Dental legal issues that require an investigation by an odontologist fall into two broad categories: (1) personal injury to the dental-facial complex and (2) delivery of dental treatment with regard to an accepted standard of care. Personal injury cases can involve standard of care issues in some instances as well. Both of these categories involve legal implications that necessitate an independent expert opinion from a forensic odontologist.
In the most general terms, personal injury cases may involve injuries to the face, teeth and jaws. These may be sustained accidentally or intentionally. Injuries to the teeth and/or jaws can be complex, requiring extended periods of time to resolve. In such cases, there will be concerns about the future costs associated with maintaining and replacing dental prostheses over the lifetime of the injured individual. When combined, all of these issues may require an expert dental opinion to define those injuries that are directly associated with the incident. Long-term treatment estimates include the treatment modalities utilized to restore the individual to their optimum health and the expected future care and costs for maintenance. All of this information must be documented and presented to the legal representatives for determination of any settlement for immediate and long-term care.
Standard of Care cases: Dental malpractice cases may involve questions about phases of the entire dental treatment process. These phases include:
When viewed from this approach, the standard of care is best defined as a process and not a single event. It is important to note that the dental standard of care is a dynamic process with changes that evolve as practices, techniques, technology and dental materials improve. The clinician must be responsible for keeping up with the most current evidence-based professional standards.
During the entire timeline from meeting the patient to completing treatment and all post-operative care, any deviation from the accepted dental standard of care may offer the patient an opportunity to pursue litigation (Figure 30). To do so, the following four criteria must be met:
The best protection for the provider in cases that question the standard of care provided with any given patient is the dental record. It must be complete, written legibly (if not using electronic dental records) and contain the entire patient-doctor interaction from every appointment and other contact the patient had with the provider. It should contain all treatment notes, comments from the patient, instructions given to the patient and any other information that would need to be discussed and documented. Once entered into a patient record, no part of that original record should be altered in any way. Additional notations can be added to explain why a change in the content of the note is necessary, however, altering or destroying a patient record is illegal and will usually create huge problems when defending the treatment provided. Simply stated, the dental record is the sole historical recording of every patient contact as well as being a permanent legal document.
While the dental record is technically owned by the patient, the doctor is the legal custodian. As a result, the doctor is charged with keeping the record and protecting its confidential content. The American Dental Association Code of Ethics states that patients who request in writing a copy of his/her record should be provided with copies. The record may be provided at a nominal cost for duplication or at no cost (Figure 31).3 When properly maintained, a good patient record will accurately and completely reflect the entire history of the patient in that practice.
ADA Advisory Opinion 1.B.1
FURNISHING COPIES OF RECORDS
A dentist has the ethical obligation on request of either the patient or the patient’s new dentist to furnish in accordance with applicable law, either gratuitously or for nominal cost, such dental records or copies or summaries of them, including dental X-rays or copies of them, as will be beneficial for the future treatment of that patient. This obligation exists whether or not the patient’s account is paid in full.
It is extremely important to differentiate substandard care from untoward results of appropriate treatment. For example, a dry socket following the removal of a wisdom tooth is not necessarily substandard care, assuming the patient was seen and treated for the post-extraction complication. Similarly, a periapical lesion that doesn’t heal after root canal therapy that may require further treatment, including the necessity of apicoectomy, re-treating the root canal, or extraction is not necessarily substandard care. In the end, most legal conflicts can be avoided by keeping the lines of communication open between the provider and the patient. Good communication and making sure the patient understands the diagnosis, the purposed treatment, the associated risks, benefits, prognoses and costs is critical to successful provider-patient relationships.