An overview of orthodontic malpractice liability based on a survey and case assessment review

BACKGROUND: The purpose of this survey study and case review was to identify 1) the common causes related to filing a malpractice claim against an orthodontist and, 2) the factors mitigating against a potential malpractice claim in the United States (U.S). The objectives of the case review were to examine the current state of orthodontic malpractice litigation from a cause and mitigating point of view. MATERIAL AND METHODS: Data for this research was collected and reviewed using the following two methods: 1) A survey questionnaire on aspects of malpractice liability was electronically distributed to 2,241 active U.S. members of the American Association of Orthodontists (AAO). 2) Legal cases were reviewed on the online legal research database Lexis Advance Research, and 35 cases were analyzed. RESULTS: Survey questionnaire results and legal case review results are as follows: 1) 77 orthodontists completed the survey. 9.1% of the respondents reported a malpractice claim having been filed against them with periodontal issues accounting for most of the claims. Survey participants reported good doctor-patient communication as being the most relevant contributory factor and most relevant mitigating factor in malpractice claims. 2) Negligence is the main reason patients sue a doctor for clinically related litigation, and failure to obtain a proper informed consent from the patient is the main cause of action for non-clinically related litigation. CONCLUSIONS: Most respondents reported doctor-patient communication, periodontal issues, and a lack of informed consent as the main triggering elements of a lawsuit, which is similar to other studies and case review analysis. Good doctor-patient rapport was ranked as being most helpful in mitigating a potential claim, which is also similar to other studies. Another aspect of the survey questionnaire that was evaluated was whether a non-orthodontist can provide expert testimony against an orthodontist, with most respondents reporting that this is not possible. It has been ruled, though, that a general dentist can be an expert witness and provide expert testimony against an orthodontist in a lawsuit depending on the circumstances. Negligence was the most common cause of clinically related orthodontic litigation, and a failure of the practitioner to obtain a proper informed consent from the patient was the most common cause of non-clinically related orthodontic litigation. Key words:Orthodontist, malpractice, legal, lawsuit, liability, medicolegal.