Introduction

The legal profession is expanding. In the United States (US), there has been an increase in lawyers practising each year over the last decade; there are currently over 1.3 million lawyers.1

The framework of the malpractice system in the US was designed to focus on eliminating negligence;2 however, even the legal profession recognises they need greater self regulation to prevent opportunistic lawyers.3 One short drive is all that is required to see numerous billboards of lawyers inviting patients to sue for malpractice who may not have otherwise considered litigation. However, knowledge is sparse about trends in dental malpractice lawsuits.

Research has demonstrated that whether the plaintiff or the healthcare provider defendant is successful in a case is related to the specific procedure performed. For example, in rhinology, the plaintiff was successful more often when the eye was injured, but the healthcare defendant was successful more often when there were neuropsychological injuries.4 Literature has also shown that the type of procedure influences the amount of the malpractice payment.5 Dental practice is complex and almost all dental procedures involve a surgical intervention, eg cutting tooth structure or penetrating subgingivally with instruments to facilitate periodontal care.

In the last decade, healthcare in the US has changed immensely. Insurance companies are merging to form larger organisations that have greater bargaining power with hospitals. Hospitals, in turn, are merging (or forming business partnerships) so that they have sufficient power when negotiating with the insurers. Moreover, science has expanded knowledge, and the discovery and dissemination of best practices are advancing medicine worldwide. As medicine advances it means we have clinicians attempting new procedures with limited experience; however, literature has shown that high volume (and high experience) health centres have better outcomes of care.6 An increase in complexity does not necessarily mean that malpractice court rulings are inevitable. Research has shown that informed consent is a critical component in preventing malpractice payments.4 Moreover, research in testicular torsion found that when the primary care physician did not involve a urologist the risk of litigation was high. However, when a urologist was involved in care the plaintiff rarely succeeds.7 There is no similar research in dentistry but we may extrapolate that when a specialist is involved it is less likely that the plaintiff can find fault with the clinical team. General dentists must be prudent in referring complex cases to their specialist colleagues. Interestingly, it has been suggested that dentists tend to be poor delegators and prefer to 'control' their cases to prevent outsourcing care to other providers.8

The US population is ageing9 and as patients live longer, they gain more comorbidities and this makes them more likely to have complications.10 Legal research suggests that failing to disclose medical error or failing to meet patient expectation can lead to legal reprisal.11 Also, older Americans are much wealthier than younger Americans12 and some research suggests that wealthier individuals are more likely to litigate than the poor.13

Many of the factors discussed above may suggest that the risk of malpractice lawsuits in the US dental profession is still high. To date, however, there has been no study of trends in malpractice payment in dentistry or any of the other healthcare professions in the US.

It should also be noted that malpractice lawsuits have an expansive impact that is far greater than the financial sum of the payment. Research has shown that stress, time loss, limited support, and the feeling of being subject to injustice are consequences of dentists being involved in legal suits.14 Previous research has shown that 96% of malpractice payments are due to out of court settlements and only 4% are the result of court rulings.15 The purpose of the current study is to evaluate the trends in the number of malpractice payments made against healthcare professionals over the 11-year period from 2004 to 2014.

Methods

The National Practitioner Data Bank (NPDB) reports data about medical malpractice payments made against dentists, dental hygienists, advanced practice nurses, licensed nurses, registered nurses, optometrists, pharmacists, physicians (both DO and MD), physicians' assistants, podiatrists, psychologists, therapists and counsellors.16 These data are available in aggregate17 and were exported to JMP Pro18 – a data analysis and visualisation tool. Descriptive data are presented in this paper. There is usually a two-year lag of the release of NPDB reports about medical malpractice and the most recent year available was 2014.

Data considered include the type of healthcare provider, the US state the healthcare provider was working in, the year the malpractice payment was made and the range of payment amount. Data from the NPDM reports were exported to JMP to enable visualisation, evaluation of trends and calculation of standard deviation, upper and lower limits. The committee on human studies at University of Michigan Medical School provided IRB approval for this study (Study ID HUM00116742).

Results

The number of malpractice payments against physicians (both MD and DO) experienced a dramatic shift from 14,516 in 2004 to 8,875 in 2014 – a 38.8% decline (see Table 1). Overall, there has been a shift from 17,532 malpractice payments against the studied health professions in 2004 to 11,650 in 2014 (a 33.6% reduction) and the mean is 10,934 per year.

Table 1 Number of malpractice payments 2004-2014 by profession
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In 2004, the number of malpractice payments against dentists represented 10.3% of all payments against healthcare professionals, whereas, in 2014 it represented 13.4% of payments (see Table 2).

Table 2 Number of malpractice payments 2004-2014 by the dental profession versus non-dental healthcare professionals
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Table 1 shows that pharmacists, podiatrists, psychologists, therapists and counsellors saw a fall in the number of malpractice payments from 2004 to 2014. Dental hygiene had very few cases (ranging from 2 to 11 per year) and optometry had the same number of payments in 2004 as 2014. Physicians' assistants and nurses experienced an increase in the number of payments from 2004 to 2014.

Figure 1 demonstrates that the percentage of dentist malpractice payments out of all malpractice payments is growing. Region C in Figures 1, 2, and 3 represents one standard deviation away from the mean; Region B represents two standard deviations away from the mean and Region C represents three standard deviations from the mean.

Figure 1
figure 1

Percentage of dentist malpractice payments out of all other healthcare malpractice payments

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Figure 2
figure 2

Number of malpractice payments against physicians (MD and DO)

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Figure 3
figure 3

Number of malpractice payments against all health professionals other than dentists and dental hygienists

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Figure 2 shows the number of malpractice payments against physicians from 2004 to 2014. The number of malpractice payments against dentists was 1,800 in 2004 and had reduced to 1,555 by 2014; the mean was 1,537 payments per year. However, years 2012–14 showed a growth in the number of malpractice payments as seen in Figure 4. Figure 5 shows that most malpractice payments against dentists are below $100,000.

Figure 4
figure 4

Number of malpractice payments against dentists

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Figure 5
figure 5

Number of malpractice payments against dentists (Adjusted for inflation)

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Discussion

Data from the current study show that 11.2% of malpractice payments in the US are against dentists. However, what is most alarming is that this percentage is growing (Fig. 1), particularly as the number of malpractice payments against non-dentist health professionals falls. Control charts help evaluate if a process or variable is in control or if there is a special cause variation. Figure 1 is a control chart which shows a growth in the number of malpractice payments against dentists is increasing over the last three years and the 2014 figure is more than three standard deviations above the mean – a special cause variation. When such a variation arises in a process, it necessitates a pause, and some deep analysis to understand why this variation occurred in 2014. However, there has been no such evaluation of malpractice in dentistry in the US. Perhaps the professions' collective resources have been used to mediate the entry of dental therapists into the workforce, resolve the educational debt crisis for our new dentists, and advocate for oral health's role in the Affordable Care Act.

The number of dental malpractice cases has been above the average for the last 6 years (out of the 11-year period of this study) indicating a strong upward pressure on the number of malpractice payments against dentists. However, when considering physician malpractice claims (MDs and DOs) we note a rapid decline (Fig. 2) in malpractice claims. In fact, there is the opposite effect to dentist malpractice – the 2014 figure is more than three standard deviations below the mean (for the 11-year period). Moreover, 2014 represents the tenth successive year that the number of malpractice payments against physicians has fallen – a strong downward trend.

The only professions to experience an increase over the 11 years studied were nursing (11.8% increase) and physicians' assistants (22.6% increase). Most recently, nursing experienced a 23.5% reduction in years 2012–2014. It should also be noted that the number of physicians' assistants in the US experienced a rapid period of growth in the late 1990s and early 2000s which means we would expect to see an increase in the number of malpractice payments.19

Figure 3 shows the malpractice payments against all health professions other than dentistry. Remarkably, this also shows a strong downward trend in number of malpractice payments and the 2014 figure is more than three standard deviations below the mean. In all non-dental health professions combined, there is an overall trend of 10 consecutive years with decreasing numbers of malpractice payments.

Interestingly, Figure 4 shows that the number of malpractice payments against dentists above $500,000 has been relatively steady over the last 11 years, while smaller payments of under $500,000 have been growing in recent years. It is unclear whether this is related to lawyer activity leading to out-of-court settlements which are smaller but quicker. The current study also shows that there has been a 35.8% reduction in the number of malpractice payments against all non-dental healthcare professionals from 2004 to 2014. However, there has only been a 13.5% fall in number of payments against dentists and dental hygienists. Moreover, if we focus on the 2012–14 period the number of payments against non-dental healthcare professionals fell by 7.8%, whereas they increased by 8.1% against dentists and dental hygienists (see Table 2).

The number of malpractice payments among dental hygienists, optometrists, pharmacists, physicians' assistants, podiatrists and the mental health profession is low compared to dentists and physicians. Therefore, we will compare how the medical profession has evolved in the last decade to consider if this may have influenced the fall in the number of medical malpractice payments.

Firstly, there are fewer solo practices20 and physicians increasingly work within large physician groups.21 Additionally, hospitals are being integrated into larger networks. It is important to consider how these larger organisations do business. Standards of care with checklists and best practice guidelines are the norm in large hospital networks. In fact, when hospitals merge it is common to identify the best performing hospitals in each discipline and adapt those practices across the entire network.22 Finally, large hospital networks and large insurers capitalise on expertise by sending cases to high volume hospitals to gain those better outcomes for their members.23 During the same decade the changes in the dental profession have been limited. According to American Dental Association (ADA) data, most dentists are still in solo practice24 and close to 70% are sole proprietors.25 Practices with more than 20 dentists accounted for only 3% of all dentists in 2008. By 2012, still less than 4% of dentists are working in large dental firms.26 Certainly solo practice has the benefit of forming strong doctor-patient relationships and a lifetime of loyalty that can be satisfying for the dentist and the patient. However, dentistry fails to capitalise on the advantages of large practices.

Experts agree that growth of hospital size increases the potential for better patient outcomes.27,28 Research supports this claim with evidence that high volume centres have better outcomes of care.23 Larger hospitals tend to have more structure, follow best practices and guidelines, have more resources to purchase new medical equipment, and use current evidence to deliver cutting edge healthcare. Consider dental medicine – there are few agreed upon guidelines29 and many dentists still focus on the mantra 'it works in my hands' to drive decision-making. In 2007, the American Dental Association established the Center for Evidence-Based Dentistry30 and have been persevering to implement guidelines and evidence-based dental practice. However, the ADA has struggled to gain a foothold among practising dentists – there are close to 200,000 dentists in the US and we cannot all make decisions based on experience. Science must guide clinical decision-making.

Best practice guidelines have also been employed in medicine by insurers to mediate quality and manage reimbursements to hospitals.31 For instance, when non-standard care is delivered, the insurer is less likely to reimburse the hospital. This incentivises hospitals to deliver the most highly effective and efficient care known to science. There are no such incentives in dentistry; American dental insurers create an annual limit of reimbursements which, almost, guarantee them a profit. There is little incentive for insurers to create complex guideline-adherence-based reimbursement models. However, our profession is losing ground in the absence of clinical guidelines and established best practices of care. A structured environment, with evidence supported guidelines of practice will help improve clinical outcomes and may contribute to reversing the trend of growing numbers of malpractice payments against dentists. It is, however, important to recognise that litigation is complex and multi-factorial. Standardising care, building best practice guidelines and creating a culture of evidence-based dental practice will not, alone, reduce litigation against dentists in the US.

Research confirms that, with the increase in structure, patient outcomes are expected to improve.32,33 Moreover, research demonstrates that when a physician follows the best practice guidelines they are much less likely to be unsuccessful in the defence of a malpractice case.34 Dental practitioners must recognise that adhering to best practice guidelines is not a loss of autonomy but the procurement of excellence and high quality. As a profession, we must shun 'experience-based dentistry' and replace it with evidence-based dentistry – the other EBD.

Conclusion

The current study demonstrates that the number of dental malpractice cases has been above the average (over the 11-year period studied) for the last 6 years indicating an upward pressure on the number of malpractice payments against dentists. Simultaneously, there is a downward pressure on the number of non-dentist healthcare professional malpractice payments. Dental care is largely delivered in small dental offices that lack best practice guidelines, standards of care or a rigorous approach to integrating the latest science into clinical decision making. The foundation of an evidence base to inform clinical decision making, structured practice models and adherence to clinical guidelines may help reduce the growth in the number of dental malpractice payments occurring in the US.