CHAPTER 43 Dentistry

Liability claims for alleged dental malpractice have been somewhat “under the radar” compared to medicine. However, dentists are held to the same set of rules as physicians and other health professionals with regard to the tort of malpractice, the most common legal theory used by plaintiff patients to secure remuneration for alleged wrongs.¹

One of the most common bases for claims for damages in dentistry is for removal of the “wrong” tooth, a somewhat limited scope of damage. However, often the damage associated with alleged dental malpractice can be more severe, e.g., the N2 paste endodontic sequelae of the 1980s.^2,3 Ultimately dental treatment can result in any complication seen with medical treatment, including death. Several reviews of the actual statistics related to alleged dental malpractice are available, although differing findings are seen. For instance, Seidberg reports that 15–25% of claims from various insurance sources include endodontics, simple extractions, and crown/bridge work.⁴ Sanbar reports that private practitioners are those most often sued and that claims usually involve faulty management/performance of treatment, unsatisfactory technical/esthetic quality, and wrong diagnosis/indication.⁵ Governmental reports from the U.S. National Practitioner Data Bank, the U.S. Department of Health and Human Services, and the U.S. Department of Justice are seen in Table 43-1.

Table 43-1 Dentistry malpractice statistics

Medical malpractice lawsuit payment statistics for dentist malpractice in the U.S.A: Roughly 5% of medical malpractice trials related to dentists in the 75 largest counties in the U.S. 2001 (Bureau of Justice Statistics, U.S. Department of Justice) 12.1% of medical malpractice payment reports were against dentists in the U.S. 2002 (2002 Annual Report, National Practitioner Data Bank, U.S. DHHS) Roughly 38.9% of medical malpractice trials against dentists were won by the plaintiff in the 75 largest counties in the U.S. 2001 (Bureau of Justice Statistics, U.S. Department of Justice)

Medical malpractice lawsuit payment report statistics for dentist malpractice in the U.S.A.: 17,469 malpractice payment reports were made against dentists in the U.S. 1990–96 (The National Practitioner Data Bank Public Use File) 15% of malpractice payment reports were made against dentists in the U.S. 1990–96 (The National Practitioner Data Bank Public Use File)

Medical malpractice lawsuit statistics for dental malpractice in the U.S.A.: 8 medical malpractice reports were made to the National Practitioner Data Bank regarding dental assistants in the U.S. 1990–2004 (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS) 17 medical malpractice reports were made to the National Practitioner Data Bank regarding dental hygienists in the U.S. 1990–2004 (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS) 137 medical malpractice reports were made to the National Practitioner Data Bank regarding dental residents in the U.S. 1990–2004 (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS) 34,691 medical malpractice reports were made to the National Practitioner Data Bank regarding dentists in the U.S. 1990–2004 (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS) 19 medical malpractice reports were made to the National Practitioner Data Bank regarding denturists in the U.S. 1990–2004 (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS)

Medical malpractice statistics for the U.S.A. 2003: 27,793 (13.5%) dentists had a malpractice report made against them in the U.S. 1990–2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 45,166 (13.1%) malpractice reports were made against dentists in the U.S. 1990–2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Dentists had an average of 1.63 malpractice reports made against each of them in the U.S. 1990–2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS)

Medical malpractice statistics for the U.S.A. 2003: 24 (0.01%) dental assistants, technicians, and hygienists had a malpractice report made against them in the U.S. 1990–2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 25 (0.01%) malpractice reports were made against dental assistants, technicians, and hygienists in the U.S. 1990–2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Dental assistants, technicians and hygienists had an average of 1.2 malpractice reports made against each of them in the U.S. 1990–2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS)

Medical malpractice statistics for the U.S.A. 2003: 10 (0.005%) denturists had a malpractice report made against them in the U.S. 1990–2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 10 (0.003%) malpractice reports were made against denturists in the U.S. 1990–2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Denturists had an average of 1.0 malpractice reports made against each of them in the U.S. 1990–2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS)

Medical malpractice statistics for the U.S.A. 2003: 4 (0.03%) dental assistants, technicians, and hygienists had a malpractice report made against them in the U.S. 2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 3 (0.01%) malpractice reports were made against dental assistants, technicians, and hygienists in the U.S. 2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS)

Medical malpractice statistics for the U.S.A. 2003: 1418 (10.6%) dentists had a malpractice report made against them in the U.S. 2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 2540 (9.6%) malpractice reports were made against dentists in the U.S. 2003 (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS

The following case history will serve to illustrate several important legal considerations for office-based private dental practitioners to remember when faced with potential legal liability.

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