How Liable Are Dental Practice Owners During the COVID-19 Pandemic?

Trey Tepichin
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States now are allowing dental practices to resume elective treatment. If you run a dental practice and have decided to reopen, you could be making yourself liable if an employee or patient contracts COVID-19 from your office.

At a time when businesses worldwide are struggling with loss of income and an uncertain future, being sued by staff and patients is the last thing you want.

“For an employer wanting to get back to normal business, this could be the third crisis facing the nation,” explained Todd Maisch, head of the Illinois Chamber of Commerce. “The first being the health crisis, the second being the economic crisis, the third being years of a liability crisis.”

While the laws vary by state, here’s an overview on how liable dental practice owners are during the coronavirus pandemic.

Liability for Employees

Is the dental practice owner liable if an employee contracts COVID-19?

Yes, a dental practice owner could be liable if an employee contracts the coronavirus within the dental practice while at work.

Employees who believe they developed COVID-19 in the workplace are entitled to a claim under the workers’ compensation system. This operation is an unknowable fault system, meaning the employee making the claim doesn’t need to prove negligence on behalf of the employer. The employee only needs to prove that the illness was contracted at work and the illness developed due to their employment.

Employees can only file a claim for an “occupational disease.” Although the definition of this term varies by state, it’s most commonly covered by:

  • An illness or disease that derived from and was in the course of employment
  • An illness or disease caused by conditions particular to the work that creates a risk of contracting the disease in a higher degree and different manner than outside work

Even when an employer follows proper protocol to protect employees from the virus, a claim is still valid if the employee can prove the virus developed following exposure, the exposure was particular to their work, and there were no alternative means of exposure.

An employee seeking workers’ comp benefits for the coronavirus would also need medical evidence to support the claim. This could take the shape of a positive test result or a diagnosis from a medical professional.

If you want to challenge an employee’s claim, there are two main ways you do it. You can contest the employee’s medical evidence if it’s speculative, or you can argue that the employee could have contracted the virus elsewhere.

Proving someone contracted COVID-19 while at work in a dental practice and nowhere else is a challenge. With states all over the country lifting their lockdown restrictions, it’s almost impossible for anyone to prove they developed the virus anywhere.

One possible scenario could be if a person living on their own never left their house, never received any deliveries, and never came into contact with anyone. The only time they were in contact with other people was when they were in the dental practice carrying out their duties.

But even in a case like this, the employee would still have to get to work and undoubtedly be close to several people who could be carrying the virus along the way.

If You’re an Employee

Can you sue your employer if you get COVID-19 at work?

If you believe you contracted COVID-19 while working within a dental practice, you can make a workers’ compensation claim for an occupational disease developed at work. Employees who go down this route relinquish their right to sue.

For a claim to be successful, you need to identify your specific exposure to COVID-19, including the date and location. You also need proof of having the virus (such as a positive test result or medical diagnosis) and evidence that having the virus resulted in you suffering a personal injury, making you entitled to workers’ compensation benefits.

If you can’t pinpoint where exactly you developed COVID-19, you can still make a claim if you’ve been working around people who have been diagnosed with the virus, since there’s a good chance you did develop the disease in the workplace.

Though statutes vary by state, according to the workers’ compensation statute in Michigan, “Personal injury includes a disease or disability that is due to causes and conditions that are characteristic of and peculiar to the business of the employer and that arises out of and in the course of the employment.”

The key is in proving that the illness is attributable to work. You must be able to prove it is extremely unlikely that you developed the disease outside the dental practice. Since COVID-19 is so common throughout the United States, demonstrating this fact will be difficult.

Liability for Patients

Is the dental practice owner liable when patients get sick?

Yes and no. If the member of staff who treated the patient making the claim is an employee, the dental practice owner is liable. If the member of staff who treated the patient making the claim is an independent contractor, the member of staff is liable.

It all boils down to vicarious liability. Legal liability for an employee is called vicarious liability. When you report a claim for a member of staff who practices in your office, your claim specialist will ask you several questions to determine if you’re vicariously liable for the member of staff.

Most states agree that an employer is legally liable for their employees’ wrongful conduct when the employee was carrying out their work duties as expected. Although there are some states that provide exceptions, if your employee’s work is the reason a claim is being made, it’s likely you’ll be vicariously liable. This doesn’t mean the employee isn’t responsible for their own conduct. But as the employer, you’ll also be responsible.

When the member of staff the claim is being made against is an independent contractor, the practice owner isn’t vicariously liable for the wrongful conduct. However, there are many exceptions to this rule, and most of them are rooted in whether the member of staff is truly an independent contractor or really an employee.

There are many differences between a dental hygienist independent contractor and dental hygienist employee. Your claim specialist likely will ask you a series of related questions to determine the status of your member of staff.

A patient who contracted COVID-19 as a result of receiving treatment from your practice will likely claim for breach of infection control standards or failure to identify or take precautions with a medically compromised patient.

In the first instance, a patient not considered to be at high risk will likely claim they were exposed to the virus through unsterilized dental tools or by coming into contact with someone inside your dental practice who already had the virus.

In the second instance, a patient considered to be at high risk will most probably claim you didn’t take the necessary precautions to protect them from coming into contact with the disease.

Limiting Liability

How can dental practice owners limit liability?

The best way for dental practice owners to limit liability is to do everything they can to keep the risk of spreading the virus as low as possible. This means following the latest guidelines from the Centers for Disease Control and Prevention and Occupational Safety and Health Administration, from wearing personal protective equipment to thoroughly disinfecting the practice and social distancing.

Failure to meet these guidelines will in all likelihood be used as evidence that the practice owner failed to take all measures to protect patients and employees.

Other things to consider to limit liability include:

  • Create a checklist for patients who come into the practice to determine how likely it is they have the virus.
  • Take patient and employees’ temperatures when they enter the practice to identify their risk of infection.
  • Use a text-based alert system to let patients know when the dentist or dental hygienist is ready to see them to avoid crowds in the waiting room.
  • Remove everything unnecessary in the practice so there are fewer surfaces for germs.
  • Work with independent contractors, since you won’t be vicariously liable for their work within your practice.

“If employers can show they took reasonable efforts based on the information available, they will be in a very good spot to defend themselves,” said Antonio Calderone, an attorney with Laner Muchin who represents management in labor and employment cases.

Prevention Is Better Than Cure

Spending money to reduce your liability by prioritizing the safety of your patients and staff is a much more effective use of your budget than settling workers’ compensation claims. Due to the virus’ widespread nature, patients and staff will have difficulty proving they contracted COVID-19 in your dental practice. But a talented lawyer will rise to the challenge and do their best to get their client the compensation they deserve.

Mr. Tepichin is cofounder and CEO of CloudDentistry.com and a successful Boston attorney with numerous multimillion-dollar victories. He also is a former teacher of economics at Harvard. Cloud Dentistry is not a dental temp agency. It is a web-based and app-based marketplace where dental offices can message and book dental professionals on demand 24/7 without paying hourly markup.

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