Liability Exposures for Dentists Working Outside of Their Primary Scope

Dentists and dental practices occasionally perform services that go beyond the primary scope of dentistry. Whether the intention is to earn extra revenue, enhance patient services, promote education, or help the community, these services can inadvertently create new liability exposures. 
 

What Dental Services Might Be Considered Outside of Their Primary Scope?

Dentists may engage in activities outside of the primary scope of dentistry, such as: 

• Performing cosmetic procedures, such as Botox injections.
• Offering sedation-focused practices.
• Providing holistic or alternative dentistry services.
• Teaching in dental school and having students practice in the office.
• Participating in clinical trials, particularly ones involving equipment.
• Providing medical or legal expert reviews, evaluations, or consultations.
• Acting as a locum tenens dentist.
• Performing tele-dentistry.
• Supervising ancillaries.

What Should Dentists Consider If They Opt to Work Outside of Their Primary Scope?

Every activity comes with unique liability exposures. Engaging in activities outside one’s primary scope may impact malpractice underwriting. This is especially true in a hard insurance market – whereas underwriters may have been fine with certain activities in the past, this may no longer be the case. 

Dentists also need to consider regulatory and licensing issues. In particular, they need to understand what they are allowed to do by their board of licensure. There’s no straightforward answer here – rules vary between states and are constantly changing. 
 

New Procedures, New Risks

Dentists have always had the option of working outside of their primary scope, however, the possibilities have expanded with the emergence of new and innovative technologies and services. As a result, the risks are also increasing.

Consider the following case study as an example of an activity that might seem simple, but that resulted in liability:

A patient who received Botox injections wanted to improve the appearance of an indented scar on their cheek. The dentist performed a dermal filler injection. Later, the patient presented with significant bruising and scabbing and required corrective revision procedures. The patient suffered vascular occlusion which ultimately resulted in permanent scarring

Several risk factors contributed to this case:

• Skill and technique. An unfavorable expert review concluded that the dentist failed to locate the angular artery before injection. 
• Documentation. According to the dentist, the patient reported bruising and was advised to return three days after the treatment. However, there was no documentation of the patient’s delay in returning to the office for an evaluation.
• Consent. The patient did not sign a consent for the dermal filler injection. Instead, the dentist used the consent form the patient had previously signed for a Botox injection. This consent form did not cover the risk of vascular occlusion or tissue damage.

Nuclear Verdicts Are a Growing Threat

When lawsuits occur, they are often for massive sums. According to the U.S. Chamber of Commerce, nuclear verdicts are jury awards of at least $10 million. Recently, they’ve been increasing in both amount and frequency. Medical liability accounts for 20.6% of nuclear verdicts between 2010 and 2019.

Dentists are susceptible to nuclear verdicts. In a recent article in the Fort Worth Star-Telegram,  a jury awarded $95.5 million to the family of a girl who experienced permanent brain damage after a baby root canal and crown procedure went wrong. 
 

How to Manage Risks

Dentists should work with their insurance providers to determine the best ways to control their risks while working outside their primary scope of practice. 

Consider the following risk management practices:

• Know the relevant regulations. Stay alert for changes to state regulations.
• Understand what your insurance covers. Review your malpractice policy with your agent to determine whether it covers procedures outside of your primary scope and what restrictions exist. 
• Undergo relevant training. Whereas some procedures may seem simple, there are still risks. Providers need to know the proper techniques and warning signs. They should not misrepresent their training or area licensure. 
• Manage patient expectations. Ensure patients receive and understand their discharge instructions. 
• Secure appropriate consent. Signed consent forms are critical. When performing multiple procedures, it’s important to have separate consent forms for each. 
• Maintain detailed documentation. In addition to documenting consent, dentists should document issues that may be relevant in a lawsuit. For example, they should document if a patient reports problems and is advised to return. If the patient does not return, it should be documented. They should also make an effort to determine why the patient did not follow the advice and whether any other options (such as a telehealth session) are appropriate. 

Although dentists may face significant liability exposures when working outside of their primary scope, proactive and thoughtful risk management can minimize the exposures while improving patient outcomes. 

This article is based in part on “Dentists Working Outside of Primary Scope: Views from Underwriting, Claims, and Risk Management,” presented by a panel of experts that included Susan Montminy, Director of Risk Management, Coverys, at a medical professional liability conference. 


Copyrighted. No legal or medical advice intended. This post includes general risk management guidelines. Such materials are for informational purposes only and may not reflect the most current legal or medical developments. These informational materials are not intended, and must not be taken, as legal or medical advice on any particular set of facts or circumstances.