Does the Standard of Care Change If You’re Treating Patients While Dealing with a Cyber Attack?

In a word: no.
June 12, 2023

Dental malpractice is a form of negligence that arises when a patient is harmed because the dental professional fails to perform duties according to the appropriate standard of care. To be found negligent, the plaintiff’s lawyer must prove that the action (or lack of action) was below the accepted standard of care. Generally, the standard of care requires you to provide your patients with the degree of care a reasonably prudent dentist would provide under the same or similar circumstances.

If your dental practice has been hit by a cyber attack and you’ve temporarily or permanently lost access to certain equipment, communication links, imaging and lab results, or patient records, the standard of care doesn’t change. When your computers are down, the impact on patient care is significant. How can you continue to practice safely?

Aside from stopping the hack and activating your cyber breach response plan, during a cyber attack your practice should make decisions about patient safety. In the same way that you triaged your patients during the early days of COVID, deciding who needed referrals, who needed immediate care despite office closures, etc., during a cyber attack you should make individualized decisions about your patients and, if necessary, send them elsewhere for care that you cannot safely provide. Document these decisions on paper!

A good process might be to imagine you’re going to be out of office. Who is on the patient schedule for those days? Then notify and/or refer every patient who needs attention.

For example, if a patient is scheduled for an imaging appointment to monitor a benign tumor, a reasonably prudent dentist, in the face of a cyber attack and the inability to access prior imaging studies, would likely refer this patient immediately to another dentist without a lapse in care.

If a patient suffers an injury due to care you provided during a cyber attack, the cyber event will not provide a legal defense to a resultant malpractice claim. Always practice with patient safety as your foremost concern!

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