Malpractice litigation is part of everyday clinical practice and is an area of which all dentists need to be aware. With proper forethought and planning, this vexing issue can be controlled and made less anxiety producing. The astute clinician must be as diligent in risk-reduction management and strategies as he/she is in practicing excellent dentistry. This article discusses various preventive measures that can be used to help mitigate malpractice claims and preclude them from developing. Good patient communication, rapport, and excellent documentation are the keys to minimizing, and possibly eliminating future lawsuits.
Medical malpractice has been with us for hundreds of years, with the first recorded case in the United States occurring in 1794 in the state of Connecticut . All malpractice claims are based on the allegation that the plaintiff was owed some duty by the doctor and that duty was breached, resulting in injury. To obtain a judgment of negligence by the treating doctor, the plaintiff must prove four elements:
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Pre-existing duty
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Breach of duty
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Damage
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Causal link
Doctors are not obligated or legally required to treat all patients, but once treatment has passed the consultation phase, the courts usually consider that a doctor–patient relationship has been established. The care provided must be appropriate, according to the community “standard of care,” and the plaintiff must then establish that a “breach” of duty has occurred by getting “experts” to offer testimony that the standard of care was not met.
The plaintiff must also establish that damages resulted from the defendant’s actions and show a “proximate” cause (ie, no other events occurred that could have caused the damage to happen) linking the treatment to the damages sustained.
Anatomy of a malpractice claim
Because malpractice litigation is something doctors do not think about routinely, it is important to be knowledgeable about the legal process and practice of malpractice claims.
Most states allow a period of 3 years from the time the patient knew about the injury for a malpractice claim to go forward (referred to as the statute of limitations); this period is extended to 3 years beyond the age of majority for minors. The first notice of a possible malpractice situation will be a document received by the dentist from the plaintiff’s counsel requesting records of treatments, which must be accompanied by a release for medical/dental information, signed by the patient. The doctor is obligated to send copies (never originals) of all requested chart materials: radiographs, models, progress notes, patient history, and operating reports. Records must be released even if the patient has not paid any outstanding office form–related fees. The doctor should never engage the plaintiff’s counsel in conversation about the patient or the case in question. The doctor’s malpractice insurance carrier must be informed in a timely fashion of any request for patient records that may involve a potential malpractice claim.
This request is often followed by the doctor being served with a “summons and complaint,” which is often a document filled with exaggeration and significant hyperbole meant to raise doubts and pangs of guilt in the defendant. The doctor should not doubt him/herself or become overly emotional by this summons document (these feelings are, after all, the effect the plaintiff’s counsel wishes to elicit) but rather, he/she should go about the business of helping to assemble a good defense with his/her counsel.
Following the summons and complaint, the doctor will begin to have conversations with his/her defense counsel, which are privileged and not subject to disclosure with the plaintiff. It is advisable to sequester the patient’s records at this time for safe keeping.
Once litigation has begun, the process of “discovery” ensues. Discovery consists of interrogatories (a series of written questions presented to each side) followed by sworn oral testimony (depositions) by the patient and the doctor. Experts for both sides will evaluate the records and the appropriateness of care delivered to help flush out issues and prepare for trial.
Not all claims wind up in court; some never going forward after the “discovery” phase and others are settled, possibly to avoid open court trials.
Alternatives to litigation
Most states have a “peer review” process sponsored by the state dental society to help resolve disputes between patients and dentists regarding quality-of-care issues and appropriateness of treatment. This procedure is a formal process in which both parties sign an agreement to submit to a review, and in some states, the parties also agree to waive their rights to sue each other for payment or malpractice. In most states, the findings of the peer review committee are privileged and not discoverable should a trial follow, and any payment made by the doctor to the patient is not reported to the national data bank.
Mediation is another form of dispute resolution. A mediator hears opening statements from both involved parties and then hears separate testimony from each. The mediator then attempts to move both parties independently toward an acceptable middle ground for a negotiated settlement.
Arbitration is still another method of dispute resolution. The procedure is similar to a trial, with the arbitrator acting as judge and jury. The parties may accept the decision and settle or move on to a full trial.
Alternatives to litigation
Most states have a “peer review” process sponsored by the state dental society to help resolve disputes between patients and dentists regarding quality-of-care issues and appropriateness of treatment. This procedure is a formal process in which both parties sign an agreement to submit to a review, and in some states, the parties also agree to waive their rights to sue each other for payment or malpractice. In most states, the findings of the peer review committee are privileged and not discoverable should a trial follow, and any payment made by the doctor to the patient is not reported to the national data bank.
Mediation is another form of dispute resolution. A mediator hears opening statements from both involved parties and then hears separate testimony from each. The mediator then attempts to move both parties independently toward an acceptable middle ground for a negotiated settlement.
Arbitration is still another method of dispute resolution. The procedure is similar to a trial, with the arbitrator acting as judge and jury. The parties may accept the decision and settle or move on to a full trial.
Risk-reduction strategies
Malpractice claims focus on three areas of practice: poor communication/rapport, lack of informed consent, and faulty record keeping .
Many dentists/physicians think of excellence in terms of technical expertise and successful outcomes because that is the frame of reference first begun in dental/medical school and carried on into residency training. Patients, however, will often gauge quality of care using other guideposts. They will view quality of care as it relates to
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Staff performance and attitude
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Doctor’s affability, attitude, and willingness to listen to, and consider, all questions
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Cleanliness of the office
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Level of communication
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Accessibility
It is the patient’s perception of the quality of care received that will often tip the scale in favor of the doctors, so careful attention to staff and office policies is vital to maintaining an overall strategy of risk reduction. As part of this strategy, one should not forget to maintain medical/dental equipment in good operational condition and to keep all necessary inventories up to date. Quality radiographs (plain or digital) are vital to good record keeping, along with having all equipment in good operational order.
Informed consent
A landmark 1914 court case (Schloendorff v Society of New York Hospitals) helped define the laws of informed patient consent. “Every human being of adult years and sound mind has a right to determine what shall be done with his/her own body… and a surgeon who operates without the patient’s consent commits an assault for which he/she is liable in damages.”
Clearly, the court has ruled that consent before surgery must be obtained, but the courts are silent as to how the consent must be obtained and documented. During the years since, risk managers have developed the following recommendations regarding the informed consent process:
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The taking of consent is not merely a signature on a preprinted form but is really an on-going process that may include (a) verbal discussion, (b) educational materials (videos, CD-ROMs, pamphlets), (c) consent videos, and (d) documentation of the process in the patient’s record.
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The consent discussion should not be delegated to staff personnel; it should be done by the doctor him/herself.
The doctor–patient discussion is the most critical part of the informed consent process, not the signed consent form.
Ideally, the informed consent process should be a written document specific to the procedure being performed because verbal consents are soon forgotten by the patient. The informed consent is composed of several key elements ( Box 1 ).
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Consent should always be obtained by the treating doctor, ideally at a separate consultation visit; it should only be obtained at the time of care if an emergent surgical procedure is required.
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Additional educational materials, videos, textbooks, and picture brochures should be used, if available, to help educate the patient about the prepared treatment plan.
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When the patient does not understand English, a translator must be present and that fact documented in the patient’s chart.
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Consent for minors (under age 18 in most states) must be obtained by a parent or legal guardian; however, if urgent care is needed, telephone consent is often acceptable if the parent cannot leave work or is out of town. Patients who are under 18 and are married or have children are able to give consent.
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If the patient refuses treatment that the doctor believes is vitally important to his/her future health, this fact should be documented in the patient’s chart; many doctors use a special “refusal care” form.
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The patient should be advised of the risks of the proposed treatment and the risks of no treatment.
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The patient should be advised of alternatives to the proposed treatment.
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The patient should be advised of the cost of treatment.
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No guarantees of results or outcomes should be made.
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Consent should be discussed at separate time from the planned surgical procedure; the patient should be allowed to take the consent form home, which allows time to think about the procedure.
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Informed consent forms for surgical procedures performed by oral and maxillofacial surgeons are the standard of care, though this is not the national standard among general dentists and other dental specialists.
Communications
Hycke and Hycke interviewed 500 patients who had contacted law firms regarding personal injury lawsuits and found that 55% listed a poor relationship with their doctor as the precipitating factor in their reason to seek legal representation. Clearly, the treating doctor and staff must strive to establish a good rapport (in a short time) with their patient, because this rapport will play a critical role in the ongoing relationship.
Many patients are anxious about visiting the dentist and are often angry and resentful. The doctor and staff must realize this and work diligently to gain their trust ( Boxes 2 and 3 ).
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Once the examination or consultation begins, the dentist should keep in mind these suggestions for more successful communications:
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Greet the patient by name and use the patient’s name during the conversation.
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Sit down so that you are at eye level with the patient, and maintain eye contact.
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Scan the problem list for what you perceive as the most important problem, and let the patient know that you will address that one first because you want to make sure it is discussed before you run out of time.
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In pursuing a line of questioning to establish a diagnosis, launching questions without any “lead-in” can feel like an interrogation for some patients. Instead, try prefacing your questions with a reassuring statement that shows concern for the patient and conveys that your purpose in asking some questions is to determine what is wrong and how you might remedy it.
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You may need to ask the patient to make another appointment if time does not allow an evaluation of all the problems on the patient’s list, which indicates that, even though all problems may not be addressed at this visit, they will not be dismissed.
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Once the patient begins to discuss his/her problems, practice listening for at least 2 or 3 minutes before you say anything. Show that you are listening by leaning forward and reacting to the patient’s body language.
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If you need to turn away from a patient who is in the chair or you have to leave the room, explain where you are going and when you will return. Do not just leave the room.
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Try to become acquainted with the patient on a personal level, asking questions about the patient’s work or hobbies during the initial visit. Keep a sheet with this information on the inside cover of the chart or in another easily accessible section and glance at it before meeting with the patient. Discussing personal details while addressing the patient’s problems indicates your interest in the whole person.
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Again, facilitate patient interaction and information exchange by using probing, open-ended questions, such as, “What do you think caused this problem to happen?”
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