Medicolegal Considerations

Richard L. Small and Myron R. Tucker C !d 'i !'T E R

LEGAL CONCEPTS INFLUENCING LIABILITY PATIENT MANAGEMENT PROBLEMS

RISK REDUCTION Noncompliant Patient
Patient Information and Office Communication Patient Abandonment
INFORMED CONSENT COMMON AREAS OF DENTAL LITIGATION
RECORDS AND DOCUMENTATION WHEN A PATIENT THREATENS TO SUE
REFERRAL TO ANOTHER GENERAL DENTIST OR MANAGED CARE ISSUES
SPECIALIST Telemedicine, Electronic Records, and the Internet
COMPLICATIONS SUMMARY

n recent years there has been an increase in the Although no substitute exists for sound clinical prac-

I number of malpractice claims brought against den-

tists. This trend has had a profound impact on sev-
eral aspects of dentistry. Some of the most common law-
tice, nontreatment issues prompt many lawsuits. These
often include miscommunication and misunderstanding
between the dentist and patient and poor record keeping,
suits are related to extraction of the wrong tooth, failure which in turn present opportunities for patient's lawyers
to diagnose a problem, and lack of proper infcraed con- to criticize. This chapter reviews concepts of liability, risk
sent. The stress associated with the increased possibility management, methods of risk reduction, and actions that
of litigation influences the entire office. Malpractice should be taken if a malpractice suit is filed.
insurance premiums are high, contributing to increased
patient costs. Dentists feel pressured into practicing "de-
fensive dentistry," second-guessing sound clinical deci-
LEGAL CONCEPTS INFLUENCING LIABILITY
*- -- --
sions based on concerns about potential litigation. To understand the responsibility of the dentist in risk
The influence of litigation on dentistry has resulted in management, it is important to review several legal con-
an effort by the profession to reduce the risk of legal lia- cepts pertaining to the practice of dentistry.
bility by more closely examining treatment decisions, Malpractice is generally defined as professional negli-
improved documentation, and better dentist-patient rela- gence. Professional negligence occurs when treatment
tionships. Reviewing all aspects of dental practice to pro- provided by the dentist fails to comply with "standards of
vide the best possible patient care and to reduce unnec- care" exercised by other dentists in similar situations. In
essary legal liability i5 termed risk management. other words, professional negligence occurs when profes-
 Medicolegal Considerntiorls CHAPTER 12 239

sionals fail to have or exercise the degree of skill ordinar- however, varies widely from state to state. In some states
ily possessed and demonstrated by members of their pro- the statute of limitations begins when an incident occurs.
fession practicing under similar circumstances. In other states the statute of limitations is extended for a
In most states the standard of care is defined by that short period after the alleged malpractice is discovered (or
which an ordinarily skilled, educated, and experienced when a "reasonable" person would have discovered it).
dentist would do under similar circumstances. Many Several other factors can extend the statute of limita-
states adhere to a national standard for dental specialists. tions in many states. These include children under 18 or
Malpractice occurs when the patient proves that the den- the age of majority, fraudulent concealment of negligent
tist failed to comply with this minimal level of care, treatment by the dentist or leaving a nontherapeutic for-
which resulted in injury. eign object in the body (e.g., broken bur or file).
In most malpractice cases the patient must prove all of
the following four elements of a malpractice claim: (1)the
applicable standard of care (legal duty), (2) breach of stan- RISK REDUCTION
dard of care, (3) injury, and (4) the breach caused the The foundation for all dental practice should be sound clin-
injury. The burden of proving malpractice lies with the ical procedures. However, properly addressing other aspects
plaintiff (patient). The patient must prove by a prepon- of patient care and office policy may considerably reduce
derance of the evidence all four elements of the claim. potential legal liability. These aspects include dentist-
First, there must be a professional relationship between patient and staff-patient communication, patient informa-
the dentist and patient before a legal duty or obligation is tion, informed consent, proper documentation, and appro-
owed to exercise appropriate care. This relationship can be priate management of complications. Additionally clini-
established if the dentist accepts the patient or otherwise cians should note that patients with reasonable expecta-
begins treatment. Second, a breach or failure to provide tions and a favorable relationship with their dentist are less
treatment that satisfies the standard of care must be likely to sue and more likely to tolerate complications.
demonstrated. This standard of care does not obligate the
dentist to provide the highest level of treatment exercised
by the most skilled dentist or that which is taught in den- Patient Information and Office Communication
tal school. The standard of care is intended to be a "com- A solid dentist-patient relationship is key to any risk
mon denominator" defined by what average practitioners management program. Well-informed patients generally
would ordinarily do under similar circumstances. Third, it have a much better understanding of potential complica-
must be shown that the failure to provide this standard of tions and more realistic expectations about treatment
care was the cause of the patient's injury. Fourth, there outcomes. This can be accomplished by providing
must have been some form of damage demonstrated. patients with as much information as possible on pro-
Dentists are not liable for inherent risks of treatment posed treatment, alternatives and risks, and benefits and
that occur in the absence of negligence. For example, a limitations of each. If done properly, the informed con-
dentist is not liable if a patient experiences a numb lip sent process can improve rapport. Patients are given this
after a properly performed third molar extraction. This is information to help them better understand their care so
a recognized complication. A dentist can be legally liable they can make informed decisions. The information
for a numb lip if the patient proves it was caused by neg- should be communicated in a positive manner and not
ligence (e.g., the numbness was caused by a careless inci- presented in a defensive way.
sion, careless use of a bur, or other instrument). Patients value and expect a discussion with their dentist
Recently several suits have charged the dentist with about their care. Brochures and other types of informa-
breach of contract. This charge has traditionally been tional packages help provide patients with both general
applied to business transactions and has not normally and specific information about general dental and oral
been used in disputes between patients and dentists. surgical care. Patients requiring oral surgical procedures
However, some courts have recently ruled that a patient will benefit from information on the nature of their prob-
and dentist may actually have a contractual agreement to lem, recommended treatment and alternatives, expecta-
produce a specific result, and that failure to achieve this tions, and possible complications. This information should
objective may result in a breach of contract. In many have a well-organized format that is easily understood and
states an alleged promise or guarantee as to the result is is written in nonprofessional's language. Informed consent
not enforceable unless it is in writing. Overly aggressive is discussed in detail in the following section.
marketing can lead to contractual liability. When a dentist has a specific discussion with a patient
Marketing pressures sometimes lead to written adver- or gives a patient an informational package, it should be
tisements or promotions that can be interpreted as guar- documented in the patient's chart. Complications dis-
anteed results. Patients who have difficulty chewing after cussed earlier can be reviewed if they occur later. In gen-
delivery of new dentures, if originally promised that they eral, patients with reasonable expectations create fewer
would be able to eat any type of food without difficulty, problems (a theme repeated throughout this chapter).
might consider such promises breach of contract. Dissat-
isfaction with esthetics or function is often linked to
unreasonable expectations, sometimes fueled by ineffec-
INFORMED CONSENT
tive communication or excessive salesmanship. In addition to providing quality care, effective communi-
The statute of limitations generally provides a time limit cation and good rapport should become a standard part
for filing a malpractice suit against a dentist. This limit, of office management objectives. Dentists can be sued
240 PART I1 . Principles of Exodontia

not only for negligent treatment but also for failing to clinician should conduct a frank discussion and provide
inform patients properly about the treatment to be ren- information about seven areas: (1) specific problem,
dered, the reasonable alternatives, and the reasonable (2) proposed treatment, (3) anticipated or common side
benefits, risks, and complications of each. In fact, in some effects, (4) possible complications and approximate fre-
states, treatment without a proper informed consent is quency of occurrence, (5) anesthesia, ( 6 ) treatment alter-
considered battery. natives, and (7) uncertainties about final outcome,
The concept of informed consent is that the patient including a statement that the treatment has n o absolute
has a right to consider known risks and complications guarantees.
inherent to treatment. This enables the patient to make a This information must be presented so that the patient
knowledgeable, voluntary decision whether to proceed has n o difficulty understanding it. A variety of video pre-
with recommended treatment or elect another option. If sentations are available describing dental and surgical
a patient is properly advised of inherent risks and a com- procedures and the associated risks and benefits. These
plication occurs in the absence of negligence, the dentist can be used as part of the informed consent process but
is not legally liable. However, a dentist can be held liable should not replace direct discussions between the dentist
when an inherent risk occurs after the dentist fails to and patient. At the conclusion of the presentation, the
obtain the patient's informed consent. The rationale for lia- patient should be given an opportunity to ask any addi-
bility is that the patient was denied the opportunity to tional questions.
refuse treatment after being properly advised of risks asso- After these presentations or discussions, the patient
ciated with the treatment and reasonable options. should sign a written informed consent. The written con-
Current concepts of informed consent are based as sent should summarize in easily understandable terms
much on providing the patient the necessary information the items presented. Some states presume that if the
as on actually obtaining a consent or signature for a pro- information is not on the form, it was not discussed. It
cedure. In addition to fulfilling the legal obligations, should also be documented that the patient can read and
obtaining the proper informed consent from patients speak English; if not, the presentation and written con-
benefits the clinician in several ways. First, well-informed sent should be given in the patient's language. To ensure
patients who understand the nature of the problem and that the patient understands each specific paragraph of
have realistic expectations are less likely to sue. Second, a the consent form, the dentist should consider having the
properly presented and documented informed consent patient initial each paragraph on the form.
often prevents frivolous claims based on misunderstand- An example of an informed consent document
ing or unrealistic expectations. Finally, obtaining an appears in Appendix V. At the conclusion of the discus-
informed consent offers the dentist the opportunity to sion, the patient, dentist, and at least one witness
develop better rapport with the patient by demonstrating should sign the informed consent document. In the case
a greater personal interest in the patient's well being. of a minor, both the patient and the parent or legal
The requirements of an informed consent vary from guardian should sign the informed consent. In some
state to state. Initially, informed consent was to inform states, minors may sign the informed consent for their
patients that bodily harm or death may result from a pro- own treatment if they are married or pregnant. Befor(
cedure. It did not require discussion of minor, unlikely assuming this to be the case, local regulations should 1
complications that seldom occur and infrequently result verified. '3.I e
in ill effects. However, some states have currently adopt- The third and final phase of the informed consenc PrtJe
ed the concept of "material risk," which requires dentists cedure is to document in the patient's chart that a?
to discuss all aspects material to the patient's decision to informed consent was obtained after the dentist dis-
undergo treatment, even if it is not customary in the pro- cussed treatment options, risks, and benefits. The dentist
fession to provide such information. A risk is material should record the fact that consent discussions took place
when a reasonable person is likely to attach significance and should also record other events, such as videos
to it in assessing whether to have the proposed therapy. shown, brochures given, and so on. The written consent
In many states dentists have a duty to obtain the form should be included.
patient's consent; they cannot delegate ;he entire Three special situations exist in which an informed
responsibility. Although staff can present the consent consent may deviate from these guidelines: First, a
form, the dentist should review treatment recommenda- patient may specifically ask not to be informed of all
tions, options, and the risks and benefits of each option; aspects of the treatment and complications (this must be
the dentist must also be available to answer questions. specifically documented in the chart).
Although not required by the standard of care in many Second, it may be harmful in some cases to provide all
states, it is advisable to get the patient's written consent of the appropriate information to the patient. This is
for invasive dental procedures. Parents or guardians termed the therapeutic privilege for not obtaining a com-
must sign for minors. Legal guardians must sign for indi- plete informed consent. It is somewhat controversial and
viduals with mental or similar incapacities. In certain would rarely apply to routine oral surgical and dental
regions of the country, it is helpful to have consent procedures. Third, a complete informed consent may not
forms written in other languages or have multilingual be necessary in an emergency, when the need to proceed
staff members available. with treatment is so urgent that unnecessary delays to
Informed consent consists of three phases: (1) discus- obtain an informed consent may result in further harm to
sion, (2) written consent, and (3) documentation in the the patient. This also applies to management of compli-
patient's chart. When obtaining informed consent, the cations during a surgical procedure.
 Medicolegal Considerations * CHAPTER 12 241

It is assumed that if failure to manage a condition imme- instructions on participation in any activity that
diately would result in further patient harm, then treat- might jeopardize the patient's health
ment should proceed without a specific informed consent. 10. Missed appointments
Patients have the right to know if any risks are associ- Corrections should be made by drawing a single line
ated with their decision to reject certain forms of treat- through any information to be deleted. Correct informa-
ment. This informed refusal should be clearly documented tion can be inserted above or added below, along with a
in the chart, along with specific information informing contemporaneous date. The single-line deletion should
the patient of the risk and consequence of refusing treat- be initialed and dated. No portion of the chart should be
ment. Patients who do not appear for needed treatment discarded, obliterated, erased, or altered in any fashion.
should be sent a letter warning of potential problems that In some states it is a felony to alter records with the
may arise if they do not seek treatment. Copies of these intent to deceive.
letters should be kept in the patient's chart.
REFERRAL TO ANOTHER GENERAL DENTIST
RECORDS AND DOCUMENTATION - -"- - --- - .- OR -SPECIALIST
- - --
Poor record keeping is one of the most common prob- In many cases dentists may think that the recommended
lems encountered in the defense of a malpractice suit. treatment is beyond their level of training or experience
When the quality of patient care is questioned, the and may choose to refer a patient to another general den-
records supposedly reflect what was done and why. Poor tist or specialist. A referral slip or letter should clearly
records provide plaintiff attorneys with an opportunity indicate the basis for referral and what the specialist is
to claim that patient care also must have been substan- being asked to do. The referral should be recorded in the
dard. Even though a perfect record is neither possible chart. A written referral to a specialist may ask the spe-
nor required, records should reasonably reflect the diag- cialist to provide a written report detailing the diagnosis
nosis, treatment, consent, complications, and other key and treatment plan.
events. A patient's refusal to pursue a referral should be clear-
Adequate documentation of the diagnosis and treat- ly noted in the chart. If a patient refuses to seek treatment
ment is one of the most important aspects of patient care. from a specialist, the dentist must decide whether the rec-
A well-documented chart is the cornerstone of any risk ommended treatment is within the dentist's own exper-
management program. If dentists do not document fun- tise. If not, the dentist should not provide this particular
damental clinical findings supporting the diagnosis and treatment, even if the patient insists. A patient's refusal to
treatment, attorneys may question the need for treat- seek care from a specialist does not relieve the dentist of
ment in the first place. Some argue that if an item is not liability for injuries or complications resulting from care
charted, it did not happen. The following eleven items outside the dentist's level of training and expertise.
are helpful when recorded in the chart: Dental specialists should carefully evaluate all referred
1. Chief complaint patients. For example, extracting or treating the wrong
2. Dental history tooth is a common allegation in court. When in doubt
3. Medical history the specialist should contact the referring dentist and dis-
4. Current medication cuss the case. Any change in the treatment plan provided
5 . Allergies by the specialist should be documented in both the refer-
6. Clinical and radiographic findings and interpretations ring dentist and specialist's charts. To avoid informed
7. Recommended treatment and other alternatives consent problems, the patient must approve any revised
8. Informed consent plan or recommendation.
9. Therapy actually instituted
10. Recommended follow-up treatment
COMPLICATIONS
11. Referrals to other general dentists, specialists, or
other medical practitioners Less-than-desirable results can occur despite the dentist's
Ten frequently overlooked pieces of information best efforts in diagnosis, treatment planning, and surgical
should be recorded in the chart: technique. A poor result does not necessarily suggest that
1. Prescriptions and refills dispensed to the patient a practitioner is guilty of negligence or other wrong-
2. Messages or other discussions related specifically to doing. However, when complications occur, it is manda-
patient care (including phone calls) tory that the dentist immediately begin to address the
3. Consultations obtained problem in an appropriate fashion.
4. Results of laboratory tests In most instances the dentist should advise the patient
5. Clinical observations of progress or outcome of of the complication. Examples of such situations are loss of
treatment or failure to recover a root tip; breaking a dental instru-
6. Recommended adjunct follow-up care ment, such as an endodontic file, in a tooth; perforation of
7. Appointments made or recommended the maxillary sinus; damage to adjacent teeth; or inadver-
8. Postoperative instructions and orders given tent fracture of surrounding bone. In these instances the
9. Warnings to the patient, including issues related to dentist should clearly outline proposed management of
lack of compliance, failure to appear for appoint- the problem, including specific instructions to the patient,
ments, failure to obtain or take medication, further treatment that may be necessary, and referral to an
instructions to see other dentists or physicians, or oral and maxillofacial surgeon when appropriate.
242 PART I1 . Principles of Exodontin

It is advisable to consider and discuss reasonable treat- completed. There may be instances, however, when it is
ment options that may still produce reasonable results. impossible or unreasonable for a dentist to complete a
For example, when teeth are extracted for orthodontic treatment plan because of several problems. Such prob-
purposes, the first premolar may accidentally be extract- lems include the patient's failure to return for necessary
ed when the orthodontist preferred extraction of the sec- appointments, follow explicit instructions, take medica-
ond premolar. Before removing any other teeth or alarm- tion, seek recommended consultations, and stop activi-
ing the patient and parents, the dentist should call the ties that may inhibit the treatment plan or otherwise
orthodontist to discuss the effect on treatment outcome jeopardize the dentist's ability to achieve acceptable
and available treatment modifications. The patient and results. This may include a total breakdown of communi-
parents should be notified that the wrong tooth was cation and loss of rapport between the dentist and
extracted but that the orthodontist indicated that the patient.
treatment can proceed without significantly compromis- In these cases it is usually necessary for the dentist to
ing the result. follow certain steps before discontinuing treatment to
The lack of reasonable modifications of the original avoid being accused of patient abandonment. First, the
treatment plan is more challenging. The dentist may chart must document the activities leading to the
have to consider a more expensive plan, such as patient's termination. The patient should be adequately
implants, and should also consider funding additional warned (if possible) that termination will result if the
treatment. undesired activity does not stop. The patient should be
Another common complication is altered sensation warned of the potential harm that may result if such
following third molar removal. The chart should reflect activity continues and the reason why the harm may
the existence and extent of the problem. It may be useful occur. After being told why the office is no longer willing
to use a diagram to document the area involved. The den- to provide treatment, the patient should be given a rea-
sity and severity of the deficit should be noted after test- sonable opportunity to find a new dentist (30 to 45 days
ing, if possible. The chart should reflect the progress of is common). The office should continue treatment dur-
the condition each time the patient returns for follow-up. ing this period if the patient is in need of emergency care
Ultimately the patient may require a referral to an oral or care is required to avoid harm to the patient's health
and maxillofacial surgeon with experience in diagnosing or to treatment progress.
and treating nerve injuries. In most cases the referral When it has been decided that the dentist-patient rela-
should occur within approximately 3 months after the tionship cannot continue, the dentist must take the fol-
injury if n o significant improvement is seen. Excessive lowing steps to terminate the relationship:
delays may limit the effectiveness of future treatment. A letter should be sent to the patient, indicating the
Documentation of the patient's progress helps justify the intent to withdraw from the case and the unwillingness
decision to delay the referral. to provide further treatment. It should include five
important pieces of information:
1. The reasons supporting the decision to discontinue
PATIENT M A N A G E M E N T PROBLEMS treatment
2. If applicable, the potential harm caused by the
Noncompliant Patient patient (or parent's) undesired activity
Dentists and staff should routinely chart lack of compli- 3. Past warnings by the office that did not alter the
ance, including missed appointments, cancellations, and patient's actions and continued to put the patient
failure to follow advice to take medications, seek consul- at risk (or jeopardized the dentist's ability t o achieve
tations, wear appliances, or return for routine visits. an acceptable result)
Efforts to advise patients of risks associated with failing to 4. A warning that the patient's treatment is not com-
follow instructions should also be recorded. pleted; therefore the patient should immediately
When the patient's health may be jeopardized by con- seek another dentist or go to a hospital or teaching
tinued noncompliance, the clinician should consider clinic in the area for immediate examination or
writing a letter to the patient, which identifies the poten- consultation. (The clinician should include a warn-
tial harm and advises the patient that the office will not ing that if the patient fails to follow this advice, the
be responsible if these and other problems develop as a patient's dental health may continue to be jeopar-
result of the patient's noncompliance. If the patient's care dized and any treatment progress may be lost or
is eventually terminated, the accumulation of detailed worse.)
chart entries documenting the noncompliance should 5. An offer to continue treating the patient for a rea-
justify why the dentist is unwilling to continue care. sonable period and for emergencies until the
patient locates another dentist
This letter should be sent by certified mail to ensure
Patient Abandonment and document that the patient did in fact receive it. If
A legal duty is owed to the patient once a doctor-patient other dentists are treating the patient, the clinician
relationship is established. This occurs when a patient should consider advising them of this decision. The clini-
has been accepted by the office, the initial evaluation has cian should consult local counsel if any concerns of con-
been completed, and treatment has begun. The dentist is fidentiality or a particularly sensitive reason behind this
usually obligated to provide care until the treatment is decision exists.
 Medicolegal Considerations CHAPTER 12 243

The dentist must continue to remain available for firming the final decision may also be helpful in docu-
treatment of emergency problems until the patient has menting this decision. If the wrong tooth is in fact
had adequate time to seek treatment from another den- extracted, this should be handled in the manner
tist. This must be communicated in the letter outlined described earlier in this chapter.
previously. Nerve injuries are often grounds for suits, with attor-
The dentist must offer to forward copies of all perti- neys claiming that the nerve injuries resulted from
nent records that affect patient care. Nothing must be extractions, implants, endodontic treatment, or other
done to inhibit efforts of subsequent treatment to com- procedures. These allegations are usually coupled with
plete patient care. allegations of insufficient informed consent.
Patients who are positive for the human immunodefi- Because nerve injuries are a known complication of
ciency virus (HIV) or who have similar diseases cannot be mandibular extractions or mandibular implants posterior
terminated because of their disease, because this action to the mental foramen, patient advocates claim the
may violate the Handicapped Civil Rights Act and other patient had a right to accept these risks as part of treat-
federal or state laws. These patients cannot be refused ment. If the dentist can visualize conditions that increase
treatment based on their disease. Patients who are HIV- this risk, the patient should be advised and the condition
positive or have acquired immunodeficiency syndrome documented. An example would be to specifically note
(AIDS) are considered handicapped under these laws.' the relationship of the inferior alveolar nerve to the third
Legal counsel should be consulted if the clinician has molar tooth to be extracted, when these appear to be in
another valid reason to terminate such a patient. very close proximity.
Exceptions do exist to these suggested guidelines. Den- Failure to diagnose can be related to several areas of
tists must evaluate each situation carefully. Occasions dentistry: One of the most common problems is a lesion
may occur when the dentist does not wish to lose contact that is seen on examination but is not adequately docu-
with a patient or lose the ability to observe and follow a mented and no treatment or follow-up is instituted. If the
complication. Terminating treatment will often anger a lesion causes further problems or a subsequent biopsy
patient, who may in turn seek legal advice if experiencing documents long-standing pathology or a malignancy,
a complication. The office may elect to complete treat- this may be viewed as negligence. This problem can be
ment in such cases. avoided by following up on any potentially abnormal
If treatment continues, the chart should carefully finding. The clinician should chart an initial diagnosis or
reflect all warnings to the patient about potential harm seek a consultation from a specialist. If the lesion has
and the increased chance that acceptable results may not resolved hy the next visit, the clinician should record that
be achieved. fact so the issue is closed. If the patient is referred t o
In certain cases the patient may be asked to sign a another doctor, the referring clinician should follow up
revised consent form that includes three important t o document the patient's progress, including whether or
points: not the patient's condition was successfully treated.
1. The patient realizes that the patient has been non- Failure to diagnose periodontal disease is often the
compliant or has otherwise not followed advice. area of criticism and legal action. A periodontal examina-
2. The previously mentioned activities either jeopar- tion should be a part of routine dental evaluations and
' dized the patient's health or the dentist's ability to therefore becomes the primary responsibility of the gen-
achieve acceptable results or have unreasonably eral dentist. The status of the problem, suggestions for
increased the chances of complication. treatment, referrals, and progress or resolution of the
3. The dentist will continue treatment but makes no problem must be clearly documented.
assurances that the results will be acceptable. (km- Implant complications or failure is another common
plications may occur requiring additional care, and area of litigation. As with any procedure the patient
the patient (or the patient's legal guardian) will should be informed of the complication's associated
accept full responsibility if any of the above events reconstruction and long-term outcome. The need for
occur and will not hold the dentist responsible. careful long-term hygiene and follow-up should be
explained. The potential detrimental effect of patient
habits such as smoking should be explained and docu-
COMMON AREAS OF DENTAL LITIGATION . ---- mented. Dentists placing implants should consider using
Litigation has involved all aspects of dental practice and a customized consent form, summarizing common corn-
nearly every specific type of treatment. A few types of plications, and stressing the importance of patient
dental treatment have a higher incidence of legal action. follow-up care and oral hygiene.
Removal of the wrong tooth usually results from a Failure to provide appropriate referral to another den-
communication breakdown between the general dentist tist or specialist can be a source of legal problems. Den-
and oral surgeon or the patient and dentist. When in tists usually determine the appropriate time t o refer a
doubt the dentist must confirm the tooth to be extracted patient to a specialist for initial care or management of a
by radiograph, clinical examination, or discussion with complication. Failure to refer patients for complicated
the referring dentist. If opinions differ regarding the pro- treatment not routinely performed by the dentist or
posed treatment, the patient and the referring dentist delayed referral for management of a complication fre-
should be notified and the outcome of any subsequent quently becomes the basis for litigation. Referrals to spe-
conversation documented. A short follow-up letter con- cialists can greatly reduce liability risks. Specialists are
244 PART I1 Principles of Exodontia

accustomed to treating more difficult cases and compli- defendant in a case or as an expert witness. Although this
cations. Specialists with whom the dentist has a good is quite common for attorneys, the procedure is often
relationship can also diffuse patient management prob- unnerving and emotional for dentists, particularly when
lems by being objective and caring and by reassuring testifying in their own defense.
angry patients. The general dentist and specialist may dis- The following are six suggestions that should be con-
cuss ways of relieving the expense of addressing a com- sidered when giving a deposition related to a malpractice
plication and completing treatment. case:
Temporomandibular joint (TMJ) disorders sometimes 1. The clinician should be prepared and have com-
become more apparent after dental procedures requiring plete knowledge of the records. All chart entries,
prolonged opening or manipulation, such as tooth extrac- test results, and any other relevant information
tion or endodontic treatment. It is important to document should be reviewed. In complex cases, the clinician
any preexisting condition in the pretreatment assessment. should consider reviewing textbook knowledge of
The risk of TMJ pain or other dysfunction as a result of a the subject; however, an attorney should be con-
procedure should be included in the informed consent sulted before anything other than the clinician's
when indicated. If the patient is in dire need of care that own record is reviewed.
may aggravate or cause a TMJ condition, a customized con- 2. The clinician should never answer a question unless
sent form should be drafted and signed. It should clearly it is completely understood. The clinician should
define the problem, giving the patient options and con- listen carefully to the question, provide a succinct
firming the patient's authorization to proceed. answer to it, and stop talking after the answer is
given. A lawsuit cannot be won at a deposition, but
it can be lost.
WHEN A PATIENT THREATENS TO SUE 3. The clinician should not speculate. If a review of
Whenever a patient, the patient's attorney, or any other the records, radiographs, or other information is
representative of the patient informs the dentist that a necessary, the clinician should do so before answer-
malpractice suit is being considered, several precautions ing a question, rather than guessing.
should be taken: 4. The clinician should be careful when agreeing that
First, all such threats should be documented and any particular expert author or text is "authorita-
reported immediately to the malpractice insurance carri- tive." Once such a statement is made, the clinician
er. The dentist should follow the advice of the malprac- may be placed in a situation in which the clinician
tice carrier, institutional risk management team, or the did something or disagreed with something the
attorney assigned to the case. These individuals will usu- "expert" has written. In most states a clinician can be
ally respond to the threat. Because the first indication of impeached by anything an author states, once the
a potential claim is usually a request for records, the clinician agrees that the author is "authoritative."
office should comply with state law regarding what must 5. The clinician should not argue unnecessarily with
be provided (usually copies of care and treatment records, the other a m n e y . The clinician's temper should
not the originals). not be shown (this will only educate the clinician's
Patients sometimes request the original chart and radio- adversary as to what will upset the clinician ir
graphs for a variety of reasons. The law in many states front of a jury, who will expect the dentist to P
indicates that the dental office owns the records and has professionally).
a legal obligation to maintain original records for a spec- 6. The advice of the clinician's lawyer should $
ified period. Patients are entitled to a legible copy, and lowed. (Even if retained by the insurance comp,
dental offices are entitled to a reasonable reimbursement the attorney is required to represent the clinicia,
for the same. Patients do not own the records merely interests, not that of the insurance company o
because they paid for care and treatment. anyone else.)
Second, the dentist and staff should not discuss the Most anxiety related to litigation comes from the fear
case with the patient (or representative of the patient) of the unknown. Most dental practitioners have limited
once a lawsuit is threatened or made. All requests for or no exposure to litigation. It must be kept in mind that
information or other contact should be forwarded to the dentists prevail in most cases. Only about 10%of cases go
carrier or attorney representing the dentist. All arguments to trial, and dentists win well over 80% of these cases.
with the patient or representative should be avoided. The Unfortunately, a malpractice trial requires a tremendous
dentist must not admit liability or fault or agree to waive investment of time, energy, and emotion, all of which
fees. Any such statement or admission made to the detracts from patient care. Most dentists have no choice;
patient or patient's representative may be used against they must defend themselves. Dentists who are prepared
the dentist later as an "admission against the dentist's and who possess reasonable expectations of each step of
interest." the litigation process usually experience less anxiety.
Third, it is imperative that no additions, deletions, or
changes of any sort be made in the patient's dental
MANAGED CARE ISSUES - - -
record. Records must not be misplaced or destroyed. The *

clinician should seek legal advice before attempting to The influence of managed health care has greatly
clarify an entry. changed many aspects of dentistry. This includes the
During the process of malpractice litigation, dentists doctor-patient relationship and the way decisions are
may be called to give a deposition. This may be as the made regarding which treatment alternatives are most
 Mrriicole,yal Considrmtions . CHAPTER 12 245

appropriate. Dentists are often placed in the middle of a ing whether this relationship exists, however, is n o
conflict between a desire to provide optimal treatment longer a simple task. The advent of internet marketing,
and a health care plan's willingness to approve appropri- telemedicine and other modes of providing information
ate, needed care. or advice through an electronic media, without the direct
Traditionally, the patient chose whether to elect a ability to examine, diagnose, and recommend treatment,
compromised treatment plan or even n o treatment. has clouded the issue of whether a doctor-patient rela-
Under managed care, however, some patients are being tionship (and a legal duty owed to a particular patient)
forced to accept compromised treatment or n o treatment, exists. Courts in several states are beginning to make deci-
based on administrative decisions that may be driven sions that may provide some guidance related to these
more by cost containment pressures than sound dental evolving issues, although controversy still exists. For
judgment. example, a recent court decision has determined that a
In some cases a "gag provision" is included in a den- physician who consults with a treating physician over the
tist's contract with a managed care organization. This pre- telephone owes no legal duty to the treating physician's
vents the dentist from criticizing managed care organiza- patient when treatment options were relayed during a
tions and sometimes prevents a dentist from presenting telephone call." However, another court recently ruled
an alternative for care not covered by the third party that a doctor-patient relationship could be implied when
provider. This obviously creates a conflict between a con- an on-call physician is consulted by telephone by an
tractual agreement with the company and the ethical and emergency department physician who relied upon the
professional responsibility of the dentist to the patient. In consulting physician's a d ~ i c e . ~
some states this provision is illegal and unenforceable. Defining clear rules that can be relied upon by practic-
In 1995 the American Dental Association (ADA) Coun- ing dentists who provide direct or indirect advice over the
cil on Ethics, Bylaws, and Judicial Affairs issued the fol- telephone, Internet, or through web sites, will not be an
lowing statement underscoring dentists' obligation to easy task. Many questions remain unanswered. Do the
provide appropriate care: laws of the state in which the patient lives or those in
Dentists who enter into managed care agreements may be which the dentist practices actually control this issue? Is
called upon to reconcile the demands placed o n them to the dentist practicing dentistry in another state without a
contain costs with the needs of their patients. Dentists license? Is the advice offered by electronic means intend-
must not allow these demands to interfere with the ed for general information and not intended to be relied
patient's right to select a treatment option based on upon by patients or the treating dentist for specific care?
informed consent. Nor should dentists allow anything to Will the electronic transfer of the information such as the
interfere with the free exercise of their professional judg- patient's chart or billing information violate state or fed-
ment or their duty to make appropriate referrals if indi- eral privacy laws? Can the dentist protect the informa-
cated. Dentists are reminded that contract obligations d o tion from manipulation or misuse if sent electronically?
not excuse them from their ethical duty to put the
patient's welfare first.2
Over the coming years it, will be extremely important
for practitioners to monitor trends in dental care as the
Dentists may have a responsibility to advise patients Internet, information storage and transfer, and doctor-
that a "compromised" treatment plan has been approved patient relationships are affected by advancing technolo-
by the managed care organization. The dentist should gy. Current federal rules governing the electronic mainte-
seek the patient's consent to provide such treatment after nance and transfer of records are provided in detail in the
the pertinent risks, complications, and limitations have Healthcare Insurance Portability & Accountability Act
been reviewed, along with an explanation of more opti- (HIPPA).
mal treatment options. Dentists should consider advising
in written form both patients and third party payers of
SUMMARY
reasonably expected outcomes when the appropriate
treatment is not available because of improper decisions In addition to providing sound technical care, the den-
by third providers. tist must address several other aspects of patient care to
minimize unnecessary legal liability. The dentist should
develop the best possible rapport with patients, through
Telemedicine, Electronic Records, and the Internet improved communication and by providing any infor-
Recent technologic developments have induced changes mation that may enhance patient understanding of
associated with medical and dental practices. The increas- treatment. Adequate documentation of all aspects of
ing popularity of computers and the Internet has given patient care is also necessary. Clinicians face a constant
birth to new potential duties and liability concerns. Dig- struggle to document quality care and advice to the
ital imaging and radiology, combined with the Internet patient. The law only requires that such efforts be rea-
capabilities for communication and even video confer- sonable, not perfect.
encing, has created situations where patients may receive This chapter is intended to provide suggestions to be
advise without the traditional doctor-patient interaction. considered by individual dentists. It is not intended to
The conversion to electronic rather than paper charts is a establish, influence, or modify the standard of care. Med-
growing technology, with many potential applications ical and dental malpractice laws vary from state to state.
for a modern dental practice. When confronted with medicolegal issues, all health care
A dentist's legal duty to a patient is currently linked to providers should consult local counsel familiar with the
the existence of a doctor-patient relationship. Determin- laws and regulations that apply in their jurisdiction.
246 PART I1 Principles of Exodontia

REFERENCES -
BIBLIOGRAPHY
1. Americans with Disabilities Act of 1990, 42 USC, section AAOMS Mutual Insurance Company: Risk retention grolrp: the
12101. informed consent process, Rosemont, 111, 1994, The Company.
2. ADA Counsel on Ethics, Bylaws, and Judicial Affairs: How to Golder D: Practicing dentistry in the age of telernedicine, ]ADA
reconcile participation in managed care plans with their eth- 131:734-744, 2000.
ical obligations, ADA News, Feb. 6, 1995, p 12. Nora RL: Dental malpractice: its causes and cures, Qlrintessence
3. Hill v Koksky, 186 Mich App 300, 1993. 111t17:121, 1986.
4. Oja v Kin, 229 Mich App 184, 1998. Physicians Insurance Company of Michigan: lrzforrned consent
pnckoge for dentists, Detroit, Mich, 1994, The Company.
Small RL: How to avoid being sued for malpractice, Mich Dent
Assoc 75:45, 1993.
Sfikas PM: Teledentistry: legal and regulatory issues explored,
]ADA 128:1716-1718, 1997.