Chapter 23 

–  Legal and Insurance Considerations

LEGAL CONSIDERATIONS

Taken as a whole, the United States is a litigious country. Television advertising by legal
representatives urges patients to litigate on a fee-contingent basis. Certainly, every patient is
within his or her rights to be treated properly following informed consent. However, the high
volume of health-related legal cases, just or unjust, burdens a court’s docket, causing delays in
the administration of justice for all plaintiffs and defendants. The high volume of litigation has led
to the practice of so-called defensive medicine and dentistry, which can be a good thing if not
overdone. What is sad is the slow but continuing deterioration of the precious practitioner/patient
relationship historically rooted in the dental profession.

What follows are some ideas and statements that may help clarify what the practitioner is faced
with, in the hope that a better understanding of these considerations will serve not only the
practitioner but also the patient. What follows is for information purposes only and does not
constitute legal advice. It is important to understand that the laws related to these issues, while
having much in common, vary state by state to the extent that in some states, portions of the
basic tenets that follow may not apply.

Components of Accountability for Treatment Rendered

Negligence.

Negligence is lack of ordinary care. It is the failure to use that degree of care that a reasonably
prudent person would have used under the same circumstances. Negligence may arise from
performing an act that a reasonably prudent person would not have performed under the same
circumstances, or failing to perform an act that a reasonably prudent person would have
performed under the same circumstances.

Proximate Cause.

An act of omission is regarded as a cause of an injury if it was a substantial factor in bringing

about the injury, that is, if it had such an effect in producing the injury that reasonable people
would regard it as a cause of the injury.

Dental Malpractice.

Failure of a case is not malpractice. Malpractice is professional negligence, and dental

malpractice is the negligence of a dental practitioner. Negligence is the failure to provide
reasonable care under the circumstances, doing something that a reasonably prudent practitioner
would not do under the circumstances, or failing to do something that a reasonably prudent
practitioner would do under the circumstances. It is a deviation or departure from accepted
practice.

A practitioner who renders dental service to a patient is obligated to have that reasonable degree
of knowledge and ability that is expected of practitioners who provide dental services in the dental
community in which the practitioner practices.[1]

The law recognizes that practitioners’ abilities differ, just as the abilities of people engaged in
other activities differ. To practice dentistry a practitioner is not required to have the extraordinary
knowledge and ability that belongs to a few practitioners of exceptional ability. However, every
practitioner is required to keep reasonably informed of new developments in the field, and to
practice dentistry in accordance with approved methods and means of treatment in general use.
The standard of knowledge and ability to which the practitioner is held is measured by the degree
of knowledge and ability of the average practitioner in good standing in the dental community in
which the practitioner practices.

In performing a dental service, the practitioner is obli-gated to use his or her best judgment and to
provide reasonable care. By undertaking to perform a dental service, a practitioner does not
guarantee a good result. The fact that the patient experienced a bad result, by itself, does not
make the practitioner liable. The practitioner is liable only if he or she was negligent, and if said
negligence directly contributed to or caused the bad result. Whether the practitioner is negligent is
decided based on the facts and conditions existing at the time of the claimed negligence.

A practitioner is not liable for an error in judgment if after careful examination he or she does what
he or she decides is best, and if the judgment is one that a reasonably prudent practitioner could
have made under the circumstances.

If the practitioner is negligent, that is, lacks the skill or knowledge required of him or her in
providing a dental service or fails to use reasonable care and judgment in providing the service,
and such lack of skill or care or knowledge or the failure to use reasonable care or judgment is a
substantial factor in causing harm to the patient, then the practitioner is responsible for the injury
or harm caused.

Informed Consent.

Before obtaining patient consent to perform a dental procedure, a practitioner must provide
certain information about the proposed treatment, alternatives to that treatment, and reasonably
foreseeable risks of that treatment.[2] The practitioner must explain, in words the patient can
understand, all the facts that would be explained by a reasonable practitioner so that when the
patient does, in fact, consent, that consent is given with an awareness of (1) the patient’s physical
condition, (2) the purposes and advantages of the procedure, (3) the reasonably foreseeable
risks to the patient’s health or life that the procedure may impose, (4) the risks involved to the
patient if the procedure is not performed, and (5) the available alternatives and their associated
risks and advantages.

However, a practitioner who has obtained informed consent is not released from accountability for
future negligence that may occur.

Comparative Negligence.

If a practitioner is found negligent and the negligence is found to have contributed to causing
patient injury, it is next considered whether the patient was also negligent and whether that
negligence contributed to causing the injury. The burden is on the practitioner to prove by
evidence that a patient was negligent and that the negligence contributed to causing the injury.

If it is found that a patient was negligent and that the negligence contributed to causing the injury,
the fault is apportioned between the patient and the practitioner. This is done by first weighing all
the facts and circumstances, and then considering the total negligence, that is, the negligence of
both the patient and the practitioner that contributed to causing the patient injury, and then
determining what percentage of fault is chargeable to each.

Damages.
Damage is determined based on evidence presented and the rules of law regarding whether the
patient is entitled to recover from the practitioner. Only a jury can decide that a patient is entitled
to compensation, and if so the measure of damages.

Expert Testimony.

An expert is allowed to express an opinion on those matters about which he or she has special
knowledge and training. Expert testimony is presented on the theory that someone who is
experienced in the field can assist in understanding the evidence or in reaching an independent
decision based on the facts.

In weighing the merits of a particular expert witness, one must consider the expert’s
qualifications, expressed opinions, basis of these opinions, and his or her reasons for testifying,
as well as all of the other considerations that ordinarily apply when deciding whether to believe
what one hears. An expert’s testimony should not be substituted for one’s own reason, judgment,
and common sense.

INSURANCE CONSIDERATIONS

The role of health insurance is increasing in importance for many patients. [3] Generally, the
insurance industry and health care provider organizations of all types grant coverage slowly for
procedures related to developing specialties. Acceptance of implant dentistry by the profession
and the public it serves has accelerated enormously since the early 1980s. This has further
complicated an already complex situation, because of the various insurance plans offered as part
of employee benefits, purchased privately, or provided by the government. Because benefits are
defined separately for each general area, and within each area, and because an actuarial
database for implant dentistry is not yet firmly established, industry and health provider
organizations are only now in the early stages of providing adequate coverage.

How to Begin

Despite the difficulties just mentioned, substantial coverage for implant dentistry does exist. To
take advantage of it, office staff should examine and understand each patient’s dental insurance,
and have at its command the applicable procedures and code numbers. In addition, procedure
codes that apply to implant dentistry can be found in the patient’s medical health insurance
benefits. Each office should have knowledge of these medical procedure codes and an
understanding of how the filing of medical claims differs in content and style from that of dental
claim forms. Effort should always be extended to help patients realize the benefits to which they
are entitled.

Procedure descriptions and their insurance code numbers, related to both dental and medical
insurance coverage, are in a state of flux, and far too often are not even-handedly applied.
Offices should remain current and keep abreast of new developments to assist the patient at
every juncture.

REFERENCES
1. Zinman EJ:  Informed consent to periodontal surgery: advise before you incise.   J West Soc
Periodontol-Periodontal Abstracts  1976; 24:101.
2. Afrow JR:  How will managed care affect dentistry?.   J Mass Dent Soc  1997; 45:10.
3.   American Dental Association: ADA principles of ethics and code of professional conduct,
Chicago, The Association, undated.