Proactive Measures Can Lessen—But Not Erase—Risk of Lawsuits

May 16, 2016
Ed Rabinowitz

Practicing dentists face an ever-present risk of a lawsuit, even if they never do anything wrong. However, attorneys say there are a number of steps dentists can take to minimize their risk of being sued.

The times may change, and trends may come and go. But lawsuits remain the single biggest fear among dentists. And with good reason.

Nick Jurkowitz, partner at Fenton Law Group, says the litigation environment is relatively strong for all healthcare-related services. In other words, lawsuits are prevalent.

“People are not afraid to go after their practitioner if they believe they’ve done something wrong,” Jurkowitz says. “The biggest risk is negligence.”

New Products and Negligence

Jurkowitz acknowledges that new technologies and products often affect the practice of dentistry. If a practitioner is not properly trained in using these products, or does not understand the side effects and possible consequences of using a new product, there’s an increased risk of harming a patient. And once a patient is harmed, the door is now wide open to liability and litigation.

“Negligence is definitely the number one problem between a dentist and his or her patient,” he says.

How insulated are dentists from product lawsuits? Is there a clear line between when the dentist is at fault and when the fault lies with the product? Jurkowitz explains that anyone who is in the chain of supply theoretically could be exposed to liability for a defective product. For example, if a tire is defective, the company that made the tire, the company that puts the tire on the customer’s car, and the dealership that sells the tire could all technically be liable for a defective product.

He says the same is true in dentistry.

“You would think that ultimately the liability would reside with the manufacturer, if it was a true manufacturing defect that a dentist could not have easily discovered,” Jurkowitz says. “But if the harm to the patient is more on the use of the product, such as using it in a way it shouldn’t have been used, then that could be the dentist’s fault.”

He adds that it’s simply prudent to not make use of any products or tools unless you are completely comfortable with them, and are going to use them in a safe and effective manner.

Chair-Side Manner

Having a poor bedside manner is often a lament that doctors hear from patients. The same is true where dentists and their staff are concerned. And Jurkowitz says there’s a “tricky line” between being sympathetic and admitting you’ve done something wrong—the latter of which could be used against a practitioner in a lawsuit.

“Be understanding; be receptive,” Jurkowitz says. “I think that goes a long way. There are people out there who will sue a practitioner just to get money, because they think it’s a possibility. But I think a lot of times people feel wronged. So, if they have a sympathetic and understanding dentist or practitioner, then that feeling of being wronged is lessened. And I think you certainly can avoid some lawsuits that way.”

As an example, Jurkowitz says that if a patient has to have work done for an infected root canal, it’s certainly an annoying inconvenience. But if the doctor is sympathetic and understanding, even in terms of what the patient is charged—perhaps offering a partial reimbursement, potential lawsuits can be avoided.

“It’s not a good idea to be defensive,” he says. “You’re trying to defend yourself, but what the patient hears is, ‘You’re calling me a liar. You’re just cold-hearted, and all you care about is money.’ So don’t be defensive. You just need to be understanding, sympathetic, and listen to the patient.”

Someone Running Point

Jurkowitz suggests that, where feasible, it can be helpful to designate a staff member as the point person with regard to risk management. Of course, it’s essential that person is up-to-date on trends and issues, as well as possessing good communication skills.

“That would be a great person to direct patients to,” he says. “In any customer service industry, having someone who can say, ‘I’m sorry that happened. I will let the dentist know right away and he or she will get in touch with you,’ can be very beneficial.”

Making yourself completely immune to liability is not realistic, Jurkowitz points out, simply because people are human and they make mistakes. But two areas where there is definitely room for improvement are with technique negligence, and billing—particularly when it comes to billing or dealing with insurance companies and government payers.

“When it comes to techniques, make sure that what you’re comfortable with what you’re doing in your office,” Jurkowitz says. “Make sure that your employees, technicians and assistants, are receiving the proper supervision.”

In addition, make certain that billing is being done honestly and correctly, and that it’s being reviewed periodically—either by the dentist or by an outside billing consultant.

“A lot of liability is exposed both criminally and civilly because billing is not being done correctly.”