Malpractice claims can present significant challenges for orthodontic practices, including damage to professional reputations and costly legal battles. There are recurring issues that tend to trigger allegations of negligence — many of which are preventable with the right protocols in place.

By understanding the common pitfalls that lead to malpractice claims and implementing proactive risk management strategies, orthodontists can better safeguard their practices and deliver safer, more transparent patient care.

1. Failure to Obtain Proper Informed Consent

Lack of informed consent is consistently one of the leading causes of non‑clinical orthodontic litigation. Generally, properly informed consent requires that a reasonably prudent healthcare provider discloses the risks that a reasonable person would deem material in making their decision on what treatment to undergo or forgo.

It is important to note that informed consent is not satisfied by merely disclosing risks. Informed consent is a process intended to protect individual patient autonomy. It necessarily includes at least the opportunity for the patient to ask questions of the provider, otherwise the patient will not be deemed to be informed.

In claims related to improper informed consent, patients may allege they were not adequately informed about:

  • Risks (root resorption, periodontal damage, relapse, pain)
  • Alternatives (no treatment, different appliances, referral to surgery)
  • Limitations or realistic outcomes

How to prevent Failure to Obtain Proper Informed Consent claims:

Pre-treatment

    • Document communication of diagnosis, treatment objectives, treatment alternatives (including no treatment) and limitations.
    • Explicitly disclose known orthodontic risks (e.g., root resorption, periodontal changes, relapse, discomfort).
    • Avoid guarantees or outcome promises in writing or verbally.
    • Note patient questions and your responses.
    • Obtain signed, dated consent before appliances are placed. The AAO provides members with Informed Consent forms (printed for a fee or downloadable) and guidelines for obtaining informed consent as a member benefit.

During treatment

    • Re‑document consent if the treatment plan materially changes.
    • Note patient questions and your responses in the chart.

2. Periodontal Damage During Orthodontic Treatment

Periodontal damage is consistently one of the leading causes of clinical orthodontic litigation. Common allegations include:

  • Failure to identify pre‑existing periodontal disease
  • Moving teeth in unhealthy bone
  • Continuing treatment despite worsening gingival or bone loss
  • Not referring to or coordinating with a periodontist

How to prevent Periodontal Damage During Orthodontic Treatment claims:

Pre‑treatment

    • Evaluate periodontal status before tooth movement.
    • Document baseline gingival condition and bone levels.
    • Refer to or coordinate with a periodontist when indicated.

During treatment

    • Monitor periodontal health at regular intervals.
    • Pause or modify treatment if deterioration is noted.
    • Document referrals, patient compliance and recommendations.

3. General technical errors

In technical error cases, dissatisfaction alone is not enough — plaintiffs must show the orthodontist deviated from accepted professional standards and caused harm. Allegations can include:

  • Extracting the wrong tooth
  • Applying excessive or improper orthodontic force
  • Creating a worse bite (iatrogenic malocclusion)
  • Failing to correct the original problem after a full course of treatment

How to prevent technical error claims:

Planning

    • Confirm extractions align precisely with the treatment plan.
    • Verify imaging and diagnostics before irreversible steps.
    • Document clinical rationale for force levels and mechanics.

Execution

    • Avoid excessive or poorly controlled orthodontic forces.
    • Reassess if treatment creates functional problems (e.g., worsening bite).
    • Document deviations from plan and corrective actions.

4. Failure to Diagnose or Manage Underlying Conditions

Orthodontists have a duty to evaluate conditions that could be affected by orthodontic treatment. Failure to recognize or appropriately manage these conditions has been cited as a basis for malpractice when harm occurs:

  • Impacted teeth
  • TMJ disorders
  • Skeletal discrepancies requiring surgical consultation
  • Periodontal disease or pathology visible on imaging

How to prevent Failure to Diagnose or Manage Underlying Conditions claims:

Initial assessment

    • Screen for impacted teeth, skeletal discrepancies, TMJ concerns.
    • Be aware of any suspicious lesions or growths, even when captured on imaging that had another intended purpose.
    • Identify conditions requiring surgical or specialty referral.
    • Document why referrals were or were not made.

Ongoing

    • Re‑evaluate diagnosis if progress stalls or symptoms worsen.
    • Document patient refusal of recommended referrals.

5. Poor Doctor–Patient Communication

Lack of doctor–patient communication (or doctor-parent communication when treating a minor) has been found to be one of the most significant contributing factors to claims. Patients are more likely to sue when they feel:

  • Dismissed or ignored
  • Surprised by outcomes or complications
  • Their concerns were not addressed or documented
  • The orthodontist didn’t spend enough time with them

How to prevent Poor Doctor–Patient Communication claims:

At every visit

    • Document patient concerns and your responses.
    • Explain delays, complications or changes clearly.
    • Avoid dismissive language in notes or conversations.
    • Allow adequate time with each patient and avoid rushing from patient to patient.

When problems arise

    • Acknowledge issues early.
    • Offer options and document shared decision‑making.
    • Escalate to specialist consultation when appropriate.

6. Inadequate Monitoring or Follow‑Up Care

The essence of these malpractice claims usually centers on whether the orthodontist provided thorough care and clear communication throughout the treatment process.

Claims of inadequate follow-up care can arise from:

  • Failing to monitor treatment progress
  • Missing signs of root resorption or periodontal deterioration
  • Inadequate response to pain, appliance failure, or complications
  • Poor documentation of follow‑up decisions

How to prevent Inadequate Monitoring or Follow‑Up Care claims:

Clinical monitoring

    • Track root resorption, bone changes and tooth vitality.
    • Respond promptly to pain, appliance failure or complications.

Documentation

    • Record missed appointments and non‑compliance.
    • Note treatment pauses, modifications or patient refusals.
    • Keep contemporaneous notes (not retroactive corrections).

Protect Yourself with Malpractice Insurance from the AAO-Endorsed Insurance Program

Orthodontic malpractice claims can be more common than you may think. As the only approved insurance provider for AAO members, The AAO-Endorsed Insurance Program offers all the insurance you need to protect yourself and your practice in one place — including Malpractice, Cyber Liability, Group Disability Income, Life insurance and more.

By consolidating your insurance needs, you can streamline payments, renewals, and claims, ensuring you are prepared for any challenges that may arise.

Residents, looking for Malpractice insurance when you graduate? We have you covered. Contact the AAO-Endorsed Insurance Program today.

Orthodontists, when it’s time to renew, consider switching your coverage to Malpractice insurance from the AAO-Endorsed Insurance Program. You can also sign up for a reminder closer to your current policy’s expiration date.