Risk ManagementHelping to Prevent Dental MalpracticeLawsuits

Risk Managementa 2 hour Continuing Education course sponsored by the Chattanooga Area Dental Assistants Society

and presented byKaren Castleberry, CDA, RDA, BSAssociate Professor, Chattanooga State Community College

CADAS is approved by the Tennessee Board of Dentistry as a CE provider for dentists, dental hygienists, and dental assistants

To Earn 2 hours of CE Credit1. View this power point presentation2. Go to http://tndaa.org/tndaa/CADAS.html

and Click on “Post-Course Exercise”3. Complete the post-course exercise.4. Return the first page of the post-course

exercise with $30 (FREE for students, ADAA members)

5. Allow 2 weeks for your certificate to arrive via USPS

Introduction:While the dentist is ultimately responsible for patients in his/her care, dental auxiliaries must constantly be aware of the need to take extra care to protect their dentist/employer from liability.

Goals of this course:to enable dental auxiliaries to help prevent

unnecessary malpractice lawsuits in the dental practice

to identify opportunities to improve the quality of patient care.

to stimulate thought and trigger discussion among the dental team members

and to increase awareness of vulnerabilities in your practice.

MalpracticeJust the fact that a patient takes legal action

against your dentist/employer – does not mean your dentist has done anything wrong.

Anyone can sue anyone for any reasonDisclaimer – this presenter is not an expert in

dental jurisprudence and completion of this course offers no guarantee of protection from lawsuits. But by increasing awareness and using common sense, we can be an asset in the event that litigation does occur.

Understanding MalpracticeThe following four conditions must exist for a

malpractice lawsuit to be successfulDUTYDERELECT (commission or omission)DAMAGES DIRECT CAUSE 1

An Example:“Settlement Reached in Death at Dental

Office” – Aug. 2008

A settlement was reached in a wrongful death case in which a high school principal died during a routine dental procedure in Chicago, IL. The patient was over medicated while undergoing a routine procedure and was not monitored properly. The doctors performing the procedure are currently on probation and the dental office will pay $8.5 million to settle this medical malpractice and wrongful death lawsuit.3

An Example, cont:In this case, a dentist/patient relationship had been established, and clearly there was a DUTY owed. A DERELECT OF DUTY occurred when the dentist committed the error of over medicating the patient and omitted, or failed to provide proper monitoring of the patient. The patient suffered DAMAGES (death), and the DIRECT CAUSE of the patient’s death was the dentist’s dereliction of duty.

Identifying Areas of Vulnerability

The “Areas of Vulnerability” discussed in this course were identified using the results of a 2005 survey conducted by the ADA on the frequency, severity and causes of dental malpractice claims reported between 1999 and 2003. Fifteen dental professional liability insurers participated and together they insured nearly 104,600 licensed dentists. The survey also identified errors or inadequacies in the patient record preventing successful defense against unfounded allegations of malpractice.4

Areas of vulnerabilityDental auxiliaries can minimize risks by recognizing these area of vulnerability and identifying ways to help protect their employer/dentists and their patients from these risks.

Twelve broad categories are discussed here.

Area of Vulnerability #1:The health history is not

clearly documented or updated regularly

What you can doThe medical history form should include

Complete physician information (Leave no blanks!)

Complete name and dose of all medications including non-prescription, herbal supplements, and recreational. Ask patients to bring Rx bottles.

A statement that the information supplied by the patient is accurate and complete, and the patient should sign and date the form.

What you can doKeep in mind, the patient may not be

able to read the health history and other forms.About 14 percent of U.S. adults, or 1 in

7, can’t read.5

Nearly one in five uses a language other than English.6

What you can doUpdate the Health History at every visit

and document this in the treatment record or on a separate form. Have the patient sign and date the documentation.

Take the patient's blood pressure before treatment begins.

Area of Vulnerability #2:Failure to Diagnose

What you can doOnly the dentist can diagnose and

recommend treatment, but the well-trained dental auxiliary must be able to anticipate the diagnosis and treatment.

The dental auxiliary must be able to provide the dentist with quality diagnostic aids. (a variety of radiographic surveys, study models, charting, etc)

What you can doKnow that patient refusal to have x-rays does

not relieve the dentist of the responsibility to diagnose, even if patient signs a waiver

Document all radiographic exposures and other diagnostic tests and record the dentists findings in the patient treatment record

Retain “before” and “after” study models

What you can doDocument that the health history was

reviewed at every visit.

Listen to the patient

Recognize signs and symptoms of oral cancer and report suspicious lesions to your dentist immediately; document the dentist’s preliminary findings

Provide patient literature and encourage frequent self-exams

What you can doThoroughly interview the patient

regarding the “chief complaint” and document using SOAP notes.

S = Subjective. (symptoms described to you by the patient – ask questions!)

O = Objective. (signs you can observe clinically)

A = Assessment. (diagnosis) P = Plan. (treatment plan)

Area of Vulnerability #3:Adverse Results

What you can doHelp prevent

“wrong tooth” casesallegations of assault (physical restraint, sexual

assault)small items from being swallowed or aspirated

Never make promises or guarantee your dentist’s work.

Refrain from offering a prognosis you are not qualified to make, like “it’s probably nothing” or “you’re going to be ok”.

Area of Vulnerability #4:Failure to Obtain

Informed Consent

What you can doThe consent form should include

information regarding:A description of the proposed treatment Benefits and consequences Common and severe risksReasonable alternatives, including the

risks and benefits of each The patient’s financial obligations

What you can doKnow that it is not always enough to obtain a

patient signature on a form– the patient must understand what he/she is signing! The dentist or the auxiliary must explain the terms of the consent form.Make use of patient education brochures and

videos Be familiar enough with procedures that you

can give the patient adequate information Allow time for questions and answers, and if

you don’t know the answer, ask the dentist.

What you can doInformed consent for minors

For minor children, the parent, custodial parent, or legal guardian must give consent.

When parents live separately, the child’s personal information form should indicate which of them is the custodial parent.

When separated parents share custody, the child’s record should contain letters from each providing consent and authorization to treat.

What you can doIt is best to obtain written consent for all

procedures, but patients must sign a written consent when New drugs are usedExperimental procedures of clinical testing is

involvedThe patients’ identifiable photograph is usedGeneral anesthetic is administeredMinors are treated in a public programTreatment takes more than one year to complete

Area of Vulnerability #5:Failure to Refer

What you can doIt is possible that the patient might not understand that

he has been referred to a specialist, nor the importance of complying with the referral. The auxiliary mustMake sure the patient understands to whom he is

being referred and whyIf possible, telephone and make the appointment for

the patient. Provide the patient with the name, address, telephone

number and a map to the dentist to whom you are referring and the date and time of the appointment.

Document the referral in the patient’s treatment record

Area of Vulnerability #6: Anesthesia Complications (Particularly with Sedation

or General Anesthesia)

What you can doBe prepared for emergencies!

Keep AED and emergency kit current and readily available.

Check respiratory devices for aging.Keep a log of monthly reviews of emergency kit

and equipment.Maintain current CPR training; seek and

document additional related training Post emergency information beside each

telephoneHave emergency plans in place and practice.

What you can doDocument health history update at every visit Obtain baseline vital signs and monitor vital signs

continuouslyHave physician information readily availableBe familiar with patient medical conditions and

medication side effects, interactions, etc. and alert dentist

Confirm pre-op and post op instructions (NPO, Driver, prophylactic antibiotics, if indicated, etc)

What you can doDocument types and amounts of anesthesia

and other medicationsRemember that dental assistants can not

administer nitrous oxideNever leave a patient who has been sedated

unattended.Thoroughly document all incidentsProvide oral and written post-operative

instructions to patient and care-giver prior to dismissal

Record patient status upon dismissal

Area of Vulnerability #7:Failure to

Appropriately Treat

Medically Compromised Patients

What you can doUpdate health history and update it at

each visit. Confirm that the patient has taken all

recommended pre-medication(s) including prophylactic antibiotics

Provide physician contact information if consultation is necessary

“Flag” the treatment record and alert the dentist to the patient’s special needs

What you can doBecome familiar with medical conditions that

affect dental treatment such as patient positioning, length of procedure, need for assistance, etc.

Keep a current PDR or other drug reference book nearby

Rehearse transferring a patient from a wheelchair or other device to the dental chair to prevent patient injury from falls

Offer assistance to patient who might need help

Area of Vulnerability #8:Equipment Failure

What you can doLearn the proper care and maintenance of

equipment used in dental procedures.Inspect equipment regularly and maintain a log of

the inspections. Look for wear, frayed cords, deteriorated rubber or plastic parts

Report malfunctions to the dentist immediately.Keep a report of service on major pieces of

equipment.Routinely use biologic monitors to document the

effectiveness of sterilization equipment and keep the results in a log

Area of Vulnerability #9:Auxiliary

Performance Causing

Claim

What you can doNever exceed the your Scope of Practice by

performing procedures that are not legal. (practicing dentistry without a license and can jeopardize your dentist/employer’s license)

Maintain current knowledge in field Never diagnose or recommend treatmentBe gentle when retracting lip, tongue,

cheek during dental procedures.

What you can doIntercept sudden movements by patientTransfer instruments only in the transfer zone and

place instruments firmly in the dentist’s hand. Retrieve instruments firmly as well.

Be familiar with products and materials to avoid injury caused by misuse

Maintain professional interpersonal relationships, rapport with Dr., patients, and staff

Never make critical remarks about dental treatment rendered by your employer or another dentist.

Area of Vulnerability #10:

Understanding abandonment:Abandonment - the discontinuation of care

after treatment has begun, but before it has been completed. Abandonment includesRefusing to treat a patient of record

without giving the patient a written notification of termination

Failure to notify patients who will treat them in an emergency if the dentist is not available. (After hours, even deceased dentists)

What you can doBe certain you understand who is

“covering for” your dentist and have contact information.

Make sure to activate the answering service or to leave an emergency contact number on the office voice mail.

Never refuse to see patients of record – even if they owe the dentist for previous services.

What you can doONLY the dentist can decide to dismiss a

patient! To properly dismiss a patient, The dentist must notify the patient in writingThe patient must be given a reasonable time

to obtain a new or substitute practitioner, usually 30 days.

The dentist must be available to provide the patient with emergency care during that time,

The dentist must cooperate in the care by the new practitioner (forward records).

Area of Vulnerability #11:Errors in the Treatment

Record

Types of Errors in the Treatment Record:Failure to document:

Treatment planHealth history and updatesInformed consent and informed refusalPatient Assessment (SOAP notes)Treatment renderedReasons for deviation from the original

treatment planTelephone conversations with patient

Types of Errors in the Treatment RecordFailure to document , continued

Pre and post operative instructionsRoutine full-mouth periodontal and oral cancer

screeningsReferral to or consultation with another

practitionerPrescription ordersname and relationship of the person giving

consent is for minors or patients who are incapacitated

Types of Errors in the Treatment Record:Words, symbols, or abbreviations are

ambiguousRecords are not legible (a sloppy record

implies a sloppy dentist!)Insufficient records given the complexity of

the issueComments about the cost of treatment and

the patient’s payment history included in treatment record

X-rays were inadequate for the procedure

Types of Errors in the Treatment RecordAlteration of recordsLost records/x-raysRecords not written in inkRecord contains notes related to discussions

with an attorney or insurer regarding a possible malpractice lawsuit

Critical or subjective personal comments about the patient in the chart.

Deletions, additions, or corrections are not made properly in patient records

What you can doEach entry must be dated and initialed by the

person making the entry and, if the entry involved clinical treatment, the dentist’s initials must be included.

Also document refusal of treatment, broken or canceled appointments, when the patient discontinues treatment. This information can be useful in documenting “contributory negligence”.

Have the dentist review, initial and date correspondence, lab reports, etc, before filing the form in the patient record

What you can doProgress notes must include all pertinent

information related to the procedure performed.

It is better to record too much information than too little. Bottom Line: If it is not in the chart, it didn’t happen!!

What you can doNever erase, white out, scribble over,

obliterate, remove or change a chart entry. If an error occurs, correct it properly by making a single line through the error, make the correct entry, and initial and date the correction.

Electronic data management systems tracks changes. You may update the record by making late entries, but the original information should not be changed. Back up electronic data regularly.

What you can doDisposal of records

Keeping patent records forever in impractical. Only the dentist may authorize the destruction of

recordsFollow your sate’s recommendations regarding

the retention of medical/dental records. For example, under Tennessee law, the patient record must be kept for ten years after the last patient visit. The medical record for minors must be kept for one year after they reach the age of majority or for ten years after the last patient contact, Whichever is longer. 6

What you can doDisposal of records, cont.

X-rays and other imaging products may be destroyed after four years, but only of there is a separate report interpreting the images.6

Patient records that are in dispute must be retained until the dispute is resolved, or the above rules have been met, whichever is longer.6

Keep a log of destroyed recordsShred or burn records to preserve

confidentiality

Area of Vulnerability #12:Allowing hazards to exist

What you can doCreate a safe environment for your patientsProvide patients with protective eyewear;

protect their clothing and personal articles.Keep spills cleaned up to avoid slipping and

fallingKeep pathways free of obstructions

(electrical wires, vacuum hoses, x-ray machines, boxes, etc.)

Secure rugs to prevent slippage and falls

What you can doUnderstand risks associated with equipment

and materials such as lasers, electrocautery devices, tooth whitening devices, exothermic materials, etc, and take appropriate precautions

Design emergency plans and periodically schedule “drills” to manage medical emergencies, special needs of medically compromised patients, fires or natural disasters; post evacuation routes.

Never treat patients if you are impaired by drugs or alcohol.

ConclusionSome areas of vulnerability for dentists are somewhat

beyond the control of the dental auxiliaries. We should always strive to be alert to what is being done or said so we can accurately relay the information in the event we are asked to give a deposition.Avoid opinions – state the facts!Wait to be asked – do not volunteer any informationRemember the doctrine of Res Gestae, meaning, “Part of

the Action”Statements made spontaneously by anyone (including the

dental auxiliary) at the time of an alleged negligent act are admissible as evidence and may be damaging to the dentist and dental auxiliary in a court of law.

“Silence is Golden” – avoid “oops” and “Uh-oh’s” and even “Sorry’s”

Risk management not only improves patient care and reduces risk exposure, but it also brings the dental team together in an effort to improve patient care.

Sources:1. Bird, Doni L. and Robinson, Debbie S., Modern Dental Assisting, Ninth ed.

2009, Saunders/Elsevier Publishing Co., St. Louis2. Dental Malpractice by Levin & Perconti, August 14, 20083.

http://medicalmalpractice.levinperconti.com/103dental_malpractice/4. ADA Survey

http://www.ada.org/prof/resources/topics/riskmanagement_survey.pdf5. Britt, Robert Roy, “14 Percent of U.S. Adults Can't Read, posted: 10 January

2009 12:23 pm ET, http://www.livescience.com/culture/090110-illiterate-adults.html

6. Non-English speaking households on rise: While Spanish is still the most common, Russian and Chinese are also one the rise. Associated Press, Published October 9, 2003, http://www.sptimes.com/2003/10/09/Worldandnation/Non_English_speaking_.shtml

7. Schwab, Carol A., JD , et al,“Legal Issues in Health Care, Medical Records”, UT Health Science Center, Dec. 2007 http://www.utmem.edu/Medicine/legaledu/UT/factsheets/MedicalRecords.pdf

8. Graskemper, Joseph P., DDS, JD, “A New Perspective on Dental Malpractice; Practice Enhancement through Risk Management”, JADA, Vol. 133, June 2002, 752-757

Risk ManagementHelping to Prevent Dental MalpracticeLawsuits

Part II - Applications

To Earn 2 hours of CE CreditYou are now ready to complete the post-course exercise. Go to http://tndaa.org/tndaa/CADAS.html and click on post-course exercise. Follow the instructions on the cover page.

Thank you for supporting the Chattanooga Area Dental Assistants Society, a component society of the American Dental Assistants Society

For more information about membership in the American Dental Assistants

Association, visit www.dentalassistant.org

Join Today!