Top reasons hygienists are sued

Nov. 12, 2013
While it is true that dentists are sued far more often than dental hygienists, the fact remains that dental hygienists are subject to liability.
Strategies for avoiding malpractice claims

By Dianne Glasscoe Watterson, RDH, BS, MBA

While it is true that dentists are sued far more often than dental hygienists, the fact remains that dental hygienists are subject to liability. Knowing the top liability risks is an important factor in practicing competently and providing high-quality patient care.

For the most part, dental hygienists are dedicated to providing excellent care to patients. Hygienists are known for their attention to detail in all aspects of the patient visit, beginning with updating the medical history and continuing to the completion of whatever level of care was treatment planned. Hygienists are also well educated in infection control measures and understand the necessity of maintaining the sterile chain so as to protect their patients and themselves.

However, life in the dental office can be hectic at times. One reality is that hygienists fight a never-ending battle with the clock, and many different factors can cause the hygienist to run behind schedule. The patient was late arriving; the doctor kept the hygienist and patient waiting inordinately for the exam; the patient required more time than was allotted; the patient, doctor, or hygienist was too chatty; the patient kept having to visit the restroom; the power scaler was broken; the hygienist was overscheduled; and on and on.


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Running behind schedule is a major source of stress in the dental office. Whatever the reason for running behind time, hygienists sometimes have to rush through elements of the visit out of necessity. Unfortunately, rushing can lead to mistakes that affect patient care.

Given the delicate nature of the work, accidents can happen even when lack of time is not a factor. A sudden jerk of the patient's head or breakage of an instrument can lead to a laceration or worse, such as aspiration of an instrument tip. An equipment malfunction can cause an injury. The hygienist may be distracted and may fail to see some pathology in the patient's mouth. In offices using paper charts, illegible handwriting can cause clinicians to provide incorrect treatment.

Our Litigious Society

According to J. P. Graskemper, DDS, JD, there are two main reasons that patients sue dental professionals: (1) the patient has been harmed as a result of treatment or nontreatment; and (2) the patient wants money. CNA HealthPro estimates up to 80% of malpractice claims are not because of substandard dentistry but are related to money issues; money issues may be over money the patient paid to the practice or money still outstanding. The patient may become irate over being turned over to a collection agency. CNA HealthPro states:

The only tangible benefit a patient can gain from a malpractice claim is money. A malpractice claim cannot turn back the clock to prevent the alleged injury from occurring. Nor can it ensure that any corrective treatment for the alleged injury will return the patient to the way he or she used to be. So, the law permits the award of monetary damages to compensate for the inability to be made "whole" again, or otherwise returned to the way they were before.

According to National Practitioner Data Bank, there were 20,545 actions taken against dentists between the years 2002-2012. During the same period, there were 2,260 actions taken against dental hygienists or assistants (http://www.npdb-hipdb.hrsa.gov/resources/npdbstats/npdbStatistics.jsp#contentTop). That amounts to an average of 2,054 actions per year against dentists and 226 actions against hygienists and assistants.

The top four areas of potential liability are presented in the shorter articles.

1. Failure to update medical history

According to the ADA Council on Scientific Affairs, a completely new medical history on most patients should be obtained on average every three years. If the patient has a complicated medical history, more frequent complete updating is in order. However, the medical history should be updated every time the patient is seen in the clinical area. Clinicians should ask if there have been any changes since the last visit. If there are no changes, the notation should state, "Patient states no changes in medical history." This defensive charting method informs the reader that you asked and the patient answered. (Abbreviations are permissible, such as "Pt. states NCMH.")

It is not uncommon for some patients to balk when asked to complete health history forms. One possible reason is that as many as 50% of the adult population today is only marginally literate or is functionally illiterate. An article in the Illinois Dental News entitled "Uncovering the Secret Nearly 50% of Your Patients May Be Keeping" cites research that reveals that those with limited literacy skills do not understand or are not aware of concepts basic to common diseases. When patients express hesitation, the clinician should complete the form for the patient by conducting a medical history interview.

Another problem is that some patients seem to resent being asked to fill out a medical history update form. Some will express consternation or even anger when they are presented with a clipboard and blank form. Most likely, medical history update requests are viewed as an imposition on the patient rather than integral to the practitioner's ability to provide care safely and competently. When patients express frustration, the clinician should obtain the medical history through a medical history interview and have the patient sign the interview at the end.

2. Failure to detect oral pathology

It is the dental hygienist's responsibility to perform a thorough intraoral/extraoral assessment on every patient. The reality is that too many hygienists omit what could be the most important part of the dental hygiene visit. Removing plaque and calculus may help resolve inflammation, but detecting a potentially malignant lesion could save the patient's life. Which is more important?

Dental hygienists are not expected to be able to identify (or diagnose) every oral pathology that exists, but hygienists are expected to know when something in the oral cavity is abnormal. When a lesion is detected in the course of an assessment, the hygienist has a responsibility to thoroughly describe the lesion in the patient narrative – color, size, texture, shape – and then to call any pathology to the attention of the doctor.

Screening for oral cancer should include a thorough medical history of the patient and physical examination of the head and neck region, including a visual inspection and palpation of the head, neck, and oral and pharyngeal areas. A screening should also include a review of the social, familial, and medical histories of the patient along with risk behaviors (tobacco and alcohol usage – people who drink and smoke are 15 times more likely to have an oral cancer), a history of head and neck radiotherapy, familial history of head and neck cancer, and a personal history of cancer. All patients over 40 years of age should be considered at a higher risk for oral cancer.

Patients with complaints lasting longer than two to four weeks should be referred promptly to an appropriate specialist to obtain a definitive diagnosis. If a persistent oral lesion is detected, a biopsy should be performed without delay.

According to Jeff Tonner, JD, the dental hygienist can be named as a codefendant if the doctor/employer is sued for failure to detect oral cancer. Tonner states that oral cancer verdicts in a plaintiff's favor can exceed the limits of the doctor's malpractice coverage.

There are four subcategories in failure to detect oral cancer scenarios:

  • Errors in clinical judgment: improper reliance on a diagnostic study, such as relying solely on a negative pathology report despite the presence of a persistent oral lesion; or failure to perform the indicated diagnostic test due to inadequate suspicion of malignancy because the patient is not in a high-risk group.
  • Failure to follow up: making sure that the next indicated clinical step is proceeding properly. Follow-up failures often result from the lack of a reliable tracking system to ensure that the patient kept the appointment with the specialist or underwent the diagnostic test that was ordered.
  • Failure to screen patients appropriately: infrequent examination of patients in a high-risk group and failure to recommend routine screening examinations on a patient in a risk group.
  • Evaluation delays: involves repeated patient visits with continuing or progressive clinical findings, coupled with the practitioner's failure to perform the indicated diagnostic tests on the patient or to refer the patient for proper testing; or failure to request a consult or referral when a definitive cause for clinical findings cannot be determined. Failure to find a definitive cause for an abnormal clinical finding should always trigger consultation or referral in a timely fashion.

Early detection is extremely important and may be accomplished by proper screening, including a thorough medical history and head and neck examination of the patient. The ability to detect even small lesions is improved with the use of magnification and improved lighting through use of a headlight (Designs for Vision, www.designsforvision.com). Persons who are at risk for oral cancer should be identified and counseled about risk behaviors and their cessation and encouraged to have regular oral examinations. Patients with suspicious lesions should be "kept under a magnifying glass" until the clinician is certain of the diagnosis. A patient with a lesion thought to be benign, who much later develops a malignancy and who is not adequately followed, will invariably claim failure to diagnose or delayed diagnosis, thus blaming their plight on the dentist or oral surgeon.

Accurate records of the clinical presentation of the lesion during follow-up are critical to the defense if malpractice is alleged later. Chart notes should include thorough documentation of all conversations and warnings to the patient about the importance of regular long-term observation, as well as recommendations for any consultations with specialists. The patient's responses to your discussion should also be carefully documented.

3. Failure to detect periodontal disease

Generally speaking, dentists rely on dental hygienists to identify areas of the mouth where periodontal disease is problematic. Presently, the only reliable way to detect bone loss is through conducting a periodontal probing/recording. Hygienists have the primary responsibility for probing, yet many offices have hundreds of patient charts with no up-to-date probing chart for active patients.

The standard of care for periodontal charting is one full-mouth probing/recording at a minimum of once per year for every adult patient. The hygienist can fulfill this obligation more efficiently with assistance from another auxiliary who records the numbers as the hygienist calls them out. Periodontal Screening & Recording (PSR) is a screening method for periodontal disease and is not considered to be a comprehensive probing.

4. Inury to a patient

During the course of care, an injury may occur, such as accidently spilling a chemical on a patient, aspiration of an instrument tip that breaks, or lacerating the tongue or mucosa due to inadvertent instrumentation. If the patient is anesthetized, he or she may not even be aware that an accident has occurred. In the event of an accident, the hygienist should remain calm, immediately summon the doctor, and inform the patient of the situation. Make sure the incident is thoroughly documented in the patient narrative. If a referral is warranted to a specialist or hospital, it is advisable for someone from the office to accompany the patient.

Here are two examples of injury lawsuits against dental hygienists:

D. P., Plaintiff v. West Town Dental Group, Inc., Defendant.

In her dental hygienist malpractice lawsuit filed in 2002, Ms. P simply claimed that on May 1, 2002, while she was anesthetized with Novocain, a West Town Dental Group employee committed assault and battery upon her person by lacerating her tongue during a procedure which necessitated her hospitalization for repair. This suit was settled for a confidential amount during March, 2003.

T. H., Plaintiff v. K. W., RDH, Defendant

In his dental hygienist malpractice suit, the plaintiff stated that the dental hygienist caused an air embolism on his wife while polishing her teeth with a prophy jet device. The patient developed a black eye, and her husband sued the dental hygienist, stating that he did not want his friends and family to think he caused his wife's black eye. The suit was dismissed.

Other Areas of Potential Liability

Here are some additional reasons that hygienists have been sued:

  • Not protecting patient privacy/divulging protected patient information
  • Practicing outside the scope of legal duties
  • Not adhering to standards of care
  • Breaching infection control standards
  • Failure to ask if the patient has premedicated
  • Failure to record thorough documentation
  • Failure to identify or take precautions with a medically compromised patient
  • Upcoding or incorrectly coding procedures
  • Soliciting patients upon change of employment venue

The Best Defense

The laws that affect dental hygiene practice come from several sources. Legislative bodies create statutes known as dental practice acts. These laws define the scope of practice and determine qualifications of hygienists. In addition, state licensing agencies issue regulations pursuant to those statutes. Finally, the rulings of federal and state courts affect dental hygiene practice. All dental hygienists should be well versed in their states' practice acts and should follow the rules and regulations explicitly.

Even when dental professionals practice to the highest available standards, this does not mean they will never be sued. It has been stated that the patient record is the only witness with an accurate memory. Therefore, the patient narrative can be the dental professional's best defense or worst liability in the event of a lawsuit. When deciding how much to write, CNA HealthPro advises the "Amnesia Test":

If you were to forget everything you ever knew about each and every one of your patients, but you remembered everything you know about how to practice dentistry/dental hygiene, you would be able to read any one of your patient charts and quickly be able to: Know what treatment the patient has had and why, and perform whatever treatment is next for that individual and know why it is necessary.

Dental professionals can implement several strategies to control the likelihood of a successful malpractice claim. Those strategies include:

  • Delivering high-quality care that meets or exceeds the standard of care
  • Keeping lines of communication open with patients
  • Thorough and appropriate documentation of care
  • Continually updating the dental professional's knowledge base RDH

DIANNE GLASSCOE WATTERSON, RDH, BS, MBA, is a professional speaker, writer, and consultant to dental practices across the United States. Dianne's new book, "The Consummate Dental Hygienist: Solutions for Challenging Workplace Issues," is now available on her website. To contact her for speaking or consulting, call (301) 874-5240 or email dglass [email protected]. Visit her website at www.professionaldentalmgmt.com.

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