We generally trust our dental care provider to take care of our teeth and successfully treat any problems. Although dental procedures are usually safe, malpractice still occurs. Dentists can make mistakes just like any other doctor.
During one recent decade, the National Practitioner Data Bank reports that among the 19,755 dentists in the United States, there were 16,337 medical malpractice payments and 13,772 adverse actions filed. An adverse action is a formal report not related to medical malpractice. Among the 3,131 dental hygienists, there were 49 medical malpractice payments and 3,676 adverse action reports. The medical malpractice reports only include paid claims.
Dental malpractice is a serious issue. It refers to an injury resulting from negligent dental care, failure to diagnose or treat a potentially dangerous condition, failure to diagnose or treat oral disease promptly, or any form of intentional misconduct by the dentist.
Dental malpractice tends to get less attention than other forms of medical malpractice, but it can have a significant impact on a person. Many health conditions are related to oral health issues, and dental care also affects the patient’s appearance.
What Is Dental Malpractice?
Dental malpractice is a type of medical malpractice. To sue your dentist, you would need to show that they did not follow the standard of care required by the dental profession, and their failure caused your injury.
The terms negligence and standard of care often come up in dental malpractice. Negligence often describes actions that were not up to the standard of care. As used in most professional malpractice cases, the standard of care refers to the level and type of care that a competent health care professional, with a similar background and in the same medical community, would have provided under the same circumstances.
Chapter 33 of the Pennsylvania State Code, which deals with the State Board of Dentistry, requires a certain standard of care that a dentist must provide to a patient. Dental standards of care are also regulated by the FDA, as stated in a Department of Health & Human Services report. If the dentist fails to meet the standard of care, the patient may have a malpractice claim. A patient can not necessarily sue simply because they did not like the results. They can only bring a malpractice claim if the practitioner has failed to uphold the acceptable standard of care or has provided treatment that exceeds the patient’s informed consent.
Common Causes of Dental Malpractice Claims
Dental care may be anything from routine cleaning to complex surgeries. Consequently, there are many ways that treatment can go wrong.
Some include:
- Negligently performing dental work.
- Failure to diagnose or treat a dental condition.
- Any intentional misconduct.
- Failure to properly detect an oral disease or malformation.
- Improper sterilization of dental or surgical utensils.
- Installation of defective or shoddy dental products.
- Failure to regularly update medical history. A dental treatment provider should update a patient’s medical history at every visit. If there are no changes, the care provider should note that in the chart as well, especially if the patient has a complicated medical history. The provider should complete a new medical history about every three years.
- Failure to detect oral pathology. Oral pathology focuses on the diagnosis and treatment of oral diseases, including oral cancer. Overlooking a potentially malignant lesion or failing to diagnose oral cancer is a cause of many malpractice claims.
- Failure to detect periodontal disease. Periodontitis, or gum disease, can lead to tooth loss due to the destruction of the surrounding tissue. It may also contribute to heart and lung diseases. When a dental professional fails to examine for gum disease over an extended time, the disease goes undetected and untreated.
- Injuring a patient. All kinds of accidents can happen in the course of care. The tip of an instrument might break and be aspirated. An instrument may slip and cut the tongue or other areas, perforating the sinuses or severing a nerve.
Dentists have high standards of ethics and professional responsibility. Dentists must obtain informed consent from each patient or the patient’s legal guardian. Sometimes, consent discussions are difficult due to language barriers. If the patient speaks a language not spoken by the dentist, insurance providers must provide a translator. If the patient is hearing impaired, the dentist must provide a sign language interpreter.
Informed consent means that a patient is informed and agrees to a procedure or treatment recommended by their dental professional. Before you give informed consent for a procedure, your dentist should talk to you about diagnosis, proposed treatment, risks, and possible alternatives and allow you to ask questions.
In many cases, the patient signs a written authorization, such as a contract or document signed by the patient to acknowledge that they understand all of the information provided and accept any risks as detailed by their dentist. However, consent is primarily a conversation, and the dental care provider should document the conversation in the patient’s chart.
Possible Injuries Caused by Dental Malpractice
It is the responsibility of dental professionals to identify health risks and do their best to keep patients safe. Though many people fear the dentist, they may not realize that dental mistakes can have serious consequences, including death.
Many claims filed against dentists are treatment-related. According to dental malpractice statistics, 85 percent of claims cite poor procedures and techniques for causing injuries. Common injuries include chipped or fractured teeth, nerve injuries to the lips, chin, tongue, and jaw, gum damage, anesthesia problems, and infections from equipment. Some victims experience Temporomandibular Joint disorder, which can cause jaw pain and difficulty speaking and eating. They may also experience numbness or loss of the sense of taste. These injuries can be painful, dangerous, and expensive to treat.
Poor quality dental care may result from dental malpractice and can cause long term injury to the patient.
Be aware of:
- Nerve or tissue damage.
- Damage to the oral structure, such as to the teeth, jaws, or tongue.
- Illness or injury from failing to detect an oral disease or from a wrongful diagnosis.
- Infection due to improperly sterilized equipment.
- Tooth trauma.
Certain procedure types require a more complicated treatment process or delicate surgeries that are more prone to mistakes, including treatments such as:
- Prosthodontics. These are tooth replacements, often involving bridges and dentures. Approximately 28 percent of all dental malpractice claims are associated with prosthodontics, and they frequently give rise to malpractice cases.
- Endodontics. Endodontics treats the soft pulp tissue surrounding the roots of a tooth. It is the second most common type associated with dental malpractice.
- Restorative dentistry. Restorative dentistry, such as fillings, crowns (“caps”), bridges and implants, usually replaces missing or damaged teeth. These commonly treat cavities or problems caused by other conditions or accidents.
Other Consequences of Dental Procedures
Tragically, some dental care results in wrongful death. There are many potential causes for a fatality. Improper care, contaminated tools, or equipment may cause an infection. Dentists may fail to check on patients with signs of infection, such as sepsis, facial swelling, trismus, or dysphagia.
The mismanagement of anesthesia during a dental procedure or dental surgery is extremely dangerous. The patient could come out of the anesthesia and find themselves disabled, or they may not wake up at all. In some cases, patients even react negatively to an overdose of local anesthetics. Dental professionals must know the health risks of individual patients so they administer the proper type and amount of anesthesia based on the patient’s needs. If the patient dies, the surviving family may have a legal compensation claim.
Dental Malpractice Overview
Negligence is the basis for most dental malpractice lawsuits. Those injured by improper dental care must prove the four elements of a claim and seek as much compensation as possible so that recovery may resolve the matter entirely. The dentist must have a duty of care to the patient.
Typically, the duty of care exists when the patient visits the dentist for treatment. Breaches in this duty occur when the appropriate standards are not part of the situation, or violations of the duty of care occur. A breach requires an injury. Then, the person needs to prove the cause between the breach and the injury.
Key elements of a dental malpractice suit include:
1. There Was a Dentist-Patient Relationship
The duty of care arises from the dentist-patient relationship. Establishing a doctor/patient relationship may take place formally in the office setting or informally, such as by giving verbal advice in a social setting. Simply going to see the dentist implies a duty of care. Documentation, such as receipts, insurance statements, or confirmation of the appointment, may help establish the relationship.
2. Breach of Duty
A breach of duty occurs when the dentist did not follow an acceptable standard of care. Evidence such as X-rays confirming the mistake and testimony from expert witnesses help establish the breach of duty. If the patient is not happy with the result, that may not constitute a breach of duty.
3. The Patient Suffered an Injury
The dentist’s breach of the standard of care must harm the patient. Your dentist may fail to meet the standard of care but not cause the patient harm. The harm may be physical, such as nerve damage; financial, such as the cost of having the injury treated or repaired and lost wages; or emotional, such as pain and suffering. It is best to keep copies of all bills and records related to the injury. These will prove the damages and increase the likelihood of compensation.
4. The Dentist’s Error Caused the Patient’s Injury
Essentially, you need to prove that the injury was the dentist’s fault. Causation is a key issue in a dental malpractice case. The question is whether: “but for” the dentist’s actions, would the injury have occurred? The testimony of expert witnesses or the second opinions of other dentists may prove causation.
For specific information about how these factors affect your case, contact a medical malpractice attorney today.
Who Else May Be Liable?
In a malpractice case, you must first determine the responsible party. It may not always be your dentist. While plaintiffs tend to sue dentists more often than dental hygienists, dental hygienists are also subject to liability.
Examples of hygienists’ liability include:
- Revealing protected patient information.
- Acting outside the scope of their legal duties.
- Failing to uphold standards of care.
- Failing to uphold standards of infection control.
- Failure to check whether the patient has premedicated if required.
- Failure to properly document.
- Failure to recognize or take appropriate precautions with a patient who is medically compromised.
- Incorrectly coding procedures or upcoding.
- Soliciting patients after changing jobs.
Other parties who may be liable include:
- The staff employed by your dentist.
- If a defective dental device led to your injury, the manufacturer or designer of that device might be liable.
- In some cases, the owner of the dental office.
Compensation
A dental malpractice lawsuit may lead to varying types of compensation.
- Medical expenses, including the cost of further medical treatment to correct the mistake.
- Lost wages that resulted from the harm.
- Pain and suffering. Dental malpractice can cause both physical and emotional pain.
As of 2012, Pennsylvania dentists must carry malpractice insurance at a minimum of $1 million per occurrence or claim and $3 million per annual aggregate. A licensed dentist must show proof of having purchased this amount of insurance to the State Board of Dentistry.
Unreported Claims
Dental mistakes happen all the time, but many dental malpractice victims do not realize that they can take legal action or do not know where to begin—so they often do not report the matter.
The Pennsylvania Dental Association lists some options for filing dental complaints. However, it is generally a good idea to consult a knowledgeable attorney about your legal options.
Have You Been Injured by Dental Malpractice?
Dental malpractice cases are extremely complex. The statute of limitations for a medical malpractice case in Pennsylvania is two years from the date the medical mistake occurs. There are exceptions to this rule, and other filing requirements, so it is best to consult an experienced dental malpractice attorney as soon as possible. For more information or a free consultation, contact an attorney today.