This article by Mirsade Markovic, Esq., was originally printed in our Third Quarter 2020 issue of The Scope: Dental Edition. Read more articles from the publication here.
Unlikely Chance of Success
A patient can attempt to commence a lawsuit at any time. However, during the COVID-19 pandemic, if a patient claims to have contracted COVID-19 from your office, the chances of a successful lawsuit are less than likely. The patient bears the burden of proof and would have to establish admissible evidence proving they were more likely than not exposed to COVID-19 in your office as opposed to anywhere else. Inasmuch as COVID-19 entails a lengthy incubation period between exposure and the development of symptoms, it could be difficult to determine and prove where and when the exposure occurred.
Possibility of Lawsuit Still Exists
Unfortunately, you can be still be sued and should not be surprised to see COVID-19 raised in litigation. Dentists could potentially find themselves facing liability claims from patients who allege they contracted COVID-19 while receiving treatment at a dentist’s office due to the practice’s negligence. Now that protocols for treating patients during the pandemic have been established, if a patient can prove your office did not comply with recently enacted guidelines and protocols, you could end up as a defendant in a lawsuit. Your office should always be prepared to respond with evidence and documentation that it was and is in full compliance with public health guidelines, proving that the patient did not come down with the virus while receiving treatment at your office.
Therefore, the best defense against these lawsuits is to establish that all protocols were followed and that your office showed that all “reasonable measures” were taken to prevent exposure. It must show that it developed and enforced policies and procedures in an effort to comply with public health guidelines and maintained the premises in a reasonably safe condition to handle this virus. This can be established by proving that the standard of care was met by following the relevant guidelines established by the CDC and the ADA.
No one is immune from a lawsuit. Therefore, it is important to remember that risk management involves more than just adhering to these guidelines and protocols. It is a style of practice that should be developed in order to prevent a lifetime of legal headaches. Moreover, having a proactive risk management system in place is vital and can save you from unnecessary litigation. All staff members should be educated and trained in a unified system regarding all protocols, patient safety strategies, and documentation. All new “extra steps” taken in this pandemic should be a system that is followed by all staff members and should be one that becomes standard office protocol.