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Federal Tort Claims Act

Safety net dental clinics organized and recognized by the federal government as free clinics or FQHCs are eligible for malpractice coverage for the clinic and employees or volunteers (free clinics only) through the Federal Tort Claims Act (FTCA).

Health centers eligible for FTCA coverage must apply, and the coverage includes employees, employed health professionals, and, in certain situations, contracted health professionals. All FQHC health professionals must be credentialed and privileged. The FQHC must include all services performed by the clinic in its scope-of-practice listing with the federal government. Once covered, no tail coverage is necessary. However, entities with FTCA coverage might still consider wrap malpractice coverage to covered services or health professionals not covered by FTCA.

All federally funded health centers are required to detail what services are provided in the scope of practice. FTCA covers only those services. For example, a clinic may have the size of dental practice include preventive care, emergency care, and limited prosthetic services, excluding orthodontics and implants. Should a dentist qualify to provide a service such as orthodontics or implants, the scope of practice must be amended to include these services. Otherwise, FTCA would not cover the services, which would expose the practice to malpractice risk; separate private malpractice insurance coverage would be needed for those excluded services.

A recent emerging requirement for FTCA coverage includes a board-approved QA/QI protocol for the entire safety net dental clinic. Additional requirements may consist of appropriate vaccinations of all health professionals and an approved sliding fee scale.

If a patient wishes to file a claim against a covered clinic under FTCA, the patient must file the claim with the federal government, specifically HHS. The claim is then sent for review by an outside professional who does not decide but instead comments on whether there has been damage—a violation of the expected standard of care—and finally, whether the injury resulted from the deviation from the middle of consideration. A committee at HRSA will then review everything and determine if the claim should be rejected or if a negotiated settlement should be attempted. If the claimant is not satisfied with the settlement amount, he or she may file a lawsuit in federal court. This process virtually eliminates nuisance claims and is fair to all parties.

A note for health professionals: A written response to the charges is required from health professionals. Most claims are apparent, with either clear malpractice or no malpractice. Unfortunately, some cases are not clear. Two pieces of advice for health professionals follow:

  • Never change your charts. It is illegal to do so. Furthermore, doing so places the credibility of the entire record in jeopardy. Before a claim is made, the patient’s attorney will seek the patient’s chart. A change to the original information in the chart makes the case indefensible; the claim will be paid.
  • Inform your administration and prepare your response to the claim. Consider whether to consult with an attorney.

The very best ways to avoid a claim are not arguing with patients, explaining everything to patients, and finally letting patients know how dedicated you are to helping them. As in oral health care, prevention is better and more accessible than repairing what could have been prevented.

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