Best Practices for Malpractice Prevention

WHAT IS MALPRACTICE?

Malpractice is a professional breach of duty resulting in an injury to a patient. This may occur when you render — or fail to render — professional services, or fail to act in a manner consistent with the established standard of care. The more you understand about the concept of malpractice and how it is proven, the better equipped you will be to manage malpractice issues.

HOW TO AVOID LAWSUITS AND LIMIT DAMAGES

You take pride in your work, and strive to provide the highest possible standard of care. But every dentist faces the potential of a malpractice suit. Knowing that reality, it’s important to take preventative measures wherever possible. These best practices are provided to help avoid potential malpractice actions and deal more effectively with any that should arise.

The Plaintiff Needs Proof

To win a malpractice suit, the plaintiff must prove four things:

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  1. You had to provide a certain type of treatment: the person was your patient and you had an obligation to provide a “reasonable standard” of treatment.

  2. There was a breech of duty: the quality of treatment you provided was below the reasonable standard expected by the court.

  3. There was an injury: actual damage or injury took place. 

  4. Your action was foreseeable cause of the damage: the injury or loss was a reasonably foreseeable result of your conduct.

WHAT CAN YOU DO TO BE PROACTIVE?

Keep on top of your profession

Your skills, knowledge and ethics as a dentist are naturally your first line of defence against malpractice suits. In determining whether appropriate treatment was provided, the court will consider whether you complied with practice standards upheld by your dental associations and regulatory bodies. Those organizations can provide you with resources to help you keep up-to-date. However, it is your responsibility to keep abreast of the latest developments in the profession and to be informed about technical developments through continuing education or other competency programs.

Keep Complete Records

Your records are the chief way to support your recollection of events. This can be of special importance when your version differs from that of the patient. Here are some key “Dos” and “Don’ts” for strong record-keeping:

Do
  • Keep a separate file for each patient.

  • Identify the patient clearly on the file.

  • Include complete remarks on treatment —that are legible and understandable.

  • Describe all your treatment recommendations (including prescriptions and doses), your reasons for them, and the patient’s responses to them.

  • Make a note about any discussions you had with your patient regarding potential risks and side effects of the treatment.

  • Keep complete and up-to-date medical histories of your patients, including their medications.

Dont
  • Don’t keep information on related patients in a “family” file.

  • Don’t ever let original x-rays leave the file.

  • Don’t forget to include notes on discussions you may have had with the patient before and/or after treatment
    (including any telephone conversations).

  • Don’t make subjective statements about patient’s behaviour — remain objective.

  • Don’t perform any treatments without reviewing a patient’s file and medical history.

Establish Open Communication with Your Staff

Your office staff can provide valuable insight into your patients’ situations. For instance, a patient might talk to your receptionist about a medical condition they have which could affect your treatment choices. Therefore, it is imperative all your staff know that they must communicate patient information directly to you, and with each other. It is also your responsibility to ensure that your staff correctly perform their clinical duties — and only perform duties they are licensed for.

Two dentists, dental assistant and businessman in exam room, portrait

Obtain Informed Consent

Obtain informed consent for any treatment plan that you develop for a patient. Whenever possible this consent should be written, signed by the patient, and kept on file, especially if someone is providing consent for a minor. With verbal consent, make a note of it in your patient’s chart. Consent to Treatment forms are available from your dental association or from CDSPI. Written Consent for Treatment of children is a special case; contact your regulatory body for details.

To get informed consent you must:

  • Explain the diagnosis, prognosis, and reason for treatment.

  • Explain the procedure in language that the patient can understand.

  • Explain possible adverse effects.

  • Describe alternative procedures, if any, and explain their strengths and weaknesses.

  • Advise the patient that the procedure can be stopped at his or her direction.

  • Obtain the patient’s consent to proceed with the recommended treatment.

If a Patient Refuses Treatment

If a patient refuses to undergo non-elective treatment:

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  • Explain the risks in refusing treatment and ensure he or she clearly understands these risks.

  • Write detailed notes in the patient’s records about the advice you give.

Consider giving or sending the patient a letter reiterating the risks of refusing treatment that you verbally explained. The schedule of treatment, provided in writing to the patient, should clearly state that the patient’s refusal of treatment releases you from liability for any consequences that might occur from that refusal.

WHAT TO DO IF YOU EXPECT A LAWSUIT

Contact the CDSPI Claim Support Centre at 1.800.561.9401 so we can advise you of further steps you need to take. It is a condition of your malpractice  coverage to report any claim or potential claim on a timely basis.

Never alter or destroy documents or diagnostic imagery, as this could severely jeopardize your standing if the case were to head to litigation.

Do not discuss the claim or complaint with the patient or make any further comments, alterations or written summaries in the patient’s chart.

Do not admit liability or offer money or other forms of restitution directly to the patient. While it may be tempting to try to smooth things over with the affected party, by admitting liability directly to the patient you can seriously jeopardize your insurance claim and coverage.

Stay focused on your practice. An adjuster will be assigned to manage your case and make recommendations about how to proceed. If a claim proceeds to litigation it is taken over by the insurer’s legal counsel and fees are covered by your malpractice insurance.

Malpractice Insurance and TripleGuard™ Insurance are underwritten by Zurich Insurance Company Ltd. CDSPI Malpractice Insurance is offered in all provinces and territories except Alberta, Ontario and Quebec.

The information contained here is a summary only. A full description of coverage and eligibility, including exclusions, restrictions and limitations can be found in the Policy Terms and Conditions governing each plan.