15 You and the Lawyer

Chapter 15

You and the Lawyer

We live in a litigious era, which means that as clinicians we also practise in a litigious era. This does not mean that you must adopt a litigation-based philosophy in your treatment planning, as this would not be in your patient’s best interests. What it does mean, however, is that you must keep contemporaneous records that are accurate, precise and indisputable. You must discuss all treatment options with your patient, however inappropriate you may feel that they are, giving you reasons for your advice. You must not project yourself as having skills or training that you do not possess. You must employ evidence-based treatments. We consider three different case scenarios.

Case Scenario 1: Note and Record Keeping

Gray & Al-Ani Solicitors

101 Manchester Road

Manchester

M1 2XY

Our Ref: SSDAB/SMI111-01

Jones Dental Care

162 Union Road

Manchester M1 3AB

Dear Sirs

Re: Our Client/Your patient: Joy Smith d.o.b. 10.10.1951

Address: 13 Brides Drive Manchester M1 12CD

We are instructed to act on behalf of Mrs Smith in connection with a claim for damages arising out of an accident in which she was involved.

We should be grateful if you would kindly provide us with copies of Mrs Smith’s entire dental notes, records, correspondence, radiological images, test results, investigation reports, referrals, etc.

We enclose our client’s written authority for this purpose and confirm that we shall be responsible for your fees in relation to this request up to a maximum of £50.00.

We also confirm that, as far as we are aware, these records are not required in relation to any litigation against yourself or your practice.

We look forward to hearing from you within 14 days.

Yours faithfully

Authority to release dental notes and records

Our Ref: SSDAB/SMI111-01

Jones Dental Care

162 Union Road

Manchester M1 3AB

Dear Sirs

I, Joy Smith of 13 Brides Drive, Manchester M1 12CD, hereby authorise the release of all of my Dental Records, Notes, Memoranda and X-rays to my solicitors:

Gray & Al-Ani Solicitors

101 Manchester Road

Manchester M1 2XY

The release of these notes relates to a claim for damages arising out of an accident in which I was involved on the 23rd April and I confirm that they are not required in relation to any litigation against Jones Dental Care.

Signed……………………………….

Dated…………………………………

You know that you are duty bound to provide the records within a certain period of time that is deemed to be reasonable. If retrieval of your records will take longer than the suggested time, it is your responsibility to contact the solicitors to advise them that you cannot comply with the timescale that they have set and agree a more realistic timescale.

You ask your practice manager to download the notes from the computer and provide you with all hard copy notes that you had kept before your practice was computerised. You are in the unfortunate situation of not having any idea about the injuries, the details of the accident or the date.

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When your manager brings you the notes, she says that she cannot find any radiographs because they appear to have been lost. There are no radiographs scanned into the computer system. You saw Mrs Smith on only three occasions and have only a vague recollection of her. You have no hard copy notes and your computerised printout gives only the barest details of examinations and treatment actually completed. You had not recorded an examination of her articulatory system.

You had seen her on three occasions at approximately yearly intervals and the last time you saw her was over a year ago. Your initial examination contained some scanty details about her presenting complaints and expectations and you recorded the fact that she was not happy with her previous dentist. She was not a regular attender.

You had recorded a baseline charting recording her missing teeth and existing restorations and you had completed a BPE chart. She had plaque and calculus lingual to her lower anteriors, but the rest of the intraoral and extraoral examination boxes had not been completed. Two small restorations needed replacing due to recurrent caries. You took bite-wing radiographs (subsequently lost). You completed the two restorations without incident. She attended the hygienist.

She did not return for over 12 months and then again 12 months later. No further clinical records had been completed apart from an examination and hygienist referral on both occasions. No further radiographs were taken.

You phoned the solicitors and were advised that her problem was a jaw problem after a road traffic accident.

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Due to the inadequacy of your record keeping you were not able to furnish the solicitors with any useful information, but you did return what you had. You received a personal phone call from one of the solicitors requesting further information as to whether Mrs Smith did have a pre-existing jaw condition. You were unable to help.

This situation is all too familiar in clinical practice. It is your responsibility to keep accurate and complete records, take radiographs according to (IR(ME)R) 2000 regulations and keep an up-to-date periodontal index. You are required to undertake a complete examination of your patients at the initial consultation and at each subsequent 6-monthly or 12-monthly examination visit.

Many practices are computerised so it is very easy to merely tick boxes on a computer proforma and complete an absolute minimum of additional entries.

Letters such as this from solicitors may arrive many months or even years after you last saw a patient. You are leaving yourself vulnerable if a situation such as this does arise.

Case Scenario 2: a Medical Report Request

You are a well-known dentist in your neighbourhood with many years of clinical experience. After qualifying you spent 18 months as a house officer in oral and maxillofacial surgery. You receive a letter from instructing solicitors asking if you are prepared to produce a report for one of their clients who had had an accident involving ‘dental injuries’. She lives close to your practice and because of personal circumstances is unwilling to travel far. Her usual dentist did not feel that he had the experience to help.

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You feel flattered and readily agree to do this.

Do You Get Enough Information? Have You Got the Necessary Experience?

A large bundle of notes is delivered to your practice containing the client’s contact details, a very brief description of the circumstances of the accident, and a letter of instruction that outlines your duties and responsibilities to the court and a suggested declaration for you to sign.

What Will You Receive?

A letter of instruction that contains a paragraph stating:

Following examination of our client we will require your report to deal with the following specific points, in addition to providing the usual information:

1. Did our client have a pre-existing temporomandibular dysfunction?

2. If so to what extent?

3. If the answers to 1 and 2 above are in the negative, do you feel that the injuries claimed by the patient would have initiated her current symptoms?

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Jan 8, 2015 | Posted by in Occlusion | Comments Off on 15 You and the Lawyer
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