Legal Case

The Ever-Persistent Unhappy Patient

There are many ways dissatisfied patients can seek monetary compensation from and/or restitution from dentists whom they believe improperly treated them. There are a number of paths by which dissatisfied patients can seek redress, and each of them must be handled separately and independently, as this case study demonstrates.

Facts
A 41-year-old man presented to Dr. G, our insured solo practitioner, with concerns about the appearance and function of his upper anterior teeth. He had suffered trauma to his face during a soccer game while in his early 20s, which resulted in several cracked and chipped incisors. His dentist at the time treated teeth 9 and 10 with endodontics, posts and crowns; teeth 8 and 11 had composites placed to restore chips on the incisal surfaces. To make matters worse esthetically, the patient had Tetracycline staining of his teeth, so shade matching for the restorations had been challenging and far less than ideal.

When the patient came to Dr. G, a general dentist, he was no longer willing to accept the appearance of his multi-colored teeth. He was also concerned about biting into hard foods, for fear of the composites breaking off.

Dr. G and the patient agreed to a treatment plan of having teeth 6-11 individually crowned, so that uniformity in cosmetics could be achieved, while also adding strength to the incisally-restored teeth. The crowns were fabricated and permanently cemented after having them in place for 2 weeks with temporary cement.

A few months later, the patient returned expressing dissatisfaction with the shade of the crowns and wanting a full refund, or to have them replaced at no cost. Dr. G said he would replace them for lab costs only but would not give a refund; the patient did not accept the replacement offer and left the practice unhappy.

Peer Review
The patient completed an online complaint to the Peer Review Committee of the local dental society. As a general rule, the peer review process involves dental society member dentists assessing the quality of the dental care provided, based upon reviewing dental charts and radiographs, and examination of the complaining patient. If the peer reviewers find the work to have been inadequate, they will require the dentist to refund all or part of the money paid by the patient, as a condition of membership in the society. The Committee requirements for submission of a claim included the provision that, by submitting a Peer Review complaint, the patient waives his right to sue the dentist in court, thereby vesting sole authority over the dispute to the Peer Review process.

When the Committee received and reviewed the complaint, they determined that the dentist was not a member of the dental society, so the Committee had no authority over the dentist to assess the claim or require that the dentist refund any money to the patient. The patient was so informed, and Dr. G was sent a copy of all documents involving Peer Review as a courtesy.

Malpractice Suit Filed
When the patient learned that Peer Review was not an option, he filed a dental malpractice case against Dr. G as a self-represented plaintiff. After Dr. G was served with the court papers, he contacted MedPro and our office was assigned his defense.

Among our first steps in defending Dr. G was immediately filing a motion to dismiss the case on the ground that the mere filing of a Peer Review complaint — regardless of how that played out — constituted a waiver of the patient’s right to sue the dentist in court, as set forth in the Peer Review Committee’s rules, to which the patient had agreed. The judge found that, although this strict literal interpretation was correct, and it would have applied if there had been any substantive Peer Review finding, denying the plaintiff any potential recourse would be unfairly prejudicial to him. So, the case was permitted to proceed.

At the bench trial, the plaintiff presented his case by explaining his dissatisfaction with our client’s work and by presenting a certified copy of the records of the dentist who subsequently replaced the 6 crowns. Neither the subsequent dentist nor any other expert dentist was brought to court by the plaintiff to testify to our client’s claimed negligence/dental malpractice.

We argued that the subsequent dental records did not contain any criticisms of our client’s treatment, but only stated that the crowns were replaced due to the patient’s esthetic desires. And even if anything in those records could be construed to be critical, that dentist would need to be subject to cross-examination to test the veracity and bases of such opinions. There is a well-recognized concept among lawyers which is directly applicable here: “A piece of paper cannot be cross-examined”.

The judge agreed and dismissed the case on the ground that the plaintiff had failed to provide the requisite expert testimony, which is a bedrock principle in professional malpractice cases.

But this patient would not go away easily.

Disciplinary Complaint Filed
Shortly after the case was dismissed, Dr. G received a letter from his State’s Disciplinary Office, stating that the patient had filed a complaint against him which asserted professional misconduct (which is defined by this Office in the context of negligence to mean 2 or more acts of negligence, with each individual crown potentially serving as 1 act of negligence), and requiring that he provide the Office with his complete set of records for this patient.

After Dr. G advised MedPro about the letter, we were again retained to represent him for the disciplinary complaint.

We notified the Disciplinary Office of our representation of Dr. G and advised them that a judge had already dismissed a malpractice suit brought against our client by the same patient for the same set of circumstances. The Office responded that it was not interested in what the court did, as their function is separate from the courts. We submitted a copy of Dr. G’s records, as well as those of the subsequent dentist, which included before and after photographs, as well as a narrative describing the full series of relevant events.

After the usual bureaucratic time delay, the Disciplinary Office contacted us with a short letter stating that they saw no basis to pursue professional discipline against Dr. G, but giving no reason for the decision.

All of the patient’s attempts to seek money from and retribution against Dr. G had finally come to an end, but not without years of stress for Dr. G to endure.

Takeaways
As always, thorough and accurate dental records are a necessity. Although here it was seemingly not a factor, the fact that the patient wore the crowns with temporary cement for 2 weeks before they were permanently cemented indicates that he was pleased with them by the time they were permanently inserted.

Every legal and quasi-legal action taken by a patient must be taken seriously and be appropriately addressed with the assistance of legal representation. Judges will not generally dismiss cases on their own on procedural grounds — such as for the failure to have expert testimony in a malpractice case. So it is unlikely that the judge here would have done so without an attorney raising the issue. Dentists may be lulled into thinking that a suit brought by a patient who is not represented by an attorney need not be reported to the insurance carrier or does not require an attorney’s assistance, but that is strongly ill-advised.

Dentists, especially general and restorative dentists who have ongoing professional relationships with their patients for many years and which at times become friendships, often see their patients as unlikely to sue or otherwise hurt them. But when disputes about money come into the picture, the relationships can turn adversarial. It warrants a full consideration when a patient asks for a refund or a free re-make; that is not to suggest that one approach is preferred over another, but that determinations by the dentist are best when well-considered.

Finally, this case study demonstrates an extremely important factor to consider when selecting your malpractice insurance carrier. Are they able to successfully “defend” claims outside the courtroom without resulting in settlement? This number is often referred to as “claims closed without payment,” and you should ask any potential insurers for their record. In this case, Dr. G had the reassurance that MedPro closes 80% of claims without payment. They put the same effort into defending him outside the courtroom as they would have inside — and that’s why he was able to walk away from this ordeal with his finances, and reputation, intact.

The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

Legal Case

That Happened When?

Different states have different time limitations (known as statutes of limitations) as to when a lawsuit must be started following a claimed negligent act. Dentists often ask about this issue, and its importance can be demonstrated in this recent actual case. In some jurisdictions, this time period may even be extended due to the age of the patient, death of the patient, ongoing treatment and other factors. That’s why dentists need to consider the issue carefully. The case presented here is the simplest and most common scenario we see with statutes of limitations.

Facts
A 38-year-old man presented to a general dentist, Dr. G, unhappy with the appearance and function of his teeth. He had not been to a dentist for several years, and his home hygiene regimen was inadequate. In the patient’s initial presentation, Dr. G found large amounts of plaque and calculus which required address before any treatment could be undertaken. Remarkably, the patient did not have any periodontal pocketing greater than 3mm, although there was gingivitis due to the build-up of accretions.

Once Dr. G did a full-mouth scaling, he developed a restorative treatment plan which involved the removal of decay in a large number of teeth and, most significantly, the fabrication of individual crowns on the upper arch from first premolar to first premolar (#5-12). The placement of these crowns was meant to treat the decay in many of them and also improve the cosmetics when the patient smiled, just as he had desired.

All posterior teeth were treated first for caries removal, and then attention was directed to the 8 planned maxillary crowns. The teeth were prepared for crowns, impressions were taken using a polyvinyl siloxane, an acrylic temporary bridge was made and inserted, and, after a number of try-in visits, the completed crowns were temporarily cemented.

The patient complained about the aesthetics after having the crowns in place for a week, specifically regarding the shade. So, Dr. G agreed to send them back to the lab to be remade in the new shade painstakingly selected by the patient.

When the crowns were ready, Dr. G placed them in the mouth — first provisionally, until the patient gave his written approval, and then permanently. As Dr. G had feared, the patient returned a few weeks later, again displeased with the appearance of the crowns. Dr. G agreed to remake them again, with only the lab costs to be borne by the patient. The patient was upset by this arrangement, so he left the practice.

About 2 months later, Dr. G sold his practice and retired. The purchasing dentist, Dr. W, sent out announcements to all patients past and present, including this patient, welcoming them to come to the office. This patient never came.

Unbeknownst to Dr. G, and only learned later during litigation, the patient went to a number of other dentists, most of whom did not wish to get involved because the complaint was cosmetic. But one dentist, Dr. S, saw fit to be critical of the work, not from a cosmetic standpoint, but contending that margins were not sealed, emergence profiles were deficient so as to set up potential food traps, and that the gingiva near the crowns was inflamed due to bulkiness.

Dr. S removed and replaced all of the crowns and also made crowns for all of the opposing teeth, claiming that better occlusion could be obtained if he made crowns opposing crowns than opposing natural teeth.

Legal Stance
Just as the patient had difficulty finding a dentist to intervene, he was unable to find an attorney willing to sue on his behalf. But he was intelligent and savvy, so he took on the case himself, without an attorney — therefore, pro se — seeking the costs of the upper and lower crowns, as well as for pain and suffering. The case was filed 32 months after the final treatment with Dr. G who placed the crowns, but only 8 months after Dr. S started treatment, and 3 months after it was completed.

Issues Raised
The first issue is a legal one: whether the filing of the case was timely in the jurisdiction where it took place. The statute of limitations for dental malpractice in that state was 2 ½ years (30 months), but the plaintiff claimed that he was entitled to an extension because he had begun to have his replacement work performed within that time period, so he should not be penalized that he was not able to file the case until after his work had been completed, when he began to seek legal representation.

The second issue relates to Dr. G regarding whether he had insurance coverage after his retirement, because he no longer paid malpractice insurance premiums after he retired, although he did purchase extended reporting period (or “tail”) coverage upon his retirement.

The third issue is the effect of the subsequent treating dentist, Dr. S, being critical of prior treatment, and the relationship to patients suing their prior dentists also known as jousting. While dentists do have a duty to advise their patients of existing conditions they believe to be problematic, it is the way this information is disclosed that will very often dictate whether patients become plaintiffs.

“Tail” Coverage
In Claims-made dental malpractice policies, which are the most common type, coverage for defense costs and indemnification (payment of a judgment or settlement) is triggered if a suit is filed or a claim is made while the policy is in effect. So, if a dentist with a Claims-made policy simply ceases to pay premiums upon retirement, and is then sued some time later even for acts that took place while the policy was in effect there will be no coverage for defense costs or indemnification.

On the other hand, if a “tail” is purchased upon retirement, as Dr. G did here, then that dentist will have coverage for a later-filed lawsuit as if the case were filed while the dentist was still in practice and the malpractice policy was in place actively. So, Dr. G was fully protected during his retirement for claimed negligent acts during the years he practiced dentistry.

Had the “tail” not been purchased, he would have been personally responsible to pay legal costs and any monies owed to the patient due to his claimed negligence; the impact of that upon retirement can be significant, to say the least.

Trial
It should be noted that, prior to trial, the judge refused to rule on our claim of untimeliness, opting instead to leave that as a trial issue. At trial, the same issue was raised after Dr. S testified to the poor quality of Dr. G’s crowns, and Dr. G testified to both the propriety of his work and the date of his final treatment. The judge ruled that in the jurisdiction of trial (except for a few statutorily enumerated exceptions) the statute of limitations is a fixed date in time, which starts on the final date of the claimed negligent treatment.

So here, regardless of when replacement was begun or completed, that did not constitute a legitimate basis for extension. Therefore, even though the plaintiff’s subsequent treating dentist, Dr. S, laid out a number of areas of negligent dentistry in association with the upper anterior crowns, none of that ended up having any legal value to the plaintiff, because the judge dismissed the action as having been filed after the expiration of the statute of limitations period.

Dentists’ Evaluations of Other Dentists’ Work
In dentistry, unlike other professions, patients are often convinced to replace existing work, to the financial benefit of the dentist doing that replacement. It is well-known that dentists often disagree among themselves regarding any number of issues, including quality assessments. But it would serve the entire profession if criticisms were couched less aggressively, with the underlying acknowledgment that the earlier-treating dentist may have been faced with complicating circumstances about which a later-assessing dentist is not aware.

This is also known as “jousting”, where dentists second-guess or make critical comments about the care of other dentists. There are ways to criticize and there are ways to critique. Patients do need to be made aware of existing problems, but that can be done diplomatically so as to inform but not point critical fingers. This approach is far more likely to direct patients to receive needed treatment, while not simultaneously directing them to attorneys.

Takeaways
Regardless of the details of a case, there are some critical legal principles such as statute of limitations which must be met before any factual issue may become relevant. Cases must be started timely, or they become nullities. But, as noted above, legal issues frequently have exceptions, so dentists cannot count on them to defend their actions.

Jousting can validate or heighten a patient’s concern and plant a seed that negligence might have occurred, which can lead directly to malpractice claims. Here’s what to remember to help avoid jousting:

  1. Generally beware of second opinions and patients with a long history of previous dentists
  2. Patients often remember their negative previous experience subjectively, not in fact
  3. Most of the time you are only hearing half of the story, so be open to getting the full story by communicating with prior dentists
  4. Try not to speculate or guess when discussing previous treatment with a patient
  5. Remember that treatment plans run the spectrum from conservative to aggressive treatment
  6. Contemplate the potential effect of your words or documentation (reverse the roles)

Finally, carrying malpractice insurance during practice years is of the utmost importance as a means to protect assets. But, that importance does not end when retirement begins. This can be resolved by the purchase of a “tail”, or having chosen an Occurrence policy, which will provide coverage so long as the negligent “occurrence” took place while active coverage was in effect, rather than a Claims-made policy.

If you believe you’ve experienced “jousting” by another dentist or have an unsatisfied patient, one resource to turn to is MedPro Group’s risk management team. They help dentists navigate these daily issues and, in most cases, avoid litigation.

MedPro’s insurance offerings also include Occurrence coverage and free tail coverage upon retirement after being insured for one year with a mature Claims-made policy. That kind of coverage is exactly why Dr. G was able to defend this case, and ultimately win it.

The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

Risks Associated With Cosmetic Dental Procedures

Patient Safety & Risk Solutions

Managing patient expectations and providing clear, accurate information about care and treatment are essential risk management strategies for dentists. These strategies are particularly important when working with patients who are seeking elective cosmetic dental procedures.

Dentists who provide cosmetic services need to be confident that their patients have a realistic understanding about the results of treatment. Failure to manage expectations and communicate clearly and truthfully can increase the risk of patient complaints, requests for refunds, and even litigation.

Patient Misperceptions
Several factors may contribute to patient misperceptions about cosmetic procedures. First, the desire to maximize one’s appearance is a highly emotional issue, and some patients expect that a cosmetic treatment or procedure will drastically improve their appearance rather than simply address a particular cosmetic challenge.

Second, insurance often does not cover elective cosmetic procedures, so patients must make significant financial investments to obtain these procedures and treatments. As a result, some patients find it difficult to accept the possibility that the actual results might not align with the results they envisioned.

Third, some patients are not merely seeking to improve their appearances; they are really trying to overhaul their identities. When such patients discover that regardless of the clinical results they must still deal with the same personal issues, their disappointment may be both illogical and unrelenting.

Risks Associated With Cosmetic Dental Procedures 2
Finally, the dentist and dental staff need to be sensitive to the possibility that patients may recall promises and optimistic predictions rather than discussions about risks and limitations. Therefore, the importance of informed consent in the cosmetic dental environment cannot be overstated.

Promises Are Risky
Dentists who promote themselves as cosmetic specialists must be especially careful that their advertising and marketing strategies don’t promise more than they can deliver. When in the market for “self-improvement,” some prospective patients hear only what they want to hear. For this reason, advertising strategies often are designed to promise emotional rather than physical results.

Examples of slogans that perpetuate emotional promises include:

  • “A whole new smile — a whole new outlook on life!”
  • “Get the appearance you deserve!”
  • “Straight teeth — new confidence!”

None of these slogans offer a specific physical result; rather, they promise idealized outcomes. This type of advertising may draw in potential clients, but it also may attract some people whose vision of change is impossible for even the most talented cosmetic dentist to help them achieve.

Advertising and Marketing Liability
Dentists who provide cosmetic services should carefully assess all prospective print and electronic advertising and marketing materials designed to sell their services. When reviewing these materials, both dentists and staff members should ask the following questions:

  • Will this advertisement attract patients who have realistic expectations?
  • Will this advertisement require that we achieve an impossibly high standard of care?

Risks Associated With Cosmetic Dental Procedures 3

  • Does the language use superlatives, make promises that are unrealistic, or urge patients to judge the results by emotional standards rather than clinical standards? Does the language promise or imply absolute satisfaction?
  • Do advertisements make critical statements about competitive approaches to the services being offered? Do these comments inadvertently hold the practitioner to a higher standard by comparison?

While advertising motivates a potential client to take action for example, to buy a particular product or service marketing strategies generally are designed to trigger initial interest and help individuals identify wants or needs. Marketing materials also may provide reassurance to a client that he/she has made a wise decision, thereby preventing the post-decision guilt known as “buyers’ remorse.”

Dentists who provide cosmetic services should be careful to distinguish between marketing materials and educational materials. Educational materials should offer patients objective, clear information about the risks and benefits of proposed treatments.

Educational materials are an important component of informed consent. They help patients negotiate the sometimes difficult process of formulating their questions, and they give dentists the opportunity to clarify and respond to patients’ concerns. The risk of liability may increase if educational materials are written in terms that maximize the projected outcome of a cosmetic dental treatment and gloss over its risks.

Case Example
A patient was “sold” on a veneer treatment plan that involved most of her teeth. The dentist assured the patient that he could beat the price quote that another dentist gave her. The dentist did the work, but did not deal with the poor state of the patient’s gums. The veneer work looked beautiful but the patient lost five teeth within the next 2 years, largely due to untreated periodontal disease. She sued, alleging that she should have been told that she needed restorative work before the cosmetic procedure was initiated.

The jury delivered a verdict in favor of the plaintiff, and posttrial commentary from jury members indicated that they believed the dentist fully intended to “double dip” the patient by selling her bridges or implants for veneered teeth he expected would fail.

Further, employees of dental practices that offer cosmetic services in their eagerness to contribute to the success of the practice might inadvertently mislead patients by referring to the dentists’ skills or past outcomes with glowing terms that could lead patients to expect the same perfect results, regardless of their individual circumstances. Thus, practice administration should clarify for all members of the team why particular marketing approaches are acceptable and why other tactics are unacceptable.

Conclusion
Dentists who market themselves as providers of cosmetic services should be cognizant of the border between a promise of dedicated effort on the patient’s behalf and a promise that the patient will achieve an unrealistic outcome.

Advertising and marketing materials should be reviewed for accuracy and for any unintended commitments or promises that might obligate the practitioner to comply with a higher, and perhaps unachievable, standard of care. Further, patient educational materials should be devoid of marketing hyperbole. Their purpose is to help the patient understand the risks and benefits of a procedure, the treatment plan, and its aftermath, including the patient’s obligation to engage in certain home care procedures and follow-up appointments.

Patients will benefit from candid discussions with their providers about what cosmetic procedures can realistically achieve and what they likely cannot deliver.

This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

Social Media in Healthcare: A Slippery Slope

MedPro Group Patient Safety & Risk Solutions

“Social media” is an umbrella term that refers to websites and applications that facilitate electronic interactions and content sharing. Examples of social media include email, messaging apps, social networking sites, blogs, video-sharing sites, and more.

Widespread proliferation of social media in the United States and around the world has connected people in new and engaging ways that traditional forms of communication have not. The ability to quickly communicate and share information has shaped how people interact as well as their expectations related to those interactions.

Research shows that nearly 70 percent of U.S. adults use social media sites — such as Facebook, Twitter, Instagram, YouTube, Snapchat, LinkedIn, and Pinterest — and the typical American uses three of these networking sites.1 Because social media use is more prevalent with younger age groups, it is realistic to assume that its popularity and role in many types of communication will continue to grow.

In the past, healthcare was relatively slow to implement social media as marketing and communication tools, primarily because of concerns about violating patient privacy. However, as consumer demand has risen, and organizations attempt to find new ways to connect with patients, social media is becoming more of a mainstay for healthcare organizations of all types and sizes. Yet, with social media benefits come risks; leveraging social media for professional purposes can be a slippery slope, and its use in healthcare presents various challenges.

This article discusses opportunities and common risks associated with using social media for healthcare communication and delivery, and it also strategies that healthcare providers and their staff members can implement to reduce risks.

What Are the Potential Benefits of Social Media?
The use of social media can bring significant communication and educational benefits to both healthcare providers and consumers. Data show that 88 percent of physicians use the internet and social media to research medical information, more than half of physician practices have a Facebook page, and 80 percent of internet users who engage on social media are looking for health information (nearly half of which are searching for information about a specific doctor or healthcare professional).2

Many healthcare providers use social media to connect with professional groups and peers and to stay up to date with new information and research that might affect patient care and daily practice. Further, providers use social media to post educational content and other information for patients, to market and advertise services, and to enhance visibility and reputation.

For consumers, social media can assist with searching for new healthcare providers, keeping up with healthcare issues and concerns, finding support groups, researching alternative medications and side effects, tracking information from health apps, and more. Data from the Pew Research Center show that more than one-third of U.S. adults have used the internet to try to figure out a medical issue, and other research shows that social media tools influence the choice of a specific hospital, medical facility, or doctor for 4 in 10 people.3

What Are the Risks of, and Strategies for, Using Social Media?
Undoubtedly, social media offers various functions that may potentially enhance the dissemination of healthcare information and communication among healthcare providers and between providers and patients. But what about the risks? Like any type of technology, social media can create safety and liability issues if it is not used responsibly. Additionally, because social media changes rapidly, standards and best practices are not always well-defined.

To address these challenges, healthcare providers should be aware of the potential risks associated with digital interactions, develop detailed social media policies, and implement risk strategies to safeguard their patients and practices.

Maintain Privacy and Security
In healthcare, one of the most significant concerns related to social media is the need to maintain strict confidentiality and safeguard patients’ protected health information (PHI). This obligation is addressed in federal law and governed by the U.S. Department of Health and Human Services (HHS) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Many states also have laws related to privacy and security of patients? PHI — and these laws might be more stringent than federal laws.

Because the boundaries between appropriate versus inappropriate and personal versus professional use of social media can easily blur, managing privacy risks can be challenging. For example, numerous instances have occurred in which healthcare workers have posted pictures of, or details about, their patients on their professional or personal social media pages without patients’ consent. Regardless of whether these actions were intentional or inadvertent, they violated confidentiality and the patients’ privacy rights.4 The ECRI Institute explains that social media can elevate privacy concerns because these digital platforms “distribute information instantaneously to a wide audience and because, unlike verbal conversations, use of social media creates a permanent electronic record that is likely discoverable in litigation.”5

A number of risk strategies can help healthcare practices address privacy concerns related to social media. For example:

  • Do no post or publish any content on social media sites that contains identifying information (including photographs and testimonials) without the patient’s permission and written consent. The consent should explicitly state how the information will be used.
  • Consider prohibiting the photographic use of cellphones and other portable electronic devices (PEDs) as part of organizational policy.
  • Have someone who is familiar with HIPAA and state privacy regulations review social media content to ensure information does not violate patient confidentiality.
  • Train staff on HIPAA and state privacy laws, and educate them about the consequences of violating these regulations.
  • Ask staff members to sign confidentiality agreements, and maintain a signed copy of the agreement in each employee’s personnel file.
  • Be aware that responding to a patient post or review on a social media site might violate privacy laws.
  • Understand the technical limitations and terms and conditions of any social media sites that you plan to use. For example, information sent via messaging functions is likely not encrypted, and the site might maintain the right to access any personal information.

Taking steps to address privacy concerns by developing social media policies and implementing strategic safeguards can help protect patients and reduce liability exposure.

Establish Appropriate Boundaries
Social media can create a new dynamic in provider/patient relationships, and it also can generate potential problems. A position paper from the American College of Physicians (ACP) and the Federation of State Medical Boards (FSMB) titled Online Medical Professionalism: Patient and Public Relationships: Policy Statement, explains that “Use of online media can bring significant educational benefits to patients and physicians, but may also pose ethical challenges.“6

In speaking with HealthLeaders Media, Dr. Humayun Chaudhry, FSMB President and CEO, warned that “Anything physicians post on sites can be forwarded, taken out of context, and accessed and retrieved in perpetuity. That’s a fact that many physicians don’t always think about when they engage in social media.”7

Because social media is used for both personal and professional purposes, the boundaries between the two can sometimes become difficult to distinguish. However, healthcare providers generally should assume that their staff members and patients are likely using some form of social media, and anyone could potentially see social media posts that the provider or a staff member creates, as well as what anyone else writes about the healthcare practice on social media sites.

Because of these concerns about personal and professional boundaries, the ACP-FSMB paper advises providers to keep their personal and professional social media activities separate and to “comport themselves professionally in both.”8

For example, healthcare providers should not “friend” patients on Facebook or mix social relationships with their professional relationships. Instead, they should apply the same ethical principles that govern their traditional patient encounters to their online interactions with patients, including privacy and confidentiality standards.

Further, providers should be aware of the implications of offering online information that might be construed as personal healthcare advice. Doing so could inadvertently trigger a duty to care, and it also may pose patient safety concerns. Because of this, electronic media should include standard disclaimers and disclosure language that explain the nature of the communication (e.g., for informational purposes only) and caution users against interpreting the content as healthcare advice.

Develop Social Media Policies
Developing and implementing social media policies and guidelines are essential steps for managing risks associated with social technology. Include staff members in the initial planning and drafting of policies, and ask them to help identify and assess potential issues.

Key areas to consider when developing organizational social media policies include:

  • The practice’s goals and target audience for social media communication
  • Acceptable and unacceptable use of social media, with explicit examples
  • Who is authorized to develop and post social media content on behalf of the practice
  • The review and approval process for social media content
  • Standard disclaimer and disclosure language
  • The patient consent process
  • Terms of use for visitors on the practice’s sites
  • The process for reporting inappropriate use of social media

When developing these policies, keep in mind that social media is dynamic and constantly changing. To address this, create policies that are flexible and adaptable to new or changing social media technologies. Doing so will help avoid the need for constant updating.9

In addition to having policies for social networking websites (e.g., Facebook, Twitter, and Instagram), healthcare practices also should have written guidelines for the use of email and other types of electronic messaging, such as texting and portal communications.

The American Medical Association’s (AMA’s) Code of Medical Ethics outlines key strategies for managing electronic communication risks, which include:

  • Upholding professional standards of confidentiality
  • Maintaining privacy, security, and integrity of patient information
  • Notifying patients about the limits of electronic communication
  • Obtaining patients’ consent for using electronic communication prior to sending privileged information
  • Presenting medical information in a manner that meets professional standards
  • Being aware of laws that determine when a physician/patient relationship has been established
  • For more detailed information, see AMA’s Code of Medical Ethics Opinion 2.3.1 — Electronic Communication With Patients.10

The American Dental Association’s (ADA’s) guidance on electronic communication notes that while it can be beneficial, it can also “raise significant considerations.”11 Like the AMA, the ADA cautions that patients should be notified about, and accept the risks of, communicating electronically before such communication is used.12

When developing an electronic communication consent form, consider including the following information:

  • Types of services and information that are suitable for electronic interactions (e.g., nonemergent questions/concerns, prescription refills, appointment requests, etc.)
  • Criteria for establishing a provider/patient relationship
  • Notice of whether the electronic communications originating from the practice are encrypted
  • A statement notifying patients to contact emergency medical services if they are experiencing an urgent problem
  • The general turnaround time for responding to electronic communications
  • The right of the healthcare provider to refuse to make conclusions or decisions regarding treatment based on information obtained electronically

The electronic communication consent form should also include (a) a statement that the patient has read and accepted the policy, and (b) a place for the patient’s signature. The healthcare practice should maintain the signed release in the patient’s record.

Control Quality and Monitor Your Online Presence
Part of maintaining a professional presence online is monitoring the quality of information posted or sent on behalf of your practice. Information should be accurate, current, objective, and nonambiguous. Policies that establish who is responsible for developing content and how content is reviewed and approved will assist with quality control efforts.

Depending on the type of social media being used and/or the control settings, site users might be able to post content or comments to the practice?s social media pages. Understanding the types of media the practice is using and how users can potentially interface with it are important aspects of quality control.

Organizational social media policies should include a mechanism for monitoring online presence and managing negative, offensive, or inaccurate information. To ensure consistency with organizational policy, healthcare leaders or administrators might want to consider assigning one person to review external comments, posts, and responses and handle them accordingly. Keep in mind that comments and responses from staff members must comply with privacy standards.

Educate Healthcare Providers and Staff Members
Educating providers and staff members about how much and what types of personal and professional social media usage and tools are acceptable in the workplace is an essential risk management strategy.

A report from the Pew Research Center shows that the majority of workers use the internet and social media on the job for various personal and work-related activities.13 In healthcare settings, a significant challenge is instilling common sense and discretion regarding personal and professional use of these technologies. Organizational policy should define appropriate use of the internet and PEDs (such as cellphones and tablets). For example, the policy might require that employees turn off their personal phones during office hours and retrieve and respond to their messages during breaks.

Education about the practice’s social media policies, as well as discussions about the potential risks and liability issues associated with social media, should be included as part of orientation training and ongoing staff education. Providers and staff members also should be aware of the disciplinary actions for violating the practice?s social media policy.

In Summary
Social media can serve many useful purposes in healthcare by facilitating communication, enhancing information sharing, and promoting services. However, with these opportunities come challenges. Maintaining privacy and confidentiality, establishing appropriate boundaries, developing written policies, monitoring online activities, and educating providers and staff members should remain in the forefront of healthcare practices’ risk management strategies for social media. Further, as these technologies continue to evolve, healthcare practices will need to adapt to ensure a safe and respectful environment for patients, staff, and providers.

Resource
A byproduct of the social media boom is an increased number of websites that allow patients to provide online reviews of healthcare providers. Although many patients find these sites helpful in selecting or validating their provider choices, healthcare providers face challenges with responding to critical reviews. For strategies on addressing these situations, see MedPro’s Risk Tips: Managing Negative Online Reviews From Patients.

For a helpful tool, download MedPro Group’s social media checklist for healthcare practices.

Endnotes

  1. Pew Research Center. (2018, February 5). Social media fact sheet. Retrieved from www.pewinternet.org/fact-sheet/social-media/; Smith, A., & Anderson, M. (2018, March 1). Social media use in 2018. Pew Research Center. Retrieved from www.pewinternet.org/2018/03/01/social-media-use-in-2018/
  2. Southern Medical Association. (2017, July 12). Social media & health care by the numbers. Retrieved from https://sma.org/social-media-healthcare-by-the-numbers/
  3. Fox, S., & Duggan, M. (2013, January 15). Health online 2013. Pew Research Center. Retrieved from www.pewinternet.org/2013/01/15/health-online-2013/; Brimmer, K. (2012, June 13). PwC report shows importance of social media to healthcare. Healthcare Finance. Retrieved from www.healthcarefinancenews.com/news/pwc-report-shows-importance-social-media-healthcare
  4. Ibid.
  5. ECRI Institute. (2011). Social media in healthcare. Healthcare Risk Control (Supplement A).
  6. Farnan, J. M., Sulmasy, L. S., Worster, B. K., Chaudhry, H. J., Rhyne, J. A., & Arora, V. M. (2013). Online medical professionalism: Patient and public relationships: Policy statement from the American College of Physicians and the Federation of State Medical Boards. Annals of Internal Medicine, 158(8), 620?627.
  7. Clark, C. (2013, April 12). ACP, FSMB issue stern guidance on social media. Retrieved from https://www.healthleadersmedia.com/print/PHY-291079/ACP-FSMB-Issue-Stern-Guidance
  8. Farnan, et al., Online medical professionalism.
  9. ECRI Institute, Social media in healthcare.
  10. American Medical Association. Code of medical ethics opinion 2.3.1: Electronic communication with patients. Retrieved from www.ama-assn.org/delivering-care/ethics/electronic-communication-patients
  11. American Dental Association. (2010). Dental records. Retrieved from www.ada.org/~/media/ADA/Public%20Programs/Files/MPRG_Dental_Records.pdf?la=en
  12. Ibid.
  13. Lampe, C., & Ellison, N. B. (2016, June 22). Social media and the workplace. Pew Research Center. Retrieved from www.pewinternet.org/2016/06/22/social-media-and-the-workplace/

This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

Risk Tip

Transferring Patient Health Records When Selling or Closing a Healthcare Practice

Patient Safety & Risk Solutions

When providers sell their practices, they may not realize that they cannot simply transfer their patient health records to the purchasing practitioner or entity. Many providers also may not realize that individual states might have privacy regulations, some of which are more stringent than national regulations.1 However, most providers do understand the requirements to protect patients’ personal protected health information (PHI) as specified by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

HIPAA allows for the exchange of PHI without a written authorization between current and prior practitioners or contemporaneously treating practitioners (including practitioners who are treating the patient at the same time, such as consultants). However, when a practice is being sold, HIPAA does not permit the transfer of PHI from one provider to another without the patient’s written authorization. Although transferring the records to the purchasing practitioner or corporate entity might seem to be the most expedient solution, it is not permissible under HIPAA.

State statutes and administrative rules may further complicate the process. For example, states can require practitioners to maintain patients’ health records for specified periods, dating from the last treatment date. Many states impose a 7-year or longer record maintenance requirement, and many states impose separate — and often more rigorous — requirements for retaining pediatric records. HIPAA does not diminish the authority of these laws.2

Self-Storage
To comply with HIPAA’s record retention requirements, some practitioners who are selling or closing their practices choose to provide storage for their records. Electronic health records (EHRs) help simplify the self-storage process because they do not require much physical space and can be easily secured. However, many retiring practitioners today do not have EHRs, or they have a mix of EHRs and paper health records.

If providers choose to store their own paper records, they may face different storage challenges. Besides the space requirements, storing paper health records can be problematic if the information has not been maintained in an ordered system and a former patient requests a copy of his/her health record (to which the patient is entitled to under HIPAA).3

Records Storage Companies
Providers who do not want to assume the responsibility of storing their own records might choose to contract with a records storage company. Although records storage companies may charge substantial fees, they offer several advantages:

  • They will pick up the health records and store them in a climate-controlled facility, which can protect them from environmental damage (e.g., dampness, mold, vermin, etc.).
  • They are usually bonded or insured, thereby reducing providers’ risk exposure if stored records are damaged, destroyed, or stolen while in the records storage company’s possession.
  • They can easily respond to patients’ requests for health records. Patients can be referred directly to the records storage company, which then will locate and copy the health records and collect the applicable fee from the patient.4

At the time of records transfer, a records storage company will execute a legal document called a business associate agreement (BAA) with the storing practitioner. This HIPAA-required document obligates the records storage company to appropriately safeguard the PHI contained in patient health records to the same standard that the practitioner must protect it. Through the BAA, the practitioner and the patient are assured that the PHI will be secure.

Custodianship
When a practice is sold, many (but not all) patients remain and continue their care with the purchasing practitioner. This potential for continuity is convenient for patients, and it also enhances the practice’s value.

It is ideal when patient health records are immediately accessible to the new practitioner. If the purchasing practitioner becomes the custodian of the selling practitioner’s records through the execution of a BAA, then he or she will have immediate access to the patient health records.

In this case, in addition to compliance with HIPAA privacy and security regulations, the BAA should specify that the custodian will provide the selling practitioner with access to the physical health records upon reasonable notice (such as 2 business days), and that the custodian will not release or dispose of any original health records without the seller’s written authorization.

As needed, patients who continue their relationship with the practice will be asked to provide written authorization to release their health records from the selling practitioner to the purchasing practitioner. Once the release is authorized, the purchasing practitioner (who is in physical possession of the records) can use the health records as he/she would with any other active patient. Health records of patients who leave the practice would ultimately be placed in storage or archived, which is permissible under HIPAA.5

In Summary
HIPAA has been valuable in providing uniformity in administration and enhanced protection of patients’ PHI — an important consideration in this age of medical identity theft. With proper planning, practitioners wishing to sell or close their healthcare practices can provide continuity in ongoing patient care and, when necessary, the transfer of patient information, while fully complying with HIPAA requirements.

Endnotes

  1. For example, many state privacy laws end their jurisdiction at the time of a patient’s death; however, HIPAA does not. Following the death of a patient, the only person who can authorize the release of the patient’s PHI is usually the executor or personal representative of the deceased’s estate. If an estate does not exist, a court order might be required to authorize the release of the information.
  2. Practitioners should know exactly what the retention requirements are in the state(s) in which they practice. State medical or dental societies are good resources for this information.
  3. Under HIPAA, a practitioner’s responsibility to provide patients with copies of their health records does not terminate with the practitioner’s retirement. As long as the practitioner still possesses the health records, he/ she must provide copies if patients request them.
  4. HIPAA allows a reasonable fee to be charged for labor and copying. Many states also have laws related to health record copying fees; if these laws are not consistent with HIPAA, then providers must abide by the federal HIPAA regulations.
  5. In the case of EHRs, the selling practitioner would transfer all health records electronically to the purchaser (in an encrypted format and after executing a BAA). The purchasing practitioner would then, with the patient’s written authorization, transfer individual health records to active files when needed. The health records of patients who do not remain with the practice would be stored as inactive/archived records. The selling practitioner could also easily retain a copy of all patient health records for his/her future use.

This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

Liability Implications Associated With Jousting in Dentistry

Marcy A. Metzgar

Definition
In dentistry, jousting refers to a dentist being critical of another dentist’s treatment and assuming inadequate care was provided to a patient. In turn, this perspective by one dentist may motivate a patient to allege malpractice against the dentist that provided the care.

Closed Claims Analysis
To illustrate how jousting can turn into malpractice claims, an analysis of MedPro Group dental cases closed between 2009 and 2019 (with at least $50,000 total dollars paid in expense and indemnity) indicated that jousting accounted for 15 percent of all cases and 16 percent of total dollars paid.1 Below are details of this claims analysis:

  • Jousting claims outpaced the average growth of all cases year over year (average growth over year was 10 percent).
  • Jousting claims were noted most often in restoration cases (24 percent), implant cases (20 percent), and crown cases (17 percent).
  • Jousting was noted most often in conjunction with documentation-related factors (20 percent of all jousting cases involved documentation); additional related factors included informed consent and patient selection issues (14 percent).
  • Cases with both jousting and documentation risk factors are 18 percent more expensive to resolve than the average of all cases.

Possible Outcomes
As the claims analysis above shows, the presence of jousting can produce many negative outcomes.

Patients may recall their previous experience in a subjective — not objective — manner, so dentists may not hear all the facts. They may only hear part of the story as well, so they should consider communicating with previous dentists to get more facts and see previous dental records. Often notations in the previous dentist’s records regarding the patient’s cooperation and compliance may be enlightening and prove useful in terms of treatment planning, patient education, and informed consent.

If a dentist makes assumptions and concludes subpar care was provided by another dentist when examining a new patient, a patient may be influenced by the jousting and may seek retribution by filing a lawsuit. If the patient asserts a claim against the previous dentist, then the dental records from both dentists will be examined in a malpractice case. The new dentist may also be called as a material witness in a court trial or a plaintiff’s attorney considering the dentist’s criticism as expert testimony.

Not only can a dentist become part of a lawsuit, but also professional relationships between dentists can become strained and compromised and a dentist’s professional reputation can be destroyed. He or she may not have the opportunity to explain the care he or she rendered, which can lead to loss of practice and finances.

Jousting also may change the way a patient perceives dentistry and pursues dental care. They may lose faith and trust in dentistry as a result of jousting and discontinue treatment, which may affect their health.

Ethical Perspective
According to the American Dental Association (ADA) Code of Ethics, “Patients should be informed of their present oral health status without disparaging comment about prior services.”2 Therefore, jousting is considered unethical.

It is incumbent upon every dentist to conduct himself or herself in an ethical and professional manner and to always do and say what is in the best interest of the patient’s health. However, treating new patients with previous negative experiences can present challenges, so try not to speculate or guess when discussing previous treatment. Although a dentist’s clinical skills and decisions are essential to patient safety and satisfaction, other unknown variables may have played an important role.

Strategies to Consider
To avoid the liability implications associated with jousting, following are some strategies dentists can use:

  • Be wary of multiple opinions and patients with a long history of previous dentists.
  • Ask the patient to describe the previous treatment and recommendations received, including any medication prescribed and how they were taken. Be cautious of patients who will not reveal the previous dentist’s name nor give permission to contact that dentist.
  • If a patient asks whether a previous dentist provided inadequate care, do not comment on that treatment and instead specify what you found when examining him or her and your recommendations.
  • Do not document anything in the patient record that reflects criticism of the previous dentist’s treatment. Simply state what can be substantiated.
  • Follow dental ethical guidelines including the ADA Code of Ethics mentioned previously.
  • Be thoughtful toward your fellow colleague/dentist and don’t perceive the situation as a competitive one.
  • Be sure to practice thinking rationally and morally. Be more diligent and practice optimum restraint in selecting your words, especially about fellow dentists.
  • Maintain the best interest of the patient as the top priority, but not at the expense of the dentistry profession and professional ethics.

In Summary
Most dentists have seen situations of past dental care that seemed inappropriate and ineffective. They have also heard patients relay unsupported, critical comments about another dentist’s care, which can erode patient trust and compliance as well as increase the dentist’s liability exposure. Dentists should be cautious about what words they use about other dentists and uphold dental ethical guidelines to avoid any jousting.

Endnotes

  1. MedPro Group dental cases closed with >/= $50,000 total dollars paid (expense + indemnity), 2009-2019.
  2. American Dental Association. (n.d.). ADA Principles of Ethics and Code of Professional Conduct. Retrieved from https://www.ada.org/en/about-the-ada/principles-of-ethics-code-of-professional-conduct/justice

This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

How Staff Education Can Improve Quality and Enhance Patient Safety and Experience

MedPro Group Patient Safety & Risk Solutions

The quality, knowledge, and dedication of employees play a significant role in the success of any business or organization, including healthcare practices. An analysis of closed malpractice claims supports the contention that the overall healthcare team has a direct impact on patient safety, engagement, and satisfaction. When employees feel that they are valued for their contributions, they often are more likely to invest themselves in the healthcare practice’s success, which includes providing a safe and satisfying experience for patients.

Thus, it stands to reason that healthcare practices that invest in staff education and team training are likely to have lower rates of employee turnover. Further having an experienced team in a clinical environment can reduce the risk of errors and suboptimal outcomes and enhance patient safety.

Create a Learning Organization
Just as healthcare providers are encouraged to conduct risk management analyses of their practices, it also makes sense to conduct educational assessments of their staff to identify (a) gaps in communication, (b) policies that should be updated or reinforced, and (c) opportunities for education about new topics or issues (as well as re-education about subjects that have already been addressed in new employee training or in-service updates).

Healthcare practices should have formal training programs for new employees that tie into their written job descriptions and reinforce a policy of professionalism, cooperation, and collegial communication. Part-time or temporary staff also should receive formal training because, like full-time employees, they need to understand the practice’s policies, procedures, and day-to-day operations.

Additionally, whenever an employee’s job description includes responsibilities that could reasonably be improved through training — such as communicating with patients, using various pieces of equipment, or handling billing issues — a written education program should set forth the formats, accountabilities, and potential methods of measurement to be used.

When employees complete training or education, proof of completion should be documented and maintained in their human resources files.

Changes in Technology or Equipment
The use of technology or equipment for patient care is another area that should receive periodic review to ensure consistency in employee practice. Employees’ job descriptions may need to address competency and compliance with equipment-related policies and procedures, such as authorization to use certain types of equipment.

The purchase of any new technology or equipment should trigger a risk assessment to determine whether staff training and the development of written procedures will be required. Training and development of procedures are especially valuable if the use of the new technology or equipment requires substantial changes in staff workflow protocols. Assessments related to new equipment should consider the equipment’s use, calibration, maintenance plan, and repair tag processes.

Safety Training
Safety training is an ongoing need for any healthcare practice and encompasses most every aspect of the practice. A few examples include diverse issues such as physical support for patients who need help getting into and out of treatment chairs or onto treatment tables, identification of patients at risk of falling, and compliance with radiation safety guidelines.

Safety training should also consider special needs of specific patient populations, such as patients who are morbidly obese, have respiratory issues, or have neck or back pain. For example, does treatment planning regularly include assessments of patients’ physical condition for the purpose of identifying patients who might need to have breaks scheduled into the treatment plan? Is support material available as needed, such as pillows, pads, knee supports, etc.? What is the requirement for the cleaning/disposal of support materials?

Answers to these questions and other safety considerations will help determine ongoing training needs for providers and staff members.

Confidentiality Training Providers and staff have an ethical and legal responsibility to protect patient confidentiality by preventing unauthorized disclosure of patient-identifiable health information.

Because privacy and confidentiality are high priorities in healthcare, healthcare practices should review their HIPAA programs annually and provide HIPAA-focused training for all staff members, including a signed confidentiality statement from each staff member relative to patient privacy and security of protected healthcare information. It is imperative that staff members understand their responsibilities and obligations when handling confidential information.

Communication
Effective communication is the foundation for any healthcare service. Yet — beyond the basics of telephone courtesy and explanations of payment policies — few practices provide in-depth communication training for their employees. Regardless of clinical expertise and skill level, a practice is unlikely to flourish if providers and staff are haphazard in the way they communicate among themselves and with their patients.

A review of office communication should identify areas and processes most likely to benefit from periodic review and reminders. Examples might include (a) formal processes used to inform/educate patients; (b) consistency in the ways that staff members respond to patients’ questions, concerns, and complaints; and (c) activities that enable staff to identify risk issues and bring them to the attention of the administrative team.

Consistency in communication reduces the likelihood of patient confusion, and repetition of messages reinforces the patient’s ability to absorb, understand, and comply with instructions. Consistency also gives the impression of an organized and team-oriented approach, helps reinforce the patient’s ability to act as a partner in his/her own care, and can have a positive effect on the patient’s perception of courtesy, responsiveness, and expertise.

Used as a quality improvement tool, a review of communication protocols also can help identify areas of inconsistency and misunderstanding among employees. Improved communication in the practice can help prevent patient injuries, ensure more patient-focused interactions, and enhance the team’s effectiveness and job satisfaction.

Credentialing
Effective education programs also should include the formal types of education that practitioners and staff pursue to maintain licenses, professional certification, and other business training. This should also apply to business classes like payroll management or software classes.

In Summary
Periodic review of healthcare practices’ educational initiatives ensures that no aspects of training become obsolete or forgotten. Further, periodic review identifies issues of noncompliance and resolves misunderstanding about activities that support patient safety.

A practice-wide commitment to ongoing education enhances the pursuit of excellence from a team perspective rather than from a variety of random activities. Additionally, adequate education and training help foster a sense of ownership and commitment to high-quality service and care among providers and staff members.

This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

Malpractice Minute

Treatment With Removable Orthodontic Appliances Produces Poor Outcome and Results in Dental Malpractice Lawsuit

Mario Catalano, DDS, MAGD – October 2019

Background
Treatment with clear, removable orthodontic appliances is an option that is becoming accepted in mainstream dentistry. This treatment is popular with patients from both an appearance and convenience standpoint. However, it is not without risks as illustrated by the following case.

Case Discussion
Dr. M was a residency-trained general dentist who had been in solo practice for about two years. One of the services she offered to her patients was orthodontic treatment using clear, removable appliances (trays).

The patient was a 57-year-old female who came to Dr. M wishing to have four lower anterior teeth (23, 24, 25, and 26) straightened. She also wanted the dentist to replace tooth 19, which was missing, with an implant. Dr. M determined that the patient was a suitable candidate, so she suggested using removable orthodontic appliances. The patient was delighted with this prospect and readily agreed.

Dr. M took a set of full mouth X-rays on the patient. After completing the necessary paperwork, the patient’s records were sent to the aligner company for analysis and recommendations. The aligner company opined that the patient was an appropriate candidate for its product and indicated that the straightening of the anterior teeth should be easy to accomplish. The company also suggested to close the space between teeth 18 and 20, thereby eliminating the necessity for an implant for tooth 19. The patient accepted this proposal and treatment was commenced.

After treatment with tray number 3 was completed, Dr. M noticed that the tooth 19 space was not closing (because the trays had not been properly constructed), and she reordered the remaining trays. Once the replacement trays were received, treatment continued as planned for the remainder of the first year. At that time, Dr. M noticed significant mobility in all six teeth being treated. After being advised of this development, the patient became concerned and sought a second opinion from an orthodontist.

The orthodontist concluded that he could not improve the situation much. He placed fixed bands on teeth 22, 23, 24, 25, 26, and 27 and referred the patient to an oral and maxillofacial surgeon (OMS) for evaluation of teeth 18 and 20. The OMS concluded that teeth 18 and 20 were not salvageable and recommended their removal and replacement with bone grafts and implants. This procedure was performed, and a fixed bridge was then placed from teeth 18 to 20. Ultimately, teeth 22, 23, 24, 25, 26, and 27 were restored with a bonded splint, with a guarded long-term prognosis.

The patient brought a dental malpractice lawsuit against Dr. M, alleging lack of adequate informed consent, a poorly designed treatment plan, and failure to perform the alignment therapy correctly, resulting in the loss of two teeth and the potential loss of an additional four. At the doctor’s request, the case was settled in the midrange, with defense costs in the low range.

Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

All dentists understand the inherent risk present when an attempt is made to move or realign permanent teeth, but this risk is not commonly appreciated by the general public. That is where the concept of informed consent comes into play: educating the patient regarding the indications, contraindications, expected benefits, and recognized risks of proposed dental treatment.

Unfortunately, some dentists view informed consent as a necessary step that is done just to prevent litigation. When treatment is elective and not time-sensitive (as in this case), thorough patient education by means of a face-to-face conversation — and memorialized by a signed consent form — should occur.

When this process does occur, not only is it clear that the patient has understood and accepted the risks associated with the procedure, but also patient compliance with the treatment plan tends to improve (including alerting the dentist to any unexpected developments). Additionally, the patient’s expectations of both the treatment process and the final results tend to be more realistic. This informed consent conversation also tends to enhance the overall doctor-patient relationship, which is a key factor in avoiding dental malpractice litigation. However, if Dr. M did, in fact, practice below the standard of care, a thorough informed consent process would not have protected her from liability; patients are never expected to consent to negligent care.

Additionally, whenever the dentist expands his or her scope of practice (generally or in a particular case), it is essential that he or she possess the necessary knowledge and skill to practice within the standard of care immediately upon commencing the new therapy. Dentists are most vulnerable to a failed case early in the “learning curve” (such as when first learning to place dental implants).

Further, in this case, it was unclear whether the dentist failed to monitor the patient’s dentition at appropriate intervals during the treatment process or that she simply did not recognize the negative direction her treatment was taking. However, it is clear that earlier intervention would have been beneficial.

It is also unlikely that the manufacturer of the orthodontic appliances could face any potential liability in this kind of case. Under a legal principle known as the Learned Intermediary Doctrine, when a “learned intermediary” (in this case, the doctor) chooses to use a particular technique or product, he or she becomes solely responsible for the results of that decision. Unless a defect was in the product that the doctor did not and could not have reasonably been aware of, the manufacturer is largely insulated from liability. However, if the manufacturer had sold the product directly to the patient (as recently seen advertised), the Learned Intermediary Doctrine would not apply and the manufacturer would face liability. In this case, although the manufacturer advised Dr. M that the patient’s condition could be corrected via its appliances, this advice was given to the doctor, not to the patient.

Conclusion
Dentistry is constantly evolving with new techniques, products, and materials making their way into daily practice. Although it is incumbent on dentists to keep abreast of new developments, it is also necessary to have a thorough understanding of these new products and techniques before incorporating them into daily practice.

Question
What steps should the dentist take to ensure that he or she is fully competent to perform new techniques or use new products before including them in treating his or her patients?

This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

Malpractice Minute

Patient Noncompliance and Dentist’s Inexperience Produce Suboptimal Outcome and Lawsuit

Mario Catalano, DDS, MAGD – June 2018

Background
When starting a dental career, it is an ideal arrangement for new dentists to associate with more experienced dentists for mentorship. The value of an experienced practitioner’s support and mentorship cannot be overstated. However, unless the experienced dentist devotes a significant amount of time overseeing a new dentist’s work, the new dentist may still be vulnerable to making “rookie mistakes.”

Case Discussion

Dr. R, who had graduated from dental school 5 months prior, was an associate in an established dental practice. To expand his practice, Dr. R decided to provide clear aligner services to his patients under the tutelage of his mentor (the practice owner). He took a few courses from different manufacturers and awaited his first case.

Dr. R saw a 54-year-old female patient who was a bank executive and had an unremarkable medical/dental history. She had veneers on teeth 7-10 that required replacement, but she wanted to get her lower anterior teeth straightened first. Dr. R consulted with his mentor, who recommended for him to inform the patient that it would be more efficacious to provide alignment of both upper and lower arches by means of banded orthodontics for long-term stability as well as a more aesthetic result. Unfortunately, Dr. R did not follow this advice, and thus he did not inform the patient.

Dr. R told the patient that she needed to faithfully wear clear aligners to straighten her upper teeth. Because of her high-visibility position, the patient was somewhat reluctant to wear upper appliances (and partly because she was not adequately advised regarding the importance of the arch alignment). She stated she would wear them as much as possible.

During the next 5 months, the aligner therapy proceeded — but not as planned. The patient seldom wore her upper appliances, but did not disclose that fact to the doctor. Her lower anterior teeth also did not move as planned, and she became more difficult to satisfy. Finally, after about 5 months, the patient cancelled the remainder of her alignment therapy and requested that her veneers be completed.

In response to the patient’s request, Dr. R removed the existing veneers and prepared the teeth for new veneers. He had some difficulty with the removals and reduced the teeth to where he thought he had solid tooth structure on the buccal. He also removed additional enamel on the palatal surfaces because of the irregular alignment of the lower anterior teeth. He finished the case and put the patient on a recare schedule.

Unfortunately, while on a business trip, the patient needed emergency dental care to repair the bonding on one of her veneers. The treating dentist explained that she would re-bond the veneer, but cautioned that the bonding may be compromised because of the reduction of the tooth into dentin. While checking the occlusion, the treating dentist also noted heavy contact of the lower anterior teeth with the palatal surfaces of the veneers. She told the patient that she may need orthodontics to restore the appropriate alignment of her lower anterior teeth.

When the patient returned home, she contacted the practice manager to express her displeasure. During the conversation, she inquired about Dr. R’s experience with previous cases. The practice manager said that Dr. R had been practicing for less than a year and did not have extensive experience with clear aligners, but did consult with the senior doctor at the practice (his mentor).

The patient was not satisfied with this explanation. She consulted with another dentist, who said the veneers demonstrated marginal leakage. That dentist recommended lower arch banded orthodontics as well as replacement of the veneers with crowns. The patient accepted the treatment plan and was successfully treated.

The patient sued Dr. R and the practice for lack of informed consent, failure to disclose Dr. R’s level of experience, and improper tooth preparation for veneers. The case was vigorously defended — primarily based on the patient’s noncompliance — and was eventually dismissed without payment.

Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

The combination of the patient’s noncompliance with Dr. R’s instructions and Dr. R’s relative inexperience (especially with clear aligners) created a “perfect storm” that ended with a poor result.

The patient’s noncompliance appears to result from two things: (1) some misunderstanding of her overall clinical situation, and (2) her unwillingness to fully comply with what she knew she needed to do. When dealing with a potentially noncompliant patient, the dentist should ensure that the following steps are accomplished:

  • First, the dentist must thoroughly educate the patient regarding his/her clinical circumstances and the treatment plan.
  • Second, the doctor should carefully monitor the patient’s compliance; if noncompliance is identified, the dentist should counsel the patient appropriately.
  • Third, if the noncompliance continues, depending on its severity, the dentist may have to reconsider providing continued treatment.
  • Fourth, and in every case, the dentist should carefully document all aspects of the noncompliance and the efforts to manage it.

The best opportunity to educate the patient regarding the circumstances of her case — and what her role would be in her treatment success — is during the informed consent conversation. Nothing can replace the value of a face-to-face meeting. Although dentists are not obligated to divulge how many times they have performed a certain procedure, they should answer any such inquiries truthfully. Well conducted informed consent conversations have demonstrated more realistic patient expectations of treatment and improved compliance with instructions.

Some aspects of the technical dentistry could have been performed better, and this is where frequent communication with the experienced dentist can be invaluable. In many cases, young professionals (in any field) “don’t know what they don’t know.” Asking for advice early and often can prevent problems that may escalate into possible lawsuits.

Conclusion
Like any learned profession, dentistry requires skills that are perfected over time. Young dentists should work hard to master the fundamentals and lean heavily on an experienced practitioner to help them further perfect their technical skills.

Question
What options do young dentists have to improve their skills when they are working in an environment in which a mentorship is not available?

This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

Malpractice Minute

Miscommunication Between Orthodontist and General Dentist Results in Unintended Extraction of Permanent Tooth

Mario Catalano, DDS, MAGD – March 2020

Background
In healthcare risk management, miscommunication is often a precursor to a misunderstanding and — ultimately — a mistake. The following case aptly illustrates how the likelihood of miscommunication is generally increased when a third party relays the information.

Case Discussion
This case involved a larger, mostly insurance-based practice that employed multiple dental specialties, including a part-time orthodontist, Dr. R. The practice had recently hired Dr. M, who had just finished her Advanced Education in General Dentistry (AEGD) program. As Dr. M was new and developing a patient base, the other dentists in the practice regularly referred patients to her.

The patient was a 9-year-old male who had a supernumerary tooth above tooth 8. As part of his orthodontic care, this supernumerary tooth needed to be extracted. Dr. R directed this patient to Dr. M for this extraction.

Dr. R submitted a request form for the extraction to the scheduling coordinator. Unfortunately, Dr. R’s handwriting was so illegible that the scheduling coordinator mistook it for a request to extract tooth 8 instead of the supernumerary tooth above it. She scheduled the extraction appropriately (but incorrectly) for tooth 8.

On the day of surgery, Dr. M reviewed the treatment plan on the computer and verified it by reviewing the panoramic X-ray. However, the X-ray was of poor quality, and it appeared to (the inexperienced) Dr. M that the root structure of tooth 8 was compromised by the position of the supernumerary tooth, making the extraction appropriate. Dr. R was not working that day, so Dr. M was unable to verify her conclusion with him, and she did not consult with any of the practice’s more experienced dentists. She extracted tooth 8 without any complications.

When the error was discovered at the next orthodontic appointment, the patient’s parents were promptly advised. The proposed treatment plan was to remove the supernumerary tooth and maintain the tooth 8 space with a cosmetically acceptable removable appliance until it could be replaced with an implant.

The practice offered to cover all costs associated with the remedial treatment; however, the parents withdrew the patient and ultimately commenced a dental malpractice lawsuit against Drs. R and M and the practice. The case was settled as to all parties by a payment in the midrange, with defense costs also in the midrange.

Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

Extracting the wrong tooth is not all that uncommon as orthodontists communicate with general or pediatric dentists or oral and maxillofacial surgeons. Usually, the problem involves differing numbering systems, human error in either writing or reading the order, poor penmanship, and more. In this case, a variety of risk factors combined to cause the error, including several wrong assumptions.

The first risk factor was Dr. R’s poor penmanship. The scheduling coordinator assumed that Dr. R meant tooth 8 rather than the supernumerary tooth. The potential for this mistaken assumption could have easily been eliminated by having the ordering doctor enter the order directly into the practice’s electronic health record (EHR). This entry would have eliminated the need for the scheduling coordinator to attempt to “decipher” Dr. R’s handwritten order. Whenever an additional person is introduced into the communication loop, the likelihood of miscommunication is exponentially increased.

The second risk factor was Dr. M’s review of the X-ray to confirm the order. Assuming that it was the correct X-ray (and nothing indicates it wasn’t), either the X-ray was of such poor quality that it was unable to facilitate an accurate diagnosis, or Dr. M was not experienced enough to recognize what was correctly displayed. If it was the former, another Panorex should have been taken; if it was the latter, Dr. M should have consulted a more experienced dentist before proceeding with an irreversible procedure. Knowing one’s limitations is a powerful risk management technique.

The third risk (or absent) factor was the communication between Drs. R and M and the parents. If Dr. R had clearly explained the problem and plan to resolve it to the parents, Dr. M would have had the opportunity to verify the planned procedure (the extraction of tooth 8) before its performance, and the parents would have had an opportunity to raise a “red flag.” Also, if these conversations did not occur, it is difficult to see how an adequate informed consent process took place.

One can reasonably speculate that if any of these errors had not occurred, the wrongful extraction ultimately would not have occurred.

One aspect of this case that was handled correctly was the disclosure of the error to the parents once it had been identified. The practice promptly consulted the parents, clearly explained what had occurred, apologized, and proposed a remedial treatment plan at its expense. Ultimately, the parents rejected the practice’s proposal; however, it was handled correctly from an ethical and strategic standpoint.

Conclusion
As the Institute of Medicine reminded us in 1999, “To Err Is Human.” All healthcare practitioners would be wise to be mindful of the inevitability of human error. Systems should be designed and regularly redesigned to minimize the potential for human error, and, when it does occur, to minimize the likelihood that it will negatively affect patient care.

Question
What technique(s) can the new-to-practice dentist use to minimize the likelihood of error resulting from his or her inexperience?

This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.