Orthodontic claims involving missed diagnoses or failure to refer often arise when an orthodontist does not direct a patient to another provider whose specialized expertise is needed for proper evaluation or treatment. Even as specialists, orthodontists must recognize when a patient’s needs call for referral to another provider — to an oral and maxillofacial surgeon for impacted canines, extractions or orthognathic surgery; to a periodontist for active periodontal disease; to an endodontist for pulpal concerns identified during treatment; or back to the general dentist for caries, decalcification and restorative needs.
An orthodontist providing care outside their expertise will be held to that discipline’s standard of care. At the same time, the referring orthodontist must be sure the practitioner receiving the patient is competent to provide the required treatment.
Risk management concerns frequently arise when patients refuse recommended treatment, decline referral to another practitioner or fail to follow through after a referral is made. A significant liability exposure occurs when an orthodontist proceeds with care they know will not resolve the underlying problem simply to accommodate the patient’s wishes. Should an orthodontist decide to provide limited treatment that will not correct the patient’s entire condition because the treatment remains clinically appropriate and the patient makes an informed choice, then the orthodontist should document the comprehensive treatment recommended, the scope and limitations of the treatment selected, the material risks of leaving other conditions untreated, and the patient’s decision to decline the recommended care. A signed consent or informed-refusal form, supported by a contemporaneous treatment note, can reduce misunderstandings and provide important evidence of the patient’s informed decision. Consent, however, does not permit treatment that is unsafe or below the applicable standard of care.
The classic orthodontic example: a patient with a severe skeletal discrepancy refuses the orthognathic surgery the case requires, and the orthodontist proceeds with camouflage treatment that cannot correct the underlying problem. A close second is bonding brackets — or delivering aligners — to an adult with untreated periodontal disease. Moving teeth through an inflamed periodontium can dramatically accelerate bone loss.
A successful referral requires the patient to accept that a problem exists and requires treatment. Patients generally accept treatment when they understand the problem and recognize the implications of doing nothing, or of doing something that will not solve it.
Take the periodontal scenario above. Telling an adult who came in for a better smile that their gums need attention first can be a letdown, as another layer of care stands between them and the process they were hoping to start. Understanding this groundwork matters: moving teeth through diseased bone can cost them the very teeth they came in to straighten. Logically, if a patient is sitting in an orthodontic chair, we can assume they want to keep their teeth and improve their smile. Patients say yes to a referral when they understand why it’s needed. Education isn’t optional here — it’s usually what turns a “no” into a “yes.”
Even more concerning are potential cancerous lesions or other significant pathologies identified during clinical examination or on imaging. Orthodontists take a panoramic radiograph on nearly every patient and increasingly rely on CBCT for complex cases, putting them in a position to spot cysts, tumors and other suspicious lesions that other providers may not have seen.
The duty to identify, communicate, refer and follow up on suspicious findings applies to any clinician reviewing diagnostic imaging. Orthodontists reviewing panoramic and CBCT images carry the same level of responsibility.
So how do we manage these risks in a way that mitigates adverse outcomes?
- Provide treatment only within your level of expertise.
- Educate the patient — and for minors, the parent or guardian — about the diagnosis and why the referral is needed. In cases of a suspected cancerous lesion, explain why a biopsy may be required and what may occur if the lesion is malignant and nothing is done. With suspected cancerous lesions, the referring orthodontist must follow up on the referral.
- Educate the patient about what will happen at the surgeon’s, periodontist’s or general dentist’s office.
- Reassure the patient that you will stay in communication with everyone involved— including the general dentist, who should never be surprised to learn their patient is in active orthodontic treatment.
- Provide the patient with a well-designed referral slip that includes timelines and the reason for the referral.
- Refer to practitioners you have assessed and are comfortable with. Whenever possible, offer options and involve the patient in the decision.
- Whenever possible, schedule the appointment with the other practitioner while the patient is still in your office, even if they later cancel or reschedule.
- Provide the receiving practitioner with a written referral form documenting your findings and recommendations.
- Call the practitioner and discuss the case.
- Document all of this in the patient’s record.
If, after a thorough discussion, the patient still refuses the treatment or the referral, they should complete an informed declination — signed by the parent or guardian when the patient is a minor.
That thorough discussion is, in fact, the informed consent process. In other words, an informed declination form is meaningless unless the orthodontist has completed an informed consent conversation. The form should capture the essence of that discussion, not replace it. It is vital that the discussion is thoroughly documented in the patient’s chart, including the names of any witnesses to the conversation.
It is equally vital that the referring orthodontist follows up on referrals with documented calls — and, in cases of suspected malignant lesions, with emails and letters sent by mail to noncompliant patients.
Protect Yourself with Malpractice Insurance from the AAO Endorsed Insurance Program
Orthodontic malpractice claims, including those related to improper informed consent and improper referrals, 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 for AAO members, the AAO Endorsed Insurance Program offers insurance that is designed specifically for AAO members to help protect against the risks you face as an orthodontist.
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.
Reference: OmniSure Risk Solutions, “Informed Refusal and Informed Declination,” InSights, OmniSure website, 7/29/2026, https://www.omnisure.com/informed-refusal-informed-declination/.
DISCLAIMER: Risk management support provided by OmniSure Consulting Group, LLC, is not intended to be and should not be construed as the rendition of legal advice. It is not intended to replace legal advice. Information or documents provided are for illustrative purposes only and are not intended to dictate or replace company policy. We recommend all legal forms be reviewed by legal counsel before use. OmniSure is a separate risk management consulting firm only, not an insurance company or an agent of an insurance company. OmniSure’s risk management services are intended to provide best practice recommendations. These services are not intended and should not be deemed as answers to any policy coverage questions or warrant compliance with any policy conditions or requirements. For terms and conditions, refer to the policy itself. Coverage is subject to exclusions. All questions regarding coverage or compliance with the terms, conditions, or provisions under a policyholder’s professional liability policy should be directed to the policyholder’s insurance agent or broker.
