“Once we’ve decided to accept the claim at my level prior to litigation, I discuss everything with the dentist, and I seek their agreement,” says Cole. If litigation has been commenced, the decision to settle rests with the insurance company, although insurance companies prefer a collaborative decision among the defence counsel and the insured. Cole’s role also involves advising patients and dentists on claims, determining claim validity, and assessing settlement amounts based on investigation documentation. During the panel discussion, he clarified that although malpractice may necessitate additional treatment like implants, coverage doesn’t extend to pre-existing needs, like crowns. Cole highlighted instances of extracting the wrong tooth, noting reimbursement for updated treatment plans, not ongoing care. Pain and suffering settlements in dental cases are generally lower than in other accidents. Legal costs are subject to the insurance company’s discretion. Negotiating with patients, Cole finalizes agreements and facilitates payment issuance, followed by requesting the dentist’s deductible. Cases unresolved through negotiation proceed to litigation. Cole’s storytelling abilities are impressive as he recounted a case where the wrong tooth was removed because the dentist had looked at the X-ray backwards, or the time a dental assistant taking an X-ray tripped over a cord pulling the mouthpiece from the patient’s mouth, and the patient subsequently claimed a neck injury. “The claims that I don’t like to see are full mouth reconstructions from patients who have not looked after their teeth for years and are likely not going to start now,” says Cole. This example highlights the need for informed consent, which is the process whereby a health care provider educates a patient about the risks, benefits, and alternatives of a given procedure or intervention. The patient must be competent to make a voluntary decision about whether or not to undergo the procedure or intervention. Other claims include failure to diagnose oral cancer, infections after treatment, and even fatalities in the chair, generally from a heart attack. The latter is a reminder to have emergency protocols for dental office staff to handle emergency situations, which can also include managing irate patients at the front of office. “If something’s going sideways, stop and think about the potential claim and contact your insurer,” says Cole. “I’d rather get a claim that doesn’t escalate rather than one that does. Just don’t wait to report, because reporting a potential claim will not affect your premium.” Cole emphasized several strategies for dentists to mitigate risks and navigate malpractice claims effectively. Detailed documentation, including comprehensive notes and consent forms, is crucial in establishing the standard of care provided and obtaining informed consent from patients. Malpractice from a legal perspective Colleen O’Neill, a senior associate at Dolden Wallace Folic LLP, has dedicated her legal career to defending dentists against allegations of professional negligence. In her presentation, O’Neill delved into the intricacies of professional negligence in dentistry, offering valuable insights into the legal framework that governs such claims. Her presentation focussed on the foundational elements that constitute the basis of negligence claims against dental practitioners. “At the core of professional negligence are three key elements,” O’Neill explained. “Firstly, the dentist owes a duty of care to the patient. Secondly, there must be a failure to meet the requisite standard of care. And finally, this breach of care must result in actual harm or injury to the patient.” However, she cautioned against conflating all breaches of care with actionable negligence. “Not every deviation from the standard of care amounts to negligence,” O’Neill emphasized. “For instance, while record-keeping lapses may occur, they do not necessarily lead to patient harm. However, they do complicate the defense of a case.” The standard of care benchmark Central to understanding dental malpractice claims is the concept of the standard of care—a benchmark against which a dentist’s actions are evaluated. O’Neill explained that regardless of a dentist’s experience or specialization, they are held to the same standard of care as their peers under similar circumstances. “To establish the standard of care, expert testimony from another dentist of similar expertise is often required,” O’Neill explained. “This underscores the technical nature of dentistry, which may be beyond the purview of a judge’s expertise.” Highlighting a common strategy employed by patients’ lawyers, O’Neill emphasized the significance of expert 41 Issue 2 | 2024 | SupportingYour Practice
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