image Background

Societal Forces Beyond the Control of the Individual Dentist

Whether or not a dentist is subject to a claim for professional misconduct depends on multiple factors, some of which are within the practitioner’s control, and others that are not. There are three identifiable societal trends influencing the volume of litigation against dentists that are entirely beyond the control of the individual dentist:

Decline of the Family Dentist

Over the last 50 years the family dentist’s role has changed. A generation or two ago, a family dentist typically was responsible for the majority of dental care rendered to an entire family and frequently to the extended family. The dentist could establish a personal relationship with each patient and keep track of the accomplishments and struggles of the patient’s family. The relationship was built as much on trust and friendship as it was on the quality of work and skill level of the dentist. For the most part, these patients would have found the thought of suing the family dentist repugnant.

However, societal changes have diminished the role of the family dentist. The modern patient population is more transient, and the family dentist no longer has the opportunity to develop personal relationships with patients. It is now the exception, rather than the rule, for a given patient to see the same dentist over a period of decades. People change their residence more often than was usual in the past, and patients who move will be inclined to look for a new dentist who is closer to their new home. Dental insurance also leads to changes in the patient population. A far larger percentage of the patient population is now covered by dental insurance, and that new coverage availability frequently leads patients to change to a dentist who accepts their particular insurance plan. Changes in insurance coverage may give rise to the need for a change in dentists even when the patient does not move to a different geographic location.

The dentist population is also more transient. Over the last 20 years or so, we have seen a substantial increase in the number of dental clinics, where there is a relatively frequent turnover in dentists, and where the patient may not see the same dentist at successive appointments.

Circumstances Within the Control of the Individual Dentist

Although some claims and lawsuits may be unavoidable, the patient’s decision of whether to pursue a claim may be significantly influenced by the individual dentist.

Meeting Patient Expectations

Generally speaking, patients expect the dentist to provide them with the following:

In most lawsuits involving allegations of dental malpractice, a breakdown of the dentist-patient relationship has occurred long before the lawsuit is filed. Frequently, the breakdown in the relationship is attributable to what the patient perceives as inadequate communication. Most malpractice plaintiffs ultimately testify that the dentist failed to listen or respond to their complaints, or that the dentist treated them in an abrupt manner. Once a patient is unhappy with a dentist’s communication style, the patient is likely to seek care elsewhere. Very few patients consult an attorney and file a lawsuit without first severing the dentist-patient relationship. Furthermore, a large percentage of lawsuits are brought because a subsequent treating dentist criticizes the prior dentist’s treatment. The dentist who can maintain open communications with a patient is likely to be able to maintain an ongoing relationship, and the likelihood of a lawsuit or claim for dental malpractice in the face of an ongoing relationship is substantially diminished.

image Dental Malpractice Law

The elements of proof required to establish a malpractice case are well established. Virtually every jurisdiction requires the patient/plaintiff to establish the following elements of proof:

Unlike a claim for injuries arising out of a motor vehicle accident, in which the outcome of the case might be determined by the proof of a specific fact (i.e., was the light red or green?), the determination of the outcome in a malpractice case often hinges on subjective judgment. For example, the question of how many endosseous implants should be placed in the reconstruction of an upper jaw will hinge upon multiple factors including the professional judgment of the practitioner, the patient’s anatomy, the patient’s age, and perhaps financial considerations. Different practitioners may reasonably disagree as to an appropriate or ideal treatment plan. Seldom are the issues in a malpractice case the subject of a universally accepted standard of care. Typically, no singularly recognized textbook or universally accepted standard exists on which to rely to determine the standard of care. Rather, the ultimate determination of every issue in a malpractice case typically hinges on the opinion testimony of dental health care providers.

Similarly, determining the extent of any injury or damage will often be subject to opinions and interpretation, as will causation. Although a patient may establish that a dentist has rendered inappropriate care under a given set of circumstances, the patient may not be able to establish injury or damage.

The standard of care in a malpractice case is often subjective. Generally, the law provides that a dentist has an obligation to use the skill and care ordinarily exercised by other dentists under the same or similar circumstances and to refrain from doing those things that such a dentist would not do. Similarly, the law provides that the standard of care for a dental specialist is the standard of care ordinarily used by other specialists under the same or similar circumstances. Typically, written guidelines such as those published by the American Dental Association (ADA) or a specialty organization or those contained in the literature will constitute evidence, but not proof, of the requisite standard of care.

Because the concept of standard of care is typically subjective, most courts require that the standard of care be established by expert testimony. The law regards the substance of testimony in malpractice cases to be of such a technical nature that only an “expert” is sufficiently knowledgeable to offer evidence as to the standard.

Most jurisdictions accept the testimony of practicing dentists as expert testimony. The specific qualifications of dentists who offer expert testimony will typically have some bearing on the weight that the jury or fact finder gives to their testimony; however, any licensed practicing dentist will typically qualify as an expert. Many jurisdictions place minimal requirements on the qualifications of the proposed expert witness, but those minimal qualifications are typically satisfied without difficulty. By way of example, several states require that the expert spend at least 50% of his or her professional time in the clinical practice of dentistry or teaching dentistry at an accredited dental school.

The law recognizes that dentistry is inexact and has been described as part art and part science. There are different methods that dentists may reasonably use, and there are different schools of thought concerning the different methods that are available. Thus the fact that another dentist might have used a different method of treatment will not typically establish a deviation from the standard of care.

The law also recognizes that complications occur under the best of care. Therefore the mere fact that a patient experiences a bad result will not typically establish a deviation from the standard of care. In short, the law recognizes that professional judgment may play a role in dental treatment.

Although the determination of the standard of care is typically subjective, there may be instances in which certain acts or the failure to perform certain acts in the care and treatment of a patient would be difficult to defend. By way of example, it would be very difficult to defend the proposition that a dentist does not need to obtain some sort of health history and dental history before initiating treatment or prescribing medications. Similarly, it would be difficult to defend the proposition that a dentist need not take radiographs before initiating certain procedures, and some would argue that annual radiographic examinations along with periodic full mouth radiographic examinations are required by the standard of care. In addition, certain types of implants have fallen out of favor and are considered by many practitioners to be outdated to the extent that their use would be difficult to defend (e.g., the routine use of subperiosteal implants in the maxilla). The individual practitioner has an obligation to remain current on the standard practices being used by other dentists under the same or similar circumstances. The more widely accepted a given practice, the more likely it is that a jury will find that the specific practice is required by the standard of care and that failure to conform to that practice is professional negligence.

The plaintiff in a dental malpractice case must also establish causation and damages, usually through expert testimony. Often, the question of causation is rather straightforward, but the question of damages can be complex. Because most dental malpractice cases involve complications associated with dental procedures, the system recognizes that patients are typically in a compromised state before the alleged “mistake.” For example, in cases in which patients claim that their diet is limited as a result of the inability to masticate adequately with recently placed implants, a meaningful evaluation would require that the attorneys and fact finders (1) compare the patients’ current claimed limitations with any limitations that might have been present before treatment; and (2) determine any limitations that would have developed in the absence of implant placement.

image State Administrative Licensure Actions

Although being sued for dental malpractice can be an unpleasant, time-consuming, and costly experience, an action brought by a state licensing board can have an even greater negative impact on a dentist’s practice. Every dentist practicing in the United States is subject to the rules and regulations established by state licensing boards. Such boards have been established to protect the public by ensuring that those rendering dental care and treatment to patients are competent and qualified. Typically, such boards and agencies have the authority to establish educational prerequisites for obtaining a license to practice dentistry, dental hygiene, or other auxiliary dental treatment; establish continuing education requirements; and set specific rules and regulations that limit the scope of practice for general practitioners and specialists. Such boards and agencies also have the authority to reprimand, suspend, and revoke the licenses they issue.

Unlike claims for dental malpractice, which are generally tried before a judge and/or jury, state license administrative actions are generally investigated by the state licensing agency, and the determination of whether disciplinary action is warranted is initially made by the board or agency. A dentist who is dissatisfied with the ruling from the board or agency generally has the right to appeal any adverse ruling through the court system. However, the specific procedure varies among jurisdictions.

Between 1990 and 2004 a total of 9986 reports were made by state licensure boards to the National Practitioner Data Bank.1 The vast majority of these reports involved issues in which the dentist’s license was revoked, suspended, or placed on probation. Other disciplinary actions subject to such reports include formal reprimands or censure, and rulings excluding the dentist from participating in federal programs.1

Common charges brought against practitioners by state boards include allegations of violations of the standard of care, practicing while impaired by drugs and/or alcohol, failing to meet continuing education requirements, fraudulent billing practices, and practicing beyond the scope of the dentist’s permitted area of practice. The severity of the discipline imposed depends on a multitude of factors, including the seriousness of the offense, the number of offenses, whether the dentist has a history of infractions, and the presence of any mitigating factors. The severity of punishment can vary from jurisdiction to jurisdiction. Further, in any given year, the aggressiveness of any given state board or agency can vary depending on the philosophies of the personnel who have enforcement authority.

State regulations generally require the license holder to fully cooperate and assist state board investigators when requested. At a minimum, such cooperation requires dentists to provide patient records to investigators pursuant to proper requests for such information and to permit inspection of the dentist’s office and equipment. It is strongly advised that any dentist who is the subject of a dental board investigation consult with legal counsel knowledgeable and experienced with dental board proceedings to ensure the integrity and fairness of the process, because often the state board has both prosecutorial and judicial authority. Many professional liability insurance polices provide coverage for attorney fees and expenses associated with administrative actions.

image Risk Management Practices

What Should Be in the Records?

Good risk management practices require the dentist to include the following in his or her records:

Communications With Patients

The dentist should record all substantive discussions with the patient or the patient’s family, including telephone conversations. As discussed, most lawsuits involving allegations of dental malpractice involve a breakdown of the dentist-patient relationship involving inadequate communication. Generally, the dentist should be aware that all patients expect to be treated with dignity and respect. It is never appropriate to make a demeaning comment to a patient. Furthermore, patients will take offense if they do not believe that their dentist is giving them the time they need to discuss the status of their dental health, proposed treatment, or complications associated with treatment. Every dentist should try to make patients feel that they are given all of the time they require.

In the event that the patient experiences a complication, it is important for the dentist to offer an honest explanation of the complication and the proposed curative treatment. The dentist who shows genuine concern for the patient and who proposes appropriate follow-up is far less likely to be the subject of a claim for malpractice than the dentist who fails to make certain that the patient fully understands what has occurred.

From time to time, the dentist will be directly or indirectly involved with other health care providers or other dentists involved in the patient’s care. The dentist should take time to communicate appropriately with these other care providers. Communications with other dentists or health care providers (e.g., discussions concerning a patient’s cardiac status) should be documented in the records.

The subject of informed consent is discussed at length later in this chapter. However, in terms of patient communications, the dentist should be aware that it is inappropriate to make the patient a guarantee or promise concerning the outcome of any proposed treatment. Irrespective of the skills of the dentist, complications can and do occur. Representations by the dentist that are not ultimately fulfilled will be a source of extreme dissatisfaction to the patient that could lead to litigation. This is particularly true in implant dentistry because implants involve the placement of artificial materials in the body, and the body’s physiological reactions to these artificial materials is not entirely predictable.

Under no circumstances should a dentist make adverse unprofessional comments concerning a patient to other health care providers or in the records. Comments in the chart (e.g., the patient is neurotic or a hypochondriac) can significantly compromise the defense of a claim involving allegations of professional negligence.

Alteration of Records

Records should never be changed in anticipation that a patient is pursuing, or might pursue, legal action. However, sometimes it is appropriate for dentists to make corrections to their treatment records to correct an inaccuracy or to supplement an entry with additional information. When good record-keeping practices dictate that corrections are made, corrections should be added without obliterating or destroying earlier entries. Furthermore, any corrections to a record should be initialed and dated. Under no circumstances should any correction be made to any record once the dentist is placed on notice of a possible claim. The effect of making a change to a record, particularly a change that alters the meaning of a prior record or obliterates a prior record, often gives the appearance that the dentist is trying to cover up something or make excuses.

Many jurisdictions permit the award of punitive damages when a fact-finder determines that changes have been made to the record, at least in those instances when it is determined that the changes were made in an effort to conceal a pertinent fact. It is common practice for the plaintiff’s attorney to carefully inspect a dentist’s original records. There are a number of scientific methods available to attorneys for testing the timing and legitimacy of record-keeping entries. For example, forensic handwriting experts can be retained to test whether two different entries were written with the same pen, the age of the ink in the entries, and the contents of any obliterated entries. Moreover, in situations in which a document is destroyed or removed from the chart, the existence of the document can sometimes be re-created through indentation analysis. Setting aside the fact that the improper alteration of records is dishonest, many tools exist that will enable opposing attorneys to detect alterations, and nothing is more disastrous to a physician’s defense than to be caught improperly altering records. If a dentist perceives a need to change any record substantively, and has not consulted with an attorney or appropriate risk management professional concerning the appropriate manner in which to make corrections to a chart, it is recommended that the dentist consult with counsel or other qualified risk management professional.

Jan 7, 2015 | Posted by in Implantology | Comments Off on 4: DENTAL RISK MANAGEMENT
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