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Substandard dentistry: What is hygienist's legal responsibility?

Aug. 10, 2021
As she watches her dentist perform substandard care, this hygienist is concerned she might lose her license if the dentist is ever sued. Is there anything she can do?

Dear Dianne,

I’ve been in dental hygiene for nine years. The first seven years, I worked with a dentist who did excellent clinical dentistry, and he took a lot of pride in his work. However, he was hard on all the staff members and handed out criticism liberally. We rarely heard a good word about our job performances. I finally had enough and decided to move on. My next job, where I currently work, is with a wonderful dentist who is very kind and caring. We are treated with utmost respect, and he often brags on us to patients. Most of our patients are older than 50 and have come to this practice for much of their lives. The problem is that his dentistry is, in my humble opinion, substandard. I find overhanging margins and recurrent decay regularly. I see decay on radiographs, and he’ll say, “Let’s watch that.” I’ve found many crowns with terrible margins, and I’m at a loss as to what to say. After all, he’s the dentist and I’m just an employee. My questions to you are: What is my legal obligation? When does substandard work turn into negligence? Is my license in danger from his substandard dentistry?

Caught in a conundrum

Dear Caught,

During my long career in dentistry (which will be 50 years in 2022), I have observed a long continuum in skill levels, from downright horrendous to stunningly excellent, with most being somewhere between the two extremes. Dentists may have similar clinical education, but the real learning begins after they graduate from dental school. Just like with any other profession, people develop skill levels over time. Some become clinically excellent, some settle into mediocrity, and some become clinically deficient. Please note—I’ve never met a dentist who thought they were a “bad” dentist.

You have asked some excellent questions, so let’s examine the issues. Specifically, let’s look at what constitutes negligence, the different kinds of negligence, the difference between negligence and malpractice, and your role as an employee.

First, it is helpful to consider the difference between negligence and malpractice. Negligence is defined as a failure to use reasonable care to avoid injuring another party. According to Burton Pollack, DDS, MPH, JD, negligence can be:

1. Doing something that a reasonably prudent person would not have done—an act of commission.

2. Not doing something that a reasonably prudent person would have done—an act of omission.

3. Doing something that a reasonably prudent person would have done, but in doing it, failing to meet a reasonable standard of care—a breach of the standard.¹

For negligence to be proven, there must be an injury to an innocent person that is proximately caused by a failure to act reasonably. Gross negligence is “the intentional failure to perform a manifest duty in reckless disregard of consequences as effecting the life or property of another.”1

Often the terms malpractice and negligence are used interchangeably. Malpractice is a special form of negligence. All acts of malpractice are the result of negligence, but not all acts of negligence are malpractice. To help understand this, Dr. Burton Pollack asserts, “All dentists are health practitioners, but not all health practitioners are dentists.”1 Consider that a dentist extracts the wrong tooth. That act would be considered negligence, not malpractice. Malpractice is often referred to as “professional negligence.” In a court proceeding, expert witnesses are typically required in professional negligence (or malpractice) cases, whereas general negligence cases do not require expert witnesses.

Dr. Pollack quotes a judge in the New York Pattern Jury Instructions that I believe are pertinent to this discussion.

“The law recognizes that there are differences in the abilities of [dentists], just as there are differences in the abilities of people engaged in other activities. To practice [dentistry], a [dentist] is not required to have the extraordinary knowledge and ability that belongs to few [dentists] of exceptional ability. However, every [dentist] is required to keep reasonably informed of new developments in (his, her) field and to practice [dentistry] in accordance with approved methods and means of treatment in general use… By undertaking to perform a [dental] service a [dentist] does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the [dentist] liable… A [dentist] is not liable for an error in judgement if (he, she) does what (he, she) thinks is best after careful evaluation if it is a judgement that a reasonably prudent [dentist] could have made under the circumstances…”²

There is a fine line between negligent practice and performing substandard work. If a dentist does not remove all decay, it is not because he didn’t try. There are often clinical circumstances that make it difficult, if not impossible, to attain perfection. If a dentist inserts a crown with a bad margin, it’s not because there was an intention to do wrong. It was simply an error in judgement or the process.  

Dentists often differ regarding treatment planning and range from ultra-conservative to overly aggressive. It’s not good to be at either of those extremes. The ultra-conservatives tend to “watch” lots of dental problems until they become significant problems, whereas the overly aggressive tend toward overtreatment. For example, they will recommend a full-coverage crown on a tooth that needs a small two-surface restoration. I’ve worked in both clinical environments, and I was not comfortable in either situation, so I moved on.

As far as your responsibility is concerned, it is important for you to understand that you are not responsible for any deficient work done by the dentist, nor would your license be in jeopardy. However, it is important for your chart notes to reflect what you observe, such as “possible decay at #30 D.” The reason I recommend you use the word “possible” is because you are not tasked with diagnosing. It is clear that hygienists are fully capable of recognizing decay and other oral problems, such as poor margins. Diagnosing is in the purview of the dentist.

So, by using “possible,” you are recording you saw something worth noting. For example, when you find a lesion in a patient’s mouth, you might not know what it is, but you can describe it in the narrative as you were trained to do, noting color, location, consistency, size, and more. My colleague, Jeff Tonner, JD, told me he was called upon to defend a dentist who was charged with failure to diagnose oral cancer. The hygienist was also named in the suit, but because her chart notes were so thorough, she was dismissed from the suit. She described what she saw, period.

Most dentists respect the expertise of their hygienists, and it would not be inappropriate for you to speak with the dentist privately when you find something that he may have missed. None of us are perfect, and one of my mantras is “four eyes are better than two.”

In my clinical experience, if a dentist’s skills are so deficient that patients must consistently have work redone, the practice will have a hard time staying viable. Further, if someone is injured as the result of defective work, a lawsuit is imminent.

However, there is one other angle I feel the need to address. If you suspect your boss is engaged in substance abuse of any kind that affects his or her ability to treat patients safely, I feel it is your duty to speak to the dentist privately and encourage professional treatment/counseling. If you observe signs of intoxication, trembling hands, severe agitation, etc., patient care could be jeopardized. If the behavior continues, it is your responsibility to report this to the state board. Patient safety is their mandate. By remaining silent, this could be seen as being complicit.

The fact that you previously worked with a clinically excellent dentist puts you in a unique position. You know what constitutes great dentistry because you saw it regularly. You also know what it is like to work with a doctor who is harsh and unkind to staff members. Think about it. You must weigh the pros and cons, which is often the case in any work situation.


1. Pollack BR. Law and Risk Management in Dental Practice. Quintessence Publishing Co. Inc. 2002.

2. New York Pattern Jury Instructions–Civil, vol. 1A, ed 3. St. Paul, MN: West. 2002.