Today’s dentists operate in a far more litigious environment than they did in past decades. So it’s crucial that your professional indemnity insurance affords you adequate and appropriate cover for your full scope of practice, say experts. Merran White reports
Like all health professionals, dentists now operate in an increasingly litigious environment. Nearly one in 10 dental practitioners will face a lawsuit in their professional lifetime, and one in 20 will be slugged with a regulatory complaint or matter in any given year. So it’s crucial that dentists’ professional indemnity insurance (PII) covers them for the full scope of their practice and that its limits enable them to mount a proper defense, should they wind up in court or face regulatory action.
Why dentists need PII
According to the Dental Board of Australia, PII refers to a policy or arrangements “that secure for the practitioner’s professional practice insurance against civil liability incurred by, or loss arising from, a claim … made as a result of a negligent act, error or omission in the conduct of the practitioner”.
“Having PII is a legal requirement, part of your registration,” explains Dr Hugo Sachs, Australian Dental Association federal president. “It covers you for the actual procedural events that occur in a dental surgery, so anything from restorative work to tooth removals.
“PII also ensures members of the community that if something untoward occurs in their [dental] treatment, the provider of that service is indemnified, and therefore they will be recompensed.”
Craig Hockley, head of marketing at Guild Insurance—the ADA’s preferred insurer in NSW, Victoria, Tasmania and SA—says having comprehensive PII cover isn’t just mandatory; it’s a necessity.
“Twelve years ago, around one in 30 dentists experienced the stress of a professional indemnity claim; today, it’s closer to one in 10,” Hockley says. “Not only has the incidence of claims increased, so has the cost. Without professional indemnity insurance, dentists risk losing their business and personal assets.”
Clive Levinthal, CEO of Experien Insurance Services, agent for Australia’s largest indemnity insurer, Vero, notes that dentists’ need for PII cover has increased with changes in the regulatory environment. “Historically, the main concern for dentists was civil claims, and that’s still a high risk. But [as] regulatory bodies have become … easier for consumers to access, regulatory cases have spiked: in 2016-17, these increased by around 30 per cent year on year.”
Regulatory cases run the gamut, Levinthal says, from complaints about quality of work done, “say, in putting on veneers, to failing to exercise ‘reasonable care and judgement’ during a filling or extraction that failed, or the dentist having inadequate skills to do work such as implants or orthodontics” to allegations of poor infection-control measures, inappropriate behaviour and threats to patient safety.
“It could come from anyone—a patient, current or former staff member or the regulators themselves, following an audit of compliance practices or allegations made by a third party,” he says.
And even competent, careful dentists can be at risk, cautions Dr Sachs. “No-one’s immune—there are some scurrilous claims,” he says. “And in general, the more complicated the treatment, the higher the risk. Which is why you have professional indemnity insurance: it’s there to help both patient and practitioner.”
Under Section 129 of the Health Practitioner Regulation National Law, a registered health practitioner can engage in his or her profession only if “adequate and appropriate” PII arrangements are in force.
“No-one’s immune—there are some scurrilous claims. And in general, the more complicated the treatment, the higher the risk. Which is why you have professional indemnity insurance: it’s there to help both patient and practitioner.”—Dr Hugo Sachs, president, Australian Dental Association
All dental practitioners except those with student or non-practising registration must be covered by PII that meets the minimum terms and conditions outlined in the DBA’s Indemnity Insurance Registration Standard.
Whether direct or third-party, your PII cover must include civil liability cover, appropriate retroactive cover; and automatic reinstatement, dictates the DBA.
Civil liability cover pays for any legal expenses you incur defending or settling a civil claim, plus any damages. Retroactive cover means PII arrangements covering you against claims arising from procedures undertaken prior to the start of the policy, while automatic reinstatement means the limit of indemnity (amount insured) is reinstated for new, unrelated claims even after claims have been paid to the indemnity’s limit.
If you work under third-party PII that doesn’t meet this standard, you’ll need to take out additional cover. Ditto if you intend to practise outside the scope of your employer’s PII—say, through additional study or volunteer work
Moreover, under the DBA’s registration standard, ‘practice’ isn’t restricted to direct clinical care; it includes “using professional knowledge in a direct non-clinical relationship with clients… and [in any roles] that impact on safe, effective delivery of services in the profession”.
Practice owners should take out practice entity cover in addition to their individual PII, advises Levinthal. “Though it’s not mandatory, it’s recommended, especially if they employ other dentists. Because if one of those associate dentists makes a mistake, litigation … can be brought on both the individual treating dentist and the practice that employed that dentist.”
The same could apply to an assistant’s error, he notes. “So if you’re the owner and employ staff, ensure you’re covered for mistakes they may make.”
Full scope of practice
In line with the National Law, the DBA sets out “broad scope-of-practice requirements for the different types of dental practitioners, rather than specific activities”, explains the Board spokesperson. “Practitioners are expected to practise safely and within the limits of their competency, training and expertise.
“In all cases, dental practitioners need to assess whether their PII is adequate, given the area/s of practice they work in, their professional experience, the risks involved in their practice and any previous insurance claims made against them,” says the spokesperson.
“All dental practitioners must declare if they meet the Board’s standard on PII when they apply to renew their registration. The Australian Health Practitioner Regulation Agency audits practitioners at random to ensure they meet … registration standards. Any practitioner who cannot produce evidence demonstrating that they’re covered by appropriate PII may have action taken against them.”
While most APRA-approved insurers take a ‘full scope of practice’ approach to PII for dental practitioners, not all policies are equal, asserts Levinthal.
“It’s important a practitioner pays close attention to these details as well as any limits of cover the policy may extend.”—Craig Hockley, head of marketing,
“We don’t nitpick and charge additional premiums for general dentists who, say, do implants or orthodontics—our policy covers for everything they’re registered to practise,” he explains. “There are different premium bands, however. So a part-time dentist can opt to pay less. And while there’s no discount for not practising particular treatments, choosing certain excesses lowers your premium.”
Hockley notes that while some insurers “dictate the number of hours a week a practitioner can work or limit the number of hours they can spend on specific treatments, Guild’s dental PII policy’s written in such a way that if the DBA says you’re able to do it, you’re covered”.
That said, loadings are applied to general dentists intending to undertake implants and/or orthodontics, Hockley says, because audits show “there’s a greater risk to those two procedures”.
For general dentists, taking out a full-scope-of-practice PII policy is a simple way to ensure you’re covered in any eventuality, says Dr Sachs. “If you don’t, and you’re not paying the add-ons—which, for orthodontics and implants, [can] attract a significant loading—you can’t legally practise these procedures. And without ‘full scope of practice’ cover, dentists who’ve had repetitive misadventures can find their insurer says, ‘We’ll no longer insure you for that’.”
Read the fine print
When weighing up various PII options—and before you sign—read the fine print, experts caution. “It’s important a practitioner pays close attention to these details, as well as any limits of cover the policy may extend,” says Hockley.
PII providers offer anything from $100,000 to $500,000 for defending regulatory matters, and typically between $10 million and $20 million for civil claims. “It’s certainly worth shopping around,” Levinthal stresses.
Hockley, however, contends that with PII, price correlates directly with the service you receive. “Just because another insurer’s premiums are cheaper doesn’t mean it’s like for like,” he says.
“Nine out of 10 of our customers who’ve made a claim go on to recommend us to a colleague. While we’re close to it, we don’t pretend to be the cheapest: we aim to be the best, and to be there when you need us. Dentists pay, on average, $2500 a year—claims can be millions. There’s a distinct possibility that if you’re not properly covered, you can lose your livelihood.”
Failing to note changes to the fine print could also prove costly.
For example, the 2012 amendment applied to many Australian health practitioners’ PII policies, excluding from coverage anyone using ‘therapeutic goods’ not registered under our TGA—designed to discourage dentists from using cheap unregistered imports that could be harmful to patients—entailed an apparently ‘minor’ alteration to the fine print. Ignoring this crucial amendment could, potentially, have cost a practice or practitioner millions—enough to render them bankrupt, with their professional reputations damaged irreparably.