Risk Management Helping to Prevent Dental Malpractice Lawsuits

1. Risk ManagementHelping to Prevent Dental MalpracticeLawsuits

2. Risk Management a 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

3. To Earn 2 hours of CE Credit • View this power point presentation • Go to http://tndaa.org/tndaa/CADAS.html and Click on “Post-Course Exercise” • Complete the post-course exercise. • Return the first page of the post-course exercise with $30 (FREE for students, ADAA members) • Allow 2 weeks for your certificate to arrive via USPS

4. 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.

5. 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.

6. Malpractice • Just 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 reason • Disclaimer – 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.

7. Understanding Malpractice • The following four conditions must exist for a malpractice lawsuit to be successful • DUTY • DERELECT (commission or omission) • DAMAGES • DIRECT CAUSE 1

8. 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

9. 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.

10. 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

11. Areas of vulnerability Dental 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.

12. Area of Vulnerability #1: The health history is not clearly documented or updated regularly

13. What you can do • The 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.

14. What you can do • Keep 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

15. What you can do • Update 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.

16. Area of Vulnerability #2: Failure to Diagnose

17. What you can do • Only 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)

18. What you can do • Know 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

19. What you can do • Document 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

20. What you can do • Thoroughly 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)

21. Area of Vulnerability #3: Adverse Results

22. What you can do • Help prevent • “wrong tooth” cases • allegations 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”.

23. Area of Vulnerability #4: Failure to Obtain Informed Consent

24. What you can do • The consent form should include information regarding: • A description of the proposed treatment • Benefits and consequences • Common and severe risks • Reasonable alternatives, including the risks and benefits of each • The patient’s financial obligations

25. What you can do • Know 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.

26. What you can do • Informed 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.

27. What you can do • It is best to obtain written consent for all procedures, but patients must sign a written consent when • New drugs are used • Experimental procedures of clinical testing is involved • The patients’ identifiable photograph is used • General anesthetic is administered • Minors are treated in a public program • Treatment takes more than one year to complete

28. Area of Vulnerability #5: Failure to Refer

29. What you can do • It 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 must • Make sure the patient understands to whom he is being referred and why • If 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

30. Area of Vulnerability #6: Anesthesia Complications (Particularly with Sedation or General Anesthesia)

31. What you can do • Be 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 telephone • Have emergency plans in place and practice.

32. What you can do • Document health history update at every visit • Obtain baseline vital signs and monitor vital signs continuously • Have physician information readily available • Be 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)

33. What you can do • Document types and amounts of anesthesia and other medications • Remember that dental assistants can not administer nitrous oxide • Never leave a patient who has been sedated unattended. • Thoroughly document all incidents • Provide oral and written post-operative instructions to patient and care-giver prior to dismissal • Record patient status upon dismissal

34. Area of Vulnerability #7: Failure to Appropriately Treat Medically Compromised Patients

35. What you can do • Update 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

36. What you can do • Become 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

37. Area of Vulnerability #8: Equipment Failure

38. What you can do • Learn 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

39. Area of Vulnerability #9: Auxiliary Performance Causing Claim

40. What you can do • Never 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 treatment • Be gentle when retracting lip, tongue, cheek during dental procedures.

41. What you can do • Intercept sudden movements by patient • Transfer 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.

42. Area of Vulnerability #10:

43. Understanding abandonment: • Abandonment - the discontinuation of care after treatment has begun, but before it has been completed. Abandonment includes • Refusing 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)

44. What you can do • Be 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.

45. What you can do • ONLY the dentist can decide to dismiss a patient! To properly dismiss a patient, • The dentist must notify the patient in writing • The 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).

46. Area of Vulnerability #11: Errors in the Treatment Record

47. Types of Errors in the Treatment Record: • Failure to document: • Treatment plan • Health history and updates • Informed consent and informed refusal • Patient Assessment (SOAP notes) • Treatment rendered • Reasons for deviation from the original treatment plan • Telephone conversations with patient

48. Types of Errors in the Treatment Record • Failure to document , continued • Pre and post operative instructions • Routine full-mouth periodontal and oral cancer screenings • Referral to or consultation with another practitioner • Prescription orders • name and relationship of the person giving consent is for minors or patients who are incapacitated

49. Types of Errors in the Treatment Record: • Words, symbols, or abbreviations are ambiguous • Records are not legible (a sloppy record implies a sloppy dentist!) • Insufficient records given the complexity of the issue • Comments about the cost of treatment and the patient’s payment history included in treatment record • X-rays were inadequate for the procedure

50. Types of Errors in the Treatment Record • Alteration of records • Lost records/x-rays • Records not written in ink • Record 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