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T his artic le discusses m any o f the reported den ta l m alpractice cases th a t dea l w ith the subject o f the fa ilu re to diagnose, or the fa ilu re to p roperly treat, p e r io d o n ta l disease so th a t the average p rac tition er is p repared in the even t th a t such a la w su it m aterializes. T he types o f in fo rm a tion th a t den tists sh ou ld strive to retain in den ta l records w hen trea ting a p a tie n t’s p er io d o n ta l prob lem s are described. The article a lso addresses the su b jec t o f pro fession a l lia b ility insurance so th a t a d en tis t can purchase a p o lic y th a t provides adequ a te coverage.

Malpractice and periodontal disease

Beverly L. Bailey, J D

U n til approxim ately 10 years ago, lawsuits against dentists based on the failure to diagnose periodontal

disease, o r the failure to treat that disease properly, were in frequent occurrences. Indeed, the phrase periodontal disease appears in no reported dental m alpractice case, state or federal, before 1972.1 Today, observers in the dental and legal profes­sions, as well as those in the insurance industry, readily acknowledge that the failure to diagnose and properly treat periodontal disease is am ong the leading causes, if not the leading cause, of dental malpractice.

Ironically, this change of events may to some extent be attributed to advances in the field of dentistry. T h e oral health of American society has greatly improved in the post-W orld War II era, as a result of, in part, fluoridated water and increased awareness am ong the public of proper m ethods of dental hygiene. T he dental p roblem s tha t ind iv iduals co n tin u e to experience are perceived more and more as aberrations. T h e rising num ber of law­suits against professionals of all sorts has had the effect of focu sin g b lam e for adverse dental conditions on the dentists. In this environm ent, it is advisable for

dentists, especially those who routinely con fron t periodon tal p roblem s am ong their patients, to have some understand­ing of the legal principles that operate in the context of litigation related to peri­odontal disease. Some knowledge of this subject w ill assist the dentist in the m ain­tenance of adequate records, and in the acquisition of insurance coverage that is sufficient to protect the dentist in the event of a lawsuit.

Key features of litigation

Lawsuits arising out of the treatm ent of periodontal disease or the failure to diag­nose it can be based on any num ber of legal theories. Certainly, negligence—that is, the failure on the part of a dentist to meet a requisite standard of care—is the most common cause of action. T he burden is on the p laintiff to prove the standard of care, w hich is usually done by way of the in troduction of expert testimony. T he p la in tiff m ust then establish that he or she suffered injuries as a result of devia­tion by the dentist from this standard.

It is firmly established that the standard of care requires dentists, and all other professionals, to exercise the degree of

skill ordinarily used under sim ilar circum ­stances by other members in good stand­ing in the same profession.2 General den­tists are held to the standard of care of other general dentists, and persons iden ti­fying themselves as specialists are held to the level of skill, knowledge, and learning ordinarily used by specialists.3

T rad itionally , the standard of care, at least as defined by many courts, had a geographic dim ension. T h a t is, the m ean­ing of ordinary care and skill was deter­m ined by com parison to the actions of dentists in good standing in a particular locality. According to the strict locality rule, w hich was applied by some courts, a d en tis t’s services were com pared w ith those of other dentists in the same local­ity. Some courts m odified the strict local­ity rule, and held that the requisite care should be m easured by the standards of dentists of ordinary skill in sim ilar com ­m unities. Others have determined that a den tist’s duty should be viewed in ligh t of the professional services of other dentists in the same general neighborhood or vicinity.

T h e rationale for this locality rule, however phrased, was that dentists in rural areas lacked access and exposure to recent

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technological and scientific advances, and thus it w ould be unfair to ho ld them to the same standards as professionals in other areas (for example, a h ighly urban­ized area). Increasingly, however, and because of the m anner in w hich 20th cen­tury transportation and com m unication advances have changed society, dentists involved in m alp ractice litig a tio n are being held to the standard of the average practitioner, defined independently of any locality. T h is change in legal doctrine has made it easier for any patien t suing a dentist to obtain the expert testimony that is usually necessary to prove a case, and this is reflected in lawsuits arising out of the treatm ent of periodontal disease.

A case in po in t is Sanderson v s ______ ,4in w hich an appellate court in W ashing­ton State reversed a trial court’s decision w hich applied its version of the locality rule for the standard of care. A practi­tioner in Spokane was sued by a patient w ho alleged neg ligen t d iagnosis and treatm ent of periodontal disease. T he dentist’s attorney convinced the trial court that the geographic boundary relevant to the standard of care was confined to the Spokane area, and the trial court conse­quently gave instructions to the jury to the effect tha t it should consider the treatm ent provided by the dentist in light of the “degree of learning and skill ordi­narily possessed by dentists of good stand­ing, practicing in the same . . . locality and under sim ilar circumstances.”5 T he appellate court reversed and rem anded the case, ho ld ing the instruction to be error. It noted in particular that the instruction prejudiced the p laintiff by d im inishing the value of the p la in tiff’s expert, a peri­o don tis t from ano ther com m unity in W ashington State, and that the profes­sional services of the defendant dentist should have been com pared w ith those of the1 average practitioner, acting in the same or sim ilar circumstances.

Periodontists are frequently perm itted to testify as to the standard of care am ong general dentists, w ith respect to the treat­m en t of periodon tal disease. T h is is because the competency of a witness to testify as an expert depends on whether the witness has specific knowledge about the subject m atter under consideration, and is a discretionary issue w hich is decided by the judge. Similarly, a general dentist may provide expert testim ony in a malpractice action involving a periodon­tist, if the general dentist’s qualifications disclose sufficient knowledge of the sub­ject about w hich testimony is sought.

In M cLean v s _______ , 6 a patient sued

her general dentist for, am ong other rea­sons, failing to advise her that she had periodontitis, failing to set up a treatm ent p lan , and failing to refer her to a peri­odontist. T h e trial court, w hich refused to allow a periodontist to give expert tes­tim ony as to the ordinary standard of care

am ong dentists in general practice, found that the conduct of the dentist was not below the applicable standard of care. T he appellate court concluded that the exclusion of the testimony by the trial court was wrong, bu t that the error did not w arrant reversal because testimony of two general dentists, w hich was substan­tially the same as that of the periodontist, was entered in to evidence, and hence the jury in effect had the testimony of the p e r io d o n tis t before i t in m a k in g its decision.

T h e appe lla te court no ted th a t “ [a] specialist’s qualification to testify in a given trial m ust be determined on a case by case basis,”7 and that the periodontist whose testimony the p la in tiff sought to introduce was qualified to testify in part because he taught periodontics at a local dental school to future general dentists, and was as a result acquainted w ith the train ing and standard of care expected of general dentists treating periodontal dis­ease. T he court also explained that den­tists are generally re lu c tan t to testify against members of their own profession, and that plaintiffs would have great diffi­culty ob ta in ing the requisite expert tes­tim ony if distinctions between general den tists an d specia lists w ere rig id ly observed.

A dentist should recommend that a patien t consult w ith or be treated by a periodontist if the patien t’s condition is such that other dentists in the same or sim ilar circumstances w ould give such a recom m endation, because the failure to refer can am ount to a breach of duty of care, and can give rise to a su it for negli­gence. In Brock vs _______ ,8 a patientsued her dentist, a practitioner in Shreve­port, LA, in part claim ing that his failure to refer her to a periodontist was below the standard of care usually exercised by

general dentists. T h e p la in tiff’s expert witnesses included two general dentists and a periodontist. T he trial court held in favor of the dentist, and the appellate court affirmed, specifically no ting that the two general dentist witnesses had established that treatm ent of the patient’s

type of periodontal problem s was rou­tinely performed by general dentists at the time the patien t’s claim arose.

Apart from claim s of negligence, alle­gations of fraud may also arise in the con­text of litigation arising ou t of the treat­m ent of periodontal disease. A lthough the precise elem ents of such a claim vary slightly from state to state, the plain tiff m u st g en e ra lly show re lia n c e on an alleged m isrepresentation that results insome damage. In W illard vs ______ ,9 apatient sued, am ong others, a dentist who indicated to her that she had an advanced periodontal problem that precluded treat­m ent on some of her teeth. T he dentist’s statements supposedly led to unnecessary treatm ent from a periodontist. A Califor­nia appellate court refused to affirm a trial court’s decision in favor of the den­tist w ith respect to the allegation of fraud, finding that the trial court had neglected, to the detrim ent of the former patient, to examine various issues of fact, including w hether the den tist ac tua lly m ade the alleged m isrepresentation , w hether the patient relied on the statements, and the extent to w hich the patien t was damaged thereby.

An action based on breach of warranty for the im proper treatm ent of periodontal disease may be possible in some circum ­stances, particularly if the dentist makes representations to a patient that suggest or prom ise a specific result, beyond the general obligation to treat the patient in accordance w ith the skill required in the profession.10 Statutes in some states, how ­ever, provide that no action for breach of warranty may be m aintained against a dentist, unless the guaranty, warranty, or assurance is contained in w riting, and is signed by the dentist or some other per­son au thorized to act on his o r her b eh a lf .11

M dentist can be sued by a former patient for the treatment of, or the failure to treat, periodontal disease several years after the patient’s last visit with the dentist.

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The statute of limitations

T he most im portan t issue in many cases arising out of the treatm ent of periodon­tal disease is whether the claims of the former patien t are barred by the statute of lim ita tions—that is, the statute of a given state that sets forth the tim e frame after w hich an action cannot be m aintained. T h e critical question is generally not the length of the statutory period, which is 2 years for most malpractice actions in most states, bu t rather the date on w hich the statute begins to run. In some states, the statute commences at the time of the occurrence of the last act of the defendant giving rise to the cause of action .12 Hence, in such a state, a lawsuit based on the failure to diagnose or properly treat peri­odontal disease is generally considered timely if initiated w ith in 2 years of the patient’s last visit w ith the dentist, because the last negligent ac t—the failure to d iagnose o r the im p ro p e r th e rap y — occurred at that time.

In other jurisdictions, the statute runs from the date of the first injury to the patient. Frequently in such states courts have invoked the doctrine of continuous treatm ent to avoid the un just result of the statute starting and ending while a patient is under the treatm ent of a practitioner, and hence arguably unaw are of any m al­practice. According to this doctrine, the statute does not run un til the im proper course of exam ination and treatm ent has terminated.

An exam ple of the application of the continuous treatm ent doctrine is found inthe case of Farley vs ______ ,13 In thatcase, a patien t sued a V irginia dentist for failing to properly diagnose and treat her periodon ta l disease. T h e p a tien t was treated by the dentist between 1966 and 1969, and again between 1972 and 1976. D uring 1973 and 1974, she allegedly com plained to the dentist of bleeding gums, and during 1976 she alerted h im to the fact that several of her teeth were loose. On the advice of another dentist, she ultim ately sought treatm ent from a periodontist who advised her that she had advanced periodontal disease.

T h e p a tie n t com m enced a law su it against the first dentist on Nov 19, 1976. According to the expert testimony pro­duced by the patient at trial, the patien t had active periodontal disease as early as 1971, which should have been discovered by a general dentist exercising ordinary care. T he defendant argued, and the trial court held, that the righ t to sue accrued

on the date of injury, w hich was more than 2 years before the com mencem ent of the p a tien t’s lawsuit, and tha t as a result the suit was barred by the statute of lim ­itations. O n appeal, the V irginia Supreme Court, app ly ing the doctrine of con tinu­ous treatment, held the action to be timely, no ting that the statute did no t begin to run u n til the im proper course of treat­m ent ended on Aug 23, 1976, the date of the patien t’s last visit to the defendant dentist.

In other states, the statute of lim ita­tions starts ru n n in g w hen the in ju red party discovers the injury, or w ith reason­able diligence should have discovered the in jury . For exam ple, in K aufm an vs______ ,14 a patient in Illinois sued herformer dentist alleging that he failed dur­ing 1974 and 1975 to diagnose and treat her periodontal disease, and failed to refer her to dental specialists for preparatory periodon ta l and surgical therapy. T he patien t commenced the law suit on Aug 22, 1977. T he trial court ruled in favor of the dentist, holding that the statute began to run on A pril 29, 1975, the date of the p a tien t’s last visit to the dentist, and that as a result, the lawsuit was barred by the2-year statute. T he appellate court reversed the trial court’s judgm ent, p o in ting out that it is the date of discovery, n o t the date of the last negligent act, w hich starts the ru n n in g of the 2-year lim ita tio n s

Dental records

R ecords are frequen tly decisive w ith respect to alm ost every aspect of any den­tal m alpractice action, includ ing lawsuits arising o u t of professional services related to periodontal disease, and should be kept for a m inim um of 10 years.

A description in the records of all home care instructions, and the extent to w hich a patien t follows the den tist’s hom e care advice, is particularly im portan t for a va­riety of reasons. First, the failure to give such instructions w ith respect to p eri­odontal disease has been considered by some courts to be evidence of negligence on the p art of the den tist.15 A dditionally, to the extent that the patien t fails to fol­low the advice of the dentist, and the records bear this out, the dentist may be able to establish the defense of contribu­tory negligence—in other words, tha t the p a tien t’s acts or lack thereof, a t least in part, gave rise to the p a tien t’s problems. In some states, contributory negligence is a com plete bar to recovery on the part of the patient. O ther jurisdictions com pare the negligence of a p la in tiff w ith that of a defendant, and apportion liability between them, based on degrees of fault.

Radiographs are also particularly signif­icant. In one case, the radiographs taken w hen the patient began treatm ent w ith the dentist w ho was subsequently sued,

ecords should include a summary of all statements made by the dentist to the patient during each visit, concerning the methods and courses of treatment and possible results.

period in Illinois. Because the date of the patien t’s discovery of the dentist’s alleged m istreatm ent of her periodontal disease was not in the record, the appellate court rem anded the case for further proceedings so that this fact could be established by the production of evidence.

Particularly in states w ith discovery stat­utes, a dentist can be sued by a former patien t for the treatm ent of, or the failure to treat, periodontal disease several years after the patien t’s last visit w ith the den­tist. Hence, the operation of the statute of lim itations in lawsuits related to peri­odon ta l disease is such th a t detailed records m ust be retained for an extended period.

and those taken a few years later when the p a tie n t sough t the advice of a second dentist, established to the satisfaction of b o th the tria l and the appe lla te court that the patien t’s periodontal disease did not progress during the tim e the patien t was under the care of the first den tist.16 T he dentist prevailed because the radio­graphs showed that any alleged negligence on his p art did n o t result in further in ju ­ries to the plain tiff’s teeth.

M oreover, records shou ld include a sum m ary of all statem ents made by the dentist to the patien t during each visit concerning the m ethods and course of treatm ent, and the possible results of treatm ent. T his inform ation is imperative

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if the dentist is ever faced with allegations of breach of warranty or fraud.

Additionally, signed consent forms should be contained in the records reflect­ing the patient’s informed consent to the treatment of periodontal disease. The form should briefly explain the nature of the services to which the patient consents, as well as the benefits and risks of such treatment, and the benefits and risks to the alternatives to treatment, including no treatment at all. Because a signed form alone is not always dispositive of whether the patient gave informed consent to treatment, dental records should reflect that the dentist and patient discussed all topics described in the informed consent form.

In addition to the foregoing items, and information generally kept by the dentist in a patient’s records, such as the patient’s medical history, the records of patients being treated for periodontal problems should include the following: a detailed description of the patient’s periodontal condition at the time of each dental visit; a complete report of the dentist’s services completed each visit; information as to whether the dentist has referred the patient to a specialist, to whom the dentist has referred the patient, if anyone, and the dates on which the referral is made, if at all; whether the patient follows the den­tist’s referral advice; and recommendations given to the patient with respect to return visits.

To avoid charges that records have been altered, dentists should always use ink to transcribe notes on records, and should date all record entries, in addition to list­ing dates on which professional services, or conversations with a patient about treatment, take place. Revisions, if any, should also be dated, and should be made by drawing a single line through the cor­rected word or sentence.

Liability insurance issues

The statute of limitations, and its opera­tion in the context of cases involving periodontal disease, should be borne in mind by dentists when purchasing pro­fessional liability insurance. Many insur­ers that provide coverage to dentists no longer offer occurrence policies—that is, a policy that protects against incidents that occur while the policy is in effect, regardless of when the incidents are reported to the insurer. Claims-made pol­icies, which generally cover events that occur and are reported while the policy is

in force, have become the norm in the industry. This change in the type of cov­erage available has made it more difficult for dentists to purchase insurance protec­tion for claims, such as those arising out of the treatment of periodontal disease, which may materialize in the form of lawsuits or threatened lawsuits several years after the dentist’s treatment of a patient.

Many claims-made policies specifically bar coverage for acts, known or unknown to the insured, which transpire before the policy period, and give rise to a claim during that time. Hence if a dentist with claims-made insurance effective during 1 year is sued for the failure, several years earlier, to diagnose a patient’s periodon­tal disease, the claims-made policy would in all likelihood not provide coverage.

Gaps in coverage may result when a dentist changes from one claims-made insurer to another. Some carriers of claims-made policies permit dentists to alleviate this problem by allowing the purchase of a prior acts endorsement, which extends coverage to acts that tran­spire before the policy period. Still, a carrier may not make such a provision available, may limit its effect to a short period, or may offer it only at a high price. Coverage gaps resulting from a change of carrier may also be remedied by the purchase of an extended reporting period, from the insurer that provides the coverage that is terminating, to the extent that the carrier offers this option. An extended reporting clause allows claims to be reported under a claims-made policy subsequent to the policy period. This type of provision and the coverage it provides may also be costly, or may not be avail­able for the length of time needed to provide complete malpractice coverage to the dentist.

All dentists, but particularly those who treat large numbers of patients with peri­odontal problems, should review their insurance policies with their attorneys to ascertain that the coverage they have purchased is adequate in light of the nature of their practices. A dentist who is incorporated needs coverage for his or her corporate entity. Also, dentists who are affiliated with a group must make certain that their insurance is sufficient to protect them from claims that arise as a result of services provided by those with whom they practice. Additionally, sensitivity to the subject of coverage for other members of the professional staff is vital, particu­larly because it is becoming commonplace for a dental hygienist to be named a

defendant in a lawsuit, with the dentist, based on the failure to diagnose peri­odontal disease. If the hygienist is with­out adequate coverage, a former patient may attempt to blame the dentist, regard­less of the dentist’s genuine responsibility for any acts or omissions, possibly based on a theory of negligent supervision.

Summary

The treatment of periodontal disease is, at the present time, the focus of a large per­centage of all dental malpractice cases. Consequently, dentists may find it help­ful to be aware of the somewhat unique nature of litigation arising out of profes­sional services provided with respect to periodontal disease. The operation of the statute of limitations in this context, whereby a dendst—at least in many states— can be sued several years after treatment of a patient terminates, makes caution, in terms of the maintenance of records and the purchase of insurance, an absolute essential.

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The comments contained herein are intended for informational purposes only, and are not a substitute for the advice of individual legal counsel.

Ms. Bailey is an attorney in Chicago who special­izes in professional liability litigation. Address requests for reprints to the author, Karon, Savikas 8c Horn, Ltd, 5700 Sears Tower, 233 S Wacker Dr, Chi­cago, 60606.

1. Sanderson vs Moline, 7 Wash App 439, 499 P2d 1281 (1972).

2. See generally, 83 ALR2d 7 (1962); Wiley vs Karam, 421 So2d 294 (La App 1982).

3. See, eg, Short vs Kinkade, 685 P2d 210 (Colo App 1983); Simpson vs Davis, 219 Kan 584, 549 P2d 950 (1976).

4. Sanderson vs Moline, 7 Wash App 439, 499 P2d 1281 (1972).

5. 7 Wash App at 440, n 1, 499 P2d at 1283, n 1.6. McLean vs Hunter, 486 So2d 816 (La App 1986);

also see Evans vs Ohanesian, 39 Cal AppSd 121, 112 CalRptr 236 (1974).

7. 486 So2d at 818.8. Brock vs Gunter, 292 So2d 328 (La App 1986).9. Willard vs Hagemeister, 121 Cal AppSd 406, 175

CalRptr 365(1981).10. See, eg, Paske vs Green, 142 111 AppSd 367, 491

NE2d 1195 (1986).11. See, eg, NC Gen Stat §§90-21.13(d), 90-21.11

(1985).12. See, eg, NC Gen Stat §l-15(c) (1985).13. See, eg, Williams vs Elias, 140 Neb 656, 663, 1

NW2d 121, 124(1941).14. Farley vs Goode, 219 Va 969, 252 SE2d 594

(1979).15. Kaufman vs Taub, 87 111 AppSd 134, 410 NE2d

114(1980).16. See, eg, Sanderson vs Moline, 7 Wash App 439,

442-443, 449, P2d 1281, 1284 (1972).17. Brock vs Gunter, 292 So2d 328 (La App 1986).

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