Esthetics and dental jurisprudence

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Chapter 27

Esthetics and dental jurisprudence

John P. Little, Burton R. Pollack

Brief history of risk management

Until the mid-1970s, the term risk management was not part of the dental lexicon. Today it is part of everyday conversation in dental circles. The health profession became interested in risk management during a medical malpractice crisis in the early 1970s. Many hospitals instituted in-house programs to reduce liability by providing quality assurance in the provision of health care, identifying risk areas, changing hiring policies, reviewing patient complaints, studying incident reports, and purchasing insurance.

The concept of risk management spread from hospitals to physicians and dentists’ offices. Programs for dentists began in the late 1970s and early 1980s, when legal actions against dentists increased dramatically, and settlements and jury awards escalated beyond expectations.

The literature at this time was flooded with risk management articles. Risk management presentations were included at most dental meetings. Insurance companies began risk management educational sessions, either as a benefit for insured dentists or so that they could qualify for premium discounts. Continuing dental education and risk management became linked.

Risk management in cosmetic dentistry

The importance of risk management in dentistry continues to increase given the advances in esthetic and restorative dentistry and the changing patient demographics that are creating a greater patient need for these services. Many of these treatment modalities require a greater level of skill and training and due to their nature potentially create greater legal risks to clinicians. Examples include providing some form of orthodontics (e.g., Invisalign, appliance therapy, or a form of rapid tooth movement), performing more challenging endodontics because of nickel titanium files and rotary handpieces, using cone beam Computed Technology, injecting Botox and dermal fillers, placing and restoring implants and performing associated surgeries such as sinus lifts, using in-office CAD-CAM to fabricate restorations, using various oral or intravenous sedation techniques, and employing specialists and anesthesiologists.

Therefore it is imperative that each dentist develops individualized risk management policies that address the legal needs and patient management aspects of each individual practice. These policies should be created in conjunction with an attorney knowledgeable about dental practice issues.

Cosmetic dentists should also consider hiring a practice management consultant or firm with cosmetic dental practice experience to help incorporate systems such as staff training, patient education, and treatment presentation. Patient dissatisfaction with the progress of care and the results of care increases the risk of a patient filing a suit or complaint. An unsatisfactory result according to the patient is not always unsatisfactory to the dentist.

CLINICAL TIP

Too often patients fail to realize the limitations of dentistry, a scenario that is particularly true when cosmetic results are important.

CLINICAL TIP

A patient’s perceived lack of care or concern by the dentist or staff can also influence a patient’s subjective view of the treatment.

Special precautions must be taken because subjective opinions of what is actually involved in the treatment process and about the outcome of care may determine whether a patient sues. The nature and content of the consent given before care begins may determine whether the patient initiates a suit. Patient expectations must be realistic if a dentist wishes to avoid problems when the care is completed. Predictable limitations in outcomes must be incorporated into the consent form and presented at a separate consultation visit. (See the sections on Informed Consent and Consultation Visits.) Documentation is essential. According to a study conducted by Princeton Insurance Company, for claims reported January 2001 through December 2009, “Communication with the patient was a contributing factor most of the time in treatment related claims and was directly attributed to a lack of or inadequate informed discussion about the risks of the procedure in treatment alternatives.”1.

Professional responsibilities in risk management

In developing a risk management program, cosmetic dentists have some basic responsibilities, which include the following:

1. Purchasing professional liability insurance (See section on Professional Liability/Malpractice Insurance.)

2. Knowing and obeying the laws that regulate dental practice and remaining informed about changes

3. Continuing to become educated and remain knowledgeable about advances in the profession through membership in professional organizations, attending continuing dental education programs, subscribing to professional journals, and possibly joining hospital staffs and the faculty of dental schools. This is especially critical if a cosmetic dentist undertakes procedures usually performed by a specialist (e.g., placing implants) or by a physician (e.g., injecting Botox).

4. Being aware of areas of legal vulnerability in dental practice by reading appropriate literature, exchanging information with colleagues, and attending continuing education courses

5. Fully investigating new materials and techniques and then, only after proper clinical and practice management training, slowly introducing these into practice

6. Limiting care to areas of competence and making necessary and appropriate referrals

7. Carefully evaluating treatment selection by trying to determine whether both the objective dental results and subjective patient expectations can be met

8. Maintaining good interpersonal relationships with, and showing care to, patients and ensuring that the staff does the same by monitoring what they say and how they relate to patients

9. Carefully hiring, training, and supervising competent personnel

10. Having a well thought out patient financial policy to help patients in understanding their financial responsibility prior to beginning treatment

11. Carefully considering patients’ responses if they were to be referred to a collection agency or sued for nonpayment of fees. This is one of the major causes of malpractice suits.

CLINICAL TIP

If a dentist is unsure of how to properly implement the previous points then she or he should consider hiring a practice management consultant with experience in advising a cosmetic practice.

12. Obtaining proper consent before initiating treatment and having a separate consultation visit; then, keeping patients informed about their treatment status and any problems arising during treatment (See the section on Informed Consent.)

13. Taking careful health and dental histories and updating them at appropriate intervals (See the section on Health and Dental History.)

14. Keeping proper records for each patient and fastidiously documenting all actions. Keeping patient records forever or as long as possible (See the section on Records.)

15. Never parting with an original record or radiograph unless ordered to do so by a court or an agency having subpoena powers

16. Never altering a patient record after becoming aware that a malpractice suit is being contemplated or initiated by a patient or a patient’s attorney

17. Notifying the insurance carrier at the earliest time after becoming aware that a patient intends or has threatened to sue or after becoming aware that an action taken during treatment could result in a malpractice suit (See the section on Procedure for Handling a Malpractice Suit.)

Common malpractice claims

1. Restoration-related claims such as restorations breaking or falling out, infection under a restoration, or damage to the tooth during preparation

2. Allegations that the teeth were “over-prepared” during veneer or crown/fixed partial denture restorations leading to the need for endodontic therapy.

3. Failure to diagnose, refer, or treat (e.g., periodontal disease or oral cancer), or treatment of a patient beyond the competence of the dentist or that permitted by the applicable dental practice act

4. Osteonecrosis secondary to extractions on a patient with a history of bisphosphonate use

5. Paresthesias caused by injections, extractions, or overextrusion of endodontic obturation materials

6. Failure to inform the patient of an untoward event that occurred during treatment, such as a root tip fracture or an irretrievable broken instrument or file becoming lodged within a root canal

7. Problems associated with the temporomandibular joint allegedly caused during dental treatment

8. Implant failures

9. Orthodontic treatment with unfavorable results, as well as patients having periodontal and caries neglect and root resorption

10. Faulty patient history taking, resulting in allergic responses, drug incompatibilities, injuries, and in rare instances death

11. Extraction of the wrong tooth, broken root tips, or infections after extractions

12. Patient complaints of ill-fitting dentures

13. Failure to obtain informed consent

14. Adverse outcomes caused by the administration of intravenous or oral sedatives

15. Abandonment of a patient by prematurely discontinuing care or not attending to the needs of a patient under treatment

Cosmetic dentists should be aware of the results of the previously mentioned Princeton Insurance Company report, for claims reported January 2001 through December 2011.2 This report showed that the most common malpractice claims were related to “unsatisfactory restorations.” In this report, “unsatisfactory restorations” referred to dental work that “fails to meet the patient’s expectations with respect to appearance, fit and comfort.”

CLINICAL TIP

A risk management program must include a process whereby the patient is adequately informed and a dentist should not undertake treatment unless confident that both the objective dental results and the patient’s subjective expectations can be met.

Brief review of contract and malpractice law

The relationship between a treating dentist and a patient has its foundation in contract law, which governs when the relationship begins and ends; and tort law, which governs malpractice or negligence lawsuits.

Contract law

Dentist-patient relationship

When the relationship begins. 

​The dentist-patient relationship begins when a dentist, in a professional capacity, expresses a professional opinion or recommends to a specific individual a course of action on which the patient may rely. Whether a fee was charged does not affect the relationship.

The relationship or contract of care between a dentist and patient does not have to be in writing to be enforceable. Unfortunately, except in orthodontics, written contracts in dentistry are rare. In dentistry a “written contract” should consist of a treatment plan/financial arrangement form and an informed consent form.

When the relationship ends. 

​The dentist-patient relationship ends in the following circumstances:

1. The patient or dentist dies.

2. The patient voluntarily seeks the services of another dentist.

3. The patient files a lawsuit or licensing board complaint against the dentist.

4. The dentist unilaterally terminates the care according to the steps later discussed.

Abandonment. 

​One of the implied duties in the dentist-patient relationship is for the dentist to continue treatment until one of the previously stated conditions occurs. To unilaterally discontinue treatment and avoid liability for abandonment, the following generally accepted rules apply:

1. The dentist should not discontinue treatment if a patient’s health may be compromised. This is a professional judgment and there are very few situations in dentistry in which this could occur.

2. The dentist recommends that the patient seeks substitute care. It is best not to recommend another dentist or even to supply patients with a list from which to choose. To do so may create a link with the new dentist should the new dentist be accused of malpractice. The link could be a claim for negligent referral or joint care.

An example of a referral for substitute care would be one in which a patient needs a cosmetic dental “makeover” and the dentist believes that this is beyond the level of his/her skill and expertise, or that the patient’s subjective expectations cannot be met. This is legally different from a general dentist referring a patient to a specialist. In that situation the general dentist is still the general dentist of record unless the relationship is terminated in accordance with the steps previously stated.

3. The dentist should inform the patient that he/she will provide emergency care for a reasonable time during the period in which the patient seeks care elsewhere. What constitutes “reasonable” depends on the availability of dentists in the community. A dentist should contact a local health care attorney to determine what is recognized as “reasonable” in the particular community. For example, in New Jersey it is commonly accepted that 30 days is “reasonable.”

4. The dentist should inform the patient that he/she will cooperate with a new dentist by making copies of records, radiographs, reports, and other information available. The dentist should never send the original records or radiographs.

5. The dentist should inform the patient that seeking care elsewhere is in the patient’s best interest, not the dentist’s.

CLINICAL TIP

Do not charge a patient for copying records. This only creates ill will that could be a deciding factor in having a patient file a licensing board complaint or seeking an attorney to begin a malpractice complaint.

Patients should first be informed verbally regarding the previous guidelines and should then receive a notice by certified mail that includes the same information. A dentist may refuse to accept a patient and may discontinue the care of a patient for any reason, without fear of abandonment, except for reasons of race, color, religion, or national origin. As a result of the enactment of the Americans with Disability Act of 1990, which declared a dentist’s private office as a “place of public accommodation,” a dentist who refuses to treat a patient solely because the patient is HIV positive or is disabled in any other way may be found guilty of discrimination and subjected to severe penalties (i.e., a large fine and possible restriction or loss of the license to practice). Although the Americans with Disability Act makes it clear that federal, state, and local human rights agencies have jurisdiction over what a dentist does in the office (in relation to accepting or refusing patients), it is not clear exactly what constitutes discrimination within the meaning of the law (e.g., wearing two pairs of gloves, restricting office hours, referring patients to special health facilities). However, to be legally safe, it is best to treat all patients exactly the same. Additionally, dentists should consult with a health care attorney regarding state law in this area.

Guarantees

CLINICAL TIP

An important risk management caveat is to never guarantee the outcome of care. To do so is foolish because health care guarantees cannot be truthfully made.

In many instances guarantees lead to unrealistic expectations from the patient. When a patient claims that a dentist breached a contract because a guaranteed result was not achieved, the lawsuit may be subject to contract law. In contract law cases the patient does not have to produce an expert, whereas in malpractice law cases the testimony of an expert must support the patient’s claim.

CLINICAL TIP

The considerations regarding guarantees should be strictly observed by dentists who practice cosmetic dentistry. When giving written or verbal information regarding the treatment, it is recommended to include or make an express statement that “No guarantees or warrantees of any nature have been given regarding the treatment to be performed.” Similarly, if clinical imaging is used, the dentist should include or make a statement that “Before and after images are for illustrative purposes only and do not guarantee any actual results.” Ideally, the chart should include some written documentation that this was communicated to the patient and that the patient understood this. Similarly, the dentist and staff should avoid making any oral statements that could be construed as a guarantee or warranty.

Implied duties in the dentist-patient relationship

Implied duties are obligations that exist as a result of the dentist-patient relationship. These implied duties do not have to be explicitly stated or written to be legally enforceable.

Dentist’s implied duties. 

​The dentist automatically gives certain warranties to the patient, including the following:

1. The dentist uses knowledge and skill with reasonable care in the provision of services as measured against customary (acceptable) standards of other dentists of the same school of practice in the community. The definition of community by the courts has undergone major changes. Previously it was strictly defined as the local community in which the defendant dentist practiced. As communication and travel became more accessible, most courts changed the definition to mean a national standard of care.

2. The dentist is properly licensed and meets all other legal requirements to engage in the practice of dentistry.

3. The dentist employs competent personnel and ensures that they are properly supervised.

4. The dentist maintains a level of knowledge in keeping with current advances in the profession (e.g., participates in continuing dental education programs, subscribes to professional journals, and attends professional meetings).

5. The dentist does not use experimental procedures or drugs without the patient’s knowledge and written consent. No clear definition explains what constitutes an experimental procedure or drug. However, from a practical standpoint, no dentist should ever employ any new or experimental procedure or material unless a dentist is working in a dedicated research capacity.

6. The dentist obtains the some type of consent (implied, verbal, informed, written, etc.) from the patient before beginning any examination or treatment; and keeps the patient informed about the progress of the treatment.

7. The dentist does not abandon the patient.

8. The dentist keeps accurate records of the examination and treatment of the patient.

9. The dentist maintains confidentiality and abides by all HIPAA, federal and state privacy laws.

CLINICAL TIP

The American Dental Association publishes a HIPAA handbook that can greatly help a dentist to comply with HIPAA.

10. The dentist requests consultations when appropriate and makes referrals for care when indicated.

Patient’s implied duties. 

​The patient also gives certain warranties to the dentist, including the following:

1. The patient keeps appointments and notifies the dentist (the office) in a timely manner if appointments cannot be kept.

2. The patient provides honest answers to health and history questions and informs the dentist if changes in health status occur.

3. The patient cooperates with the dentist in care (e.g., follows home hygiene instructions; prescription medication schedule; diet and nutrition instructions; and instructions regarding alcohol, smoking, and drugs).

4. The patient pays fees in a timely manner.

A patient’s failure to follow his/her implied duties give a dentist cause for terminating a relationship and additionally may serve as a defense should the patient ever file a complaint or suit.

Tort law

Elements of dental malpractice

In order to establish and maintain a case for dental malpractice, a patient must prove the following:

1. That the dentist owed a duty to the patient

2. That the dentist breached a duty to the patient

3. That the breach of the duty caused an injury to the patient, and

4. The injury was significant enough to be compensable.

Duty and breach of that duty. 

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May 29, 2015 | Posted by in Esthetic Dentristry | Comments Off on Esthetics and dental jurisprudence
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