The Malpractice Myth: What Canadian Dentists Need to Know About Negligence and Liability
For many Canadian medical professionals in general (and dentists in particular in this case), the spectre of a malpractice lawsuit is a common concern. The question of such a serious legal event can be a source of significant anxiety, fueled by anecdotes and a general sense of legal vulnerability. This pervasive fear, however, is very often rooted in a misunderstanding of what professional negligence actually entails within the Canadian legal system. The reality of dental malpractice is far more nuanced and structured than the myth suggests, and so may serve to counter some of those pervasive fears. Ultimately, while malpractice lawsuits are a way to ensure accountability amongst medical professionals, they are less concerned with punishing dentists for imperfect outcomes, and more with providing recourse for patients who have suffered a demonstrable harm as a direct result of care that fell below a reasonable and established standard.
By demystifying the core legal principles of negligence and liability, dentists can approach the matter with less fear and instead tackle it with a sense of empowerment. A clear understanding of the legal framework allows practitioners to concentrate on what truly matters: providing excellent, patient-centred care while implementing practical risk management strategies. This article will take a look at some of the components of dental negligence in Canada, demystifying some of the myths to instead provide a clear, practical guide for the modern practitioner.
1. The Foundation: Understanding the Standard of Care
At the very heart of any discussion about negligence is the concept of the standard of care. This is the legal benchmark against which a dentist’s actions, or inactions, are measured. A common misconception is that this standard requires perfection. It does not. The law does not expect dentists to be infallible or to guarantee a successful outcome for every procedure.
Instead, the standard of care is defined as what a reasonably prudent and competent dentist, with a similar level of skill and training, would have done in similar circumstances. It is a standard of reasonableness, not perfection. This benchmark is not arbitrary; it is established by considering a variety of factors, including the guidelines and publications of professional bodies like the Canadian Dental Association (CDA) and the various provincial regulatory authorities (e.g., the Royal College of Dental Surgeons of Ontario). Expert testimony from other dental professionals is also crucial in a legal setting to help establish what would be considered appropriate conduct in a specific clinical scenario. While the standard is generally considered to be national, it can be influenced by what is feasible and customary in a particular geographic location, taking into account available resources and technology. Failing to meet this standard is the first critical step in establishing negligence.
2. The Four Pillars of Negligence
For a patient to successfully bring a claim of negligence against a dentist, their legal team must prove four distinct elements on a balance of probabilities. If even one of these pillars cannot be established, the entire claim will fail. Understanding this four-part test is essential for any dentist seeking to comprehend their legal obligations.
1. A Duty of Care Existed:
This is typically the simplest element to prove. Once a dentist agrees to treat a patient, a professional relationship is formed. This relationship automatically establishes a legal duty of care, obligating the dentist to provide competent treatment and act in the patient's best interest.
2. A Breach of the Standard of Care Occurred:
This is the core of the negligence claim. The patient must demonstrate that the dentist's conduct fell below the established standard of care. It is not enough to show that there was a poor clinical outcome. Many adverse outcomes can occur even when the dentist has done everything correctly. The patient must prove that the dentist did something a reasonable colleague would not have done, or failed to do something a reasonable colleague would have done.
3. Causation:
This pillar links the breach directly to the harm suffered. Proving standard of care had something to with causing a medical issue can be a thorny matter in malpractice cases. The patient must prove that the dentist's breach of the standard of care caused their injury. The legal test often applied is the "but for" test: "but for" the dentist’s negligent action, would the patient have suffered the injury? If the injury would have occurred anyway, regardless of the dentist's actions, then the element of causation is not met. This prevents dentists from being held liable for unfortunate outcomes that were not a direct result of their substandard care.
4. Damages:
Finally, the patient must have suffered a real, quantifiable loss or harm. This can include physical injury, pain and suffering, psychological distress, the cost of corrective treatment, or lost wages due to an inability to work. Without demonstrable damages, there can be no successful negligence claim, even if the dentist clearly breached the standard of care.
3. Beyond the Form: The Power of Informed Consent
Informed consent is not merely a piece of paper a patient signs before a procedure. It is a dynamic process of communication and a fundamental patient right. Knowing how to secure informed consent is a must in any field (and more so for medical professionals like dentists); failure to secure proper informed consent can lead to a claim of negligence or even battery. In the Canadian legal context, true informed consent must meet several criteria.
First, the consent must be given voluntarily, without coercion. Second, the patient must have the legal capacity to provide it. Most importantly, the consent must be informed. This means the dentist has a duty to explain the nature of the proposed treatment, the expected benefits, and any material risks involved. Material risks include any common, low-severity risks as well as any rare risks that carry severe consequences, such as permanent nerve damage or death. Furthermore, the dentist must discuss viable alternative treatment options, including the option of no treatment at all, and the likely consequences of each choice. The key is to provide the patient with enough information to make a reasonable decision about their own health care. Simply handing a patient a form to sign is insufficient. The conversation where these risks and alternatives are discussed (and the patient’s questions are answered) is the true essence of the informed consent process.
4. Your Best Defence: Meticulous Documentation
In any legal dispute, the patient’s chart is one of the most critical pieces of evidence. From a legal standpoint, an act, observation, or conversation that is not documented is often presumed not to have happened. Meticulous and contemporaneous record-keeping is arguably a dentist's single most powerful tool for risk management and defence.
Effective documentation goes far beyond recording tooth numbers and restorative materials; it should also create a clear and comprehensive narrative of the patient’s care. This includes a detailed medical and dental history, clinical findings, diagnoses, and a clear rationale for the proposed treatment plan. Crucially, all informed consent discussions should be documented in detail, noting the specific risks, benefits, and alternatives that were reviewed with the patient. Any instructions given, medications prescribed, or referrals made should be recorded. Clear, objective, and professional notes create a reliable record of the care provided and can be invaluable in demonstrating that the standard of care was met, should a complaint ever arise.
5. Shared Responsibility: Understanding Vicarious Liability
It is vital for clinic owners to recognize that their potential liability extends beyond their own clinical work. The legal doctrine of vicarious liability holds that an employer can be held legally responsible for the negligent acts of their employees, provided those acts were committed within the scope of their employment.
This means a dental practice owner can be named in a lawsuit stemming from the actions of an associate dentist, a dental hygienist, or a dental assistant. The rationale is that the employer benefits from the work of the employee and is in the best position to control their training, establish safety protocols, and carry the necessary liability insurance. This underscores the importance for practice owners to ensure that all team members are properly trained, credentialed, and supervised. Implementing clear office policies and clinical protocols, and fostering a culture of safety and open communication, is not just good practice management; it is an essential strategy for mitigating the risks associated with vicarious liability. By focusing on comprehensive team management, a dentist can protect their practice and ensure a consistent standard of care is delivered by everyone under their employ.
Malpractice can be an intimidating word for many dentists, but there are ways to cover yourself (and not just by ensuring you provide full, proper, and informed care either). With these insights, you can take concrete steps to make sure you are fully prepared and protected in case the worst happens. Remaining transparent and maintaining communication with your patients and colleagues goes a long way toward ensuring you provide quality care and ensure you aren’t liable in case of emergency. Of course, when in doubt, it does also pay to get in touch with legal counsel to help you protect yourself. But before you do, you can be certain that you did everything possible to examine your own professional practice carefully while caring for your patients.
When you need assistance with matters legal, it pays to have a lawyer you can trust in your corner to lend a hand. Health Law Firm provides that helping hand to ensure you get reliable legal counsel whenever you need it. Whether you need help with contracts or resolving disputes, we’re more than happy to help. Give us a call now at (416) 640-0508 and get the legal advice you’re looking for.