From the 2025 Spring Journal of the Colorado Dental Association
By H. Candace DeLapp, D.D.S.
“As a lawyer who has dealt in defamation, I know that someone’s reputation has to be lowered in the eyes of right-thinking people to sue.” – David Hunt
There are two key elements that must be present in determining if dental malpractice occurred. First, the care provided was below the standard of care for a patient of record. Second, there must be significant injury or harm to the patient.
While most issues surrounding a litigious occurrence are directly related to dental treatment, rendered or not rendered, other factors of the “non-dental” type contribute to the escalation of a situation or may even be the singular complaint.
Patients frequently become disgruntled due to poor communication such as lack of caring or concern, negativity or rudeness, and inattention or ignoring whether real or perceived. When a dentist is unavailable or unwilling to take the time to explain ongoing treatment and care, anger may result. Your professional relationship with a patient is easy when everything goes smoothly. Patient care and customer service are critical when things do not go as planned. Have you, the doctor, considered a face-to-face consultation with the patient? This means meeting with the patient to discuss what they are experiencing, being willing to listen, and assuring the patient that you have their best interests at heart. Remember, even though a patient may ask a question or make a demand, you do not have to offer a reply at that moment. It is okay to say, “We discussed a lot today. I would like to take some time to consider all the options.” Never let a patient make you upset, irritated or angry. This is a signal of loss of control. Taking the time to demonstrate care and empathy may just save you a lot of time and frustration in the future. It is also the right thing to do. A attorney recently put it this way, “It is the practitioners who lack ‘people skills’ that find themselves in trouble.”
“Less than ideal” treatment outcomes may lead the patient to believe erroneously that their results are dental malpractice. This frequently occurs because the dentist did not take the time to provide informed consent explaining the options, risks, limitations and potential complications of treatment, or no treatment. The uninformed patient may believe that someone must be at fault — you, the dentist! Attempting to discuss the outcome after treatment is rendered usually leads to a lack of acceptance on the patient’s part and increases the perception of wrongdoing. Informed consent is key to managing expectations.
Let us look at unrealistic expectations. Patients often feel that your treatment should undo years of neglect, poor health habits and failure to heed prior recommendations. How many other dentists have tried to provide them with a set of dentures without success? How many dentists have tried and failed to place implants? Patients may be overly optimistic and unrealistic after doing “research” on the web, downplaying negative factors, or being overly impressed with before and after results. Disappointment sets in when their expectations are unattainable. Try to get your patient’s expectations and your ability to deliver on the same page.
Uninformed, careless, or even disparaging remarks about another dentist and their care without knowledge of all the facts can be the nidus to a lawsuit. The American Dental Association Code of Ethics states:
“Patients are dependent on the expertise of dentists to know their oral health status. Therefore, when informing a patient of the status of their oral health, the dentist should exercise care that the comments made are truthful, informed and justifiable. This should, if possible, involve consultation with the previous treating dentist(s)…”
You only have the patient’s side of the story; there is another side that you are missing. Explore all the facts. Does this take time? Yes, but it may be well-spent to say the least. Making remarks about another dentist in front of a patient makes them think worse of all dentists, even you — and it is unethical.
If you want to ensure that your historical treatment is well documented, photography captures and documents moments in time. Photography is helpful in developing treatment plans, comparing before and after treatment, and tracking progress of treatment. “Seeing is believing.” By presenting the reality to patients, you assist them in moving from the emotional to the logical. Photographic documentation leads to understanding and trust; it can be invaluable should a dispute arise.
Whether your practice accepts insurance or not, verification of benefits is important to assist and improve patient relationships. Transparency about coverage and out-of-pocket costs is imperative. Help your patient understand that you are not a party to their insurance contract and providing all details of their plan is not always possible. Have you ever asked them, “If your insurance paid for all your treatment, would you proceed?” How about the counter question, “If your insurance paid nothing, would you proceed?” Patients must understand and agree that they ultimately are responsible for the cost of treatment.
This leads us to financial agreements. A written, signed financial agreement helps patients understand their financial obligation and confirms they are responsible to pay their balance. Too often you find patients refusing to abide by their promise to pay on an agreed upon schedule. Patients need to know the total cost before treatment, so they are enabled to make informed decisions. A signed agreement holds the patient accountable for paying their balance in full and it protects the dental practice legally.
Advertising, website accessibility, social media and online reviews are an important part of growing a dental practice. The ADA Code of Ethics states:
“Although any dentist may advertise, no dentist shall advertise or solicit patients in any form of communication, including via social media, in a manner that is false or misleading in any material respect.”
The Federal Trade Commission Act states that advertisers must have evidence to back up their claims. Making statements that you are a specialist (unless you are), you specialize in, offer the best care/excellent care, are the leading dentist, provide the highest quality, provide perfect results, are certified in, in addition to using unearned or non-health degrees, are a few examples of possibly misleading or false advertising. The ADA Code of Ethics states:
“Dentists have an ethical obligation to ensure that their websites, like their other professional announcements, are truthful and do not present information in a manner that is false and misleading in a material respect.”
Advertising guidelines and requirements are also covered by the Code of Colorado Regulations, 1.17 Advertising. The Rule is promulgated pursuant to sections 12-20-204, 12-220-105(3), and 12-220-106, C.R.S. for further guidance.
Negative reviews can be deflating. Avoid a knee jerk reaction and take time to reflect. First, a poor review is not practice ending, it just feels that way. Take time to reflect before you respond. Keep your response clear, kind and concise. You cannot discuss any treatment but saying something like, “thank you for your feedback,” “we’re here to listen,” “we’re here to help” and “we invite anyone with a concern to contact our office directly” will go a long way toward boosting your credibility. While the patient has protection under the First Amendment of “free speech,” you are restricted under HIPAA and other rules. It is in your best interest to take the discussion offline. If you feel it is erroneous, report it. Otherwise, be respectful and move on.
“Be more concerned with your character than your reputation, because your character is what you really are, while your reputation is merely what others think you are.” – John Wooden
Some concluding thoughts. Take care of you. Patients and your team deserve the best you. Working when you are tired, not feeling well or are just grumpy affects your judgement. Take care of your body and your mind. When was the last time you took a real vacation? Did you know your production increases after a vacation and then slowly decreases over the next few months? Taking regular breaks from the stress of dental practice is key for your mental health, your physical health, your relationships, the care you provide, and for preventing burnout. Take a break, you deserve it!
Dental litigation focuses on dental treatment of patients: the how and why it was performed. The non-dental factors reviewed here will hopefully give you pause to assess your other practices and make changes to bring your patient care to a more well-tuned level for you and your team.
Candace DeLapp, D.D.S., is the executive director of the Dentists Professional Liability Trust of Colorado. Contact her at 303-357-2604 or hdelapp@berkleyrisk.com.
