opinion, even in a social settings, the dentist must exercise reasonable care in giving that opinion such that the patient will not be harmed if the patient relies on that opinion.

So when you tell a patient not to worry about that amalgam tattoo, be very sure it is an amalgam tattoo, and not the beginning of a melanoma. Inform the patient how to look, what to look for, and to immediately inform you of any changes whatsoever. It would be wise, if your diagnosis is not 100% certain, to refer to the appropriate specialist. Here the duty was not only to inform the patient of the existence of the “amalgam tattoo,” but also to inform the patient of how to look and what to look for, not just to look.

Once the dentist acts in such a way that a duty arises, he or she must fulfill that duty. You will be held to a duty to treat the patient with reasonably prudent care. In other words, you will have a duty to treat within the standard of care (to be discussed in Chapter 12) and to adhere to treatment protocols. Your failure to fulfill that duty is considered a breach of duty, the second component of negligence. That duty arises when the doctor–patient relationship begins and continues until the patient or the doctor ends that relationship. The duty to properly treat the patient with reasonably prudent care covers all aspects of treatment, from/>