Transcript Slide 1

Risk Management
Helping to Prevent
Dental Malpractice
Lawsuits
Risk Management
a 2 hour Continuing Education course sponsored by the Chattanooga
Area Dental Assistants Society
and presented by
Karen Castleberry, CDA, RDA, BS
Associate 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 Credit
1.
2.
3.
4.
5.
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
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.
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.
Understanding Malpractice
 The following four conditions must exist for a
malpractice lawsuit to be successful
 DUTY
 DERELECT (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 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.
Area of Vulnerability #1:
The health history is not clearly
documented or updated regularly
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.
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
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.
Area of Vulnerability #2:
Failure to Diagnose
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)
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
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
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)
Area of Vulnerability #3:
Adverse Results
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”.
Area of Vulnerability #4:
Failure to Obtain
Informed Consent
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
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.
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.
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
Area of Vulnerability #5:
Failure to Refer
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
Area of Vulnerability #6:
Anesthesia
Complications
(Particularly
with Sedation
or General
Anesthesia)
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.
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)
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
Area of Vulnerability #7:
Failure to
Appropriately
Treat
Medically
Compromised
Patients
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
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
Area of Vulnerability #8:
Equipment Failure
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
Area of Vulnerability #9:
Auxiliary
Performance
Causing
Claim
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.
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.
Area of Vulnerability #10:
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)
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.
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).
Area of Vulnerability #11:
Errors in the Treatment Record
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
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
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
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
What you can do
 Each 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 do
 Progress 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 do
 Never 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 do
 Disposal of records
 Keeping patent records forever in impractical.
 Only the dentist may authorize the destruction of
records
 Follow 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 do
 Disposal 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 records
 Shred or burn records to preserve confidentiality
Area of Vulnerability #12:
Allowing
hazards to
exist
What you can do
 Create a safe environment for your patients
 Provide patients with protective eyewear;
protect their clothing and personal articles.
 Keep spills cleaned up to avoid slipping and
falling
 Keep pathways free of obstructions (electrical
wires, vacuum hoses, x-ray machines, boxes,
etc.)
 Secure rugs to prevent slippage and falls
What you can do
 Understand 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.
Conclusion
 Some 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 information
 Remember 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.
2.
3.
4.
5.
6.
7.
8.
Bird, Doni L. and Robinson, Debbie S., Modern Dental Assisting, Ninth ed. 2009,
Saunders/Elsevier Publishing Co., St. Louis
Dental Malpractice by Levin & Perconti, August 14, 2008
http://medicalmalpractice.levinperconti.com/103dental_malpractice/
ADA Survey http://www.ada.org/prof/resources/topics/riskmanagement_survey.pdf
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
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
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
Graskemper, Joseph P., DDS, JD, “A New Perspective on Dental Malpractice; Practice
Enhancement through Risk Management”, JADA, Vol. 133, June 2002, 752-757
Risk Management
Helping to Prevent
Dental Malpractice
Lawsuits
Part II - Applications
To Earn 2 hours of CE Credit
You 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
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