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Dental hygienists can avoid being held liable by educating themselves on what they need to know.

Prevention vs. prosecution: Malpractice and the dental hygienist

April 7, 2023
Malpractice—the very word strikes fear in the hearts and minds of all health-care providers. Read on for examples of liability for dental hygienists you might not be aware of, and ways you can protect yourself.

Malpractice. The very word strikes fear in the hearts and minds of all health-care providers. In fact, according to risk management statistics, every dentist can expect at least one malpractice lawsuit in his or her practice lifetime. What about dental hygienists? Are they at risk? Should dental hygienists invest in their own malpractice insurance? Read on to learn of the unpleasant circumstances surrounding four dental hygienists.

Limits of malpractice coverage

Carol practiced dental hygiene for 25 years without carrying malpractice insurance. She reasoned that there was no need since the doctor's malpractice insurance covered her.

When Carol's employer was sued for failure to diagnose oral cancer, Carol was named as a codefendant in the suit, as she had seen the patient for a preventive care appointment within the past year. While being named in any lawsuit was unsettling, Carol figured she really had nothing to worry about. She knew the doctor had malpractice insurance.

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What Carol did not know was that lawsuits can actually exceed the limits of the doctor's malpractice coverage. According to Jeff Tonner, JD, monetary awards for failure to diagnose oral cancer are the most common lawsuits to exceed the limits of coverage. If a lawsuit is successful and the limits of coverage are exceeded, codefendants can be saddled with monetary damages, because the doctor is the primary defendant.

False security

Jan chose not to carry malpractice insurance. She felt it was really a waste of money, since she knew her employer's malpractice insurance covered her.

One day, Jan accidentally sliced her patient's tongue when she slipped with a sharp instrument. The patient had to go to the hospital and get his tongue sutured. The patient subsequently sued the hygienist for damages.

The doctor's malpractice insurance paid out a monetary settlement to the patient for damages. That should have been the end of the story, but unfortunately there was more to come. Since the doctor was not named in the suit, the insurance company sued the hygienist to recover what it had paid out on her behalf.

The concept of respondeat superior is a Latin phrase that means let the master answer. It means that the owner/doctor of the practice is responsible for the acts of omission and commission of employees while engaging in delivery of dentistry. It is also called "vicarious liability," meaning that although the doctor may not have been involved in an injury to a patient (such as when a hygienist accidentally injures a patient), the doctor is still responsible. However, there is nothing to prevent a malpractice carrier from suing a staff member to recover the monetary amounts paid out on a staff member's behalf.

Surprise, surprise!

Mona had practiced dental hygiene in Texas for 15 years without malpractice insurance. One day, she accidentally spilled a chemical on her patient that caused a burn to the patient's lip. The patient had to see a plastic surgeon and endure pain and suffering associated with the accident. The patient was left with a scar, and she sued Mona.

What a surprise it was to Mona to find out that her employer did not have any malpractice insurance! She did not realize that the state of Texas does not require doctors to carry malpractice insurance.

Policy stipulations

It was a day like any other in the office where Mary had worked for one year. However, Mary would never forget this day. As her elderly patient stood up to exit the treatment room, he cut a gash in his scalp when he staggered and hit his head on the overhead light. He lashed out at Mary that it was her fault, that she should have pushed it out of the way. After a trip to the emergency room, the patient had nine stitches in his scalp.

After consulting an attorney, the patient decided to sue Mary. She had no malpractice insurance of her own, and the doctor's policy carried a stipulation that employees would be covered only if the dentist was named in the suit. The patient chose not to name the dentist. Some policies state that if both employer and dental hygienist are named in a suit and the employer's name is later dropped, the insurance policy may not cover the dental hygienist. In this case, Mary may have to countersue her employer's malpractice carrier or even her employer to get relief.

Types of malpractice coverage

It is true that hygienists are not sued nearly as often as dentists, but the above examples point to the necessity of additional malpractice coverage for dental hygienists. The good news is that malpractice coverage is very reasonably priced for hygienists, typically less than $100 per year for coverage.

There are two types of professional liability insurance. The first and most comprehensive coverage is called an occurrence policy. This type of policy protects the clinician for any alleged malpractice that occurs during the policy period. It does not matter when the claim is filed. With an occurrence policy, the clinician is afforded protection after leaving clinical practice even if the policy is not still in force at the time a claim is made. The coverage extends to the period after the clinician retires, so no additional coverage is needed.

The second (and most common) type of liability insurance is called claims-made policy. The policy protects the clinician against claims made only while the policy is active and the clinician is actively engaged in clinical practice. If a clinician retires or leaves practice and a claim is filed after the policy is no longer in force, the clinician has no coverage. With this type of coverage, it may be prudent for the clinician to purchase an additional policy (called "tail coverage") to protect for a limited period of time after leaving practice. For example, consider that a dental hygienist retires or leaves clinical practice in June. In July, a patient files a malpractice suit claiming the hygienist injured him or practiced in a negligent manner during an appointment one month before she left practice. If the hygienist had purchased a "tail coverage" policy to extend her coverage for a time, she would be protected.

Before purchasing any type of policy, be sure that you understand any exclusions set forth (sometimes in small print) in the policy. Also, ask for availability of additional coverage should you be contemplating leaving practice.

Ten areas of potential liability for dental hygienists

1. Failure to update medical history: High-quality chart records are the most important aspect of preventing a patient lawsuit from ever reaching the courts, and the medical history update is of primary importance. According to information provided to the ADA from malpractice carriers, failure to update the medical history is among the top five record-keeping errors. In fact, the medical history should be updated at every patient visit.

One thing every clinician should be clear about is that responsibility for completing the medical history does not rest entirely on the patient. Rather, it is the clinician's responsibility to obtain the medical history. So, when patients balk or express consternation about filling out their medical history, the clinician should take over the responsibility and go through the questions one-on-one. Consider that, according to the U.S. Department of Education National Adult Literacy Survey, almost half of the U.S. population is either functionally illiterate or only marginally literate.

2. Failure to detect oral cancer: Attorney Jeff Tonner posits that, in his experience, the failure to detect oral cancer is the primary reason hygienists are named as codefendants when the doctor is sued for failure to diagnose. By virtue of their education, hygienists are trained to spot abnormalities in the oral cavity. Too many hygienists operate in the "run and gun" mode and omit the most important aspect of the patient visit.

Common causes of liability for failure to diagnose or delayed diagnosis of oral cancer fall into four major categories: errors in clinical judgment, failure to follow up, failure to screen patients appropriately, and evaluation delays. Screening for oral cancer should include a thorough history and physical examination of the head and neck region, including a visual inspection and palpation of the head, neck, oral, and pharyngeal areas. It should also include a review of the social, familial, and medical history of the patient along with risk behaviors (tobacco and alcohol usage — people who drink and smoke are 15 times more likely to have 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 than patients younger than age 40.

The bottom line is this: any patient with a suspicious lesion should be kept under a "magnifying glass" until the clinician is certain of the diagnosis or the lesion resolves.

3. Failure to detect periodontal disease: Hygienists typically are in a codiagnosis role in discovering periodontal disease through periodontal charting, tissue assessment, and radiographs. It is incumbent upon the hygienist to perform timely periodontal assessments and keep radiographs current. The standard of care is one full-mouth probing with all numbers recorded once per year. Radiographs should be taken at an interval appropriate to the patient.

4. Injury to a patient: Unfortunately, accidents usually occur when we least expect them to happen. It is our responsibility to practice according to established standards that minimize the chance of an untoward event. It has been noted by some risk management experts that apologizing to a patient who has been injured is an important part of keeping the lines of communication open and preventing lawsuits.

5. Failure to record thorough documentation in the patient chart: Records are the backbone of the clinician's defense in any malpractice claim. Make sure you record all the pertinent events in the appointment, including materials used and instructions given to the patient.

6. Not protecting patient privacy/divulging confidential patient information: Never, never discuss patient information outside the confines of the office, even with your spouse unless your spouse works in the practice.

7. Failure to ask if the patient has premedicated: According to the newest premedication guidelines published in April 2007, many people who formerly required premedication are exempt from taking antibiotics before the dental visit. It is in the clinician's best interest to require that physicians prescribe antibiotics if they desire certain patients to premedicate prior to dental procedures. This prevents the dentist from being sued if the patient experiences an antibiotic reaction.

8. Failure to inform about treatment options and consequences of nontreatment: The hygienist must ensure that the patient understands the proposed treatment and the ramifications of nontreatment.

9. Practicing outside the legal scope of practice: Practice acts differ from state to state, so dental hygienists must be fully informed of the practice act in the state where she or he practices.

10. Fraud: Dental hygienists have a legal and moral responsibility to report their services truthfully. To do otherwise puts the hygienist at risk for lengthy court proceedings and possible jail time.

Editor's note: Originally posted in 2008 and updated regularly