Malpractice claims can present significant challenges for orthodontists, including damage to professional reputations and costly legal battles. One common malpractice claim orthodontists face is failure to obtain proper informed consent.

There are recurring issues that tend to trigger allegations — luckily, many are preventable with the right protocols in place.

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

About Failure to Obtain Proper Informed Consent

Lack of informed consent is consistently one of the leading causes of orthodontic litigation. Generally, proper 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.

Failure of informed consent can occur in real life scenarios such as:

  • Patients sign forms without being given the opportunity to ask questions of their doctor
  • Consultations are rushed or days are over-booked
  • Templates are over-relied upon instead of incorporating personalized discussions into the template framework
  • Assuming long-term patients are already aware of the risks
  • Misunderstanding the decision-making roles between parents and minor patients

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.
    • 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 for free) and guidelines for obtaining informed consent as a member benefit.

During treatment

    • Obtain new consent if the treatment plan materially changes.
    • Note patient questions and your responses in the chart.

Complete a quick self-audit:

    • Do you document patient-specific risks, not just generic ones?
    • Do you record patient questions and concerns?
    • Do you readdress consent when treatment changes?
    • Would a third party clearly understand your conversation based on your notes?

Improving Poor Doctor–Patient Communication

Related to failure to obtain proper informed consent malpractice claims is poor doctor-patient communication.

Lack of doctor–patient communication (or doctor-parent communication when treating a minor) is closely related to failure to obtain proper informed consent. Poor patient-doctor communication has been found to be a strong contributing factors to claims.

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.

Communication techniques that can strengthen patient consent:

    • Avoid overly clinical language when explaining risks
    • Ask patients to repeat understanding, also known as the “teach-back method”
    • Frame expectations without sounding pessimistic
    • Address difficult conversations to avoid relapse risk and compliance issues

Protect Yourself with Malpractice Insurance from the AAO Endorsed Insurance Program

Orthodontic malpractice claims can be more common than you may think, which is why it’s crucial to have malpractice insurance from a trusted insurance company.

As the only endorsed insurance program for AAO members, the AAO Endorsed Insurance Program pairs trusted coverage with personalized, concierge-level support from the dedicated team at Lockton Affinity, the program administrator.

Switch your coverage to Malpractice insurance from the AAO Endorsed Insurance Program today. Or, if you currently have coverage with another company, sign up for a reminder to request a quote closer to your current policy’s expiration date.

Contact the dedicated AAO-Endorsed Insurance Program team today for assistance. Representatives are available at (844) 893-9888, Monday through Friday, 7 a.m. to 5:30 p.m. CST, or email [email protected] at your convenience.

The AAO-Endorsed Insurance Program is administered by Lockton Affinity, LLC d/b/a Lockton Affinity Insurance Brokers LLC, Affinity Administrator Services, LLC in California Insurance License Number 0795478, in Arizona Insurance License Number 1800004362 and in Arkansas Insurance License Number 100108685. Coverage may not be available in all states and is subject to actual policy terms and conditions. Policy benefits are the sole obligation of the issuing insurance company. Coverage may be provided by an excess/surplus lines insurer which is not licensed by or subject to the supervision of the insurance department of your state of residence. Policy coverage forms and rates may not be subject to regulation by the insurance department of your state of residence. Excess/Surplus lines insurers do not generally participate in state guaranty funds and therefore insureds are not protected by such funds in the event of the insurer’s insolvency. American Association of Orthodontists (AAO) will receive a royalty fee for the licensing of its name and trademarks as part of the insurance program offered to the extent permitted by applicable law.