Common Malpractice Insurance Questions During the COVID-19 Crisis

  • by Richard C. Engar, DDS, FAGD
  • Apr 6, 2020

Richard C. Engar, DDS, FAGD is CEO of Professional Insurance Exchange Mutual Inc., a Utah-based professional liability insurance carrier created by Utah dentists in 1978. He currently maintains a faculty position with the University of Utah School of Dentistry. He is the author of the AGD Impact Risk Management column and took time to share some of the more common questions he is receiving during the COVID-19 pandemic.

1. Will my malpractice carrier cover any claim a patient makes for contracting the COVID-19 virus in my office?

To get this question answered, the first thing you should do is contact your malpractice insurance carrier. You must follow their guidelines to the letter to make sure you are protected. They will probably reinforce the advice I would give you — that you must be vigilant about asking emergent or urgent patients the recommended screening questions about any possible exposure to the virus, any recent travel and any current symptoms of a coronavirus infection. They will also want to ensure that you use standard barrier protection protocols that are recommended by your carrier. Of course, you must limit the procedures you do according to the Centers for Disease Control and Prevention (CDC) and state dental board guidelines as well as your state or provincial department of health restrictions. You must also abide by your insurance carrier’s recommendations. If you are violating these guidelines, you will likely have a difficult time defending yourself, and you may void your coverage. If there is a question about how urgent or emergent a procedure you performed was, hopefully your treatment notes will specify why you considered the procedure to be urgent or emergent and why you considered it in the patient’s best interest to perform the procedure. If your malpractice carrier has recommended an informed consent form for you to use that covers COVID-19 issues, you should have all patients you see under the current guidelines execute that document.

While issues regarding insurance coverage for potential infection claims are valid concerns, more important is that you are also more likely to be exposed to the virus yourself if you are not following guidelines. As of March 22, 2020, nearly one in 10 of those infected with COVID-19 in Italy are healthcare workers. Consider the ramifications on yourself and your family members if you ignore guidelines. Additionally, things are changing with each day, and more forms of isolation are being recommended. Be vigilant, keep current, and follow any information that your carrier provides.

2. How do I delineate between emergency and non-emergency dental care in order to comply with government and state dental board mandates so as not to void my malpractice coverage?

According to the American Dental Association (ADA), the following should be helpful in determining what is considered “emergency” versus “non-emergency” care. This guidance may change as the COVID-19 pandemic progresses, and dentists should use their professional judgment in determining a patient’s need for urgent or emergency care. 

In cases that may be considered borderline or where you made a professional judgement call, be sure your treatment notes and documentation are detailed and thorough enough to defend your decisions. The following categorized procedures are based on the ADA’s guidance regarding what constitutes a dental emergency, along with my guidance from a liability management perspective. The AGD recommends you consult the CDC recommendations and check with your state.

Dental emergencies are potentially life-threatening and require immediate treatment to stop ongoing tissue bleeding or alleviate severe pain or infection and include: 

  • Uncontrolled bleeding.
  • Cellulitis or a diffuse soft tissue bacterial infection with intraoral or extraoral swelling that potentially compromises the patient’s airway.
  • Trauma involving facial bones, potentially compromising the patient’s airway.

These situations are very straightforward, and no dentist would be faulted for seeing any patients with these conditions that nevertheless should be documented as emergencies in the dental records.

Urgent dental care focuses on the management of conditions that require immediate attention to relieve severe pain and/or risk of infection and to alleviate the burden on hospital emergency departments. These should be treated as minimally invasively as possible. 

  • Severe dental pain from pulpal inflammation.
  • Pericoronitis or third-molar pain. 
    • Does this indicate that the third molar should be extracted immediately? If the patient’s health would be jeopardized by waiting several weeks to extract the tooth, then the situation should be deemed urgent, and the tooth should be taken out immediately. If an operculectomy would solve the problem, then that procedure should be done in lieu of extraction.
  • Surgical postoperative osteitis/dry socket dressing changes.
  • Abscess or localized bacterial infection resulting in localized pain and swelling.
  • Tooth fracture resulting in pain or causing soft tissue trauma. 
    • In this situation, if there is a near-pulp exposure and waiting several weeks to perform root canal therapy could create an urgent emergency situation for the patient, then a pulpotomy or even complete root canal therapy could be considered urgent and necessary.
  • Dental trauma with avulsion/luxation.
  • Dental treatment required prior to critical medical procedures.
  • Final crown/bridge cementation if the temporary restoration is lost, broken or causing gingival irritation. 
    • Additionally, if the tooth could be jeopardized by waiting several weeks to seat a crown or if the dentist is worried about supraeruption, then seating the crown could be considered urgent. 

Other urgent dental care: 

  • Extensive dental caries or defective restorations causing pain. 
    • This is a judgment call. A group of incipient or “board” lesions would not constitute urgent care and could wait a few weeks. Manage with interim restorative techniques when possible (silver diamine fluoride, glass ionomers).
  • Suture removal.
  • Denture adjustment on radiation/oncology patients.
  • Denture adjustments or repairs when function is impeded. 
    • In addition, if a patient has a severe sore caused by an ill-fitting denture that may interfere with his or her ability to eat or function that the patient considers urgent, it is the dentist’s judgment call to determine whether the procedure should be completed. If the patient falls into a high-risk category for contracting the virus, the adjustment should probably wait.
  • Replacing temporary filling on endodontic access openings in patients experiencing pain.
  • Snipping or adjusting an orthodontic wire or appliance piercing or ulcerating the oral mucosa.
Dental non-emergency procedures are situations in which certain dentists and hygienists are trying to push the envelope because they want to keep working. However, as I will explain later, a dentist who performs these procedures on a patient who later claims to have contracted the virus from the dental office will have a case that is hard to defend. The case may even be excluded by an insurance carrier since the dentist violated a mandate from the CDC and the state health department.

Routine or non-urgent dental procedures include but are not limited to: 
  • Initial or periodic oral examinations and recall visits, including routine radiographs.
  • Routine dental cleaning and preventive therapies.
  • Orthodontic procedures other than those to address acute issues (e.g., pain, infection, trauma).
  • Extraction of asymptomatic teeth.
  • Restorative dentistry, including treatment of asymptomatic carious lesions.
  • Esthetic dental procedures.

If a dentist has any reason to contest that some of these procedures could be considered as urgent and essential, he/she should contact their malpractice insurance carrier before performing the procedure to see whether they would be covered if the patient or their family made a claim later of COVID-19 contraction in the office as a result of that appointment. 

3. What can I tell my employees about unemployment options?

Each state or province has various ways and methods that employees can file for unemployment and similar programs, so the short answer is to contact your local labor and wage commission office and get answers from them. Many offices have information and resources posted on their websites to answer questions regarding benefit eligibility, the application process and information specific to temporary COVID-19-related job loss due to business closures. For example, Utah’s Department of Workforce Services has an FAQ regarding COVID-19 and unemployment insurance. You will need to refer to your state’s organizations, and keep in mind that many offices will be closed and their operations moved online. 

If you are interested in getting answers to malpractice coverage questions, connect with Dentist’s Advantage, an AGD Exclusive Benefits providers. Don’t forget there are special discounts for AGD Masters (save 20 percent), AGD Fellows (save 15 percent) and other AGD members (save 10 percent).