February 2016

Failure to Follow Practice Protocols Results in Patient Injuries and Malpractice Suit

Mario Catalano, DDS, MAGD


Today, the practice of dentistry is more complex and sophisticated than ever. As dental practices grow in size and scope, the number of "moving parts" increases. If these moving parts do not function in proper synchronization, mistakes can happen — sometimes with poor outcomes, as demonstrated in this edition of Malpractice Minute.

Case Discussion

A 26-year-old female patient, who suffered from dental phobia, presented to a general dentist for the first in a series of restorative treatments. The treatment plan for the appointment was the composite restoration of teeth 29, 30, and 31.

Upon arriving for her appointment, the patient was seated in the operatory. After a brief conversation with the patient, the dentist administered an inferior alveolar block. He then left the room, instructing the dental assistant to stay with the patient and notify him as soon as the block took effect, at which time he would commence treatment. However, the assistant explained to the patient that she had some instruments to sterilize and would be gone for a few minutes, but that she would return to check on the progress of the anesthetic. The assistant then left the room.

After a short time, the patient began to feel nauseated but could not find the dental assistant. The patient went to the restroom, where she became ill and vomited. She rinsed her mouth, restored her composure, and began to walk back to the operatory. On her way, the patient saw the dental assistant and explained what had occurred. The assistant asked the patient to return to the operatory and seat herself while the assistant retrieved the doctor.

While attempting to seat herself in the dental chair, the patient became lightheaded. She temporarily lost consciousness and fell forward, hitting her face — including her mouth — on a piece of dental equipment. As a result, the patient suffered the avulsion of teeth 7, 8, and 9; the fracture of teeth 10 and 11; a laceration to her face; and a broken nose.

Emergency dental care was started immediately, and the practice alerted the patient's husband. By the time her husband arrived at the office, the avulsed teeth had been returned to their sockets and were stabilized. The patient was taken to a hospital emergency department, where she underwent additional treatment to suture the laceration and repair her nose.

In the ensuing 12 months, the patient required three plastic surgery procedures and extensive dental care. She had out-of-pocket treatment expenses of $41,000, with potential future expenses of $46,000 to $77,000.

Defense counsel had difficulty locating an expert witness who was not critical of the situation. Part of this difficulty stemmed from the dental assistant's testimony that she did not personally escort the patient back to the operatory because she didn't believe the patient was sick. Instead, the dental assistant thought the patient was nervous and wanted to terminate the appointment.

In the absence of a supportive expert, the dentist consented to settlement of the case in the high range (above $50,000).



Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

This case brings to light an important, but not commonly discussed, aspect of dental practice: the supervision of dental staff. The first point to consider is whether a dentist has any legal responsibility for the actions of his subordinate staff. The answer to that question largely depends on the relationship between the dentist and the staff member.

A simple rule of thumb is that doctors generally are responsible for employees that are under their authority (even if the authority is temporary). Therefore, an associate dentist may have some degree of responsibility for the actions of staff members whom he or she oversees. However, the associate likely is not responsible for other staff members whom he or she does not directly supervise.

Conversely, the owner of the practice (whether it is a dentist or a corporate entity) almost certainly is responsible for all activities that go on within the practice, including the actions of employees. This is generally true regardless of whether the employee is licensed/certified.

The proper supervision of employees begins with appropriate policies and procedures, or protocols. When a practice is small (e.g., one dentist and three employees), a lot of formality is not usually needed. Staff know each other well and are familiar with the dentist's approach to practice. However, even in a small practice, clear communication is essential. The dentist has a duty to clearly communicate what he or she expects a staff person to do, and the staff member is responsible for following the instructions without deviation.

As a practice becomes larger, it must, by necessity, become more bureaucratic. When multiple dentists are practicing in one or more locations, they should agree on basic principles and approaches to practice to ensure as much uniformity as possible.

It is well recognized in risk management that greater uniformity reduces the risk of error. Further, when dentists in a practice commit to a uniform approach to patient care, it becomes relatively easy to write protocols that staff can understand and follow.

Uniformity is particularly beneficial in two ways. First, when staff members have to work with a dentist with whom they are not familiar, they will understand how the case is going to be handled. Also, they will know that if they comply with the practice's protocols, they will meet the dentist's expectations. Second, when staff members are asked to substitute for coworkers who are away because of illness, vacation, or other reasons, they will be able to take a consistent approach to tasks and more seamlessly transition work.

In the end, the practice protocols — and the common understanding they represent — serve to protect dentists, staff members, and patients by making the practice safer and more efficient.

The main issue in this particular case is that the dental assistant did not do as the dentist instructed. It isn't clear why she didn't follow the instructions, although miscommunication or insubordination may have played a role. If miscommunication was the issue, the entire dental team may need to evaluate current communication protocols and strategies.

If the failure to follow instructions was due to willful disobedience, the dentist may need discuss with the dental assistant her role and responsibilities and remind her who is ultimately responsible for the patient's welfare (the dentist). If the dental assistant's insubordination becomes a repeat occurrence, remedial measures or dismissal should be considered. A pattern of intentional disobedience should never be tolerated.


The practice of dentistry continues to become more complex and sophisticated; as a result, it has also become more of a "team sport." To function safely and efficiently, the team must have a "playbook" of protocols that everyone can understand and follow. By ensuring uniformity in practice, risks are minimized, the practice is more efficient, and all team members can enjoy the satisfaction of knowing that they are correctly doing their jobs.


What practical steps can be taken to ensure that dental staff complies with practice protocols and the dentist's instructions?


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