Liability Implications Associated With Jousting in Dentistry

Marcy A. Metzgar

Definition
In dentistry, jousting refers to a dentist being critical of another dentist’s treatment and assuming inadequate care was provided to a patient. In turn, this perspective by one dentist may motivate a patient to allege malpractice against the dentist that provided the care.

Closed Claims Analysis
To illustrate how jousting can turn into malpractice claims, an analysis of MedPro Group dental cases closed between 2009 and 2019 (with at least $50,000 total dollars paid in expense and indemnity) indicated that jousting accounted for 15 percent of all cases and 16 percent of total dollars paid.1 Below are details of this claims analysis:

  • Jousting claims outpaced the average growth of all cases year over year (average growth over year was 10 percent).
  • Jousting claims were noted most often in restoration cases (24 percent), implant cases (20 percent), and crown cases (17 percent).
  • Jousting was noted most often in conjunction with documentation-related factors (20 percent of all jousting cases involved documentation); additional related factors included informed consent and patient selection issues (14 percent).
  • Cases with both jousting and documentation risk factors are 18 percent more expensive to resolve than the average of all cases.

Possible Outcomes
As the claims analysis above shows, the presence of jousting can produce many negative outcomes.

Patients may recall their previous experience in a subjective — not objective — manner, so dentists may not hear all the facts. They may only hear part of the story as well, so they should consider communicating with previous dentists to get more facts and see previous dental records. Often notations in the previous dentist’s records regarding the patient’s cooperation and compliance may be enlightening and prove useful in terms of treatment planning, patient education, and informed consent.

If a dentist makes assumptions and concludes subpar care was provided by another dentist when examining a new patient, a patient may be influenced by the jousting and may seek retribution by filing a lawsuit. If the patient asserts a claim against the previous dentist, then the dental records from both dentists will be examined in a malpractice case. The new dentist may also be called as a material witness in a court trial or a plaintiff’s attorney considering the dentist’s criticism as expert testimony.

Not only can a dentist become part of a lawsuit, but also professional relationships between dentists can become strained and compromised and a dentist’s professional reputation can be destroyed. He or she may not have the opportunity to explain the care he or she rendered, which can lead to loss of practice and finances.

Jousting also may change the way a patient perceives dentistry and pursues dental care. They may lose faith and trust in dentistry as a result of jousting and discontinue treatment, which may affect their health.

Ethical Perspective
According to the American Dental Association (ADA) Code of Ethics, “Patients should be informed of their present oral health status without disparaging comment about prior services.”2 Therefore, jousting is considered unethical.

It is incumbent upon every dentist to conduct himself or herself in an ethical and professional manner and to always do and say what is in the best interest of the patient’s health. However, treating new patients with previous negative experiences can present challenges, so try not to speculate or guess when discussing previous treatment. Although a dentist’s clinical skills and decisions are essential to patient safety and satisfaction, other unknown variables may have played an important role.

Strategies to Consider
To avoid the liability implications associated with jousting, following are some strategies dentists can use:

  • Be wary of multiple opinions and patients with a long history of previous dentists.
  • Ask the patient to describe the previous treatment and recommendations received, including any medication prescribed and how they were taken. Be cautious of patients who will not reveal the previous dentist’s name nor give permission to contact that dentist.
  • If a patient asks whether a previous dentist provided inadequate care, do not comment on that treatment and instead specify what you found when examining him or her and your recommendations.
  • Do not document anything in the patient record that reflects criticism of the previous dentist’s treatment. Simply state what can be substantiated.
  • Follow dental ethical guidelines including the ADA Code of Ethics mentioned previously.
  • Be thoughtful toward your fellow colleague/dentist and don’t perceive the situation as a competitive one.
  • Be sure to practice thinking rationally and morally. Be more diligent and practice optimum restraint in selecting your words, especially about fellow dentists.
  • Maintain the best interest of the patient as the top priority, but not at the expense of the dentistry profession and professional ethics.

In Summary
Most dentists have seen situations of past dental care that seemed inappropriate and ineffective. They have also heard patients relay unsupported, critical comments about another dentist’s care, which can erode patient trust and compliance as well as increase the dentist’s liability exposure. Dentists should be cautious about what words they use about other dentists and uphold dental ethical guidelines to avoid any jousting.

Endnotes

  1. MedPro Group dental cases closed with >/= $50,000 total dollars paid (expense + indemnity), 2009-2019.
  2. American Dental Association. (n.d.). ADA Principles of Ethics and Code of Professional Conduct. Retrieved from https://www.ada.org/en/about-the-ada/principles-of-ethics-code-of-professional-conduct/justice

This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.