Malpractice lawsuits are a fact of life in modern medicine, but if an orthodontist properly manages their risk, they can avoid headaches down the road.

By Steven Martinez

When a young orthodontist imagines how their career will go, they might contemplate where they’d like to practice, the community they’ll serve, managing staff, or the equipment they’d like to use. Likely, the last thing on their mind is getting sued by a patient.

It would be like thinking about how much an accident can cost when buying a new car. You insure it, and, besides the monthly bill, it stays out of mind. If you drive responsibly, there’s a good chance you’ll never use it, but if you’re reckless, you may find it harder to ignore.

Unfortunately, the risk of a patient bringing a malpractice suit against an orthodontist is a real fact of life. In some ways, it is a numbers game. Orthodontists have a high-volume business and may see hundreds of patients in a week. Furthermore, society as a whole has become more apt to sue when things go wrong, increasing the risk for orthodontists.

“It’s difficult to get through a career without some malpractice allegation because we live in a very litigious society. Everybody seems entitled,” says Elizabeth Franklin, BA, MA, who handles claims for the American Association of Orthodontists Insurance Company. “If they have a problem, the doctor must be the reason. It is hard to [practice] without some complaint.”

Getting sued isn’t a certainty, but while only a small percentage of orthodontists have lawsuits filed against them each year, the way you manage risk can impact the likelihood it will happen. Just like driving irresponsibly, practicing without managing the risks can quickly get an orthodontist in hot water.

“The incidence of malpractice is relatively low. We insure over 55% of the orthodontists in the United States, and the incidence is about 1.2%,” said Robert Varner, DMD, president of the AAO Insurance Company. “I know many orthodontists that have never been sued, so I don’t think it’s inevitable. If you practice appropriately managing the risks that pertain to practice, you can significantly minimize that chance.”

When someone else’s problem becomes your problem

In some ways, orthodontists are fortunate when it comes to malpractice liability. Like all doctors, they take the Hippocratic oath and swear to “First, do no harm.” But compared to a trauma surgeon or oncologist, for the most part, no orthodontist is at risk of losing their patient’s life. Nearly every procedure they will complete is completely elective, and the impact on the body is relatively minor.

Despite this morbid upside, orthodontists are still responsible for diagnosing problems when they see them, life-threatening or not. The most common issues that lead to malpractice lawsuits are all pre-existing conditions a patient brings to an exam. The AAO Insurance Company tracks all the reasons its clients get sued. Topping the list: undiagnosed and unmanaged periodontal disease, root resorption, recovery of impacted teeth, and undiagnosed pathology. For example, radiolucencies discovered during an x-ray are the orthodontist’s responsibility. While a tumor, benign or not, falls outside an orthodontist’s treatment purview, they need to note the growth and refer the patient to a specialist to have it examined.

Varner says it is important for a practice to have a process in place for promptly dealing with these issues. Orthodontists may see 20 different X-rays in a day, and if they aren’t taking the time to read the X-rays, something could slip through the cracks and become a problem down the road, for both the patient and the doctor.

“When you examine a patient, and you take them into your practice, you’re responsible for everything that you might see on that patient or should see,” says Varner. “Whenever you take an X-ray, please make sure you read it and make a note on it. It’s either within normal limits or something is wrong with it. Make a note to follow up on it because you are responsible for that.”

An orthodontist can’t help the condition their patient’s teeth are in when they come in for an exam. If a patient hasn’t taken care of their teeth, or even if their general dentist has missed a diagnosis, when you agree to take them on as a patient, it becomes your problem. This is doubly true in the eyes of the court. The fact is it becomes a liability for the orthodontist unless they inform the patient of the issue before beginning treatment. Additionally, many of these issues could impact their orthodontic treatment, leading to more problems down the road.

“What you tell a patient beforehand is wisdom. What you tell them after something happens is an excuse,” says Varner. “It’s very important that you be proactive and try to nail down all of these small details and make sure patients understand their problems and the risks associated with treatment.”

One way to manage these issues: Refer the patient to their general dentist or another specialist to get the problem under control before starting orthodontic treatment. Even if the orthodontist decides the condition is manageable and elects to proceed with treatment, informing the patient and, crucially, documenting these interactions will prevent a lot of headaches later on should the patient decide to sue.

Documentation and the standard of care

In a typical malpractice lawsuit, the plaintiff’s attorney will make multiple allegations about the standard of care not being met, says Franklin. The allegations don’t mean a doctor has done anything wrong, of course, but it is still necessary to prove the standard of care is being met.

“People can and do allege all kinds of things in lawsuits that are not true,” says Franklin. “But our tort system in the United States is very liberal regarding what you can charge people with. Basically, anything goes, whether it’s true or not.”

As the standard of care is not a written document, Franklin says it is instead determined by what similarly trained doctors would do in similar circumstances in the location in which a doctor is practicing. This means litigators will consider prior rulings, judgment settlements, and the testimony of expert witnesses when determining what the standard is and if an orthodontist has failed to meet these unwritten standards.

The standards also change over time as schools and institutions implement new techniques that become commonplace. And just as orthodontists are always taking continuing education courses to stay up to speed in their profession, so are litigators, who are always looking for new ways to prosecute their malpractice cases.

“Plaintiff’s attorneys are required to take continuing education courses, and those continuing education courses teach areas where doctors may be vulnerable,” says Varner.

This is why documentation and informed consent become a critical tool for orthodontists. It prevents patients from being surprised by negative developments and guards against claims the orthodontist exhibited negligence. Most importantly, Varner says, it’s part of managing your patients in a way that is ethical and relationship-building.

“I think it’s important, on a human basis, that people understand what you will be doing to them. If you do that, you develop a relationship with that patient,” says Varner. “In our risk management courses, we teach to explain things very well. It’s the explanation of the treatment and the acceptance of the risk by the patient that [constitutes] informed consent. Not a piece of paper they sign.”

Having the paperwork, however, is also of utmost importance, particularly for a lawsuit. The AAO Insurance Company requires doctors to submit their consent forms when applying for coverage to prove the doctor is having these discussions.

“We have to have the signed document because every lawsuit we get has an allegation of lack of informed consent, whether that document is in there or not,” says Franklin. “Generally speaking, lack of informed consent is not a heavy-duty allegation on which we receive damages. But we need that document signed, and we need it in the records.”

Pay attention to your patients

Patients also play an outsized role in managing your malpractice risk. How they care for their teeth before and during treatment can impact outcomes. This can be as simple as having a system in place to monitor the patient’s oral health throughout treatment.

Varner practiced in Oregon, which is one of the few states that didn’t have fluoride in the water. As a result, he says he watched his patients like a hawk. He implemented a letter grading system, A through F, to evaluate how well they were taking care of their oral hygiene at each appointment. If a patient had two C’s in a row, he sent a letter to the parent and the general dentist saying the patient’s brushing was substandard and, if not corrected, would result in cavities. If the problem persisted, he would have the parents come and show them what was happening.

“There’s a way to handle it, and you have to handle it. You can’t just let it go,” says Varner, who has seen claims submitted where an orthodontist wasn’t paying attention to the patient’s oral hygiene. It was left to get worse and worse and resulted in a lawsuit that didn’t need to happen.

Another serious problem is with patients who miss appointments. Braces and aligners are active treatments, and if a patient misses too many appointments, it can seriously affect a patient’s teeth and jaw. Patients might have good reasons for missing a single appointment. But if the problem persists, doctors must figure out how to rectify it quickly. That could mean finding the patient a ride or informing the general dentist—anything to get the patient in the door.

Just like with brushing teeth, Varner would send a series of letters for chronic absenteeism. The first was a reminder, the second one would indicate the seriousness of the problem, and the third would say they needed to come in before real damage was done. If still nothing is done, an orthodontist may have no choice but to dismiss their patient. Each state has its own regulations for dismissing a patient, says Varner. “You can’t send them a letter saying I’m not going to see you anymore, good luck.” But ultimately, it is in the best interest of both the patient and the doctor to stop treatment when the doctor cannot monitor it.

After all this, it’s important to remember most treatments go smoothly, and situations devolving into malpractice lawsuits are outliers in the grand scheme of things. But that doesn’t mean you shouldn’t think about it at all, says Varner. Lawsuits can end up garnering judgments into the hundreds of thousands of dollars, and both Franklin and Varner say it is important for orthodontists to have coverage that is appropriate for their practice situation.

“I can still remember when I was practicing as a young person, I didn’t like going to risk management courses because I didn’t like to hear where I could possibly get sued,” says Varner. “But it’s important that you know about it. You need to be informed.”OP