Medicolegal Consideration in Endodontics: General and Surgical Aspects

Reference
Country
Source of data
Study period
Total no. of dental malpractice/complaints
Endodontic-related malpractice/complaints no. (%)
René and Öwall [2]
Sweden
NHIa and Swedish DAb
1947–1983
1,599
206 (12.9)
Milgrom et al. [3]
USA
Self-reported questionnaire
1988–1992
215
39 (18.1)
Ozdemir et al. [4]
Turkey
Ministry of Health
1991–2000
11
2 (18.2)
Hapcook [5]
USA
Private insurance
2006
– (17.0)
Bjørndal and Reit [6]
Denmark
NHI and Danish DAb
1995–2004
5,407
742 (13.8)
Kiani and Sheikhazadi [7]
Iran
Expert committee
2002–2006
277
46 (16.6)
Givol et al. [8]
Israel
Insurance company
1992–2008
5,217
720 (13.8)
Pinchi et al. [9]
Italy
Insurance and ANDIc
2006–2010
1,230
237 (19.3)
aNational Health Insurance
bDental Association
cNational Association of Italian Dentists
Furthermore, some lessons to be learned will be suggested in this chapter. What are the major reasons for claims within general endodontics as well as endodontic surgery per se? What is the typical fate of the “complained tooth,” and how is it treated in the aspect of endodontic surgery?

The Medicolegal System Worldwide

The tradition of having a general dental practitioner (GDP)-related insurance, in case of treatment injuries, has in a few countries been an obligation. In other countries, the GDPs are mainly encouraged to be involved with an insurance company. Medicolegal activities may again in other countries only be dealt with in a civil court.
As evidenced from Israel and Italy [8, 9], most of the dental practitioners are obligated to report any incidence or suspicion of a legal action against them, as part of their professional liability insurance terms. In the USA, the GDPs are encouraged to handle dental office incidents and claims properly by early discussion with the insurance company [5]. Based on data from Turkey and Iran, it is apparent that only very few cases are enrolled in the published reports, being civil court cases, and these few cases do not reflect the actual number of complaint cases [4, 7]. In the Nordic countries, there is a complaint and an insurance system described below as “the Nordic model.”

The Nordic Model

A brief description of complaint management with respect to medicolegal and insurance legislation in Denmark and Sweden follows. The Nordic model has been chosen, because the international tradition in covering complaints and insurance cases within a broader platform of legislation appears limited.

The Complaint System

In Denmark and Sweden, the medicolegal system handling complaints is closely related to health legislation. In both countries, complaints are managed by local committees or regional dental complaint boards (DCB) consisting of members from the Dental Association and officials. The committee makes administrative decisions based on best clinical practice and legislation [2, 6, 10]. Following a complaint from the patient and based on the patient file, the DCB gives a written statement, which includes a decision of malpractice or no malpractice. If the decision of the boards is consistent with malpractice, the dentist has to return the fee for the treatment to the patient. In other cases, the DCB may propose a settlement, where the dentist in question accepts to cover the patients’ expenses for re-treatment provided by another practitioner. The dentist or the patient may appeal the decision to a national dental complaint board (NDCB). Besides dentists and laypeople, the NDCB also includes a civil court judge. The NDCB might temper, affirm, intensify, or reject the regional DCB’s decision. If one of the parties still is dissatisfied, the decision can be brought to a civil court.

The Insurance System

In Denmark, patient insurance has been a part of health care legislation since 1992. With modification, the law now covers all kinds of treatment independently if the treatment is given in a private or public context. The financial resource for legislation and insurance is primarily founded by the government. However, the dentists pay a premium depending on their revenues.
The insurance in Denmark is a no-fault insurance. This means that it is not a matter of establishing if the practitioner has made a mistake. The important thing is to establish if the treatment per se leaves the patient in a situation where the status of the dentition has deteriorated. Additionally, a re-treatment is not possible to reestablish the patient’s tooth/dentition. Finally, it is important to distinguish between well-known complications to a particular treatment and injuries. To do so, four principles are used:

1.

Would another specialist have done it differently?
 
2.

Could another method have been used?
 
3.

Is the injury caused by apparatus fail?
 
4.

Must the patient tolerate more discomfort than the average patient?
 
To describe the content of the four principles, the following should be observed:

  • Ad 1. Is it is possible to think of a hypothetical GDP who would have chosen another treatment based on best evidence and by that avoided the injury?
  • Ad 2. Is it be possible to treat the patient with another method and achieve the same result but without the risk of injury?
  • Ad 3. For example, if the injury is caused by a separated instrument or device.
  • Ad 4. It is a well-known fact that treatment often implies discomfort. However, a nerve injury in relation to conventional endodontics would be anticipated as more discomfort than the average patient would experience.
In Sweden, a similar no-fault compensation system has been introduced. The purpose has been to provide the patient who suffered a treatment injury with the right to be compensated, regardless of whether the injury had been established by negligence or not [11]. Concomitantly, the system can chase those dentists providing dental care where they were responsible for negligence under tort law.
In cases where the patient cannot accept the decision made in the insurance system, the Danish system has an appeal board. If it is still not acceptable to the patient, the patient can bring the decision to a civil court [12].

Hypotheses on Frequency and Areas of Malpractice Claims

Should we expect complaints within endodontics, some suggested hypotheses (H) are presented:

  • (H1) The frequency of root canal treatment has increased over the last decades [13]; therefore, the number of endodontically related malpractice claims should be rising.
  • (H2) Internationally, root fillings are often of substandard technical quality in a GDP environment [1416] rarely performed with the use of rubber dam [17, 18], and a high frequency of persistent periapical inflammatory lesions is noted.
  • (H3) Molars predominate the treatment panorama, and if only a few endodontic specialists are available to refer complicated cases to (as in countries without endodontic specialist training), malpractice claims are expected to reflect this situation and to a substantial part be associated with the results of defective root fillings and technical treatment complications.
  • (H4) Malpractice claims in endodontic surgery are seldom, because it is often introduced to save the “complained tooth” from extraction.

Frequency of Dental Malpractice Claims

In a study of Swedish malpractice cases, less than 1 malpractice case per 1,000 dentists was detected in the period from 1977 to 1983 [2]. In the USA, the number of general malpractice cases per 1,000 dentists increased from 11 to 27 malpractice cases in the period from 1988 to 1992 [3], and more recent statistics from 2007 shows that dentist with at least 1 filed claim increased from 27 per 1,000 dentist to 40 per 1,000 dentist [19].
In Denmark, from 1995 to 2004, the number of malpractice cases increased from 4 to 5 per 1,000 dentists [6]. Dental malpractice claims per 100,000 patients have been relatively constant covering a 10-year period from 1995 to 2004 in Denmark. However, in urban areas the frequency of claims was over the mean of the country (24.7 versus 13.1, respectively) [6]. A similar difference between urban and rural areas was reported in Sweden [2].
In short, medicolegal reports on endodontics are frequently received by the complaint boards and/or insurance systems/companies. As when it comes to the variation in claim frequency, the medicolegal systems vary between countries, and direct comparisons are difficult to make, but in general complaints from patients about dental treatments are internationally rising [7].

Areas of Malpractice Claims

Endodontic treatment and prosthodontics have been among the three most frequently listed complaint areas during the past decades (Table 15.2). Notably, oral surgery seems to be lesser involved within recent years, whereas implant placements are a new growing area of malpractice complaints. The latest report has implant as the number one most frequent claim area [9].

Table 15.2

The top three most frequent areas of malpractice cases/complaint cases as described in actual references
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René and Öwall [2]
Prosthodontics 36.8 %
Formalities 13.6 %
Endodontics 12.4 %
Milgrom et al. [3]
Oral surgery (21.9 %)
Prosthodontics (19.5 %)
Endodontics (18.1 %)
Ozdemir et al. [4]
Oral surgery (45.6 %)
Prosthodontics (36.4 %)
Endodontics (18.2 %)
Hapcook [5]
Prosthodontics (28 %)
Endodontics (17 %)
Restorative (16 %)
Bjørndal and Reit [6]
Prosthodontics (30.78 %)
Endodontics (13.8 %)
Diagnostics (12.3 %)
Kiani and Sheikhazadi [7]
Prosthodontics (27.8 %)
Oral surgery (23.5 %)
Endodontics (16.6 %)
Givol et al. [8]
Prosthodontics (28.0 %)
Oral surgery (16.0 %)
Endodontics (13.8 %)
Pinchi et al. [9]
Oct 11, 2015 | Posted by in Endodontics | Comments Off on Medicolegal Consideration in Endodontics: General and Surgical Aspects
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