PIAA Research Notes - Dental Malpractice Claims

PIAA Research Notes - Dental Malpractice Claims
In the Fall of 2000, the PIAA (Physician Insurers Association of America) published the following article summarizing compiled data on dental malpractice claims. ProNational insured dentists may find this information helpful from a risk management perspective.
According to the National Institute of Dental and Craniofacial Research, while 44 million Americans lack health insurance, 108 million lack dental insurance. Many workers lose their dental insurance when they retire and only 60 percent of baby boomers reportedly receive dental insurance though their employers.1 Another study by the Oral Health America group found that 85 percent of the elderly lack dental coverage. The Centers for Disease Control and Prevention surveillance of dental service use and dental insurance coverage found that dental insurance was associated with increased use of dental services.2
The significance of oral health has become more evident in recent studies. Chronic oral infections have been linked to possible associations with diabetes, stroke, heart and lung disease, and low birth-weight premature births. As the importance of a patientÇƒÙs oral health on overall health becomes understood, it is reasonable to expect that the role and responsibilities of dentists in health care will be expanded. This, combined with proposed legislative changes to increase access to dental services, raises multiple issues on the future course of dentistry and oral surgery as well as associated malpractice claims.
Members of the Physician Insurers Association of America (PIAA) insure over 90,000 dentists worldwide. General dentistry and oral surgery account for 630 claims and for $8,692,532 of indemnity paid to patients in the PIAA Data Sharing Project. The majority of these claims (520) were reported since 1995, when the PIAA began formally tracking dental claims.
The most common misadventure (i.e., allegation) for dentists/oral surgeons reported in the Data Sharing Project was Çƒ?Improper Performance,Çƒ? occurring in 59 percent of claims. The following case studies provide examples of this type of claim:
Case 1
A 32-year-old male patient had a wisdom tooth removed by
a general dentist. After the procedure, the patient began experiencing burning and numbness of his tongue. The patient filed suit alleging the dentist was negligent and injured the patientÇƒÙs lingual nerve during the procedure. The patient also alleged the dentist failed to tell him that an untrained dental assistant would be assisting with the procedure. A jury awarded the patient $894,300, which was reduced to $250,000 under the state damage cap.3
Case 2
A 55-year-old male patient had upper and lower implants placed by the dentist. Both implants failed. The patient alleged the implants had been improperly placed, which resulted in failure and the need for additional treatment. The verdict was for the plaintiff in the amount of $50,000.4
The second and third most common misadventures for dental claims are Çƒ?Errors in DiagnosisÇƒ? (11.3 percent of dental claims) and Çƒ?No Medical/Dental MisadventureÇƒ? (7.9 percent of dental claims). Çƒ?No Medical/Dental MisadventureÇƒ? is categorized as a situation where there is an absence of an allegation of any inappropriate clinical conduct on the part of the insured dentist. From this information, it appears dental claims are more likely to be based on misadventures related to performance rather than diagnosis.
For all claims reported to the Data Sharing Project, the average patient age for dental claims was 29. Women filed the majority of dental claims (65 percent). Women had a slightly higher payment ratioÇƒÓ63 percentÇƒÓcompared to 57 percent for men. There was no significant difference between men and women for average severity of injury and average indemnity (payment to the patient).
Claim severity was determined using the National Association of Insurance CommissionersÇƒÙ (NAIC) severity index of one to nine, with one representing emotional injury and nine representing patient death. The average severity of dental claims was 4.3. There were nine deaths reported for dental claims, accounting for 1.4 percent of all dental claims. The lower severity of dental claims is reflected in the low average indemnity of $33,562 and median indemnity of $15,000.
The average insured dentistÇƒÙs age for dental claims was 45. According to the American Dental Association, 13.4 percent of dentists were female in 1999; however, female dentists accounted for only 9.7 percent of dental claims in the Data Sharing Project.
The most common dental conditions reported for dental claims were Çƒ?Dental CariesÇƒ? and Çƒ?Unspecified Disorder Of The Teeth And Supporting Structures,Çƒ? each accounting for 13.2 percent of claims. The most common procedures involved in dental claims were Çƒ?Other Surgical Extraction Of ToothÇƒ? reported in 14.3 percent of claims, followed by Çƒ?Root Canal NOSÇƒ? (not otherwise specified) in 12.6 percent of claims.
For dental claims with an associated issue reported, Çƒ?Consent Issues/Breach of ContractÇƒ? topped the list at 42.7 percent. Another frequently cited issue was Çƒ?Problems With Records,Çƒ? at 21.3 percent. When a dental claim involved an associated issue of consent, payment occurred 68.1 percent of the time. When there was a problem with records, payment occurred 72.4 percent of the time. Overall, 41.1 percent of dental claims result in paid indemnity to the patient.
It should also be noted that the legal community appears to be taking an increased interest in dental malpractice claims. A search on the Internet yielded hundreds of law practices soliciting plaintiffs in dental malpractice actions. There are a number of dentists who are also attorneys specializing in dental malpractice claims. While it does not appear this increased interest is driven by the potential for financial gain (because the average indemnity of dental claims is low), there are other factors to consider.
The payment ratio for dental claims is significantly higher than that for physician claims in the Data Sharing Project. As noted previously, 41.1 percent of dental claims result in paid indemnity to patients, compared to 31.4 percent of medical claims resulting in payment. This would indicate that plaintiff attorneys are more successful when pursuing general dental claims. Also, claims for general dentists and oral surgeons have two of the shortest average time intervals from report date to close dateÇƒÓ20.8 months and 22.7 months, respectively. These two factors combined indicate dental claims are proving to be a stable market for plaintiff attorneys.
Another trend is the increased performance of cosmetic procedures by dentists. In October 2000, the ADA issued a press release in which Dr. David Garber was quoted as saying Çƒ?weÇƒÙre moving from a needs-based dental practice to a want-based practice, i.e., from taking care of pain to improving the way people feel about themselves.Çƒ?5 Cosmetic procedures are appealing to many dental practices since patients pay for the procedures themselves, thus eliminating the necessity of dealing with insurance carriers. The impact of cosmetic dentistry will almost certainly lead to an increase in Çƒ?Improper PerformanceÇƒ? allegations and claims alleging Çƒ?Consent Issues/Breach of Contract.Çƒ? An increase in cosmetic dentistry could lead to a dispro-portionate increase in dental claims and payments. Patients undergoing cosmetic procedures not only need to be fully informed of the pros and cons of the procedure, but also should have realistic expectations of the outcome.
Dental services may well expand if the new studies stressing the importance of oral health increase efforts to make dental services available to more patients. As dental insurance is made available to more patients, it is likely that more patients will seek dental care. And, while this is good news, it also results in an increase in the opportunity for potential errors and malpractice claims.
Strategies for Risk Reduction Related to Dental Malpractice Claims
Discuss treatment options, and pros and cons with the patient in a manner the patient can understand.
Encourage patients to seek second opinions if they are still uncertain.
Assess the patient to determine if he/she has realistic expectations of the treatment.
Obtain documented informed consent from the patient or the guardian prior to performing any procedures.
Ensure that subordinates are licensed/certified as per individual state statutes.
Implement a plan to assess and evaluate the performance of subordinates on an ongoing basis.
Footnotes
National Institute of Dental & Craniofacial Research, National Institutes of Health, Press Release, May 25, 2000.
Centers for Disease Control, MMWR Weekly, December 19, 1997, Dental Service Use and Dental Insurance Coverage - United States,
Behavioral Risk Factor Surveillance System, 1995.
Superior Court of Los Angeles, California; Case Number: PC 018884, Delp v. Moody, 11/9/98.
Supreme Court, New York County, New York; Case Number: 108827/93, Rado v. Mailman, 6/22/99.
American Dental Association News Release, October 2000, Çƒ?Vanity No Longer a Bad Word.Çƒ?
The information contained herein is a reporting of data obtained from the PIAA Data Sharing Project as augmented by information contained in other published literature. This information is not intended to be, or should not be interpreted as being, a standard of care.