What You Need to Know About Dental Malpractice and Tail Coverage

Oct 29, 2019 | Business Insurance

For many young and aspiring dental professionals in Denver, CO or in any other state, not all are well versed with dental malpractice and tail coverage or that they might need these in the future.

An Ancient Medical Profession

Dentistry is one of the oldest professions known to mankind. Early documentation pertaining to it can be traced to the Indus Valley Civilization dating back to 7000 BC. But it was only in 5000 BC that specific reference was made to tooth decay and practices resembling dentistry as we now know it. 

Up until it was disproven in the 1700s, Sumerians attribute the decaying of teeth to “tooth worms”. Even in Ancient Greece, Aristotle and Hippocrates also wrote about such a practice and specifically about treating rotting teeth. The earliest known dental practitioner was an Egyptian scribe who lived in 2600 BC. 

In 1530, the first book on Dentistry was published, entitled “The Little Medicinal Book for All Kinds of Disease and Infirmities of the Teeth”. The 1700s to the 1800s saw great progress with advances in Dentistry as a Medical Science and in the advent of the invention and mass production of toothbrushes and toothpaste that were made available to the public.

Modern Medicine

To date, and as with other fields of medical science, Dentistry has been an indispensable profession, providing pain alleviation, comfort, and of course, nice smiles to people. Over the years, the cost of getting dental treatment has become more and more affordable, making access to dentistry at arm’s reach to almost everyone on the planet.

A coin has two sides, and in the same manner, the practice of Dentistry is not all smiles and sunshine. It also has a dark side to it. An old adage, Murphy’s Law, states that “Anything that can go wrong will go wrong”. The dental practitioner, with nothing but good intentions and a willingness to provide wellness and comfort to patients, may encounter snags or accidents that are at most unanticipated and unintentional. So in the course of his or her career or practice, getting sued by patients for Dental Malpractice is nothing out of the ordinary.

What is dental malpractice?

As with any other medical profession, there are certain accepted standards when it comes to patient care. Dental malpractice happens when these standards are deviated from and a dental professional’s carelessness or negligence causes harm or death to a patient.

A Doctor’s Decision

Let’s talk about a more concrete example regarding Dental Malpractice. Patrick goes to his dentist because of a toothache that has been bothering him despite him taking pain relievers. When Dr. Smith explains to Patrick that the tooth needs to be extracted, Patrick agrees without any question because he trusts his dentist’s judgment and recommendation.

After a successful procedure, Dr. Smith prescribes medicine to Patrick for the pain and to avoid infection. But a few minutes after Patrick takes the medicine, he starts to have difficulty breathing and turns out to be allergic to the prescribed medicine.

What’s wrong in this scenario?

It is actually standard practice for a health professional to confirm if a patient is allergic to anything prior to prescribing any medication. It is part of due diligence that they ask questions to find out if any procedure or medication might pose potential health issues for their patients.

For instance, if they are going to inject the patient with a drug that causes an increase in heart rate, then one would expect the health professional to ask if the patient is hypertensive or is under any medication for hypertension.

But what if Dr. Smith did ask the relevant questions but Patrick wasn’t aware of any allergies? Obviously, whatever happens to Patrick isn’t going to be Dr. Smith’s fault. But it doesn’t mean Patrick cannot decide to file a malpractice lawsuit against Dr. Smith anyway.

Other than what happened to Patrick, the usual reasons why dentists get sued are due to adverse reactions to medications prescribed, accidental tooth drill injuries, and poor orthodontic work.

These may also include but are not limited to the following:

  • Absence of informed consent either by the patient or a legal guardian or representative
  • Failure to refer the patient to another medical specialist
  • Botched or erroneous tooth extraction and use of anesthesia
  • Inability or failure to identify, diagnose, and or treat Temporomandibular Joint (TMJ) disorder, periodontal disease, oral tumor, or cancers
  • Even the mundane, such as injuries resulting from slips, falls, cuts while inside the dental clinic or office

The 2016 Dental Professional Liability Claim Report quantifies these incidents as follows:

  • Average legal fees to defend against a Dental Malpractice Suit – $24,794
  • Average payment attributed to a Dental Malpractice Claim – $83,120
  • Average payment attributed to an Endodontist Malpractice Claim – $174,119
  • Average payment attributed to an Oral Surgeon Malpractice Claim – $249,689
  • Average payment attributed to a Dental Malpractice Claim resulting from a patient’s death – $476,625

Possible Lawsuits

However, before any lawsuit may be filed against a dental practitioner, there must be three conditions to be met. First, there should be an existing legitimate doctor-patient relationship, which establishes the duty of the dentist to care for and treat the patient.

Second, there must be an established harmful action, whether it be through malfeasance or misfeasance, highlighting the deviation from acceptable standards of care.

Lastly, there must be proof of damage or harm. Say, a patient wrongfully prescribed medicine that caused no illness, adverse reaction, or any such health concerns, this does not constitute damage or harm done and thus, a malpractice lawsuit may not be filed.

Assuming all the above conditions are met, a lawsuit does not immediately go before a jury. The parties will come together for what is called a “discovery phase”. This is where statements or depositions are taken from the personalities involved, including “expert opinions or testimonies”. More often than not, the issues are resolved amicably and settlements are made between parties

Situations Relieved

Now, the question is, as a dental health practitioner, how does one get protection for potential costs brought about by a dental malpractice claim, should the issues not be resolved at the “discovery phase”? 

A dental malpractice insurance coverage helps protect a dental health practitioner from the potential costs of a dental malpractice claim, whether the accusation is legitimate or not. This protection covers not just physical harm but also emotional stress and property damage.

Now that it is quite clear how a dental health professional would benefit from dental malpractice coverage, let us talk about a couple of other scenarios. What if your coverage ends tomorrow and there are times when claims would come a few weeks or even months after a procedure or treatment is done? Or what if you decide to change your insurance provider and are expecting to not have coverage for a couple of weeks?

Types Of Malpractice Insurance

There are two basic types of malpractice insurance — ‘claims-made’ and ‘occurrence’. Let’s start with the latter. Occurrence policies will cover claims for incidents that happen while the policies are in effect regardless of whether a claim is made while a policy is in place or whether it has lapsed. The important detail here is that the incident or malpractice happens while the occurrence policy is in place.

In short, if I have an occurrence policy that took effect a year ago today and had just lapsed yesterday, any claim today or sometime in the future for a malpractice incident that happened two months ago (while the policy was still in effect) would be covered by that policy.

On the other hand, claims-made policies are a bit more complicated. For these policies to cover malpractice claims, the following should be true (and never one without the other):

  1. The policy was in effect when the incident happened.
  2. The policy is still in effect when the lawsuit is filed.

Obviously, this question arises —  “What if the policy had already lapsed by the time the lawsuit is filed?”  We all know that there are circumstances where the aftermath of malpractice can only be seen months or even years after the incident in question.  This is where the “tail coverage” enters the picture.

A dental health professional has the option to have his claims-made policy written so that the cover extends to a specific number of years after the policy lapses. In short, if Dr. Smith has a claims-made policy with a tail coverage of five years, he will be covered for an incident that results in a malpractice lawsuit filed within five years from the time the policy lapses.

Although having occurrence insurance would obviously be the better choice, it is important to note that claims-made insurance costs less even with a tail coverage purchased.

The Bottomline

At the end of the day, the two most important things to consider before choosing between these two types of dental malpractice insurance are that your choice gives you peace of mind, and paying for the policy doesn’t break the bank; or simply, why not just call on the experts.

We’re Here To Help

Whether it’s intended as protection against professional liability, even business, personal, and public, knowing when to ask for help is key to peace of mind and assurance. If you need sound advice, don’t hesitate to contact us. We will always be there to make your life hassle-free and stress-free by finding the perfect solution for your insurance needs.

At Advantage Insurance Solutions (AIS) we can assure you of quality protection for individuals, families, and businesses in Denver, Colorado, and throughout the United States by helping you choose the best carrier for your insurance needs.