The COVID-19 pandemic has forced businesses of many kinds to modify their operations. These changes keep the public safe, but they also protect business owners from potential liability claims in the event of an outbreak. Dental practices are no exception—in fact, the up-close-and-personal nature of dental treatment requires practice owners to be even more vigilant.
So what should dental practices be doing to avoid both the public health hazards of COVID-19 and their own potential economic consequences? As a dental expert witness with experience advising both plaintiffs and defendants in a wide variety of malpractice suits, I’m here to help you understand the full implications of this pandemic on our industry. Keep reading to learn how dentists should change their practices’ operations in the current era, and feel free to contact me if you’re involved in a case where you need an expert’s advice.
The Effects of COVID-19 on Dentistry
COVID-19 has had a significant impact on dentists across the country. According to Oral Health Group, 86% of dentists experienced a loss of income from April to September of 2020 when compared to the previous year, with only 25% anticipating higher production levels by the end of 2021.
Meanwhile, 40% of dentists believe their biggest challenges this year to be costs and revenue. A likely reason for this is that the threat of COVID-19 is keeping more people away from in-person appointments, but practices are having to spend more money assuring tthat their offices are safe for the ones who do show up.
It’s not all bad news, though—36% of dentists said the pandemic provided new opportunities for them to expand their knowledge of infection control. As we’ll see in the next section, that knowledge can be critical for avoiding malpractice claims in an age where public anxiety about germs and infections has reached a veritable fever pitch.
How Dental Practices Have Responded to COVID-19
Research suggests that dental professionals likely face an increased risk of contracting—and spreading—COVID-19. This is because dental professionals typically work in close proximity to patients’ mouths, potentially exposing them to both aerosols and saliva that might carry the virus.
In order to minimize this risk, many dentists have adopted numerous precautions—many of which are based on OSHA’s guidelines for COVID-19 protection in the industry. These include:
Personal protective equipment such as masks and rubber gloves should be staple items in any dental practice, but they have become even more essential during the COVID-19 pandemic. While dentists have routinely masked and gloved for years and years, the quality, and nature of the PPE has greatly improved as has our diligence in using the PPE at all times.
Physical Barriers & Partitions
Separating patients in semi-private areas with curtains or screens is recommended for dental practices seeking to avoid an spread or an outbreak. Any partitions used should be made from materials that are easy to clean and disinfect on a regular basis.
Dental practices can minimize the risk posed by aerosolization of droplets by using local exhaust ventilation. Many practices are also using high-evacuation suction, dental dams, and other technologies and advances to control droplets during procedures.
There are many other strategies that conscientious practice owners have put in place to minimize the threat of COVID-19 to themselves, their staff, and their patients. Even so, COVID-19 is a relatively new and ever evolving challenge for the industry, and the question of whether these measures will be enough to prevent the spread within practices remains somewhat open.
More complicated still is the legal question of when dentists may be held liable for cases transmitted in their practices. We’ll get into that next.
Dental Malpractice Suits Involving COVID-19
There are a number of factors that complicate the issue of when someone can sue a dentist over a COVID-19 infection. Here are a few of them:
Who is Making the Claim?
Employees of a dental practice who contract COVID-19 relinquish their right to sue by filing a worker’s compensation claim. In order for these claims to be successful, the employee must provide proof that they contracted the virus and supply specific details such as the time and place they were exposed.
Since it is difficult to prove beyond a reasonable doubt that they could not have contracted the virus outside of work, these claims are not easy to make successfully. However, patients of a dental practice who contract COVID-19 may face additional difficulties trying to sue for malpractice.
Has There Been Wrongful Conduct?
If a patient is suing for malpractice because of a COVID-19 infection, they must prove that wrongful conduct by the dentist or an employee of the practice contributed to them catching the disease. Dentists can often be held vicariously liable in cases when an employee carrying out their regular duties is proven to be responsible for transmitting COVID-19 to a patient.
Employees vs. Contractors
However, a dentist cannot generally be sued if an independent contractor working at their practice was responsible for spreading COVID-19 to a patient. In these situations, vicarious liability does not apply, although the patient may still be able to sue the independent contractor.
How Dental Expert Witnesses Can Help
Since there is not yet a great deal of legal precedent for dental malpractice suits involving COVID-19, it is vital for both defendants and plaintiffs in these cases to retain dental expert witnesses. An expert witness with significant experience in both clinical practice and dento-legal matters can review the facts of your case in detail and settle important matters—like whether wrongful conduct took place, or how likely it is that transmission actually occurred inside the practice in question.
When retaining a dental expert witness, take care to use someone who brings as much credibility to your case as possible. Factors to look for include formal education, previous hospital residencies, fellowships, faculty appointments, and high-level certifications.
To learn more about dental malpractice suits involving COVID-19—or to find help for a case you are involved in—contact my office and request a consultation. I’ll be happy to tell you more about how dentists should protect themselves, their staff, and their patients during these unprecedented times.