A R T I C L E S

T h is a rtic le discusses m a n y o f th e rep o rted d e n ta l m a lp ra c tic e cases th a t d ea l w ith th e

su b jec t o f th e fa ilu re to diagn ose, or th e fa ilu re to p ro p e r ly treat, p e r io d o n ta l disease so
th a t th e a vera g e p r a c titio n e r is p re p a re d in th e even t th a t such a la w s u it m a teria lizes.
T h e typ es o f in fo rm a tio n th a t d e n tists sh o u ld strive to reta in in d e n ta l records w h en
trea tin g a p a tie n ts p e r io d o n ta l p ro b le m s are described. T he a rticle a lso addresses th e
su b je c t o f p ro fe ssio n a l lia b ility in su ran ce so th a t a d e n tist ca n p u rc h a se a p o lic y th a t
p ro v id e s a d e q u a te coverage.

Malpractice and periodontal disease

Beverly L. Bailey, J D

n til approxim ately 10 years ago,

lawsuits against dentists based on
the failure to diagnose periodontal
disease, o r the failure to treat that disease
pro p erly , were in fre q u en t occurrences.
Indeed, the phrase periodontal disease
appears in no reported dental m alpractice
case, state or federal, before 1972.1 Today,
observers in the dental and legal profes
sions, as w ell as those in the insurance
industry, readily acknow ledge that the
failu re to diagnose and properly treat
p eriodontal disease is am ong the leading
causes, if n o t the leading cause, of dental
m alpractice.
Ironically, this change of events may to
som e extent be attributed to advances in
the field of dentistry. T h e oral health of
A m erican society has greatly im proved in
the post-W orld W ar II era, as a result of,
in part, fluoridated w ater and increased
aw areness am ong the p ublic of proper
m ethods of dental hygiene. T h e dental
p ro b lem s th a t in d iv id u als c o n tin u e to
experience are perceived m ore an d more
as aberrations. T h e rising n um ber of law
suits ag ain st professionals of all sorts has
h ad th e effect of fo c u sin g b la m e for
adverse d ental conditions on the dentists.
In this environm ent, it is advisable for

dentists, especially those w ho routinely

c o n fro n t p e rio d o n ta l p ro b lem s am o n g
their patients, to have some understand
in g of the legal principles that operate in
the context of litigation related to peri
odontal disease. Some know ledge of this
subject w ill assist the dentist in the m ain
tenance of adequate records, an d in the
acq u isitio n of insurance coverage th a t is
sufficient to protect the d en tist in the
event of a lawsuit.
Key features of litigation

L aw suits arising o u t of the treatm ent of

periodontal disease or the failure to diag
nose it can be based on any n u m b er of
legal theories. Certainly, negligencethat
is, the failure on the p a rt of a dentist to
m eet a requisite standard of careis the
m ost com m on cause of action. T h e burden
is on the p laintiff to prove the standard of
care, w hich is usually done by way of the
in tro d u c tio n of expert testim ony. T h e
p la in tiff m ust then establish th at he or
she suffered injuries as a result of devia
tion by the dentist from this standard.
It is firm ly established th at the standard
of care requires dentists, an d all other
professionals, to exercise the degree of

skill ordinarily used under sim ilar circum

stances by oth er m em bers in good stand
in g in the same profession.2 G eneral den
tists are held to the standard of care of
oth er general dentists, and persons id e n ti
fying themselves as specialists are held to
the level of skill, know ledge, an d learning
o rd in arily used by specialists.3
T ra d itio n ally , the standard of care, at
least as defined by m any courts, had a
g eographic dim ension. T h a t is, the m ean
in g of o rd in ary care an d skill was deter
m in ed by co m p ariso n to the actions of
dentists in good stan d in g in a p articu lar
locality. A ccording to the strict locality
rule, w hich was ap p lied by som e courts, a
d e n tis ts services were co m p ared w ith
those of other dentists in the same local
ity. Some courts m odified the strict local
ity rule, an d held th a t the requisite care
sh o u ld be m easured by the standards of
dentists of ordinary skill in sim ilar com
m unities. O thers have determ ined th at a
d en tists duty sh o u ld be viewed in lig h t of
the professional services of oth er dentists
in the sam e general n eig h b o rh o o d or
vicinity.
T h e ratio n ale for this locality rule,
however phrased, was that dentists in rural
areas lacked access an d exposure to recent
JADA, Vol. 115, December 1987 845

ARTICLES

technological an d scientific advances, and

thus it w ould be unfair to h o ld them to
the same standards as professionals in
o th er areas (for exam ple, a h ighly u rb an
ized area). Increasingly, how ever, and
because of the m anner in w hich 20th cen
tury tran sp o rtatio n an d com m unication
advances have changed society, dentists
in v o lv ed in m a lp ra c tic e litig a tio n are
b ein g held to the standard of the average
practitioner, defined independently of any
locality. T h is change in legal doctrine
has m ade it easier for any p atien t suing a
dentist to obtain the expert testim ony that
is u sually necessary to prove a case, an d
this is reflected in law suits arisin g o u t of
the treatm ent of periodontal disease.
A case in p o in t is Sanderson v s ______ ,4
in w hich an appellate co urt in W ashing
ton State reversed a trial c o u rts decision
w hich ap p lied its version of the locality
rule for the standard of care. A practi
tio n er in S pokane was sued by a p atient
w h o alleg ed n e g lig e n t d ia g n o sis a n d
treatm en t of p erio d o n tal disease. T h e
dentists attorney convinced the trial court
th at the geographic boundary relevant to
the stan d ard of care was confined to the
S pokane area, an d the trial co u rt conse
q uen tly gave instructions to the jury to
the effect th a t it sh o u ld consider the
treatm ent provided by the dentist in light
of the degree of le arn in g an d skill ord i
narily possessed by dentists of good stand
ing, p racticing in the same . . . locality
an d u n d er sim ilar circum stances. 5 T h e
appellate court reversed and rem anded the
case, h o ld in g the in struction to be error.
It noted in p articu lar that the instruction
prejudiced the p laintiff by d im in ish in g
the value of the p la in tiffs expert, a p e ri
o d o n tis t from an o th e r c o m m u n ity in
W ash in g ton State, and th a t the profes
sional services of the defendant dentist
sh o u ld have been com pared w ith those of
the1 average practitioner, actin g in the
same or sim ilar circumstances.
P eriodontists are frequently perm itted
to testify as to the standard of care am ong
general dentists, w ith respect to the treat
m e n t of p e rio d o n ta l disease. T h is is
because the com petency of a witness to
testify as an expert depends o n w hether
the witness has specific know ledge about
the subject m atter under consideration,
a n d is a discretionary issue w hich is
decided by the judge. Sim ilarly, a general
d en tist m ay provide expert testim ony in a
m alpractice action involving a periodon
tist, if the general den tists qualifications
disclose sufficient know ledge of the sub
ject ab o u t w hich testim ony is sought.
In M cLean v s _______ , 6 a p atien t sued
846 JADA, Vol. 115, December 1987

her general dentist for, am o n g other rea

sons, failing to advise her th a t she h ad
periodontitis, failing to set u p a treatm ent
p lan , an d failin g to refer her to a p e ri
odontist. T h e trial court, w hich refused to
allow a periodontist to give expert tes
tim ony as to the ordinary standard of care

general dentists. T h e p la in tiffs expert

witnesses included two general dentists
an d a periodontist. T h e trial co u rt held in
favor of the dentist, a n d the appellate
co u rt affirm ed, specifically n o tin g that
the tw o general d en tist w itnesses had
established th a t treatm ent of the p atien ts

M dentist can be sued by a former patient for the treatment

of, or the failure to treat, periodontal disease several years
after the patients last visit with the dentist.

am ong dentists in general practice, found

th a t the conduct of the dentist was n ot
below the applicable standard of care.
T h e appellate court concluded th a t the
exclusion of the testim ony by the trial
court was w rong, b u t th at the error did
n o t w arrant reversal because testim ony of
tw o general dentists, w hich was substan
tially the same as that of the periodontist,
was entered in to evidence, an d hence the
ju ry in effect had the testim ony of the
p e r io d o n tis t b efo re it in m a k in g its
decision.
T h e a p p e lla te c o u rt n o te d th a t [a]
specialists q u alificatio n to testify in a
given trial m ust be determ ined on a case
by case basis,7 an d th at the periodontist
whose testim ony the p la in tiff sought to
introduce was qualified to testify in p art
because he tau g h t periodontics at a local
dental school to future general dentists,
an d was as a result acq u ain ted w ith the
train in g and standard of care expected of
general dentists treating periodontal dis
ease. T h e court also explained th a t den
tists are g en e rally r e lu c ta n t to testify
against mem bers of their ow n profession,
and that plaintiffs w ould have great diffi
culty o b ta in in g the requisite expert tes
tim ony if distinctions between general
d e n tists a n d sp e cia lists w ere rig id ly
observed.
A dentist should recom m end th a t a
p atien t consu lt w ith or be treated by a
p eriodontist if the p a tie n ts co n d itio n is
such that oth er dentists in the same or
sim ilar circum stances w ould give such a
recom m endation, because the failure to
refer can am o u n t to a breach of duty of
care, and can give rise to a su it for n eg li
gence. In Brock vs _______ ,8 a p atien t
sued her dentist, a practitioner in Shreve
port, LA, in p art claim ing that his failure
to refer her to a periodontist was below
the standard of care usually exercised by

type of periodontal problem s was ro u

tinely perform ed by general dentists at the
tim e the p a tie n ts claim arose.
A part from claim s of negligence, alle
gations of fraud may also arise in the con
text of litig atio n arising o u t of the treat
m ent of periodontal disease. A lthough the
p recise elem ents of such a claim vary
slightly from state to state, the p lain tiff
m u st g e n e ra lly sh o w re lia n c e o n an
alleged m isrepresentation that results in
some dam age. In W illard vs ______ ,9 a
p atien t sued, am o n g others, a dentist w ho
indicated to her th a t she had an advanced
p erio d o n tal pro b lem th at precluded treat
m ent on some of her teeth. T h e d en tists
statem ents supposedly led to unnecessary
treatm ent from a p eriodontist. A C alifor
n ia appellate co u rt refused to affirm a
trial c o u rts decision in favor of the den
tist w ith respect to the allegation of fraud,
fin d in g th a t the trial court had neglected,
to the detrim ent of the form er p atien t, to
exam ine various issues of fact, in clu d in g
w h eth e r the d e n tist ac tu a lly m ade the
alleged m isre p resen tatio n , w h eth er the
p atien t relied o n the statem ents, an d the
extent to w hich the p atien t was dam aged
thereby.
An action based on breach of w arranty
for the im proper treatm ent of periodontal
disease may be possible in some circum
stances, p articularly if the dentist makes
representations to a p atien t that suggest
or prom ise a specific result, beyond the
general o b lig atio n to treat the p atien t in
accordance w ith the skill required in the
p rofession.10 Statutes in som e states, h o w
ever, provide th a t no action for breach of
w arranty may be m ain tain ed against a
dentist, unless the guaranty, w arranty, or
assurance is co ntained in w riting, an d is
signed by the dentist or some oth er per
son au th o rized to act on his o r her
b e h a lf.11

ARTICLES

The statute of limitations

T h e m ost im p o rta n t issue in m any cases

arisin g o ut of the treatm ent of p erio d o n
tal disease is w hether the claim s of the
form er p atien t are barred by the statute of
lim ita tio n sth a t is, the statute of a given
state th at sets forth the tim e fram e after
w hich an action cannot be m aintained.
T h e critical question is generally n o t the
len g th of the statutory period, w hich is 2
years for m ost m alpractice actions in m ost
states, b u t rath er the date o n w hich the
statute begins to run. In some states, the
statute com m ences at the tim e of the
occurrence of the last act of the defendant
giving rise to the cause of ac tio n .12 Hence,
in such a state, a law suit based o n the
failure to diagnose o r properly treat p eri
odontal disease is generally considered
tim ely if initiated w ith in 2 years of the
p atien ts last visit w ith the dentist, because
the last n eg lig en t a c tthe failu re to
d ia g n o se o r the im p ro p e r th e ra p y
occurred at that time.
In other jurisdictions, the statute runs
from the date of the first inju ry to the
patient. Frequently in such states courts
have invoked the doctrine of continuous
treatm ent to avoid the u n ju st result of the
statute starting and ending w hile a patient
is u nder the treatm ent of a practitioner,
an d hence arguably unaw are of any m a l
practice. According to this doctrine, the
statu te does n o t ru n u n til the im proper
course of exam ination and treatm ent has
term inated.
An exam ple of the ap p lica tio n of the
co n tin u o u s treatm ent doctrine is found in
the case of Farley vs ______ ,13 In that
case, a p atien t sued a V irginia dentist for
failin g to properly diagnose and treat her
p e rio d o n ta l disease. T h e p a tie n t was
treated by the dentist betw een 1966 and
1969, an d again between 1972 an d 1976.
D u rin g 1973 an d 1974, she allegedly
co m plained to the dentist of bleeding
gum s, an d d u rin g 1976 she alerted h im to
the fact that several of her teeth were
loose. O n the advice of another dentist,
she ultim ately sought treatm ent from a
periodontist w ho advised her th at she had
advanced periodontal disease.
T h e p a tie n t com m enced a la w s u it
against the first dentist on Nov 19, 1976.
A ccording to the expert testim ony p ro
duced by the patient at trial, the p atien t
had active periodontal disease as early as
1971, w hich should have been discovered
by a general dentist exercising ordinary
care. T h e defendant argued, and the trial
co u rt held, that the rig h t to sue accrued

o n the date of injury, w h ich was more

than 2 years before the com m encem ent of
the p a tie n ts law suit, an d th a t as a result
the su it was barred by the statu te of lim
itations. O n appeal, the V irginia Suprem e
Court, ap p ly in g the doctrine of co n tin u
ous treatm ent, held the action to be timely,
n o tin g that the statute d id n o t beg in to
ru n u n til the im p ro p er course of treat
m ent ended on A ug 23, 1976, the date of
the p a tie n ts last visit to the defendant
dentist.
In other states, the statute of lim ita
tio n s starts r u n n in g w h en th e in ju re d
party discovers the injury, or w ith reason
able diligence sh o u ld have discovered the
in ju ry . For exam ple, in K a u fm a n vs
______ , 14 a p atien t in Illin o is sued her
form er dentist alleg in g th a t he failed d u r
in g 1974 and 1975 to diagnose an d treat
her periodontal disease, an d failed to refer
her to dental specialists for preparatory
p e rio d o n ta l an d su rg ical th erap y . T h e
p atien t com m enced the law suit o n Aug
22, 1977. T h e trial court ru led in favor of
the dentist, ho ld in g th at the statute began
to ru n o n A pril 29, 1975, the date of the
p a tie n ts last visit to the dentist, an d that
as a result, the law suit was barred by the
2-year statute. T h e appellate co u rt reversed
the trial co u rts ju d g m en t, p o in tin g o u t
th at it is the date of discovery, n o t the
date of the last n egligent act, w hich starts
th e r u n n in g of th e 2-year lim ita tio n s

Dental records
R ecords are fre q u e n tly decisive w ith
respect to alm ost every aspect of any den
tal m alpractice action, in c lu d in g law suits
arisin g o u t of professional services related
to p eriodontal disease, a n d sh o u ld be kept
for a m in im u m of 10 years.
A description in the records of all hom e
care in stru ctio n s, a n d the extent to w hich
a p a tie n t follow s the d en tists hom e care
advice, is p articu larly im p o rta n t for a va
riety of reasons. F irst, the failure to give
such in stru ctio n s w ith respect to p e ri
o d o n tal disease has been considered by
som e courts to be evidence of negligence
o n the p a rt of the d en tist.15 A dditionally,
to the extent th at the p atien t fails to fo l
low the advice of the dentist, an d the
records bear this o u t, the d en tist m ay be
able to establish the defense of co n trib u
tory negligencein other words, th a t the
p a tie n ts acts or lack thereof, at least in
p art, gave rise to the p a tie n ts problem s.
In some states, co n tributory negligence is
a com plete bar to recovery o n the p a rt of
the patient. O ther ju risd ictio n s com pare
the negligence of a p la in tiff w ith th a t of a
defendant, and ap p o rtio n liability between
them , based on degrees of fault.
R adiographs are also particularly signif
icant. In one case, the rad io g rap h s taken
w hen the p atien t began treatm ent w ith
the d en tist w ho w as subsequently sued,

ecords should include a summary of all statements made by

the dentist to the patient during each visit, concerning the
methods and courses of treatment and possible results.

period in Illinois. Because the date of the

p a tie n ts discovery of the d en tists alleged
m istreatm ent of her p erio d o n tal disease
was n o t in the record, the appellate court
rem anded the case for further proceedings
so th a t this fact could be established by
the production of evidence.
P articularly in states w ith discovery stat
utes, a dentist can be sued by a form er
p a tie n t for the treatm ent of, or the failure
to treat, periodontal disease several years
after the p a tie n ts last visit w ith the den
tist. H ence, the op eratio n of the statute of
lim itatio n s in law suits related to p eri
o d o n ta l disease is such th a t d etailed
records m ust be retained for an extended
period.

a n d those taken a few years later w hen the

p a tie n t s o u g h t th e advice of a second
dentist, established to the satisfaction of
b o th th e tria l a n d th e a p p e lla te c o u rt
th a t the p a tie n ts p erio d o n tal disease did
n o t progress d u rin g the tim e the p atien t
was u n d er the care of the first d en tist.16
T h e d en tist prevailed because the rad io
g raphs showed th at any alleged negligence
o n his p a rt d id n o t resu lt in further in ju
ries to the p lain tiffs teeth.
M oreover, records sh o u ld in c lu d e a
sum m ary of all statem ents m ade by the
d en tist to the p atien t d u rin g each visit
concern in g the m ethods an d course of
treatm en t, an d the p ossible results of
treatm ent. T h is in fo rm atio n is im perative

Bailey : M A LPR A C T IC E AND P E R IO D O N T A L DISEASE 847

ARTICLES

if the dentist is ever faced with allegations

of breach of warranty or fraud.
Additionally, signed consent forms
should be contained in the records reflect
ing the patients informed consent to the
treatment of periodontal disease. The form
should briefly explain the nature of the
services to which the patient consents, as
well as the benefits and risks of such
treatment, and the benefits and risks to
the alternatives to treatment, including
no treatment at all. Because a signed form
alone is not always dispositive of whether
the patient gave informed consent to
treatment, dental records should reflect
that the dentist and patient discussed all
topics described in the informed consent
form.
In addition to the foregoing items, and
information generally kept by the dentist
in a patients records, such as the patients
medical history, the records of patients
being treated for periodontal problems
should include the following: a detailed
description of the patients periodontal
condition at the time of each dental visit;
a complete report of the dentists services
completed each visit; information as to
whether the dentist has referred the patient
to a specialist, to whom the dentist has
referred the patient, if anyone, and the
dates on which the referral is made, if at
all; whether the patient follows the den
tists referral advice; and recommendations
given to the patient with respect to return
visits.
To avoid charges that records have been
altered, dentists should always use ink to
transcribe notes on records, and should
date all record entries, in addition to list
ing dates on which professional services,
or conversations with a patient about
treatment, take place. Revisions, if any,
should also be dated, and should be made
by drawing a single line through the cor
rected word or sentence.

Liability insurance issues

The statute of limitations, and its opera
tion in the context of cases involving
periodontal disease, should be borne in
mind by dentists when purchasing pro
fessional liability insurance. Many insur
ers that provide coverage to dentists no
longer offer occurrence policiesthat is,
a policy that protects against incidents
that occur while the policy is in effect,
regardless of when the incidents are
reported to the insurer. Claims-made pol
icies, which generally cover events that
occur and are reported while the policy is
848 JADA, Vol. 115, December 1987

in force, have become the norm in the

industry. This change in the type of cov
erage available has made it more difficult
for dentists to purchase insurance protec
tion for claims, such as those arising out
of the treatment of periodontal disease,
which may materialize in the form of
lawsuits or threatened lawsuits several
years after the dentists treatment of a
patient.
Many claims-made policies specifically
bar coverage for acts, known or unknown
to the insured, which transpire before the
policy period, and give rise to a claim
during that time. Hence if a dentist with
claims-made insurance effective during 1
year is sued for the failure, several years
earlier, to diagnose a patients periodon
tal disease, the claims-made policy would
in all likelihood not provide coverage.
Gaps in coverage may result when a
dentist changes from one claims-made
insurer to another. Some carriers of
claims-made policies permit dentists to
alleviate this problem by allowing the
purchase of a prior acts endorsement,
which extends coverage to acts that tran
spire before the policy period. Still, a
carrier may not make such a provision
available, may limit its effect to a short
period, or may offer it only at a high
price. Coverage gaps resulting from a
change of carrier may also be remedied by
the purchase of an extended reporting
period, from the insurer that provides the
coverage that is terminating, to the extent
that the carrier offers this option. An
extended reporting clause allows claims
to be reported under a claims-made policy
subsequent to the policy period. This type
of provision and the coverage it provides
may also be costly, or may not be avail
able for the length of time needed to
provide complete malpractice coverage to
the dentist.
All dentists, but particularly those who
treat large numbers of patients with peri
odontal problems, should review their
insurance policies with their attorneys to
ascertain that the coverage they have
purchased is adequate in light of the
nature of their practices. A dentist who is
incorporated needs coverage for his or her
corporate entity. Also, dentists who are
affiliated with a group must make certain
that their insurance is sufficient to protect
them from claims that arise as a result of
services provided by those with whom
they practice. Additionally, sensitivity to
the subject of coverage for other members
of the professional staff is vital, particu
larly because it is becoming commonplace
for a dental hygienist to be named a

defendant in a lawsuit, with the dentist,

based on the failure to diagnose peri
odontal disease. If the hygienist is with
out adequate coverage, a former patient
may attempt to blame the dentist, regard
less of the dentists genuine responsibility
for any acts or omissions, possibly based
on a theory of negligent supervision.

Summary
The treatment of periodontal disease is, at
the present time, the focus of a large per
centage of all dental malpractice cases.
Consequently, dentists may find it help
ful to be aware of the somewhat unique
nature of litigation arising out of profes
sional services provided with respect to
periodontal disease. The operation of the
statute of limitations in this context,
whereby a dendstat least in many states
can be sued several years after treatment
of a patient terminates, makes caution, in
terms of the maintenance of records and
the purchase of insurance, an absolute
essential.
-------------------- J1SOA--------------------The comments contained herein are intended for
informational purposes only, and are not a substitute
for the advice of individual legal counsel.
Ms. Bailey is an attorney in Chicago who special
izes in professional liability litigation. Address
requests for reprints to the author, Karon, Savikas 8c
Horn, Ltd, 5700 Sears Tower, 233 S Wacker Dr, Chi
cago, 60606.
1. Sanderson vs Moline, 7 Wash App 439, 499 P2d
1281 (1972).
2. See generally, 83 ALR2d 7 (1962); Wiley vs
Karam, 421 So2d 294 (La App 1982).
3. See, eg, Short vs Kinkade, 685 P2d 210 (Colo
App 1983); Simpson vs Davis, 219 Kan 584, 549 P2d
950 (1976).
4. Sanderson vs Moline, 7 Wash App 439, 499 P2d
1281 (1972).
5. 7 Wash App at 440, n 1, 499 P2d at 1283, n 1.
6. McLean vs Hunter, 486 So2d 816 (La App 1986);
also see Evans vs Ohanesian, 39 Cal AppSd 121, 112
CalRptr 236 (1974).
7. 486 So2d at 818.
8. Brock vs Gunter, 292 So2d 328 (La App 1986).
9. Willard vs Hagemeister, 121 Cal AppSd 406, 175
CalRptr 365(1981).
10. See, eg, Paske vs Green, 142 111 AppSd 367, 491
NE2d 1195 (1986).
11. See, eg, NC Gen Stat 90-21.13(d), 90-21.11
(1985).
12. See, eg, NC Gen Stat l-15(c) (1985).
13. See, eg, Williams vs Elias, 140 Neb 656, 663, 1
NW2d 121, 124(1941).
14. Farley vs Goode, 219 Va 969, 252 SE2d 594
(1979).
15. Kaufman vs Taub, 87 111 AppSd 134, 410 NE2d
114(1980).
16. See, eg, Sanderson vs Moline, 7 Wash App 439,
442-443, 449, P2d 1281, 1284 (1972).
17. Brock vs Gunter, 292 So2d 328 (La App 1986).