The COVID-19 pandemic has raised debate about whether dental offices have a greater responsibility of care to their patients and employees, and what kind of exposure these offices face when a patient or employee claims to have been exposed to Coronavirus while at work.

A few months ago, Princess Cruise Lines was sued for gross negligence, following passengers’ claims that they were exposed to COVID-19 while on the cruise ship. It was alleged that the management allowed the cruise ship to go out to sea, well knowing that it was infected from previous passengers who were found to have COVID-19 symptoms. The lawsuit further asserts that the passengers were not cautioned of the potential exposure before they boarded the cruise ship.

This will not be the end of such stories. More and more cases will be filed against businesses, including dental offices, for the alleged failure to protect patients and employees from contracting the virus. Thus, dental practice owners should update themselves on the potential COVID related legal issues.

While the laws differ by state, this post gives a rundown of how liable dental office owners could be during the COVID-19 pandemic.

Employee safety liability

As a dental practice owner, you are liable when a team member contracts COVID-19 within your premises or at work.

Employees who think they have contracted the virus at their workplace are eligible for a claim via the workers’ compensation (WC) process. However, the employee needs to provide proof that the virus was contracted at their work premises, and the illness developed as a result of them carrying out their assigned duties.

Keep in mind, even when you have followed the proper protocols to safeguard your team from COVID-19, a claim is still compelling if a team member demonstrates that the virus developed following exposure at work.

Also, an employee seeking workers’ compensation benefits for COVID-19 would require medical evidence to back up the claim. This can take the form of a diagnosis from a medical professional or a positive test result, tied to their workplace. 

No insurance firm will automatically pay out workers’ compensation benefits for COVID-19 exposure without analyzing the above aspects. Usually, an investigation is done to assess the steps you have taken to limit the exposure and, most importantly, determine if the claim is compensable.

Again, it is worth emphasizing that the virus contraction must be within the “scope and course of employment.” If you or the insurance company proves that a staff member could have contracted the disease elsewhere or the medical evidence is speculative, then the claim can be challenged.

Patient liability

You may or may not be liable if a patient contracts COVID-19 at your office. For example, if the staff member who handled the patient making the allegation is your employee, your office is liable. On the contrary, if the staff member who treated the patient making the allegation is an independent contractor, that staff member alone is fully accountable.  

Legal liability for another person, for example, an employee, is referred to as vicarious liability. In other words, an employer can be liable for the omissions or acts of its staff, provided it can be proven that they happened during the employment. And this is something that is very common in the U.S. When a dental practice owner reports a claim for a staff member who practices at their clinic, the claim specialist will ask a few questions to establish if the practice owner is vicariously liable for the staff member.  

While there are a few states that allow for exceptions, if your employee’s conduct was the sole reason a claim was filed, you might be vicariously answerable. However, this does not mean that the employee is never responsible for their own conduct, some instances will call for personal liability.  

As mentioned before, if your team member is an independent contractor and has a claim filed against them, you will not be vicariously responsible for their wrongful conduct. But there are numerous exceptions to this rule, and the majority of them are based on whether the staff member is really an independent contractor or an employee.

Lastly, negligence claims can also be made when the dental office owes a duty and deliberately breaches the standard of care. For example, a patient can make a claim when your office fails to take practical steps to protect him/her from exposure to COVID-19.  Here, we are talking about implementing as many safety protocols as possible — less crowded waiting rooms, provision of PPEs, asking patients about potential exposure, taking patients’ temperatures upon arrival, frequent cleaning and disinfecting of surfaces, etc. At this stage, these measures should be a no-brainer for any dental office.

Safeguarding your practice from COVID-19 liabilities

Preparing your policies and internal systems to minimize liability should be an ongoing thing. However, during this COVID period, consider the following practices.  

• Exposure reduction — Strictly enforce and implement cleaning procedures, protective policies, and other CDC guidelines for dental practices. Provide adequate PPE to ensure patients’ and employees’ safety.
• Review insurance policies — Carry out an analysis of your present policies with your insurance company. The analysis will tell if your plan covers an event like COVID-19 and the exclusions that apply. Knowing your coverage parameters in advance will get rid of the guessing game. 
• Report claims immediately — Exposure and potential claims should be submitted immediately. This allows for a careful and systematic review of the claim and all coverage scenarios.
• COVID-19 infection liability waiver — The practice of requesting clients to sign a COVID-19 liability release form or waiver is becoming common throughout the U.S. However, waivers should not be relied upon as absolute protection on their own. They cannot provide a guard against intentional conduct and are often effective against simple “negligence.” That said, when drafting your waiver, ensure that it complies with the federal and state laws. 
• Document your efforts — Have strong documentation to show you are abiding by the OSHA Infection Prevention Measures. In case of a random compliance audit, you are less likely to run into shutdowns or delays if your documentation is already in order. If you lack documentation, you would have no physical evidence to show and would have to rely on just your word, which may not be sufficient evidence to appease an auditor. 
• Consider the services of independent contractors — When you work with independent contractors, you won’t be vicariously liable or answerable for their work within your dental practice. There are several differences between a dental hygienist employee and an independent dental hygienist. Claim specialists always ask a string of questions to ascertain the status of your staff member in question. 

Be smart and steer clear of legal trouble 

How COVID-19 claims will eventually play out over the coming months is unknown. What most industry experts are predicting, though, is that there is a likelihood of these claims rising exponentially.

The best way to avoid liabilities during this COVID-19 period is to stay smart. Comply with all federal and state safety guidelines as you run your office, and above all, protect your patients and your employees.