4: DENTAL RISK MANAGEMENT

CHAPTER 4 DENTAL RISK MANAGEMENT

Richard J. Rymond, Ronald A. Mingus, Charles A. Babbush

Background

Risk Management for Dentists

Thousands of dentists each year are subjected to lawsuits alleging dental malpractice or to disciplinary actions instituted by state licensing boards. Certain risk management steps may be implemented by clinicians to minimize the risk of becoming subject to a claim for professional negligence and to minimize the risk of an adverse result if the dentist is in fact the subject of such a claim.

Virtually every dental malpractice claim arises by virtue of a patient’s dissatisfaction with the outcome of treatment. However, the overwhelming majority of patients who experience a bad outcome never pursue a claim for monetary compensation; nor do they file complaints with state licensing boards. It is the authors’ belief that many claims that could have been brought are avoided through risk management practices implemented by individual dentists.

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:

1. The decline of the family dentist

2. The availability of legal services and

3. Competitive forces

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.

Availability of Legal Services

Attorney advertising, media attention to large jury verdicts and settlements, and overall acceptance of the idea that an individual should be compensated when harmed by another fuels lawsuits, particularly claims involving allegations of professional negligence. Late-night television viewers are bombarded with advertisements suggesting the availability of easy money from health care providers and their insurers; telephone books and billboards send the same message. Such advertising was once considered in poor taste and in many instances an outright violation of professional regulations and codes of ethics and conduct.

It can be argued that this constant media blitz has also contributed to a decline in personal responsibility. Fifty years ago when a patient lost teeth, the patient assumed that this misfortune was attributable to inadequate personal hygiene, bad luck, or heredity. Currently, when a patient loses teeth there is a greater likelihood that the patient will place blame elsewhere and consider a claim against a dentist, alleging that with different or better care, the loss of teeth or dental disease would have been prevented.

Competitive Forces

Fifty years ago it was extremely rare for a dentist to criticize another dentist. Virtually every practitioner maintained an active and financially lucrative practice simply by servicing existing patients and new patients referred by those existing patients. Advertising by dentists and dental clinics has served to bring competitive market forces to the dental marketplace. The problem is compounded by the fact that, relatively speaking, the frequency of dental caries is substantially less than it was 50 years ago by virtue of the addition of fluoride to our water supplies. The treatment of caries was the “bread and butter” source of business for general dentists. In addition, insurance reimbursement programs have had a chilling effect on fees, and many dentists feel an overwhelming need to add to their patient base. In some instances, these competitive forces have resulted in a deterioration of professional decorum; dentists are far more likely today to criticize a prior treating dentist. Obviously, criticisms by one dentist toward another tend to promote controversy and litigation.

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:

• A straightforward explanation of the proposed treatment and what they can expect

• A reasonable opportunity to obtain answers to their questions about their treatment

• Respect and consideration

• Accessibility, 24 hours a day, 365 days a year

• A clear understanding of their financial obligations and the potential changes in their financial obligations as treatment progresses and

• A completely honest explanation of any complications

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.

Dealing With Bad Results

Complications can and do occur in the practice of dentistry even under the best of care. Although the practitioner understands that complications can and do occur under the best of care and are often unavoidable, that explanation may not satisfy the patient or a jury.

From a risk management perspective, the best time to address the possibility of a bad result with a patient is before the complication arises. A meaningful discussion with a patient prior to treatment about the most common potential bad outcomes can lessen a patient’s chagrin when a complication does in fact arise. A patient who is told about the possibility of needing root canal therapy before a dentist places a restoration or a crown is much more likely to be accepting of the need for root canal therapy when the need arises than is a patient who was never forewarned of the potential complication. Similarly, a patient who is advised of the numerous risks and complications associated with implant therapy before undergoing surgery is less likely to blame the dentist when the implant fails and/or a complication arises.

The dentist’s response to a complication may determine whether or not the patient brings suit. A completely honest explanation of the reason for the complication or unsatisfactory result can diminish the patient’s anger and improve the likelihood that the dentist-patient relationship can be maintained. Maintaining the trust and confidence of the patient is essential.

Avoiding Unnecessarily Aggressive Collection Practices

Aggressive collection practices, whether initiated by the dentist’s office, a collection agency, or a lawyer, constitute recurrent themes in dental malpractice cases and state administrative actions. Prior to initiating a collection action, it is imperative that the dentist understand why the patient is refusing to pay. If a patient is satisfied with the treatment rendered but simply is unwilling or unable to pay, collecting what is owed is necessary for the operation of a profitable practice. On the other hand, a patient who feels (rightly or wrongly) victimized by substandard care and harassed by aggressive collection attempts often retaliates by filing a malpractice lawsuit and/or a complaint with the state licensing agency. Many dentists have come to regret their decision to pursue the collection of small account balances from patients who have retaliated by filing suit.

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:

• Applicable standard of care

• Deviation from the applicable standard of care

• Injury or damage to the patient

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.

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.

Risk Management Practices

Documentation

The most important aspect of risk management involves proper documentation. Most claims alleging dental malpractice, as well as state board investigations, are initiated by a request from an attorney or board investigator for a copy of the dentist’s records. Typically, the attorney and/or health care provider will review these records before determining whether or not to bring a claim on behalf of the patient. Similarly, the records will be reviewed by someone on behalf of the state board before determining whether administrative charges are warranted. Proper documentation will significantly reduce the likelihood that the matter will escalate to a lawsuit or administrative charges; poor documentation practices will have the opposite effect. In lawsuits that are filed, proper documentation will significantly reduce the risk of an adverse outcome.

What Should Be in the Records?

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

1. Meaningful discussion. A meaningful discussion includes the dentist’s objective findings and the patient’s subjective complaints. For the records to be “meaningful,” all abnormal findings and test results should be included. The dentist should document all positive findings essential to the dentist’s diagnosis and all findings essential to the development of the treatment plan. Negative findings or findings that are within normal limits may be necessary to create a meaningful record, depending upon the circumstances. The question of whether to include negative findings should hinge primarily on the practitioner’s judgment. Negative findings that are important considerations in making a diagnosis or developing a treatment plan should be recorded.

2. Diagnosis. The records should contain a meaningful discussion of the dentist’s diagnosis. The extent of the records concerning the diagnosis will hinge on the nature of the patient’s visit. An emergency examination of a new patient with pain in the area of a single tooth will obviously create a record far different from a record created for a new patient seeking a comprehensive initial examination. To ensure that the records concerning the diagnosis are meaningful, it may be necessary for the dentist to incorporate either a reference to or a discussion of the process whereby the diagnosis was reached. This reference may necessitate a comment concerning the differential diagnosis and the manner in which the final diagnosis was reached.

Frequently, the dentist’s diagnosis can be implied from other documentation and evidence in the chart. For example, a notation of “DL amalgam no. 19” together with a radiograph showing a radiolucency on the clinical crown of tooth no. 19 reasonably implies a diagnosis of decay on the distal and lingual surfaces of tooth no. 19. While such documentation is sufficient for one knowledgeable in dentistry to decipher the dentist’s diagnosis, this connection may not be made by the person who is reviewing the dental records to decide whether a lawsuit will be filed.

3. Treatment plan. A review of the dentist’s records should clearly reveal the nature and extent of the proposed treatment plan. To the extent that alternative treatment plans may be viable, they, too, should be contained in the records, along with the selection criteria for the ultimate treatment plan. For example, the treatment options for the patient with an edentulous lower arch are implants or a full lower denture. It is appropriate for the dentist to state in the records that the options were explained. The records should also document the manner in which the ultimate treatment plan was reached (e.g., options of implants versus dentures were discussed; patient selects dentures based on cost).

4. Treatment. The records should contain a meaningful explanation of the treatment rendered. Typically, this explanation will be contained in the dentist’s progress notes. Other vehicles are also available, such as a color-coded dental chart. If the progress notes are prepared, in part or in whole, by someone other than the treating dentist, these progress notes should be reviewed for accuracy. At a minimum, the progress notes should contain a description of the treatment rendered on a given date. Depending on the circumstances, the dentist should consider including reference to the possible need for future treatment (e.g., deep filling, patient may require endodontic procedures) and follow-up instructions to the patient (e.g., patient is instructed to call if tooth remains painful). Because there are an infinite number of treatment scenarios, it is impossible to completely and accurately advise the dentist concerning all the information that should be contained in a progress note. However, a good rule of thumb is, if the progress notes do not contain information concerning an aspect of treatment or discussion with the patient, in a lawsuit it will be argued that the treatment or discussion did not occur. The patient and attorney bringing suit will argue that what the dentist failed to chart did not happen.

5. Outcome. In many circumstances, it is appropriate for the dentist to include an entry in the records concerning the outcome of treatment. A complication that occurs during treatment should certainly be included in the progress notes. On the other hand, it may be appropriate for the dentist to comment that the patient is satisfied with the treatment. Although such an entry is probably not appropriate for the case in which the dentist places a simple restoration, an entry of this nature can be very important if the dentist has rendered restorative care in an effort to address aesthetic or functional deficiencies, such as where an implant and prosthesis are placed.

When complications occur, they should be documented objectively. Generally, the dentist should not document opinions unless facts support the opinions. The progress notes also should be objective in nature. Unless the dentist is convinced as to the cause of a specific complication, the cause should not be documented. As a final rule of thumb, when the dentist is in doubt as to what should be included in the records, the matter under consideration should be included.

Noncompliance

Any noncompliance on the part of the patient should be documented. All failures to appear for appointments and canceled appointments should be recorded. If a patient refuses a recommendation for a consultation with a specialist, this must be included in the records. If a patient refuses recommended treatment, this also must be included in the records. These entries should be recorded in objective language. Furthermore, where appropriate, the dentist may want to generate additional documentation concerning noncompliance by the patient. For example, if a patient is instructed to return for radiographic examination 1 year after the placement of implants and the patient fails to appear, it may be appropriate for the practitioner to send a letter to the patient explaining the concerns and risks associated with the failure to return for follow-up evaluation (e.g., a delay or failure in diagnosing infection leading to implant failure).

Scope of Records

Many dental malpractice claims arise out of an alleged failure on the part of the dentist to maintain adequate pretreatment records. These records include meaningful health history findings (periodically updated), dental history findings, allergies, general descriptions of existing restorations, and evaluation of the periodontal health of the patient. The practitioner should be aware of the records generated and maintained by other members of the profession.

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.

Record Retention

Many jurisdictions have statutes setting forth a minimum period of time during which dentists or other health care professionals are required to maintain records. From a risk management standpoint, it is strongly recommended that all patient records be maintained permanently. Unfortunately, in many jurisdictions there is no absolute time limit as to when a claim for professional negligence may be brought against a dentist. In the event that a claim is filed and the treatment records are no longer available, the ability to defend the dentist will be significantly compromised.

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.

Risk Management Practice Pointers

• Records should clearly support all diagnostic and therapeutic decisions.

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