Practice Solutions: Understanding Your Legal Liability

QUESTION: While I was treating a long time patient, I confided in her about another patient whom I had treated earlier that day. I mentioned the patient’s name and that she had just been diagnosed with cancer and was undergoing a terrible divorce. To my horror, the long time patient announced that this patient was her sister-in-law! I am confused about our liability as dental hygienists. Do I need to purchase my own professional liability insurance policy outside of what my employer covers? Please advise!

Dental hygienists need to understand that they are licensed professionals and have a great deal of responsibility as professionals. With responsibility comes risk. Dental hygienists can be held legally liable for the acts they commit or omit, from inappropriately sharing confidential patient information to making a mistake during treatment.

Legal Regulation

The laws that affect dental hygiene practice come from several sources. Legislative bodies create statutes, known as dental practice acts. These laws define our scope of practice and determine qualifications of hygienists. In addition, state licensing agencies issue regulations pursuant to those statues. Finally, the rulings of federal and state courts affect dental hygiene practice. All dental hygienists should be well-versed in their state practice act and follow the rules and regulations explicitly.

The legal basis for most lawsuits in dental and dental hygiene practice is founded on tort law. A tort is a civil wrong where a person has breached a duty to another. Torts require proof of the following: 1) a duty or standard exists (example: thorough assessment of the patient’s periodontal health); 2) the defendant breached that duty (assessment was not accomplished to the standard of care); 3) harm resulted (patient’s periodontal health declines); and, 4) the harm is directly caused by the breach of duty.1-3 An intentional tort requires that the person accused of the incident intended to cause harm. Intentional torts include battery, assault, false imprisonment, mental distress, breach of confidentiality, interference with property, and misrepresentation or deceit.3 Examples of intentional torts include discussing a patient’s personal information without the patient’s permission or threatening a patient with harm if he/she does not cooperate. An unintentional tort (negligence) means that the person accused of committing the tort did so without intention. Examples include accidentally spilling a chemical on a patient, not updating the patient’s health history resulting in the patient’s health being jeopardized, and incorrect treatment of periodontal disease. Professional liability insurance typically covers only unintentional torts or negligence.

In judging whether a professional has been negligent, the courts use a standard called the reasonable prudent person or professional. This means the court compares what a reasonably prudent person or professional would have done in a similar situation. Thus, maintaining a practice that meets or exceeds the standard of care is extremely important for dental hygienists. Failure to include a procedure or step in treatment because the dental hygienist claims to be unaware of the current standard will not hold up in court.

I recently spoke with Patrice Walker, JD, an attorney who practices health law in Chapel Hill, NC. Walker is completing a book on laws and dentistry in the state of North Carolina. In researching court cases for her book, she found a 2003 California case where the court held that dental assistants had a duty to intervene when their supervising dentists acted inappropriately. These situations apply to dental hygienists as well. “Situations that might get a dentist in legal trouble involve the dentist’s lack of compliance with supervisory laws in the state, not referring out periodontal disease, failure to assess the patient’s overall health, not complying with a regimen for premedication, etc.” says Walker.

Professional Liability Insurance

What if the dental hygienist is also named in a lawsuit? Professional liability insurance is intended to cover the insured in the case of liability from professional services. Most dental hygienists are employed in a private practice setting where the dentist is the owner of the practice. Because the dentist is the owner of the practice, he/she is held liable for the acts of the employee while the employee is carrying out the business of the employer. This doctrine is known as respondent superior. Even though all of this is true, there are several reasons why dental hygienists need their own policy.

First, the purpose of the insurance policy is to protect the dental hygienist’s personal and professional assets. The cost of most policies is very little (usually less than $100 a year) and they offer ample monetary coverage in the event of a lawsuit. Second, the employer’s policy represents the dental hygienist only if the dentist is named in the lawsuit.3 If both employer and dental hygienist are named in the suit and the employer’s name is later dropped, the insurance policy may not cover the dental hygienist. Third, each policy has limits for amounts of coverage. If the limits are met by covering the employer, the dental hygienist may be left to cover all additional expenses incurred (attorney fees, court costs).3 Fourth, hygienists need a policy of their own to provide for independent legal representation if needed. There are situations where complaints have been filed against dental hygienists to the state or regional Board of Dentistry. In these situations, dental hygienists need their own attorney.

Types of Insurance

Two types of professional liability insurance exist. The occurrence policy protects the professional against claims occurring during the policy period, regardless of when the claim is presented to the insurance company. In addition, this protection exists whether or not the policy is still in force at the time the claim is made. With this policy, there is no need to purchase additional insurance coverage to cover past acts when changing insurance carriers, retiring from practice, etc.4 The more common type of liability insurance policy is the claims made policy. This policy covers the dental hygienist against malpractice allegations that arise from dental treatments rendered and reported while the policy is in force. If a claim is brought after the policy has terminated, there is no protection. Extended reporting endorsement or “tail coverage” may be purchased to provide coverage after a claims made policy has been terminated.5 When purchasing a policy, be sure to evaluate the wording regarding exclusions (situations that will not be covered), coverage in the case of a Board of Dentistry complaint, and availability of “tail coverage” after you leave your practice.

Dental hygienists must maintain the highest professional standards of care when treating their patients. The standard of care must be met or exceeded in every instance.

Information in this article should not be interpreted as legal advice. Since each state is different, practitioners are advised to seek personal legal representation in their legal jurisdiction.

References

1. Davidson J, DeVore C. Legal and ethical considerations. In: Daniel S, Hardst S, eds. Mosby’s Dental Hygiene Concepts, Cases, and Competencies. 1st ed. St Louis: Mosby Inc ; 2002:40-56.
2. Glossary of Dento-Legal Terms . Raleigh, NC: Medical Security Insurance Company; 2000.
3. Zarkowski P. Ethical and legal decision-making. In: Darby ML, Walsh MM, eds. Dental Hygiene Theory and Practice . Philadelphia: WB Saunders; 2003:1107-1134.
4. Pollack BR. Handbook of Dental Jurisprudence and Risk Management. Littleton, Mass: PSG Publishing Co Inc; 1987:30-32.
5. American Dental Association Liability Insurance glossary. Available at:   www.ada.org/members/prac/insure/liability/glossary.asp. Accessed December 5, 2004.