Lawsuits against dental hygienists are uncommon, but they do happen. According to the National Practitioner Data Bank, there were 259 adverse action reports made against dental hygienists or dental assistants in 2022.1 Of those, there were five malpractice lawsuits that ended in court-ordered payment. It is unknown how many of the adverse action reports ended in a monetary settlement without going to court.
Depending on the severity of the lawsuit, it could be professionally damaging and financially ruinous for the provider. Because a malpractice lawsuit is always a possibility, it is important for dental hygienists to be aware of potential lawsuit risks and protections.
Here are five things dental hygienists should know about malpractice lawsuits and liability.
1) The most common reasons dental hygienists are sued
An obvious reason why a patient might sue a hygienist is that the patient was physically injured. We work with many sharp instruments on living, moving patients, and sometimes accidents happen.
Other common reasons for malpractice lawsuits include failure to update medical history, failure to document in patient chart notes comprehensively, failure to diagnose periodontal disease, and failure to diagnose (i.e., detect) oral pathology, such as cancerous lesions.2
We can prevent malpractice lawsuits by paying extra attention to each of these areas of patient care.
2) You do not necessarily need to make a mistake to be sued
We’ve all heard stories about frivolous lawsuits such as coffee being too hot or property owners being sued when a trespasser injures themselves on the property. Basically, a lawsuit could come our way without us even making an error. For example, a patient could trip over the base of the chair in our operatory and injure themselves.
There are also many procedures where adverse reactions are possible. For instance, we can follow all the safety protocols when administering local anesthesia, however, paresthesia or a hematoma might still happen.
Providers should know that a lawsuit is possible, even for the best and most competent hygienists.
3) You may not be covered by your employer’s liability insurance
As we’ve seen with dental insurance, every insurance plan and its coverage is different. That’s why hygienists shouldn’t count on being properly covered by their employer’s plan. The employer may only have basic coverage that insures themselves as an individual. It is also possible that an employer’s policy has lapsed.
The best way for a hygienist to be sure they are covered by liability insurance is to look into the fine details of liability insurance plans, understand, and purchase their own policy.
4) The benefits and exclusions of your specific liability insurance plan
Many liability insurance options are available for a dental hygienist. When looking into policies, take a close look at what the benefits and exclusions are.
Some policies don’t cover a hygienist when they are volunteering or working with patients as a clinical instructor at an educational facility. If you work at multiple offices, make sure that your policy covers you no matter which office you work at. Some policies provide coverage for proceedings, fines, and penalties for HIPAA violations, while others don’t.
Consider your specific situation to find the right policy for you.
5) Communication is key
Patient communication is an integral part of dental care. It is especially important when a procedure doesn’t go as planned. A proper explanation of an adverse event may help prevent a lawsuit.
For example, if a restoration is dislodged during a hygiene appointment, the patient should be informed immediately. Hygienists should then educate patients that undamaged, sound restorations are durable enough to withstand hygiene therapy. If a restoration dislodges during hygiene treatment, the restoration is most likely failing for reasons such as secondary decay, fracture, marginal deficiencies, wear, or bonding failure.
If a patient understands why something happened, they may be less likely to make it a legal matter. In this example, after informing the patient and explaining why this can occur, the next step would be to have the dentist examine the area, determine the cause, and if due to a failing restoration, reinforce that undamaged, sound restorations should not be able to dislodge by hygiene treatment. Then, the dentist, hygienist, and patient can work together to establish a proper treatment plan for the patient.
Another important part of patient communication is informed consent. Patients should be made aware of why treatment is needed, the risks and benefits of treatment, alternative treatment options, risks of not having treatment, possible treatment outcomes, and a chance to ask questions before any procedures are performed. Implicit or verbal informed consent may apply for low-risk/simple procedures, exams, or assessments (i.e., radiographs, periodontal charting). For more extensive treatment, a written informed consent form should be signed.
Proper documentation in patients’ chart notes is paramount when defending yourself against a lawsuit. Chart notes are considered legal documents, so be sure to write down in detail everything that happened. Your chart notes will communicate the exact situation to other providers, the patient (if they request their records), lawyers, and the court if a lawsuit occurs.
Thinking about malpractice lawsuits can be stressful, but it is important to have a plan in place should the situation arise. There are many liability insurance plans for dental hygienists that are under $100 per year. For such a small price, it can provide peace of mind all year and financial protection in the event of a lawsuit.
Along with liability insurance, it is important to provide the highest level of patient care, communication, and documentation. Together, these are our greatest defenses against malpractice lawsuits.
The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. Readers should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice.
Before you leave, check out the Today’s RDH self-study CE courses. All courses are peer-reviewed and non-sponsored to focus solely on high-quality education. Click here now.