Dental Tribune U.S. Edition

DENTAL TRIBUNE | February 2011 Practice Matters 5A Some simple guidelines to help you reduce the risk to you and your practice Dental malpractice prevention By Stuart Oberman, Esq. Dental malpractice litigation is on the rise. Now more than ever, dentists need to practice risk management in order to avoid malpractice actions. Accurate records should be kept, patients should be complete- ly informed and patients should be actively involved in their treatment process. Following these easy guidelines will greatly reduce the risk of a dental malpractice claim. Legal terminology Dentists must have a basic under- standing of certain legal terminology in order to reduce the likelihood of a malpractice action brought against them. Negligence is a common claim brought against a dentist in a mal- practice action. In order to prove neg- ligence against a dentist, the patient must allege and prove four compo- nents. First, the patient must prove that the dentist owed a duty of care to the patient. Once that is established, in the second component the patient must prove that the dentist breached that duty of care. Third, there must be an injury to the patient. Finally, the injury must be proxi- mately caused by the breach of the dentist’s duty of care. Most dentists are aware that they have a duty to comply with the “stan- dard of care.” Many lawsuits simply allege that a dentist has not met the applicable standard of care. The standard of care for a dentist is the level of care that is expected of a reasonably competent dentist acting in similar circumstances. It is important to note that the standard of care is based on that of the average dentist, not on specialists or on the top percentage of dentists nationally. The standard of care is based on the level at which an ordi- nary, prudent dentist with the same training and experience would prac- tice in similar circumstances. The last-clear-chance doctrine provides that if the dentist has infor- mation from another health care provider that the dentist knows, or should know, is incorrect, the dentist is liable if he/she relies on that incor- rect information and the patient is harmed, as the dentist had the last chance to save the patient from harm. Most dentists are familiar with informed consent. Informed consent is a required element of patient care, but it is also a simple element. Dentists may not wish to load patients with too much information assuming that if the patients are interested in understanding more, they will ask questions. Patients may also tell their dentist that they trust the practitioner to perform the proce- dure that is in their best interest and do not need to discuss the treatment. However, these patients can still fall back on the lack of informed con- sent and start a legal action against the dentist. Patients must be informed as to the proposed treatment and its benefits, the risks of the proposed treatment, alternative treatments, the patient’s prognosis and the cost of the proposed treatment. In order to give consent to a pro- posed treatment, the patient must be completely informed. Patient relations will be improved through informed consent, as the patient will realistically know what to expect from a given procedure. Practicing risk management It is well known that dentists should keep accurate and complete records on every patient as well as documen- tation of each patient’s consent and understanding of a proposed treat- ment. Once a malpractice action is com- menced, dentists will have a better legal defense if these steps are fol- lowed. However, dentists need to do more in the office to prevent these malpractice claims from arising. Patients want to make their own decisions regarding their health. Dentists who include patients in the AD g DT page 6A