Dental Malpractice: Is there a Case?

TASA ID: 16998

Whether on the defense or the plaintiff’s side in dental malpractice allegations, there are key questions and considerations that underpin the validity of any claim. These include: What is the nature of the injury? Is the injury severe enough to bring litigation? What is the standard of care for the particular circumstances? Was the injury due to a violation of the standard of care? This article was written to help attorneys define the standard of care in dental malpractice cases, more readily evaluate if the standard has been violated and work more productively with their experts.  

At the time of this writing, the dental standard of care in the USA is a national standard and the same for all clinicians, whether general practitioners or specialists. While clinical training, educational, and continuing education levels vary widely, the general practitioner is expected to perform dental services with the caution, skill and prudence of a specialist. This said, in theory, the generalist is expected to treat more routine cases and the specialist, the more complex ones. For reference, the American Dental Association recognizes a number of specialties including but not limited to oral surgery, pediatric dentistry, prosthodontics (comprehensive full mouth reconstruction), orthodontics (braces), endodontics (root canals), periodontics (gum and bone health). 

One of the authors (RM) is an endodontist. Using endodontics as an example, a patient undergoing a root canal can and should expect that the evaluation, diagnosis, treatment planning, clinical procedure, and follow up care delivered by a general practitioner is that which a cautious, skillful and prudent endodontist would deliver. In part, this means practicing with a clinical and evidence base, as per the relevant and current dental literature. The standard of care is fluid, ever-changing and evolving to reflect new literature, technology and methodology. In short, what may have been acceptable technique in 1985  may not be in 2019-2020. 

Unsuccessful and unfavorable clinical results will occur.  Many phone calls from potential clients turn out to be just that, unfavorable results from a dental procedure. This said, if treatment is carried out in a manner appropriate for the given clinical circumstance, the standard is upheld. The converse is true. Using a clinical example, if a patient complains of a toothache and the appropriate diagnostic testing, clinical examination and history taking is not performed, the chances for misdiagnosis and clinical misadventure (starting a root canal on the wrong tooth for example) are high, because the patient’s chief complaint has not been duplicated. Such duplication of the chief complaint is essential and the standard of care. Alternatively, performing these important steps correctly and routinely insures more predictable treatment outcomes. 

To provide cautious, skillful and prudent care, in an endodontic context for example, the clinician needs training, experience, equipment and staff support. In endodontics, this equipment would include the availability of Cone Beam Computed Tomography (CBCT)—three dimensional radiographs, a surgical microscope—allows high power magnification and visualization, among a host of other high level and widely available technology and methodology. In essence, doing complex root canal treatment with the naked eye using two-dimensional radiography circa 1985 (without these two technologies at the disposal of the clinician), and/or discredited methodology (Formocresol, Sargenti paste—both contraindicated toxic substances) is below the current standard of care. Every specialty and aspect of dentistry has these types of optimal technologies and methodologies. The above is not to say that practicing without these and similar advances is necessarily below the standard of care, but the further away the clinician is from such utilization, the closer to negligence they may be, especially in the event of an injury. 

The above definitions notwithstanding, in the authors experience, several common scenarios reproducibly carry the indicia of malpractice. 

Limited diagnostic testing, no treatment planning, poor quality records. 

It is our experience, almost universally, dentists who are sued have grossly inadequate records. While a comprehensive review of what should be in a general dental record is beyond the scope of this article, it is noteworthy that a dental record should  include  but not be limited to, a written record of: the medical history with vital signs (updated periodically), written informed consent where indicated, charting of restorations, tooth decay, missing teeth, occlusion, temporomandibular joint (TMJ) status, cancer screening, the condition of the gum tissues and bone levels (including periodontal probings), disease and pathology in all forms (soft tissue and bone), a radiographic record that allows diagnosis in accordance with American Dental Association (ADA) standards, and a comprehensive treatment plan (including what options the patient was given, as well as that they were informed of the risks of non-treatment). 

Deviations from the initial treatment plan should be clearly detailed. Records of each appointment should also include, among other key details, affirmation of informed consent, review of the medical history, which materials were used, patient compliance, anesthesia given, and that post-operative instructions were given.  

Specialist records and general practitioner records will be inherently different in that specialist records tend to detail one specific treatment for which the patient was referred.  General dental records will, by definition, be broader in scope. This said, again using endodontics as an example, as a practical matter, the level of detail in the record of an endodontist is generally more exacting and comprehensive than the general dentist. An endodontic record should include, among other details, a diagnosis of the pulpal condition of the tooth treated, a diagnosis of the bone health at the root end (periapical diagnosis) and a description of the restorability and periodontal status of the tooth (i.e. its structural integrity, fracture resistance, degree of bone support, health of the surrounding tissues, etc), among other notes. 

The above detail stands in stark contrast to a record that details an entire procedure by only stating “Root canal #13. Amalgam filling.” Such a note is grossly inadequate. While a deficient chart note is not evidence of malpractice or actionable, it can become very important in later discovery if the defendant doctor did not note the injury and/or adequate treatment of the injury. With inadequate records, a valid question to the defendant doctor in this scenario is, “How can you testify as to what happened if your chart note does not detail the event and/or refresh your memory?”  Your expert can rapidly identify an appropriate record versus one with significant omissions. 

Chart note adequacy is one indication of the caution, skill and prudence of the clinician. It is atypical for there to be a poor-quality records and high-quality treatment and vice versa. Similarly, it is our empirical observation that handwritten records are correlated with a deviation from the standard of care and vice versa with digital records. While empirical we observe that handwritten records are often correlated with a lack of continuing education, investment in equipment and/or utilization of optimal treatment methods. 

Lack of informed consent and record keeping in cases of “scope creep”

When a patient initiates a relationship with a general practice, there should be a written general informed consent covering the common areas of the doctor patient relationship and office policies. When the patient is engaging in a specialty procedure, there should be a much more specific written informed consent detailing the procedure (at the specialty level). Specifically, for example, during an endodontic procedure, a written informed consent specific to that procedure, tooth, and clinical situation should be obtained before the procedure is initiated and/or the patient is under the influence of any mood-altering medications (oral or IV). This informed consent should, among other things, detail the procedure, alternatives, risks of the procedure and show that all the patients questions were answered in advance of the treatment. 

This is clinically relevant because in general practice it is relatively common to have decay, which, once removed during a routine filling, is found to be closer to the nerve than expected (a possible indication for endodontic therapy). Proceeding immediately into a root canal and without taking other appropriate clinical measures (placing a rubber dam covering for throat protection, among others), with the patient laying back in the chair and unable to give adequate informed written consent, is the harbinger of a possible clinical misadventure and below the standard of care. 

When looking at a potential dental malpractice case from the plaintiff’s view, if the only wrong is lack of informed consent, this is inadequate to continue with litigation.  

Morbidity in a clinical outcome which would not be normally expected from the procedure

Plaintiff’s attorneys are looking for why a routine procedure caused the patient injury and where the dentist went wrong.  Again, negative clinical outcomes happen every day but are not proof of a deviation of the standard of care.  The possible clinical outcomes from any given procedure are infinite given a wide variation in anatomy, clinicians, methodologies, materials, etc. This said, utilizing technology, methodology, equipment and instruments in a clinically acceptable manner vastly increases the chance for clinical success and reduces morbidity. 

The converse is true. For example, lets evaluate how an abscessed tooth can become a hospitalization with dire consequences (a real life example).  If a tooth is abscessed (infected with a non-vital nerve/pulp), the patient is visibly swollen (has pus surrounding their tooth) and a numb jaw from the swelling, almost no endodontic specialist under these circumstances would attempt to finish their root canal procedure in one visit. An endodontist would open up the tooth, place medication inside, possibly perform incision and drainage and bring the patient back once the swelling and numbness resolved to complete the procedure. 

Alternatively, to finish a root canal in one visit under these clinical conditions, could easily  exacerbate the infection and land the patient in the hospital with a potentially life-threatening condition. 

As above, your expert can rapidly ascertain if the clinical action taken was within the standard of care for the given clinical circumstances. 

Lack of communication and adequate patient management

While poor communication and patient management are not in and of themselves below the standard of care, they are virtually “co-tango” with dental malpractice. In our experience, it is virtually universal that the patient who has lost trust in their dentist and where the dentist did not respond in a communicative, compassionate, empathetic manner, is much more likely to bring some kind of action or claim against the dentist. Those actions could be insurance claims, dental board complaints, or even complaints on social media.  In many, if not all of the cases we have evaluated, the patient has expressed their dissatisfaction with treatment at an early stage before filing the suit and made a request for remediation (refund, retreatment, referral, etc) and been rebuffed (unwisely) by the dentist. 

For an attorney; however, that the dentist is unpleasant or has poor bedside manner is not enough to bring a lawsuit.  But lack of communication between the patient and dentist can help establish the causal link between the injury and the deviation of the standard of care by showing the dentist was distracted, had poor organizational skills, or was not keeping up with the standards expected of a specialist doing specialist work.  It is the opinion of one author (RM) that if a suit has not been filed, but has been threatened by the patient, that optimally the dentist simply refunds the money, refers the patient, and/or retreats the case at no charge to avoid litigation. 

Figure 6: Sodium hypochlorite, (bleach used for root canal disinfection) was extruded beyond a  tooth during  root canal treatment, causing severe extra oral swelling. 
And finally, we have also empirically observed a greater number of claims made resulting out of treatment in corporate settings relative to private dental offices. This is puzzling.  Despite the rise of corporate dentistry (DSO’s, Dental Service Organizations) over the past several decades, the majority of dental care, in the United States is delivered in private offices and not large DSOs. Given the larger number of private practices, one would think this would be the larger source of claims, but in our experience,  this has not been the case. In the cases we have reviewed, records, digital or handwritten, produced out of DSO or larger multi-doctor clinics has generally not been adequate. 
This article was written to help attorneys evaluate the merits of their cases. It is hoped that the information contained, in conjunction with the utilization of relevant experts can provide a robust defense against meritless cases and alternatively provide the patient who has suffered injury and seeks damages to heal and move forward. We welcome your feedback. 

About the Authors:

TASA ID#: 16998 graduated from Northwestern University in 1985 with a DDS degree and completed his endodontic residency at the Oregon Health Sciences University in 1991. He has been in clinical practice continuously since graduation. An expert witness providing expert consultation, written case evaluations and narratives, and testimony. He has lectured nationally and internationally and is widely published in dental trade magazines. In addition, he has been a consultant and key opinion leader a number of  endodontic companies. 

Elizabeth E. Welch is the owner of Elizabeth Welch Attorney at Law, where she focuses her practice in plaintiff’s personal injury. She is admitted to the Oregon State Bar; Oregon Trial Lawyers Association; American Association for Justice, and Multnomah County Bar Association. She is a past treasurer of the Multnomah Bar Association and past board member of the Oregon Trial Lawyers and the Multnomah Bar Association. Ms. Welch graduated from the University of Georgia and earned her J.D degree from Lewis & Clark Law School. She can be reached at eew@northportlandattorney.com. 

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author TASA ID#: 16998. Contact marketing@tasanet.com for any questions.


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