Dental professional liability prevention: part 2 Council on Insurance
n the first part of the C ouncil on In su ran ce’s report “D ental profes sional liab ility p revention” (JADA 9 6 (6 ):1 0 5 4 -1 0 5 7 , 1978), the Coun c i l ’s professional liab ility claim s m onitoring program was outlined. T h e C ouncil on Insurance w ill re view the loss statistics of the Profes sional P rotector P lan sponsored by the A m erican Dental A ssociation to determ ine the causes of claim s. W hen the statistics show that several claim s have a sim ilar cause, the C ouncil w ill review the conditions that gave rise to liab ility . T h e fin al step w ill be the establishm ent o f pre ventive m easures, w hen feasible, to control com m on cond itions of p oten tial danger that could give rise to liability.
Part 1 stressed the importance of receiving the patient’s informed con sent before performing procedures that have known, serious risks. Re ceiving the patient’s informed con sent consists of the patient giving his express consent to treatment after an explanation (in terms the patient will 1008 ■ JADA, Vol. 97, December 1978
understand) of why the treatment is necessary, of any available alterna tive methods of treatment, and of risks inherent to the procedure. To ensure having proof that the patient was informed of the potential risks of a dental procedure, the patient should be required to sign a consent form. In addition to receiving the pa tient’s informed consent, the main tenance of accurate dental records can assist in the defense of a profes sional liability claim by providing a factual history of the case. This report examines the common causes of dental professional liability claims that are based on negligence. An examination of the loss statistics of the Professional Protector Plan shows that the causes of several den tal professional liability claims have been extraction of the wrong tooth; switched nitrous oxide and oxygen tubes; allergic reactions to analgesics, anesthetics, or drugs; swallowing of objects; failure to refer the patient to a specialist; and m is diagnosis. All of these causes of
claims have a common denominator: the underlying basis of the claim was the alleged negligence on the part of the dentist. In other words, the den tist did something wrong, or failed to act when he should have. For a cause of action founded on negligence, from which liability will follow, the plaintiff must establish four elements. First, the patient must prove that the dentist had a duty or obligation to the patient. Second, the dentist must have breached that duty or obligation owed to the patient. Third, the patient must have been in jured. Fourth, the patient must estab lish that the breach of the dentist’s duty to the patient was the proximate cause of the resulting injury. A close examination of the four elements of negligence establishes that the second element, breach of the dentist’s duty owed to the pa tient, is the element of negligence that the dentist can best attempt to control. The duty or standard of care owed to the patient by the dentist is what a reasonably prudent dentist
A S S O C IA T IO N
would have done under the same or similar circumstances. In addition to claims based on neg ligence, poor relations with patients have also resulted in the filing of den tal professional liability claims, most often because of breach of guarantee, the use of harsh collection proce dures, and claims related to dentures. A review of facts leading to such claims has shown that the dentist can take steps to limit the likelihood of a claim being filed. This report will examine the causes of claims and means to reduce the causes and, hence, the amount of claims.
Extractions of the wrong tooth The dentist owes the patient the duty of performing the dental procedure that is indicated by his diagnosis. When a dentist extracts the wrong tooth, he has usually violated the standard of care owed to the patient. A review of claims shows several rea sons why the wrong tooth was ex tracted. First, poor communication existed between the referring dentist and the specialist; second, the dentist referred to the wrong patient’s rec ords; and third, the radiograph was reversed when read. Poor communication between the referring dentist and the specialist has taken many forms; however, four situations have been most common: the instructions sent were not clear or were illegible; telephoned instruc tions to the specialist were used in lieu of written communication; in structions were communicated by auxiliary staff members rather than by the professionals themselves; and the referring dentist told the patient what needed to be done and the pa tient then informed the specialist. The specialist should rely only on clear, written instructions sent by the referring dentist. If the specialist has any questions concerning the written communication, the best method of clarification is to telephone the re ferring dentist. Another cause of the extraction of a wrong tooth is the use of the wrong patient’s records. Three situations have been most common in which
the use of the wrong patient’s records has resulted in the extraction of the wrong tooth: the dentist was given the wrong patient’s records by an auxiliary, patients’ records were con fused when the dentist had more than one patient with the same or similar last name, and records were placed in the wrong file. The possi bility of using the wrong patients’ records can be reduced through the use of an efficient filing system. In addition, a coding system can be de veloped to distinguish files of pa tients with the same or similar names. Extraction of the wrong tooth caused by reversing the radiograph before reading places the insuring company in an almost indefensible position. As radiographs are coded to prevent reversal, proper care on read ing can prevent extraction of the wrong tooth because of reversal of the radiograph.
Switched nitrous oxide and oxygen tubes Failure to inspect instruments and equipment has resulted in an in crease in claims, especially when nitrous oxide and oxygen tubes are switched when the system is in stalled or serviced. The dentist has the duty to inspect his instruments and equipment before treating pa tients to ensure that everything is in proper working order as failure to in spect a system could result in serious injury or death to a patient. The diuty to inspect his instruments and equipment begins after their installa tion in the operatory and continues with periodic inspections through out the life of the equipment.
Allergic reactions to drugs, analgesia, and anesthesia The Council has been informed that several professional liability claims have resulted because the dentist did not know the patient’s state of health before commencing treatment, which resulted in allergic reactions to drugs, analgesics, or anesthetics. The dentist has the obligation to take a history of health before the perfor
REPO RTS
mance of dental procedures and especially before the administration of drugs, analgesics, or anesthetics. The written history should be completed during the patient’s first visit and should be updated on a reg ular basis and before the performance of a complicated procedure or the administration of general anesthesia. If the dentist has reason to have doubts about a patient’s state of health, he should request that the pa tient’s physician complete the health questionnaire before treatment. The health evaluation form should then become a part of the patient’s record. Taking a history of health before treatment is another instance in which record keeping can help estab lish that the dentist did not violate a duty owed to the patient. After the administration of an anesthetic agent, the dentist is re sponsible for the patient’s actions until the effects of the agent have worn off, including ensuring that the patient does not injure himself in the operatory or during recovery from the anesthetic. The dentist can be held liable for injury to the patient or to others if the patient is allowed to leave the office prematurely. The rea sonable standard of care dictates that the dentist should always be in the operatory when a patient is under general anesthesia and should re main in the office while the patient is recovering from the effects of general anesthesia.
Referring the patient to a specialist and misdiagnosis The dentist has the duty to treat the patient using a reasonable standard of dental care. The dentist is permit ted by law to perform all dental pro cedures, even those associated with the dental specialties, yet the reason able standard of dental care could be violated through failure to refer the patient to a specialist if a reasonably prudent dentist would have referred the patient to a specialist under the same or similar circumstances. The law involving the duty to refer in dentistry is very unsettled and each case must be considered on its own merits.
DENTAL PROFESSIONAL LIABILITY PREVENTION ■ 1009
A S S O C IA T IO N
REPO RTS
The Council has been informed that failure of the general dentist to refer the patient to a periodontist has been especially prevalent. The situa tion usually involves diagnosis of the early stages of periodontal disease by the general dentist and his failure to refer the patient to a periodontist or sometimes even inform the patient that he had periodontal disease. After the patient is informed that he has periodontal disease or told that he should see a specialist, the dentist should record in the patient’s file what the patient was told. If the pa tient refuses further treatment or to see a specialist, well-documented records can make a professional lia bility claim defensible. Professional liability claims for misdiagnosis usually involve the failure of a dentist to use proper diagnostic aids before treatment. The reasonable standard of care requires the use of diagnostic methods that are usually used by other practition ers in the community. Although a dentist does not ensure the correct ness of his diagnosis and would not be liable for a mistake in judgment if the proper course of treatment was open to reasonable doubt, his diag nosis must be made after the use of proper diagnostic aids. Again, the importance of maintaining careful, well-documented records must be stressed as they are extremely impor tant to establish that proper diagnos tic aids were used.
Other causes for claims The dentist can violate the duty owed to the patient by not taking action in situations in which the reasonable standard of care indicates that he must. Situations occur during the course of treatment in which the ac tion taken by the dentist after an emergency or unexpected result will determine whether the dentist was negligent. Courts have acknowl edged that unexpected results or emergencies can take place when the dentist has not violated the reason able standard of care. The breaking off of root tips during the course of an extraction can hap pen without negligence on the part of 1010 ■ JADA, Vol. 97, December 1978
the dentist. When the dentist has rea son to suspect that root tips were bro ken during an extraction, he has the duty to determine whether the tips were actually broken and then in form the patient of what happened. The decision to remove the embed ded root tips is the patient’s, and the dentist should not attempt to remove them without receiving the patient’s consent. If the dentist is unable to remove the root tips, the patient should be referred to a specialist. Claims because of broken instru ments are similar to claims because of broken root tips as instruments can break and become embedded in a tooth or the gingiva without any neg ligence on the part of the dentist. If the dentist has any reason to believe that a broken instrument became em bedded in the patient’s tooth or ging iva, the dentist has the duty to dis cover the location of the object and inform the patient of what happened. Again, the decision to remove the broken instrument is the patient’s, and the dentist should refer the pa tient to the proper specialist if he is unable to remove the broken instru ment. A patient w ho sw allow s an ob ject during treatm ent m ust be given proper em ergency care to determ ine th e location o f the ob ject and rem ove it properly. P atients can sw allow ob je cts w ithout n eg lig en ce on the part o f the d en tist; how ever, liab ility can resu lt if th e patient is perm itted to leave the office before th e ob ject is located. W hether the dentist was n eg lig en t by n ot taking preventive m easures to prevent the patient from sw allow ing foreign objects is deter m ined on a case-by-case basis. If th e reasonable standard of care dictates th e use o f a rubber dam, the dentist w ould be n egligent if one was not used and the patien t sw allow ed an object. A recen t court d ecision has h eld that n ot u sing a rubber dam in con ju n ctio n w ith an endodontic pro cedure violates th e reasonable stan dard o f care (549P 2d 9 5 7 [ l9 7 6 ] ) .
These situations indicate that the dentist must be prepared to react in an emergency. Even in situations in which the emergency was the result of the dentist’s negligence, damages
can often be mitigated with proper emergency treatment. The dentist has a duty to his pa tients to have the proper emergency equipment readily available. Den tists who use general anesthetic agents in their office could be negli gent if the office did not contain the proper resuscitating equipment. In addition, the dentist and his staff must be properly trained to react in emergency situations. The dentist and his staff should be certified in cardiopulmonary resuscitation tech niques, and continuing education courses in emergency procedures should be taken regularly.
Guarantees, collection procedures, complaints Proper relations with patients can as sist a dentist in eliminating the atmo sphere in which a patient becomes more likely to file a professional lia bility claim. A patient becomes more litigious if he believes that he has been treated poorly or if given other reasons to expect specific results from treatment. The Council believes that an improvement in relations with patients can be an important first step in prevention of dental pro fessional liability claims. Patients who are surprised by large, unexpected bills or are sub jected to what they think are harsh collection procedures often resort to filing a professional liability claim to avoid payment of the bill. Before treatment, the dentist should explain what the costs will be and also ex plain available payment plans if the patient is unable to pay the entire bill at one time. When the situation arises in which the patient is delinquent in making payments, the dentist should be tactful as to the collection proce dures used. The patient should not be made to believe that he is being pres sured to pay. The dentist is under no obligation to guarantee the outcome of the treatment. A guarantee enlarges the dentist’s legal responsibility to the patient. When the dentist guarantees the results of the treatment and the patient believes the results did not meet the outcome predicted by the
A S S O C IA T IO N
dentist, the patient usually has the basis for filing a breach-of-contract claim. In addition, should the dentist attempt to sue the patient for his fees, the patient can be defended on the basis of breach of guarantee. A claim based on breach of guarantee can be brought even if the dentist has exer cised reasonable care and was free from negligence as long as the out come of the treatment did not meet the terms of the guarantee. The best method to reduce the chance of a claim for breach of guarantee is for the dentist never to guarantee the re sults of treatment. Claims related to dentures often have involved guarantees by the den tist that the dentures will be as good as the patient’s natural teeth or that the patient will be able to eat Certain types of food soon after receiving the dentures. Claims related to dentures also have arisen when the patient is not satisfied with the fit of the den tures even though the dentist vio lated no duty owed to the patient.
The dentist can lessen patient dissatisfaction with dentures by giv ing the patient a complete explana tion of how dentures are designed, fitted, and adjusted before construc tion of the dentures. The patient should be informed of thé required period of adjustment and follow-up treatment after the dentures are con structed. Good records can help es tablish that the patient was informed and aid in the defense of a profes sional liability claim.
Conclusion The purpose of the program to monitor claims of the Council on In surance is to determine whether pre ventive measures can be im plemented by dentists to eliminate, reduce, or better defend professional liability claims. The Council is aware that some dentists may consider the implementation of the Council’s rec ommendations concerning preven tion of dental professional liability
REPO RTS
claims as time consuming. The amount of time required to prevent dental professional liability is mini mal when compared with the amount of time entailed with defending a professional liability claim. In addi tion to time away from the office, a professional liability suit causes emotional distress, could affect fu ture insurability, and could diminish the dentist’s professional reputation. The Council advises that all dentists learn as much as possible about pre vention of professional liability claims and spend the additional time necessary to implement the Coun cil’s recommendations. The Council believes that if its recommendations are followed, dentists can improve significantly the loss statistics for dental professional liability.
This report was prepared by Alan M. Komensky, assistant Secretary, Council on In surance, at the request of the Council on Insur ance.
DENTAL PROFESSIONAL LIABILITY PREVENTION ■ 1011
n the first part of the C ouncil on In su ran ce’s report “D ental profes sional liab ility p revention” (JADA 9 6 (6 ):1 0 5 4 -1 0 5 7 , 1978), the Coun c i l ’s professional liab ility claim s m onitoring program was outlined. T h e C ouncil on Insurance w ill re view the loss statistics of the Profes sional P rotector P lan sponsored by the A m erican Dental A ssociation to determ ine the causes of claim s. W hen the statistics show that several claim s have a sim ilar cause, the C ouncil w ill review the conditions that gave rise to liab ility . T h e fin al step w ill be the establishm ent o f pre ventive m easures, w hen feasible, to control com m on cond itions of p oten tial danger that could give rise to liability.
Part 1 stressed the importance of receiving the patient’s informed con sent before performing procedures that have known, serious risks. Re ceiving the patient’s informed con sent consists of the patient giving his express consent to treatment after an explanation (in terms the patient will 1008 ■ JADA, Vol. 97, December 1978
understand) of why the treatment is necessary, of any available alterna tive methods of treatment, and of risks inherent to the procedure. To ensure having proof that the patient was informed of the potential risks of a dental procedure, the patient should be required to sign a consent form. In addition to receiving the pa tient’s informed consent, the main tenance of accurate dental records can assist in the defense of a profes sional liability claim by providing a factual history of the case. This report examines the common causes of dental professional liability claims that are based on negligence. An examination of the loss statistics of the Professional Protector Plan shows that the causes of several den tal professional liability claims have been extraction of the wrong tooth; switched nitrous oxide and oxygen tubes; allergic reactions to analgesics, anesthetics, or drugs; swallowing of objects; failure to refer the patient to a specialist; and m is diagnosis. All of these causes of
claims have a common denominator: the underlying basis of the claim was the alleged negligence on the part of the dentist. In other words, the den tist did something wrong, or failed to act when he should have. For a cause of action founded on negligence, from which liability will follow, the plaintiff must establish four elements. First, the patient must prove that the dentist had a duty or obligation to the patient. Second, the dentist must have breached that duty or obligation owed to the patient. Third, the patient must have been in jured. Fourth, the patient must estab lish that the breach of the dentist’s duty to the patient was the proximate cause of the resulting injury. A close examination of the four elements of negligence establishes that the second element, breach of the dentist’s duty owed to the pa tient, is the element of negligence that the dentist can best attempt to control. The duty or standard of care owed to the patient by the dentist is what a reasonably prudent dentist
A S S O C IA T IO N
would have done under the same or similar circumstances. In addition to claims based on neg ligence, poor relations with patients have also resulted in the filing of den tal professional liability claims, most often because of breach of guarantee, the use of harsh collection proce dures, and claims related to dentures. A review of facts leading to such claims has shown that the dentist can take steps to limit the likelihood of a claim being filed. This report will examine the causes of claims and means to reduce the causes and, hence, the amount of claims.
Extractions of the wrong tooth The dentist owes the patient the duty of performing the dental procedure that is indicated by his diagnosis. When a dentist extracts the wrong tooth, he has usually violated the standard of care owed to the patient. A review of claims shows several rea sons why the wrong tooth was ex tracted. First, poor communication existed between the referring dentist and the specialist; second, the dentist referred to the wrong patient’s rec ords; and third, the radiograph was reversed when read. Poor communication between the referring dentist and the specialist has taken many forms; however, four situations have been most common: the instructions sent were not clear or were illegible; telephoned instruc tions to the specialist were used in lieu of written communication; in structions were communicated by auxiliary staff members rather than by the professionals themselves; and the referring dentist told the patient what needed to be done and the pa tient then informed the specialist. The specialist should rely only on clear, written instructions sent by the referring dentist. If the specialist has any questions concerning the written communication, the best method of clarification is to telephone the re ferring dentist. Another cause of the extraction of a wrong tooth is the use of the wrong patient’s records. Three situations have been most common in which
the use of the wrong patient’s records has resulted in the extraction of the wrong tooth: the dentist was given the wrong patient’s records by an auxiliary, patients’ records were con fused when the dentist had more than one patient with the same or similar last name, and records were placed in the wrong file. The possi bility of using the wrong patients’ records can be reduced through the use of an efficient filing system. In addition, a coding system can be de veloped to distinguish files of pa tients with the same or similar names. Extraction of the wrong tooth caused by reversing the radiograph before reading places the insuring company in an almost indefensible position. As radiographs are coded to prevent reversal, proper care on read ing can prevent extraction of the wrong tooth because of reversal of the radiograph.
Switched nitrous oxide and oxygen tubes Failure to inspect instruments and equipment has resulted in an in crease in claims, especially when nitrous oxide and oxygen tubes are switched when the system is in stalled or serviced. The dentist has the duty to inspect his instruments and equipment before treating pa tients to ensure that everything is in proper working order as failure to in spect a system could result in serious injury or death to a patient. The diuty to inspect his instruments and equipment begins after their installa tion in the operatory and continues with periodic inspections through out the life of the equipment.
Allergic reactions to drugs, analgesia, and anesthesia The Council has been informed that several professional liability claims have resulted because the dentist did not know the patient’s state of health before commencing treatment, which resulted in allergic reactions to drugs, analgesics, or anesthetics. The dentist has the obligation to take a history of health before the perfor
REPO RTS
mance of dental procedures and especially before the administration of drugs, analgesics, or anesthetics. The written history should be completed during the patient’s first visit and should be updated on a reg ular basis and before the performance of a complicated procedure or the administration of general anesthesia. If the dentist has reason to have doubts about a patient’s state of health, he should request that the pa tient’s physician complete the health questionnaire before treatment. The health evaluation form should then become a part of the patient’s record. Taking a history of health before treatment is another instance in which record keeping can help estab lish that the dentist did not violate a duty owed to the patient. After the administration of an anesthetic agent, the dentist is re sponsible for the patient’s actions until the effects of the agent have worn off, including ensuring that the patient does not injure himself in the operatory or during recovery from the anesthetic. The dentist can be held liable for injury to the patient or to others if the patient is allowed to leave the office prematurely. The rea sonable standard of care dictates that the dentist should always be in the operatory when a patient is under general anesthesia and should re main in the office while the patient is recovering from the effects of general anesthesia.
Referring the patient to a specialist and misdiagnosis The dentist has the duty to treat the patient using a reasonable standard of dental care. The dentist is permit ted by law to perform all dental pro cedures, even those associated with the dental specialties, yet the reason able standard of dental care could be violated through failure to refer the patient to a specialist if a reasonably prudent dentist would have referred the patient to a specialist under the same or similar circumstances. The law involving the duty to refer in dentistry is very unsettled and each case must be considered on its own merits.
DENTAL PROFESSIONAL LIABILITY PREVENTION ■ 1009
A S S O C IA T IO N
REPO RTS
The Council has been informed that failure of the general dentist to refer the patient to a periodontist has been especially prevalent. The situa tion usually involves diagnosis of the early stages of periodontal disease by the general dentist and his failure to refer the patient to a periodontist or sometimes even inform the patient that he had periodontal disease. After the patient is informed that he has periodontal disease or told that he should see a specialist, the dentist should record in the patient’s file what the patient was told. If the pa tient refuses further treatment or to see a specialist, well-documented records can make a professional lia bility claim defensible. Professional liability claims for misdiagnosis usually involve the failure of a dentist to use proper diagnostic aids before treatment. The reasonable standard of care requires the use of diagnostic methods that are usually used by other practition ers in the community. Although a dentist does not ensure the correct ness of his diagnosis and would not be liable for a mistake in judgment if the proper course of treatment was open to reasonable doubt, his diag nosis must be made after the use of proper diagnostic aids. Again, the importance of maintaining careful, well-documented records must be stressed as they are extremely impor tant to establish that proper diagnos tic aids were used.
Other causes for claims The dentist can violate the duty owed to the patient by not taking action in situations in which the reasonable standard of care indicates that he must. Situations occur during the course of treatment in which the ac tion taken by the dentist after an emergency or unexpected result will determine whether the dentist was negligent. Courts have acknowl edged that unexpected results or emergencies can take place when the dentist has not violated the reason able standard of care. The breaking off of root tips during the course of an extraction can hap pen without negligence on the part of 1010 ■ JADA, Vol. 97, December 1978
the dentist. When the dentist has rea son to suspect that root tips were bro ken during an extraction, he has the duty to determine whether the tips were actually broken and then in form the patient of what happened. The decision to remove the embed ded root tips is the patient’s, and the dentist should not attempt to remove them without receiving the patient’s consent. If the dentist is unable to remove the root tips, the patient should be referred to a specialist. Claims because of broken instru ments are similar to claims because of broken root tips as instruments can break and become embedded in a tooth or the gingiva without any neg ligence on the part of the dentist. If the dentist has any reason to believe that a broken instrument became em bedded in the patient’s tooth or ging iva, the dentist has the duty to dis cover the location of the object and inform the patient of what happened. Again, the decision to remove the broken instrument is the patient’s, and the dentist should refer the pa tient to the proper specialist if he is unable to remove the broken instru ment. A patient w ho sw allow s an ob ject during treatm ent m ust be given proper em ergency care to determ ine th e location o f the ob ject and rem ove it properly. P atients can sw allow ob je cts w ithout n eg lig en ce on the part o f the d en tist; how ever, liab ility can resu lt if th e patient is perm itted to leave the office before th e ob ject is located. W hether the dentist was n eg lig en t by n ot taking preventive m easures to prevent the patient from sw allow ing foreign objects is deter m ined on a case-by-case basis. If th e reasonable standard of care dictates th e use o f a rubber dam, the dentist w ould be n egligent if one was not used and the patien t sw allow ed an object. A recen t court d ecision has h eld that n ot u sing a rubber dam in con ju n ctio n w ith an endodontic pro cedure violates th e reasonable stan dard o f care (549P 2d 9 5 7 [ l9 7 6 ] ) .
These situations indicate that the dentist must be prepared to react in an emergency. Even in situations in which the emergency was the result of the dentist’s negligence, damages
can often be mitigated with proper emergency treatment. The dentist has a duty to his pa tients to have the proper emergency equipment readily available. Den tists who use general anesthetic agents in their office could be negli gent if the office did not contain the proper resuscitating equipment. In addition, the dentist and his staff must be properly trained to react in emergency situations. The dentist and his staff should be certified in cardiopulmonary resuscitation tech niques, and continuing education courses in emergency procedures should be taken regularly.
Guarantees, collection procedures, complaints Proper relations with patients can as sist a dentist in eliminating the atmo sphere in which a patient becomes more likely to file a professional lia bility claim. A patient becomes more litigious if he believes that he has been treated poorly or if given other reasons to expect specific results from treatment. The Council believes that an improvement in relations with patients can be an important first step in prevention of dental pro fessional liability claims. Patients who are surprised by large, unexpected bills or are sub jected to what they think are harsh collection procedures often resort to filing a professional liability claim to avoid payment of the bill. Before treatment, the dentist should explain what the costs will be and also ex plain available payment plans if the patient is unable to pay the entire bill at one time. When the situation arises in which the patient is delinquent in making payments, the dentist should be tactful as to the collection proce dures used. The patient should not be made to believe that he is being pres sured to pay. The dentist is under no obligation to guarantee the outcome of the treatment. A guarantee enlarges the dentist’s legal responsibility to the patient. When the dentist guarantees the results of the treatment and the patient believes the results did not meet the outcome predicted by the
A S S O C IA T IO N
dentist, the patient usually has the basis for filing a breach-of-contract claim. In addition, should the dentist attempt to sue the patient for his fees, the patient can be defended on the basis of breach of guarantee. A claim based on breach of guarantee can be brought even if the dentist has exer cised reasonable care and was free from negligence as long as the out come of the treatment did not meet the terms of the guarantee. The best method to reduce the chance of a claim for breach of guarantee is for the dentist never to guarantee the re sults of treatment. Claims related to dentures often have involved guarantees by the den tist that the dentures will be as good as the patient’s natural teeth or that the patient will be able to eat Certain types of food soon after receiving the dentures. Claims related to dentures also have arisen when the patient is not satisfied with the fit of the den tures even though the dentist vio lated no duty owed to the patient.
The dentist can lessen patient dissatisfaction with dentures by giv ing the patient a complete explana tion of how dentures are designed, fitted, and adjusted before construc tion of the dentures. The patient should be informed of thé required period of adjustment and follow-up treatment after the dentures are con structed. Good records can help es tablish that the patient was informed and aid in the defense of a profes sional liability claim.
Conclusion The purpose of the program to monitor claims of the Council on In surance is to determine whether pre ventive measures can be im plemented by dentists to eliminate, reduce, or better defend professional liability claims. The Council is aware that some dentists may consider the implementation of the Council’s rec ommendations concerning preven tion of dental professional liability
REPO RTS
claims as time consuming. The amount of time required to prevent dental professional liability is mini mal when compared with the amount of time entailed with defending a professional liability claim. In addi tion to time away from the office, a professional liability suit causes emotional distress, could affect fu ture insurability, and could diminish the dentist’s professional reputation. The Council advises that all dentists learn as much as possible about pre vention of professional liability claims and spend the additional time necessary to implement the Coun cil’s recommendations. The Council believes that if its recommendations are followed, dentists can improve significantly the loss statistics for dental professional liability.
This report was prepared by Alan M. Komensky, assistant Secretary, Council on In surance, at the request of the Council on Insur ance.
DENTAL PROFESSIONAL LIABILITY PREVENTION ■ 1011
