LEGAL CONCEPTS INFLUENCING LIABILITY
To understand the responsibility of the dentist in risk management, it is important to review several legal concepts pertaining to the practice of dentistry. Malpractice is generally defined as professional negligence.
Professional negligence occurs when treatment provided by the dentist fails to comply with “standards of ” care” exercised by other dentists in similar situations. In other words, professional negligence occurs when Professional In most states the standard of care is defined hv that
which all ordinarily skilled, educated: and experiencederitist would do under similar circumstances. Many states adhere to a national- standard for dental specialists. . 1a1practice occurs when the patient proves that the dentis failed to comply with this minimal level of care, ‘hich resulted in injury. In most malpractice cases the patient IlIU,t prove all of
the following four elements of a malpractice claim:’ (1) the applicable standard of care (legal duty), (2) breach of standard of (are, (3) injury, and (4) the breach caused the injury. The burden of proving malpractice lies with the plaintiff (patient). The patient must prove by a preponderance
of the evdence all four elements of till’ claim. First, there must be a professional relationship between the dentist and patient before a legal duty or obligation is owed to exercise appropriate care. This relationship can be
established if the dentist accepts the patient or otherwise begins treatment. Second, a breach or failure to provide treatment that satisfies the standard of care must be demonstrated. This standard of care does not obligate the
dentist to provide the highest level of treatment exercised by the most skilled dentist or that which is taught in dental school. The standard of care is iritended to be a “common denominator” defined by. what average practitioners would ordinarily do under similar circumstances. Third, it
must be shown that the failure to provide this standard of care was the cause of the patient’s injury, Fourth, there must have been some form of damage demonstrated. Dentists are not liable for inherent risks of treatment
that occur in the absence of negligence. For example, a dentist is not 1iable if a patient experiences a numb lip after a properly performed third molar extraction. This is a recognized complication. A dentist can be legally liable
for a numb lip if the patient proves it was caused by negligence (e.g., the numbness was caused by a careless incision, careless LIseof a bur; or other instrument). Recently several suits have charged the dentist with
breach. uf contract. This charge has traditionally beenapplied to business transactions and has not normally been used in disputes between ‘patients and dentists. However, some courts have recently ruled that a patient and dentist may actually have a contractual agreement to produce a specific result, and that failure to achieve this objective may result in a breach of contract. In many states ail alleged promise or guarantee asto the result i’s
not enforceable unless it is in writing. Overly aggressive marketing can lead to contractual liability. Marketing pressures sometimes lead to written advertiscrnents or promotions that can be interpreted as guaranteed
results. Patients who have difficulty chewing after delivery of new dentures, if originally promised that they be able to eat any type of food without difficulty, might consider such promises breach of contract. Dissatisfaction
with esthetics or function. is often linked to unreasonable expectations, sometimes ‘fueled by ineffective comunication or excessive salesmanship.
Hestatute of limltations generally provides a time limit rifiling a malpractice suit against a dentist: This limt however, varieswidely from state to state. -the statute of limitations begins when an incident occur ” In other states the statute of limitations is extended lor a short period after the alleged malpractice is discovered (or when a “reasonable” person would have discovered it). . Several other factors can extend the statute of limitations
in many states. These include children under 18 or the age of majority, fraudulent concealment of negligent treatment by the dentist or leaving a nontherapeutic foreign object in the body (e.g., broken bur or file).