Management of Malpractice Risk in Dental Practice 2nd Edition
www.metdental.com
Page 4
Medical Battery
Medical battery occurs when a patient is treated
without informed consent. Most commonly,
battery charges are alleged where there is
a dispute over whether the patient agreed to
treatment or refused treatment. Although not
commonly brought forward in dental situations, a
medical (civil) battery charge can be devastating
to the practitioner because he/she is liable for all
damages that flow from it, including emotional
distress. In addition, the plaintiff does not need
an expert witness to testify as to the standard
of care.
Dental battery cases typically involve extracting
the wrong tooth. A battery case could also arise
from placing “veneers” (necessitating removal of
enamel from the patient’s front teeth) if the patient
had only consented to a cosmetic procedure
that required no removal of tooth structure. It
is important to clearly document conversations
regarding the nature and scope of the treatment
to be rendered.
Conclusion
Most
dental
malpractice
claims
are
preventable. Much has to do with obtaining
all of the information needed to determine a
reasonable diagnosis and using appropriate
treatment procedures that fall within the
profession’s standards of care. Claims most
often occur when practitioners attempt
to deliver treatment beyond their level of
experience and level of competence, or
perform outdated procedures. Reasonable
dental diagnosis and treatment is based
upon solid science. Dentists need to stay
current with diagnosis and treatment
modalities, as well as with newer therapy
approaches. Dentists, and their office staff
also need to communicate effectively with
each other and their patients.
There is no defense for performing the
wrong procedure or treating the wrong
tooth. A single “time out”, prior to performing
any procedure, to reassess the diagnosis
and procedure to be completed along with
the tooth and/or teeth to be treated, and
confirmation with the patient, the record,
the images, and trained support staff such
as assistants and dental associates, should
prevent a claim for medical battery.
Accurate and detailed record keeping**,
will contribute much to prevent errors in
diagnosis and treatment. Such records
will also provide the dentist with a better
defense in cases of alleged malpractice.
** A more specific discussion of dental record
keeping may be found in the MetLife Quality
Resource Guide, Dental Record Keeping.
Should a dentist experience a clinical
situation where the outcomes of care for
a patient are compromised, his/her best
approach is to reveal the outcomes to
the patient, discuss the options, including
referral, that are available to correct and
answer the patient’s questions.
By definition, dental negligence
is lack of due care. It is thus
preventable.
References
1.
Graskemper JP. The Standard of Care in Dentistry. J Amer Dent Assoc, 2004, 135:1449-1455.
2.
Robert RC, Bacchetti P, Pogrel MA. Frequency of Trigeminal Nerve Injuries following Third Molar Removal. J. Oral & Maxillofacial Surgery, 2005, 63:732-
735.
3.
Ziccardi VB, Zuniga JR. Nerve Injuries After Third Molar Removal. Oral Maxillo Surg Clin NA, 2007, 19:105-115.
4.
Bagheri SC, Meyer RA, Khan HA, Kuhmichel A, Steed MB. Retrospective Review of Microsurgical Repair of 222 Lingual Nerve Injuries. J. Oral and
Maxillofacial
Surgery,
2010,
68:715-723.
5.
Simpson v. Davis, 219 Kan 584, 549 P.2d 950 (1976)
6.
Weinstock RJ, Clarkson E. Risk of Airway Embarrassment During Root Canal Therapy. J Amer Dent Assoc, 2013, 144(10):1144-1147.
7.
Matsuyama v. Birnbaum 452 Mass 1 (2008)
8.
MA Superior Court Civil Jury Instructions, Chapter 24, §24.2, Battery (Civil) 2nd Edition, 1st Supplement 2011
9.
Harnish v. Children’s Hospital 387 Mass. 152 (1982