Managing the Risk of a Negative Claim

As the case in the previous article shows, malpractice claims involving development or exacerbation of periodontal disease can result in major litigation and high dollar claim settlements. The defense process of these claims is difficult for the doctors. Litigation is usually contentious and time-consuming. Depending on the number of teeth involved and the plaintiff's sympathy factor, the settlement amounts can be very high.

What is an Orthodontist to Do?

Take a detailed dental history. Before beginning treatment, it is critical to review the patient's dental history. Does it suggest pre-existing periodontal problems or bone loss? Do you think the patient may be at risk? The current adult dental history form marketed by the AAO is thorough and effective. It even addresses personal habits such as smoking, which exacerbates periodontal disease. Read the patient’s history carefully and discuss any questions. When developing a treatment plan, consider all the pertinent issues.

Create a treatment plan that is appropriate for the patient's condition. Has the disease progressed so that it will not support the forces needed or tooth movement required for the treatment? If so, adjust the plan, or decline to treat if necessary. It is better to decline to treat a case that will cause the patient harm and result in a malpractice claim or lawsuit against you.

Require an examination by a periodontist or dentist before treatment. For protection from developing periodontal disease, many legal consultants recommend orthodontists have all adult patients examined by either a periodontist or a general dentist before beginning treatment. From a risk management standpoint, this can help with defense should it be needed.

Ask for a written response from the patient's dentist or periodontist for the record. Do not stop at the referral. Patients often fail to see referral doctors but assure the orthodontist they have done so and have been cleared for treatment. To help protect yourself from litigation, you need to have written clearance from either a periodontist or the patient’s general dentist prior to starting orthodontic treatment. Always make sure the patient is following through with periodontal maintenance during treatment as indicated. Patients often claim they are continuing maintenance even when they are not.

Getting the patient’s informed consent is critical. The current AAO form explains periodontal disease can develop from several factors including lack of oral hygiene.

It clearly tells the patient they must see a general dentist for periodic checkups and orthodontic treatment may need to be terminated to control periodontal disease. There's also a stand-alone AAOIC form available for download, called "Periodontal Concerns Supplemental Informed Consent." Having this detailed form signed by the adult patient will enhance defense of a potential claim. Without a signed informed consent in the records, defense of claims for bone loss and exacerbating periodontal disease is more difficult.

Thorough records documentation is critical in every orthodontic treatment. This is especially important when periodontal disease is present. It's difficult to prove an orthodontist has done everything possible to recognize the problem and provide good care and treatment if the records do not document this treatment. Where litigation is concerned, if it's not noted in the records, it hasn't occurred.

Communication with all patients is important. But it's critical when periodontal disease is evident. The patient must be advised of a problem and kept aware of all the orthodontist is doing to manage the condition. The patient must also be clearly informed of his/her own responsibility in treating the disease. In the malpractice claim files, most patients say they were not made aware of their problems and/or what to do to manage them. Documenting the communication is key.

Finally, if the problem exacerbates, consider terminating the orthodontic treatment early. It's better to stop treatment before the orthodontics is completed than to continue until the teeth are mobile and possibly lost due to severe bone loss. If this happens, a malpractice claim is probable, and the doctor’s defense will be difficult.