Written by Don Morse, DDS, PhD Monday, 01 March 2004 00:00
The first step in malpractice prevention is to get a good malpractice carrier. This is getting to be more difficult with malpractice carriers abandoning states such as New Jersey and Pennsylvania, and those that remain in the business are raising premiums. Nevertheless, good carriers that charge reasonable rates are still available in most states. Regardless of the huge award in the case report described in Part 1 of this article, the difference between medical and dental malpractice is that the claims are usually much smaller in dentistry, with the average claim being between $12,000 and $15,000 in one state.1
With most dental malpractice insurers, the typical policy is $1 million to $3 million, with $1 million per occurrence for a maximum of $3 million. To increase the policy from $2 million per occurrence for a maximum of $6 million, the cost is generally minimal. If a general dentist performs a great deal of surgery or extensive surgery, places implants, or uses general anesthesia, he or she would need the higher limits.
There are certain questions you should ask of your malpractice carrier.
(1) Is there a consent to settlement clause? Does the dentist have to agree with the carrier? Can the dentist be the one to give consent to settle the case?
(2) While some companies will agree to a dentist giving consent, the dentist could be held liable for anything over and above the clause.
(3) Will the dentist be forced to stick with binding arbitration?
Even if a dentist has a good malpractice carrier, he or she should not be lulled into a false sense of security, because company lawyers will be able to defend only the dentist who adequately protects himself or herself by doing proper diagnosis and treatment; using up-to-date methods, standards of care, supplies, and equipment; obtaining the patient’s informed consent; keeping proper records, radiographs, study models, and photographs (when needed); and performing proper infection control techniques.
Once the dentist has a carrier, malpractice prevention begins with the first contact with the patient, which could be either an initial telephone conversation or a face-to-face contact between the receptionist and patient. Confrontation always should be avoided; a calm, reassuring manner is essential. This tranquil demeanor must continue with all contacts between the patient and the dentist and dental staff.
DIAGNOSIS AND TREATMENT PLANNING
It is essential that you do a complete and accurate diagnosis, which includes taking all necessary radiographs. Failure to diagnose dental caries, periodontal disease, periapical pathosis, temporomandibular joint dysfunctions, and oral lesions such as carcinoma, can lead to loss of teeth, facial deformities, serious repercussions, and malpractice suits.
In contrast, when you find evidence that a previous dentist was guilty of gross negligence that has led to serious repercussions, then you must inform the patient.
This might initiate a malpractice suit against the previous dentist. However, if at all possible, you should try to put yourself in the other dentist’s place. Perhaps the patient was extremely uncooperative or had a medical condition that didn’t allow for proper diagnosis and treatment. Hence, don’t immediately blame the other dentist. However, if it is definite that there were no extenuating circumstances for the incompetent work, then the patient must know. A dentist who is guilty of gross negligence, with no clinical reason for the performance, is incompetent and should have to suffer the consequences of the indefensible work.
Taking a comprehensive history, both oral and systemic (including drug intake), is essential. If you fail to ask about allergies and it turns out that the patient is allergic to penicillin, and you prescribe it with a resultant severe allergic reaction, you have no recourse. Patients with a history of heart valve damage must be given prophylactic penicillin (if not allergic). Failure to elicit this from the history can lead to fatal subacute bacterial endocarditis as a result of surgical dental treatment without antibiotic coverage. These are just 2 examples of many possibilities.
Whenever possible, give alternative treatment plans, and tell the patient which ones you consider to be superior and for what reasons. Include financial and treatment sequelae in your treatment planning. Here are some examples:
(1) A fixed bridge is generally superior to a partial denture, but it is more expensive and more time consuming to prepare.
(2) Endodontic therapy is usually preferable to an extraction, but it is more expensive and usually takes more time to complete.
(3) Extractions followed by partial or full dentures are faster and easier to do than complete endodontic and periodontic therapy followed by fixed bridgework.
(4) Anterior crowns are generally more aesthetic, expensive, and time consuming to prepare than are veneers or bleaching.
(5) Implants, followed by fixed bridgework, are more expensive, more natural looking, and better performing than full dentures.
If a patient was not given a choice, and the inferior treatment failed, he or she might be inclined to sue the dentist for malpractice.
Once you make your treatment plan, make sure you accurately follow it. I have been involved in cases where dentists planned endodontics and extractions of certain teeth and then did those procedures on the wrong teeth. Make sure that your charting is correct and consistent because numbering systems vary (eg, 1 to 32 or 1 to 8 in 4 quadrants).
SUPPLIES, EQUIPMENT, AND TECHNIQUES
In an ever-changing world, it is imperative that you have the latest, most efficient, and most effective equipment; the safest and most advanced supplies; all necessary emergency equipment and supplies; the latest infection control and sterilization procedures; and that you learn approved techniques. In Malpractice,2 the dentist got into trouble because he used an antiquated nitrous oxide/oxygen analgesia machine.
AGREEMENTS WITH THE PATIENT
Although it may not always hold up in court, it is important to have the patient sign an informed consent agreement whenever you are doing a procedure that has potential serious side effects. The patients should know that teeth can fracture after endodontic therapy; pain and swelling can occur after endodontics, oral surgery, or surgical periodontics; bleaching is not permanent; implants can fail in time; decay can recur, especially if the teeth have had endodontic therapy; and general anesthesia can have serious side effects. In order not to frighten the patient with each of these considerations and others, the agreement should state the risk honestly. For example, the risk of paresthesia after endodontics on lower premolars and molars is rare, and this should be noted.
WHAT TO TELL THE PATIENT
Another major cause for a malpractice suit is failure to tell a patient about a procedural accident. A broken endodontic file in a root canal does not have to be a calamity. It is possible to bypass an instrument or surgically seal the apex. Many times a broken instrument causes no problems, but always tell the patient.
Malpractice cases have been lost because a dentist left a small instrument, a bur, a stone, or some material in a surgical site. If one of these occurrences takes place, and you are aware of it, inform the patient and refer the case to an oral surgeon.
If you break a root or fracture a jaw during an extraction, tell the patient and refer him or her to an oral surgeon, unless you have the skill required to remove the root. Repairing fractures is in the domain of an oral surgeon.
If you overfill a root canal, tell the patient. If it is not into an anatomically problematic region (eg, the overfill is merely into periapical bone), and the root canal(s) appears well obturated, tell the patient but do not alarm him or her. If needed, prescribe appropriate drugs (eg, analgesics, antibiotics) and contact the patient the next day via the telephone.
In contrast, if you overfill a root canal and it appears to be in the mental foramen or inferior alveolar nerve region, then you should not only tell the patient, but also make certain that the patient receives appropriate medications (eg, antibiotic, analgesic, corticosteroid).3 In this case, you should follow up the patient carefully, and refer him or her to an appropriate specialist if paresthesia develops. This is usually an oral surgeon, but an endodontic and ENT consultation may also be necessary. An overfill into the region of the maxillary sinus is usually not a problem, but here, too, the patient should be informed, given appropriate drugs (eg, antibiotics, analgesics), and followed up. Often the overfilled portion is eventually dislodged through the nasal cavities.
If during an extraction or surgical procedure injury occurs to a nerve such as the lingual, inferior alveolar, or mental (eg, paresthesia, loss of taste, unrelenting pain), tell the patient and refer him or her to an oral surgeon.
If during a dental procedure you cause an injury to soft tissue, such as the gingiva, alveolar mucosa, palate, tongue, cheek, or lip, do all you can to repair the damage. Tell the patient (although the patient will undoubtedly know about it), and if you cannot repair the damage, refer the patient to an oral surgeon.
The bottom line is, when a maloccurrence happens, tell the patient.
Always tell the patient about potential side effects of treatments in addition to having them sign an informed consent form (as described above).
All drugs have side effects. Make sure you tell the patient about potential side effects and drug interactions of all drugs that you have prescribed.
Never abandon a patient. If the 2 of you are incompatible, make sure you finish the specific treatment you started (eg, a root canal case). If the patient refuses treatment, then try to refer him or her to another dentist and make certain you write what transpired in the patient’s record.
THINGS TO DO AND NOT TO DO
Always have an assistant present when you are performing dental treatment. This is especially important when using sedation techniques. You do not want to be accused of attacking the patient.
Whenever you perform endodontics, use a rubber dam.4 This is true even if you use rotary instrumentation. The instrument can dislodge from the contra-angle. Almost nothing is more devastating to a dentist than to drop a file or reamer down a patient’s throat. It takes only a few seconds to put on a dam. Only considering the safety issues, a rubber dam prevents instruments, solutions, tooth parts, and debris from descending into a patient’s throat. Remember, the standard of care requires the use of a rubber dam during endodontic therapy.
Although some dentists use paraformaldehyde paste fillings (N2 type) successfully, many malpractice suits have been based on paresthesia related to overfills into the mental foramen and inferior alveolar canal. The best advice is don’t use paraformaldehyde pastes.
If you spill a solution on a person’s clothing, apologize and pay for the cleaning bill. If there is major damage to the article of clothing, pay for the replacement.
Never work on a patient when you are tired (either from lack of sleep or medications) or have had too much alcohol to drink. It might seem obvious, but I have seen malpractice cases that resulted from both of these conditions.
Only perform the procedures for which you feel qualified. If you do not like working on children, refer them to a pediatric dentist. The same is true for surgery, periodontal, rehabilitation, and orthodontic cases. Don’t attempt difficult third molar extractions unless you are competent. Don’t perform anything more than minor tooth movement unless you have had advanced orthodontic training. Remember, orthodontists also get sued for poor or unaesthetic results. Don’t attempt to change a patient’s bite or facial appearance unless you are well qualified. Dentists often get into trouble when they do cases that they should have referred out to specialists.
Don’t keep a patient in the chair for a prolonged period if at all possible. The patient can develop a stiff neck or back or other physical problem.
Don’t have a patient open the mouth wide for a prolonged period. You can cause or exacerbate a temporomandibular condition.
Never let a dental hygienist or dental assistant perform procedures that only a dentist is legally qualified to do. For example, assistants should not place temporary restorations unless the state’s dental practice law permits this.
Never let a dental staff member work on a patient when the dentist is not in the office.
Never guarantee a result. You have no control over what goes on inside a patient’s mouth.
If you are going to use nitrous oxide/oxygen, IV conscious sedation, or oral sedation in your office, make sure that a responsible adult accompanies the patient to and from the office. Driving under the influence of drugs can cause serious accidents. Always use a nitrous oxide scavenger system and have an assistant at the chair while you are working. With some individuals, the use of nitrous oxide either can sexually excite them or make them aggressive (as per the situation in Malpractice2).
If you have any indication that the patient might sue you, inform your malpractice carrier.
Never reimburse the patient for the treatment rendered unless you first talk the case over with your malpractice carrier. Reimbursing a patient often is considered to be an admittance of guilt.
Never write a letter of apology to the patient unless you first talk it over with your malpractice carrier.
Although some lawyers sue dentists for mercury or lead poisoning from the use of amalgam, proper use of amalgam is still not contraindicated. Hence, if you can perform good amalgam restorations, do not stop for fear of being sued.
Here’s a difficult one. If a patient owes you a relatively small amount of money in spite of repeated billings, and there is even a little doubt about the treatment you rendered, should you chalk it up and forget about it, or continue to bill or even send the case to a collection agency? From cases I’ve been involved in, patients tend to sue their dentists or threaten suits if they are repeatedly billed and fail to pay. Even though you may be completely right, is it worth the aggravation of a suit or potential suit just to collect a relatively small amount? I don’t think so. In contrast, if it is a large amount of money owed and your treatment was well done as far as you can determine, then I would try to collect regardless of the potentiality for a lawsuit.
RECORDS, RADIOGRAPHS, PHOTOGRAPHS, AND STUDY MODELS
One of the major causes of a malpractice suit is poor or incomplete records. As an expert witness in several malpractice cases, I have noted some blatant record mistakes. The most common problems I found were with the following:
•In an undecipherable handwriting. Always write clearly. Print if necessary.
•In pencil rather than ink. Pencil records are not usable.
•The wrong date on the chart. This can get the dentist into a lot of trouble.
(2) Erasing a previous statement: rather than erasing, the dentist should place a light line through the particular section and then add the new section followed by his or her initials.
(3) Not writing:
•the dose, amount, and type of local anesthetic used;
•the prescription for a particular drug given to the patient, usually an antibiotic or analgesic;
•about a broken root canal instrument occurrence;
•about an overfilled or underfilled root canal;
•about a filling, crown, or root fracture;
•about medication accidentally going into the patient’s mouth; and
•the patient’s reaction to treatment; eg, having numbness in an eye or a sharp, sudden pain after a local anesthetic injection. Failure to write down any of these can seriously harm the dentist in the case.
(4) Not asking if there has been any change in the patient’s medical history or drug intake since the last visit. If there has or has not been a change, that information should be noted in the chart. For example, a patient could become diabetic or suffer a heart attack since the last visit. This knowledge could become important in the planned treatment.
(5) Not making certain that the patient took a particular drug that was required before initiation of treatment. If the drug was not taken, then that should be noted in the chart, and the patient should be rescheduled. This is especially true for cardiac patients who require premedication with an antibiotic.
(6) Failure to keep records in the same folder in a secure place. A loss of part or all of a patient’s records, including radiographs, can be a disaster to the dentist. With the advent of computer technology, it is a good idea to have a backup of computerized records.
(7) Inaccurate charting of restorations, bridges, missing or extracted teeth, root canal fillings, and planned restorations, bridges, extractions, root canal fillings, etc.
I’ve seen patient records where the written statements and the chartings contradict each other. This is another impediment to defending a case successfully.
(8) Failure to write broken, late, or missed appointments in the chart. The reasons for the failed appointments also should be written down. This is important in case the patient claims he or she was at the office or gave a different reason for the failed appointment.
(9) Failure to write the result of conversations between the patient and receptionist, assistant, or dentist in the chart. Many times there is a great discrepancy between what the patient alleges was said and what the dental staff person remembers. If it is written down in the chart, that will help in the recall and also will help the dentist in a malpractice case if there is an untoward occurrence that might be partly the fault of the patient. Whenever possible, have the receptionist or assistant verify what is written in the chart.
(10) Failure to write in the chart that the patient was referred to a specialist for a particular treatment. Always write down the reason for the referral and to whom the patient was referred. It is also helpful if you call the specialist’s office and tell him or her who was referred and the reason for the referral. This is important because sometimes patients do not go for the referral and state that they were never told about it.
(1) Full mouth radiographs should be taken every 3 years and bite wings every 6 months with the fastest film and up-to-date equipment.
(2) Periapical radiographs should be taken before, during, and after completion of endodontic therapy; before and after extractions and other surgical procedures; and before, during, and after implant insertions.
(3) If in doubt, it is better to err on the side of taking too many rather than too few radiographs.
(4) Always use radiation protective shields on patients (lead apron and collar).
(5) Make sure that the radiographs are properly fixed and dried. If not, they can become discolored and stained with age, making them unusable. Digital radiography can overcome this problem.
“Before and after” photographs are very important whenever aesthetic and occlusal changes are anticipated. With my first personal case with Mrs. G, the photographs showed that an excellent aesthetic result occurred, and that the bite was not changed. With the advent of digital photography, the patient can see the photographs instantly. As with records and radiographs, it is important not to lose the photographs.
Whenever aesthetic and occlusal changes are anticipated, “before and after” study models also are very important. Again, with my first personal case with Mrs. G, the study models showed that an excellent aesthetic result occurred, and that the bite was not changed. Here, too, it is important not to lose or break the study models.
Perhaps the greatest source of stress for dentists is the threat or reality of a malpractice lawsuit. This 2-part article has discussed how to deal with a malpractice lawsuit if one occurs, and steps to take to help prevent malpractice lawsuits.
1. Mages M. Dental malpractice; Don’t get stuck without a carrier. AGD Impact. 2003; 31(2), http://www.agd.org/library/550/555/200302_mages.html. Accessed February 2003. Currently available at: http://www.agd.org/library/2003/feb/200302_mages.html.
2. Morse D. Malpractice. Baltimore, Md: PublishAmerica; 2003.
3. Morse DR. Endodontically-related inferior alveolar nerve and mental nerve paresthesia: Causes and treatments: areview of the literature and case reports. Compend Cont Educ Dent. 1997;18(10):963-968, 970-973, 976-978 passim; quiz 98.
4. Morse D. Clinical Endodontology: A Comprehensive Guide to Diagnosis, Treatment and Prevention. Springfield, Ill: CC Thomas; 1974:417-428.
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