Four Risk Management Strategies Every Dentist Needs
By Mark Buczko
Malpractice lawsuits are a serious threat to America’s dentists. That’s why it’s essential to master the discipline of risk management in your practice, along with four specific risk-management strategies.
Most dentists, new or experienced, never expect to get sued for malpractice. They typically view litigation as something that happens to their competitors across town. But here’s the reality: you can get sued and if you lose in court, you may face a punishing legal judgment or settlement. How can you prevent this from happening to you? By following the discipline known as dental risk management and mastering its four fundamental strategies.
What is risk management? Simply put, it’s the process of identifying, assessing and reducing the likelihood of adverse events, or potential liabilities, happening during the practice of dentistry while reducing the frequency and severity of those that do occur. Risk management consists of four essential strategies:
- Risk avoidance: knowing which practices expose you to significant legal risk and then avoiding them
- Risk reduction: lowering your risks by adhering to best practices such as universal or general precautions, informed consent and others
- Risk transfer: purchasing malpractice insurance from an online provider such as 360 Coverage Pros to transfer risks to an insurance company and/or referring unacceptably high patient risks to dental specialists
- Risk acceptance: deciding to proceed with a high-risk patient or procedure because the expected reward outweighs the risk
Let’s summarize each of these strategies while recognizing that a full discussion of each exceeds the scope of this article.
The practice of dentistry will never be entirely risk-free. That’s because the human body can react to dental interventions in unpredictable ways. Plus, since dentists aren’t machines, their actions can’t be standardized, which can produce a variance in how some procedures are executed, leading to negative outcomes. For these reasons, risk avoidance is a powerful means of reducing your malpractice exposure.
One important way to avoid risk is to operate within the scope of your dental license. This might not always be easy, as market demand may tempt you to provide services that attract new patients (for example: “spa dentistry,” massage therapy, Botox treatments and more). Check with your state dental board to see if ancillary services violate your scope of practice. Even if they don’t, be wary of letting other types of regulated providers work under your roof. This might subject you to vicarious liability (responsibility for a mistake made by a third-party).
Dental risk-management experts offer the following guidelines to avoid scope-of-practice violations:
- Don’t prescribe medicines that lack a dental therapeutic purpose and for which you are not licensed to prescribe. Even though prescribing an antibiotic for a tooth abscess is legitimately within your scope of practice, prescribing one to help a patient get over bacterial pneumonia isn’t, since treating pneumonia isn’t part of dentistry.
- Don’t practice medicine unless you hold a medical license. For example, beware amalgam removals designed to improve conditions such as multiple sclerosis. Since treating the underlying condition falls outside your scope of practice, removing amalgam to address that issue is also outside your scope. Similarly, diagnosing sleep apnea and then creating treatment appliances for it are also considered outside the scope. However, fabricating the appliance at the request of a physician who diagnosed the ailment would be within scope.
- Do not perform face, lip or tongue anesthesia to facilitate lipstick tattooing or tongue piercing. Although you’re licensed to provide anesthesia, doing it to make lip tattooing or tongue piercing more comfortable is problematic, as is doing such procedures. If a problem were to occur later with the patient’s tattoo or piercing, the person might file a board complaint against you. Since the anesthesia was part of a non-dental procedure, you might be found guilty of providing an out-of-scope service.
- Avoid letting dental auxiliaries perform any procedure or task that falls outside your state’s dental regulations. For example, if you let a dental hygienist or assistant provide an unauthorized service that ends up hurting a patient, not only might the patient have cause to assert negligence against you, the person could also file a complaint with your state dental board. Upshot: you might end up losing your license to practice dentistry in your state.
Another approach to risk avoidance involves knowing where most of your malpractice risks lie and then acting accordingly. For example, according to dental risk management experts, performing treatments and managing treatment plans generated the highest volume of claims and the highest settlements. Therefore, risk avoidance should center on the effective delivery of treatments and treatment plans. Furthermore, treatments such as prosthetics, including crowns, bridges, dentures alleged to be ill-fitting; root canals performed by general dentists, and complications resulting from extractions and/or implants tend to pose high risks.
What’s more, beware of extremely risky dental procedures] such as:
Extractions of bony-impacted or partial bony-impacted teeth (not necessarily just 3rd molars)
Complex endodontics, molar or otherwise
Surgical placement of implants without the appropriate technology to guide you
Similarly, you may want to consider referring high-risk patients—i.e., those with substantial co-morbidities—to a specialist.
For the vast majority of treatments and patients, the appropriate risk-management strategy is risk reduction. This means proceeding with the treatment, but with mitigation to decrease the likelihood of treatment errors and future litigation. Here are some common measures to consider:
- Communicate fully with the patient about the diagnosis and prognosis, the need for treatment, the alternatives, the procedure risks and the financial considerations. Then secure a signed consent form that has been approved by your legal counsel.
- When a patient refuses treatment, help the person weigh the pluses and minuses of getting treated v. not getting treated and of pursuing an alternative therapy. In such cases, securing an informed refusal in writing is essential to avoid future malpractice litigation if the non-treatment decision backfires.
- Consider the patient-safety implications of the procedure before doing it. Then take steps to mitigate the anticipated risks. If you have a negative outcome, report it and then debrief the incident to determine what went wrong.
- Determine the appropriateness of the procedure in terms of current science and clinical practice guidelines.
Two additional risk-reduction practices bear further discussion: universal precautions and the importance of staying current. Universal precautions date back to 1987 when regulators devised standards to reduce transmission of blood-borne pathogens. They apply to all patients, especially to dental patients undergoing a procedure involving blood or blood-contaminated saliva. In 1996, the CDC developed its standard precautions. Universal and standard precautions together inhibit exposure of both patients and their healthcare (and dental) providers to all bodily fluids, not just blood.
Universal and standard precautions are necessary because patients often don’t reveal their infectious status, either because they’re unaware of it or because antibodies or other infection markers aren’t yet detectable. According to the CDC, standard precautions include:
- Hand hygiene
- Use of personal protective equipment
- Respiratory hygiene and cough etiquette
- Sharps safety (from engineering design and use perspectives)
- Safe injection practices
- Use of sterile instruments and devices
- Clean and disinfected environmental surfaces
For detailed guidance on each of the precautions listed above, please refer to the CDC document, Summary of Infection Prevention Practices in Dental Settings.
The role of staying current with the latest dental clinical practices is crucial. Since many experts believe the half-life of knowledge learned in dental school is about five years, failure to keep pace with the march of science will put you at a disadvantage. As time passes, your knowledge gap will widen, raising your malpractice risks. How to prevent this from happening? Here are several strategies to consider:
- Join a study group. Finding a compatible group of practitioners to share and discuss dentistry advances can be a relatively pain-free way to stay current. Although offline activities such as meeting for breakfast or lunch are one option, social media (e.g.: Facebook or LinkedIn groups) activities tend to be more time-efficient. Teleconferencing applications such as Zoom are also great ways to engage with and learn from your dental colleagues.
- Take dental continuing education courses. You’re likely already doing this to fulfill your license’s continuing-education (CE) requirements. Even though CE courses are mandatory in most states, don’t take them in a cursory fashion. Devote your full attention to them to derive maximum benefit.
- Become a student of dentistry. Although your life is full of competing demands, be sure to carve out an hour or two (or more) per week for reading professional journals. Become a perpetual student of dentistry and commit yourself to keep your reading backlog to a minimum.
- Attend a professional seminar or college course. In addition to reading professional journals, taking CE courses, and engaging with colleagues, periodically attend industry seminars or sign up for a college course. These are more formal than simply reading journals and will require a larger time commitment. However, the benefit of having a more robust encounter with the latest clinical practices might be worth the extra time investment.
- Consider Dental Associations. Some associations represent all facets of dentistry and its specialties. Most of these organizations do a great job of providing contemporary resources in their specific areas of interest. Many will even host regional or national events with guest speakers and a multitude of options to gather relevant, state-of-the-art, continuing education.
The least risky strategy is to transfer your risk to an outside entity. There are two possibilities:
- Transferring your malpractice risks to an insurance company
- Transferring some of your risks (i.e., selected patients) to a dental specialist
Consider malpractice insurance as the foundation of your risk-management program. This coverage protects you when patients allege you made a professional mistake that harmed them. In response, your malpractice insurer will provide funds to hire an attorney to represent you. It will also pay for any covered financial judgments or settlements (an average payout of $79,000 according to the National Practitioner Data Bank), as well as for expert-witness and court-related costs. Finally, your policy will protect you in case a patient files a dental board complaint against you.
However, the most important benefit of having dental malpractice insurance is peace of mind. With an insurance safety net in place, you’ll never have to worry about a large malpractice judgment depleting your business and personal assets. You’ll be able to enjoy the practice of dentistry again rather than worrying about the legal implications of every clinical decision.
Referring patients to a specialist dentist is warranted in high-risk cases such as complicated extractions, endodontic services and implants. Because another dentist will be involved, it’s important to have robust protocols in place for explaining the need for a referral to your patients as well as for making the specialist handoff. Here are some pointers to make sure the referral goes smoothly:
- Explain why the referral is warranted to the patient and why not receiving specialized care is a bad idea.
- Make the appointment while the patient is in the office to prevent delays in receiving care that might generate poor outcomes.
- Advise the patient you will still be coordinating the specialist care and that after the other dentist completes the procedure, the patient will return to your practice for future services.
- Do your due diligence on the specialist to make sure the person is properly licensed and has sufficient training to deliver the needed care.
- Don’t rely on the patient to communicate the desired treatment to the specialist. Provide a written document summarizing the patient’s info as well as the care to be provided.
- >Remind the specialist you will expect a full report of examination, diagnosis, prognosis and treatments, along with a date after which you can resume treating the patient.
- Request full details of complications, adverse events or other problems that might suggest future liability exposure.
- Finally, be sure to document all specialist conversations in the patient’s file.
Often your patient, upon hearing that you will be referring them to a specialist attempt to convince you that you can do the procedure. They have the utmost faith in you. They know you are up to the task. They’ll even sign a form saying that they refused the referral and insist that you do the procedure. Don’t be tempted by their loyalty, as the risk is significant. Courts have repeatedly held that patients are not qualified to evaluate your capabilities. Only you know what your limitations are. A patient cannot “give you permission” to provide substandard treatment. Once you have made up your mind that your patient will be better served by referring them to a specialist, don’t let the patient talk you out of your decision.
The final strategy is accepting risk when the benefits of doing so outweigh the negatives. For example, you might realize that the surgical placement of implants poses a higher risk of malpractice litigation and increased insurance premiums. But after carefully weighing those risks, you decide it’s worthwhile to offer implants because the revenue benefit outweighs the added risks. As long as you make an informed risk/benefit calculation, it’s fine to accept the risk to advance your practice. However, don’t accept so many risks at once that you open yourself to catastrophic litigation.
In conclusion, it’s vital to recognize that dental-practice risk management is a complicated process. It is not “one and done,” now let’s practice dentistry. It is a process that must be considered with each patient, with each procedure in your practice. I have provided four main paths to financial security: risk avoidance, risk reduction, risk transfer and risk acceptance. By implementing an effective risk-management process in your practice, you’ll increase the chances of enjoying a long and profitable dental career while minimizing the likelihood of experiencing punishing legal setbacks.
Having dental malpractice insurance is an essential element of every dentist’s risk-management program. Learn more about the Dentist Malpractice Insurance Program from 360 Coverage Pros.
Mark J Buczko, CPCU, CIC, RPLU
Phone: (630) 647-6424
Working with A.J. Gallagher for nearly 3 years, Mark has been focused on the development and implementation of a program of professional liability insurance for dentists. Mark first began working with healthcare providers and their professional liability exposures in 1987. His extensive experience has encompassed a variety of responsibilities including marketing, evaluating risks (underwriting), composing policy language, developing and presenting risk management seminars and webinars, and managing Professional Association relationships.
Mark is a native of Chicago, IL, and has worked in the insurance industry for the entirety of his nearly 40-year career. A graduate of Loyola University School of Business he has become a student of the insurance industry and holds several prestigious industry designations. In his spare time, Mark is an amateur guitarist who has more fun than talent. He and his wife, Linda, also enjoy dining out, road trips and European travel; along with an occasional cruise.