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Full text of "Contemporary Oral and Maxillofacial Surgery,4th Ed Part II Principle of Exodontia"

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Medicolegal 
Considerations 








Richard L Small and Myron R. Tucker 



* • ■ 

' mi iimuM^ rii ii 




CHAPTER 



Chapter outline 



LEGAL CONCEPTS INFLUENCING LIABILITY 
RISK REDUCTION 

Patient Information and Office Communication 
INFORMED CONSENT 
RECORDS ANDDOCUMENTATION 
REFERRAL TO ANOTHER GENERAL DENTIST OR 

SPECIALIST 
COMPLICATIONS 



PATIENT MANAGEMENT PROBLEMS 

Noncompliant Patient 

Patient Abandonment 
COMMON AREAS OF DENTAL LITIGATION 
WHEN A PATIENT THREATENS TO SUE 
MANAGED CARE ISSUES 

Telemedicine, Electronic Records, and the Internet 
SUMMARY 



In recent years there has been an increase in the 
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- 
suits are related to extraction of the wrong tooth, failure 
to diagnose a problem, and lack of proper informed con- 
sent. The stress associated with the increased possibility 
of litigation influences the entire office. Malpractice 
insurance premiums are high, contributing to increased 
patient costs. Dentists feel pressured into practicing "de- 
fensive dentistry," second-guessing sound clinical deci- 
sions based on concerns about potential litigation. 

The influence of litigation on dentistry has resulted in 
an effort by the profession to reduce the risk of legal lia- 
bility by more closely examining treatment decisions, 
improved documentation, and better dentist-patient rela- 
tionships. Reviewing all aspects of dental practice to pro- 
vide the best possible patient care and to reduce unnec- 
essary legal liability is termed risk management. 



Although no substitute exists for sound clinical prac 
tice, nontreatment issues prompt many lawsuits. These 
often include miscommunication and misunderstanding 
between the dentist and patient and poor record keeping 
which in turn present opportunities for patient's lawyer, 
to criticize. This chapter reviews concepts of liability, risk 
management, methods of risk reduction, and actions that 
should be taken if a malpractice suit is filed. 

LEGAL CONCEPTS INFLUENCING LIABILITY 

To understand the responsibility of the dentist in risk 
management, it is important to review several legal con 
cepts pertaining to the practice of dentistry. 

Malpractice is generally defined as professional negli 
gence. Professional negligence occurs when treatment 
provided by the dentist fails to comply with "standards of 
care" exercised by other dentists in similar situations. In 
other words, professional negligence occurs when 
profes- 



238 



Medicolegal Cotfsidcrathm 



CHAJPTfcfi 22 



239 




sionals fail to have or exercise the degree of skill ordinar- 
ily possessed and demonstrated by members of their pro- 
fession practicing under similar circumstances. 

In most states the standard of care is defined by that 
which an ordinarily skilled, educated, and experienced 
dentist would do under similar circumstances. Many 
states adhere to a national standard for dental specialists. 
Malpractice occurs when the patient proves that the den- 
tist failed to comply with this minimal level of care, 
which resulted in injury. 

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- 
dard of care, (3) injury, and (4) the breach caused the 
injury. The burden of proving malpractice lies with the 
plaintiff (patient). The patient must prove by a prepon- 
derance of the evidence all four elements of the claim. 

First, there must be a professional relationship between 
the dentist and patient before a legal duty or obligation is 
owed to exercise appropriate care. This relationship can be 
established if the dentist accepts the patient or otherwise 
begins treatment. Second, a breach or failure to provide 
treatment that satisfies the standard of care must be 
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- 
tal school. The standard of care is intended to be a "com- 
mon denominator" defined by what average practitioners 
would ordinarily do under similar circumstances. Third, it 
must be shown that the failure to provide this standard of 
care was the cause of the patient's injury. Fourth, there 
must have been some form of damage demonstrated. 

Dentists are not liable for inherent risks of treatment 
that occur in the absence of negligence. For example, a 
dentist is not liable if a patient experiences a numb lip 
after a properly performed third molar extraction. This is 
a recognized complication. A dentist can be legally liable 
for a numb lip if the patient proves it was caused by neg- 
ligence (e.g., the numbness was caused by a careless inci- 
sion, careless use of a bur, or other instrument). 

Recently several suits have charged the dentist with 
breach of contract. This charge has traditionally been 
applied to business transactions and has not normally 
been used in disputes between patients and dentists. 
However, some courts have recently ruled that a patient 
and dentist may actually have a contractual agreement to 
produce a specific result, and that failure to achieve this 
objective may result in a breach of contract. In many 
states an alleged promise or guarantee as to the result is 
not enforceable unless it is in writing. Overly aggressive 
marketing can lead to contractual liability. 

Marketing pressures sometimes lead to written adver- 
tisements or promotions that can be interpreted as guar- 
anteed results. Patients who have difficulty chewing after 
delivery of new dentures, if originally promised that they 
would be able to eat any type of food without difficulty, 
might consider such promises breach of contract. Dissat- 
isfaction with esthetics or function is often linked to 
unreasonable expectations, sometimes fueled by ineffec- 
tive communication or excessive salesmanship. 

The statute of limitations generally provides a time limit 
for filing a malpractice suit against a dentist. This limit, 



however, varies widely from state to state. In some states 
the statute of limitations begins when an incident occurs. 
In other states the statute of limitations is extended for a 
short period after the alleged malpractice is discovered (or 
when a "reasonable" person would have discovered it). 

Several other factors can extend the statute of limita- 
tions in many states. These include children under 18 or 
the age of majority, fraudulent concealment of negligent 
treatment by the dentist or leaving a nontherapeutic for- 
eign object in the body (e.g., broken bur or file). 

RISK REDUCTION 

The foundation for all dental practice should be sound clin- 
ical procedures. However, properly addressing other aspects 
of patient care and office policy may considerably reduce 
potential legal liability. These aspects include dentist- 
patient and staff-patient communication, patient informa- 
tion, informed consent, proper documentation, and appro- 
priate management of complications. Additionally clini- 
cians should note that patients with reasonable expecta- 
tions and a favorable relationship with their dentist are less 
likely to sue and more likely to tolerate complications. 

Patient Information and Office Communication 

A solid dentist-patient relationship is key to any risk 
management program. Well-informed patients generally 
have a much better understanding of potential complica- 
tions and more realistic expectations about treatment 
outcomes. This can be accomplished by providing 
patients with as much information as possible on pro- 
posed treatment, alternatives and risks, and benefits and 
limitations of each. If done properly, the informed con- 
sent process can improve rapport. Patients are given this 
information to help them better understand their care so 
they can make informed decisions. The information 
should be communicated in a positive manner and not 
presented in a defensive way. 

Patients value and expect a discussion with their dentist 
about their care. Brochures and other types of informa- 
tional packages help provide patients with both general 
and specific information about general dental and oral 
surgical care. Patients requiring oral surgical procedures 
will benefit from information on the nature of their prob- 
lem, recommended treatment and alternatives, expecta- 
tions, and possible complications. This information should 
have a well-organized format that is easily understood and 
is written in nonprofessional's language. Informed consent 
is discussed in detail in the following section. 

When a dentist has a specific discussion with a patient 
or gives a patient an informational package, it should be 
documented in the patient's chart. Complications dis- 
cussed earlier can be reviewed if they occur later. In gen- 
eral, patients with reasonable expectations create fewer 
problems (a theme repeated throughout this chapter). 

INFORMED CONSENT 

In addition to providing quality care, effective communi- 
cation and good rapport should become a standard part 
of office management objectives. Dentists can be sued 



240 PART II 



Principles of Ex odm i tia 



not only for negligent treatment but also for failing to 
inform patients properly about the treatment to be ren- 
dered, the reasonable alternatives, and the reasonable 
benefits, risks, and complications of each. In fact, in some 
states, treatment without a proper informed consent is 
considered battery. 

The concept of informed consent is that the patient 
has a right to consider known risks and complications 
inherent to treatment. This enables the patient to make a 
knowledgeable, voluntary decision whether to proceed 
with recommended treatment or elect another option. If 
a patient is properly advised of inherent risks and a com- 
plication occurs in the absence of negligence, the dentist 
is not legally liable. However, a dentist can be held liable 
when an inherent risk occurs after the dentist fails to 
obtain the patient's informed consent. The rationale for lia- 
bility is that the patient was denied the opportunity to 
refuse treatment after being properly advised of risks asso- 
ciated with the treatment and reasonable options. 

Current concepts of informed consent are based as 
much on providing the patient the necessary information 
as on actually obtaining a consent or signature for a pro- 
cedure. In addition to fulfilling the legal obligations, 
obtaining the proper informed consent from patients 
benefits the clinician in several ways. First, well-informed 
patients who understand the nature of the problem and 
have realistic expectations are less likely to sue. Second, a 
properly presented and documented informed consent 
often prevents frivolous claims based on misunderstand- 
ing or unrealistic expectations. Finally, obtaining an 
informed consent offers the dentist the opportunity to 
develop better rapport with the patient by demonstrating 
a greater personal interest in the patient's well being. 

The requirements of an informed consent vary from 
state to state. Initially, informed consent was to inform 
patients that bodily harm or death may result from a pro- 
cedure. It did not require discussion of minor, unlikely 
complications that seldom occur and infrequently result 
in ill effects. However, some states have currently adopt- 
ed the concept of "material risk," which requires dentists 
to discuss all aspects material to the patient's decision to 
undergo treatment, even if it is not customary in the pro- 
fession to provide such information. A risk is material 
when a reasonable person is likely to attach significance 
to it in assessing whether to have the proposed therapy. 

In many states dentists have a duty to obtain the 
patient's consent; they cannot delegate the entire 
responsibility. Although staff can present the consent 
form, the dentist should review treatment recommenda- 
tions, options, and the risks and benefits of each option; 
the dentist must also be available to answer questions. 
Although not required by the standard of care in many 
states, it is advisable to get the patient's written consent 
for invasive dental procedures. Parents or guardians 
must sign for minors. Legal guardians must sign for indi- 
viduals with mental or similar incapacities. In certain 
regions of the country, it is helpful to have consent 
forms written in other languages or have multilingual 
staff members available. 

Informed consent consists of three phases: (1) discus- 
sion, (2) written consent, and (3) documentation in the 
patient's chart. When obtaining informed consent, the 



clinician should conduct a frank discussion and provide 
information about seven areas: (1) specific problem, 
(2) proposed treatment, (3) anticipated or common side 
effects, (4) possible complications and approximate fre- 
quency of occurrence, (5) anesthesia, (6) treatment alter- 
natives, and (7) uncertainties about final outcome, 
including a statement that the treatment has no absolute 
guarantees. 

This information must be presented so that the patient 
has no difficulty understanding it. A variety of video pre- 
sentations are available describing dental and surgical 
procedures and the associated risks and benefits. These 
can be used as part of the informed consent process but 
should not replace direct discussions between the dentist 
and patient. At the conclusion of the presentation, the 
patient should be given an opportunity to ask any addi- 
tional questions. 

After these presentations or discussions, the patient 
should sign a written informed consent. The written con- 
sent should summarize in easily understandable terms 
the items presented. Some states presume that if the 1 
information is not on the form, it was not discussed. It 
should also be documented that the patient can read and 
speak English; if not, the presentation and written con- 
sent should be given in the patient's language. To ensure 
that the patient understands each specific paragraph of 
the consent form, the dentist should consider having the 
patient initial each paragraph on the form. 

An example of an informed consent document 
appears in Appendix V. At the conclusion of the discus- 
sion, the patient, dentist, and at least one witness 
should sign the informed consent document. In the case 
of a minor, both the patient and the parent or legal 
guardian should sign the informed consent. In some 
states, minors may sign the informed consent for their 
own treatment if they are married or pregnant. Before 
assuming this to be the case, local regulations should be 
verified. 

The third and final phase of the informed consent pro- 
cedure is to document in the patient's chart that an 
informed consent was obtained after the dentist dis- 
cussed treatment options, risks, and benefits. The dentist 
should record the fact that consent discussions took place 
and should also record other events, such as videos 
shown, brochures given, and so on. The written consent 
form should be included. 

Three special situations exist in which an informed 
consent may deviate from these guidelines: First, a 
patient may specifically ask not to be informed of all 
aspects of the treatment and complications (this must be( 
specifically documented in the chart). 

Second, it may be harmful in some cases to provide all 
of the appropriate information to the patient. This is 
termed the therapeutic privilege for not obtaining a com- 
plete informed consent. It is somewhat controversial and 
would rarely apply to routine oral surgical and dental 
procedures. Third, a complete informed consent may not 
be necessary in an emergency, when the need to proceed 
with treatment is so urgent that unnecessary delays to 
obtain an informed consent may result in further harm to 
the patient. This also applies to management of compli- 
cations during a surgical procedure. 



Medicolega I Considerations 



CHAPTER 12 



241 



It is assumed that if failure to manage a condition imme- 
diately would result in further patient harm, then treat- 
ment should proceed without a specific informed consent. 

Patients have the right to know if any risks are associ- 
ated with their decision to reject certain forms of treat- 
ment. This informed refusal should be clearly documented 
in the chart, along with specific information informing 
the patient of the risk and consequence of refusing treat- 
ment. Patients who do not appear for needed treatment 
should be sent a letter warning of potential problems that 
may arise if they do not seek treatment. Copies of these 
letters should be kept in the patient's chart. 

RECORDS AND DOCUMENTATION 

Poor record keeping is one of the most common prob- 
lems encountered in the defense of a malpractice suit. 
When the quality of patient care is questioned, the 
records supposedly reflect what was done and why. Poor 
records provide plaintiff attorneys with an opportunity 
to claim that patient care also must have been substan- 
dard. Even though a perfect record is neither possible 
nor required, records should reasonably reflect the diag- 
nosis, treatment, consent, complications, and other key 
events. 

Adequate documentation of the diagnosis and treat- 
ment is one of the most important aspects of patient care. 
A well-documented chart is the cornerstone of any risk 
management program. If dentists do not document fun- 
damental clinical findings supporting the diagnosis and 
treatment, attorneys may question the need for treat- 
ment in the first place. Some argue that if an item is not 
charted, it did not happen. The following eleven items 
are helpful when recorded in the chart: 

1. Chief complaint 

2. Dental history 

3. Medical history 

4. Current medication 

5. Allergies 

6. Clinical and radiographic findings and interpretations 

7. Recommended treatment and other alternatives 

8. Informed consent 

9. Therapy actually instituted 

10. Recommended follow-up treatment 

11. Referrals to other general dentists, specialists, or 
other medical practitioners 

Ten frequently overlooked pieces of information 
should be recorded in the chart: 

1. Prescriptions and refills dispensed to the patient 

2. Messages or other discussions related specifically to 
patient care (including phone calls) 

3. Consultations obtained 

4. Results of laboratory tests 

5. Clinical observations of progress or outcome of 
treatment 

6. Recommended adjunct follow-up care 

7. Appointments made or recommended 

8. Postoperative instructions and orders given 

9. Warnings to the patient, including issues related to 
lack of compliance, failure to appear for appoint 
ments, failure to obtain or take medication, 
instructions to see other dentists or physicians, or 



instructions on participation in any activity that 
might jeopardize the patient's health 

10. Missed appointments 

Corrections should be made by drawing a single line 
through any information to be deleted. Correct informa- 
tion can be inserted above or added below, along with a 
contemporaneous date. The single-line deletion should 
be initialed and dated. No portion of the chart should be 
discarded, obliterated, erased, or altered in any fashion. 
In some states it is a felony to alter records with the 
intent to deceive. 

REFERRAL TO ANOTHER GENERAL DENTIST 
OR SPECIALIST 

In many cases dentists may think that the recommended 
treatment is beyond their level of training or experience 
and may choose to refer a patient to another general den- 
tist or specialist. A referral slip or letter should clearly 
indicate the basis for referral and what the specialist is 
being asked to do. The referral should be recorded in the 
chart. A written referral to a specialist may ask the spe- 
cialist to provide a written report detailing the diagnosis 
and treatment plan. 

A patient's refusal to pursue a referral should be clearly 
noted in the chart. If a patient refuses to seek treatment 
from a specialist, the dentist must decide whether the rec- 
ommended treatment is within the dentist's own exper- 
tise. If not, the dentist should not provide this particular 
treatment, even if the patient insists. A patient's refusal to 
seek care from a specialist does not relieve the dentist of 
liability for injuries or complications resulting from care 
outside the dentist's level of training and expertise. 

Dental specialists should carefully evaluate all referred 
patients. For example, extracting or treating the wrong 
tooth is a common allegation in court. When in doubt 
the specialist should contact the referring dentist and dis- 
cuss the case. Any change in the treatment plan provided 
by the specialist should be documented in both the refer- 
ring dentist and specialist's charts. To avoid informed 
consent problems, the patient must approve any revised 
plan or recommendation. 

COMPLICATIONS 

Less-than-desirable results can occur despite the dentist's 
best efforts in diagnosis, treatment planning, and surgical 
technique. A poor result does not necessarily suggest that 
a practitioner is guilty of negligence or other wrong- 
doing. However, when complications occur, it is manda- 
tory that the dentist immediately begin to address the 
problem in an appropriate fashion. 

In most instances the dentist should advise the patient 
of the complication. Examples of such situations are loss of 
or failure to recover a root tip; breaking a dental instru- 
ment, such as an endodontic file, in a tooth; perforation of 
the maxillary sinus; damage to adjacent teeth; or inadver- 
tent fracture of surrounding bone. In these instances the 
dentist should clearly outline proposed management of 
the problem, including specific instructions to the patient, 
further treatment that may be necessary, and referral to an 
oral and maxillofacial surgeon when appropriate. 



242 PART II 



Princip les of Exodon tia 



It is advisable to consider and discuss reasonable treat- 
ment options that may still produce reasonable results. 
For example, when teeth are extracted for orthodontic 
purposes, the first premolar may accidentally be extract- 
ed when the orthodontist preferred extraction of the sec- 
ond premolar. Before removing any other teeth or alarm- 
ing the patient and parents, the dentist should call the 
orthodontist to discuss the effect on treatment outcome 
and available treatment modifications. The patient and 
parents should be notified that the wrong tooth was 
extracted but that the orthodontist indicated that the 
treatment can proceed without significantly compromis- 
ing the result. 

The lack of reasonable modifications of the original 
treatment plan is more challenging. The dentist may 
have to consider a more expensive plan, such as 
implants, and should also consider funding additional 
treatment. 

Another common complication is altered sensation 
following third molar removal. The chart should reflect 
the existence and extent of the problem. It may be useful 
to use a diagram to document the area involved. The den- 
sity and severity of the deficit should be noted after test- 
ing, if possible. The chart should reflect the progress of 
the condition each time the patient returns for follow-up. 
Ultimately the patient may require a referral to an oral 
and maxillofacial surgeon with experience in diagnosing 
and treating nerve injuries. In most cases the referral 
should occur within approximately 3 months after the 
injury if no significant improvement is seen. Excessive 
delays may limit the effectiveness of future treatment. 
Documentation of the patient's progress helps justify the 
decision to delay the referral. 

PATIENT MANAGEMENT PROBLEMS 

Noncompliant Patient 

Dentists and staff should routinely chart lack of compli- 
ance, including missed appointments, cancellations, and 
failure to follow advice to take medications, seek consul- 
tations, wear appliances, or return for routine visits. 
Efforts to advise patients of risks associated with failing to 
follow instructions should also be recorded. 

When the patient's health may be jeopardized by con- 
tinued noncompliance, the clinician should consider 
writing a letter to the patient, which identifies the poten- 
tial harm and advises the patient that the office will not 
be responsible if these and other problems develop as a 
result of the patient's noncompliance. If the patient's care 
is eventually terminated, the accumulation of detailed 
chart entries documenting the noncompliance should 
justify why the dentist is unwilling to continue care. 

Patient Abandonment 

A legal duty is owed to the patient once a doctor-patient 
relationship is established. This occurs when a patient 
has been accepted by the office, the initial evaluation has 
been completed, and treatment has begun. The dentist is 
usually obligated to provide care until the treatment is 



completed. There may be instances, however, when it is 
impossible or unreasonable for a dentist to complete a 
treatment plan because of several problems. Such prob- 
lems include the patient's failure to return for necessary 
appointments, follow explicit instructions, take medica- 
tion, seek recommended consultations, and stop activi- 
ties that may inhibit the treatment plan or otherwise 
jeopardize the dentist's ability to achieve acceptable 
results. This may include a total breakdown of communi- 
cation and loss of rapport between the dentist and 
patient. 

In these cases it is usually necessary for the dentist to 
follow certain steps before discontinuing treatment to 
avoid being accused of patient abandonment. First, the 
chart must document the activities leading to the 
patient's termination. The patient should be adequately 
warned (if possible) that termination will result if the 
undesired activity does not stop. The patient should be 
warned of the potential harm that may result if such 
activity continues and the reason why the harm may 
occur. After being told why the office is no longer willing 
to provide treatment, the patient should be given a rea- 
sonable opportunity to find a new dentist (30 to 45 days 
is common). The office should continue treatment dur- 
ing this period if the patient is in need of emergency care 
or care is required to avoid harm to the patient's health 
or to treatment progress. 

When it has been decided that the dentist-patient 
relationship cannot continue, the dentist must take the 
following steps to terminate the relationship: 

A letter should be sent to the patient, indicating the 
intent to withdraw from the case and the unwillingness 
to provide further treatment. It should include five 
important pieces of information: 

1. The reasons supporting the decision to discontinue 
treatment 

2. If applicable, the potential harm caused by the 
patient (or parent's) undesired activity 

3. Past warnings by the office that did not alter the 
patient's actions and continued to put the patient 
at risk (or jeopardized the dentist's ability to achieve 
an acceptable result) 

4. A warning that the patient's treatment is not com- 
pleted; therefore the patient should immediately 
seek another dentist or go to a hospital or teaching 
clinic in the area for immediate examination or 
consultation. {The clinician should include a warn 
ing that if the patient fails to follow this advice, the 
patient's dental health may continue to be jeopar 
dized and any treatment progress may be lost or 
worse.) 

5. An offer to continue treating the patient for a rea 
sonable period and for emergencies until the 
patient locates another dentist 

This letter should be sent by certified mail to ensure 
and document that the patient did in fact receive it. If 
other dentists are treating the patient, the clinician 
should consider advising them of this decision. The clini- 
cian should consult local counsel if any concerns of con- 
fidentiality or a particularly sensitive reason behind this 
decision exists. 



Medicolegal Co ns iderations 



CHAPTER 12 



The dentist must continue to remain available for 
treatment of emergency problems until the patient has 
had adequate time to seek treatment from another den- 
tist. This must be communicated in the letter outlined 
previously. 

The dentist must offer to forward copies of all perti- 
nent records that affect patient care. Nothing must be 
done to inhibit efforts of subsequent treatment to com- 
plete patient care. 

Patients who are positive for the human immunodefi- 
ciency virus (HIV) or who have similar diseases cannot be 
terminated because of their disease, because this action 
may violate the Handicapped Civil Rights Act and other 
federal or state laws. These patients cannot be refused 
treatment based on their disease. Patients who are HIV- 
positive or have acquired immunodeficiency syndrome 
(AIDS) are considered handicapped under these laws. 1 
Legal counsel should be consulted if the clinician has 
another valid reason to terminate such a patient. 

Exceptions do exist to these suggested guidelines. Den- 
tists must evaluate each situation carefully. Occasions 
may occur when the dentist does not wish to lose contact 
with a patient or lose the ability to observe and follow a 
complication. Terminating treatment will often anger a 
patient, who may in turn seek legal advice if experiencing 
a complication. The office may elect to complete treat- 
ment in such cases. 

If treatment continues, the chart should carefully 
reflect all warnings to the patient about potential harm 
and the increased chance that acceptable results may not 
be achieved. 

In certain cases the patient may be asked to sign a 
revised consent form that includes three important 
points: 

1. The patient realizes that the patient has been non- 
compliant or has otherwise not followed advice. 

2. The previously mentioned activities either jeopar 
dized the patient's health or the dentist's ability to 
achieve acceptable results or have unreasonably 
increased the chances of complication. 

3. The dentist will continue treatment but makes no 
assurances that the results will be acceptable. Com 
plications may occur requiring additional care, and 
the patient (or the patient's legal guardian) will 
accept full responsibility if any of the above events 
occur and will not hold the dentist responsible. 

COMMON AREAS OF DENTAL LITIGATION 

Litigation has involved all aspects of dental practice and 
nearly every specific type of treatment. A few types of 
dental treatment have a higher incidence of legal action. 
Removal of the wrong tooth usually results from a 
communication breakdown between the general dentist 
and oral surgeon or the patient and dentist. When in 
doubt the dentist must confirm the tooth to be extracted 
by radiograph, clinical examination, or discussion with 
the referring dentist. If opinions differ regarding the pro- 
posed treatment, the patient and the referring dentist 
should be notified and the outcome of any subsequent 
conversation documented. A short follow-up letter con- 



firming the final decision may also be helpful in docu- 
menting this decision. If the wrong tooth is in fact 
extracted, this should be handled in the manner 
described earlier in this chapter. 

Nerve injuries are often grounds for suits, with attor- 
neys claiming that the nerve injuries resulted from 
extractions, implants, endodontic treatment, or other 
procedures. These allegations are usually coupled with 
allegations of insufficient informed consent. 

Because nerve injuries are a known complication of 
mandibular extractions or mandibular implants posterior 
to the mental foramen, patient advocates claim the 
patient had a right to accept these risks as part of treat- 
ment. If the dentist can visualize conditions that increase 
this risk, the patient should be advised and the condition 
documented. An example would be to specifically note 
the relationship of the inferior alveolar nerve to the third 
molar tooth to be extracted, when these appear to be in 
very close proximity. 

Failure to diagnose can be related to several areas of 
dentistry: One of the most common problems is a lesion 
that is seen on examination but is not adequately docu- 
mented and no treatment or follow-up is instituted. If the 
lesion causes further problems or a subsequent biopsy 
documents long-standing pathology or a malignancy, 
this may be viewed as negligence. This problem can be 
avoided by following up on any potentially abnormal 
finding. The clinician should chart an initial diagnosis or 
seek a consultation from a specialist. If the lesion has 
resolved by the next visit, the clinician should record that 
fact so the issue is closed. If the patient is referred to 
another doctor, the referring clinician should follow up 
to document the patient's progress, including whether or 
not the patient's condition was successfully treated. 

Failure to diagnose periodontal disease is often the 
area of criticism and legal action. A periodontal examina- 
tion should be a part of routine dental evaluations and 
therefore becomes the primary responsibility of the gen- 
eral dentist. The status of the problem, suggestions for 
treatment, referrals, and progress or resolution of the 
problem must be clearly documented. 

Implant complications or failure is another common 
area of litigation. As with any procedure the patient 
should be informed of the complication's associated 
reconstruction and long-term outcome. The need for 
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- 
mented. Dentists placing implants should consider using 
a customized consent form, summarizing common com- 
plications, and stressing the importance of patient 
follow-up care and oral hygiene. 

Failure to provide appropriate referral to another den- 
tist or specialist can be a source of legal problems. Den- 
tists usually determine the appropriate time to refer a 
patient to a specialist for initial care or management of a 
complication. Failure to refer patients for complicated 
treatment not routinely performed by the dentist or 
delayed referral for management of a complication fre- 
quently becomes the basis for litigation. Referrals to spe- 
cialists can greatly reduce liability risks. Specialists are 



244 PART n 



Principles ofExodontia 



accustomed to treating more difficult cases and compli- 
cations. Specialists with whom the dentist has a good 
relationship can also diffuse patient management prob- 
lems by being objective and caring and by reassuring 
angry patients. The general dentist and specialist may dis- 
cuss ways of relieving the expense of addressing a com- 
plication and completing treatment. 

Temporomandibular joint (TMJ) disorders sometimes 
become more apparent after dental procedures requiring 
prolonged opening or manipulation, such as tooth extrac- 
tion or endodontic treatment. It is important to document 
any preexisting condition in the pretreatment assessment. 
The risk of TMJ pain or other dysfunction as a result of a 
procedure should be included in the informed consent 
when indicated. If the patient is in dire need of care that 
may aggravate or cause a TMJ condition, a customized con- 
sent form should be drafted and signed. It should clearly 
define the problem, giving the patient options and con- 
firming the patient's authorization to proceed. 

WHEN A PATIENT THREATENS TO SUE 

Whenever a patient, the patient's attorney, or any other 
representative of the patient informs the dentist that a 
malpractice suit is being considered, several precautions 
should be taken: 

First, all such threats should be documented and 
reported immediately to the malpractice insurance carri- 
er. The dentist should follow the advice of the malprac- 
tice carrier, institutional risk management team, or the 
attorney assigned to the case. These individuals will usu- 
ally respond to the threat. Because the first indication of 
a potential claim is usually a request for records, the 
office should comply with state law regarding what must 
be provided (usually copies of care and treatment records, 
not the originals). 

Patients sometimes request the original chart and radio- 
graphs for a variety of reasons. The law in many states 
indicates that the dental office owns the records and has 
a legal obligation to maintain original records for a spec- 
ified period. Patients are entitled to a legible copy, and 
dental offices are entitled to a reasonable reimbursement 
for the same. Patients do not own the records merely 
because they paid for care and treatment. 

Second, the dentist and staff should not discuss the 
case with the patient (or representative of the patient) 
once a lawsuit is threatened or made. All requests for 
information or other contact should be forwarded to the 
carrier or attorney representing the dentist. All arguments 
with the patient or representative should be avoided. The 
dentist must not admit liability or fault or agree to waive 
fees. Any such statement or admission made to the 
patient or patient's representative may be used against 
the dentist later as an "admission against the dentist's 
interest." 

Third, it is imperative that no additions, deletions, or 
changes of any sort be made in the patient's dental 
record. Records must not be misplaced or destroyed. The 
clinician should seek legal advice before attempting to 
clarify an entry. 

During the process of malpractice litigation, dentists 
may be called to give a deposition. This may be as the 



defendant in a case or as an expert witness. Although this 
is quite common for attorneys, the procedure is often 
unnerving and emotional for dentists, particularly when 
testifying in their own defense. 

The following are six suggestions that should be con- 
sidered when giving a deposition related to a malpractice 
case: 

1. The clinician should be prepared and have com 
plete knowledge of the records. All chart entries, 
test results, and any other relevant information 
should be reviewed. In complex cases, the clinician 
should consider reviewing textbook knowledge of 
the subject; however, an attorney should be con 
suited before anything other than the clinician's 
own record is reviewed. 

2. The clinician should never answer a question unless 
it is completely understood. The clinician should 
listen carefully to the question, provide a succinct 
answer to it, and stop talking after the answer is 
given. A lawsuit cannot be won at a deposition, but 
it can be lost. 

3. The clinician should not speculate. If a review of 
the records, radiographs, or other information is 
necessary, the clinician should do so before answer 
ing a question, rather than guessing. 

4. The clinician should be careful when agreeing that 
any particular expert author or text is "authorita 
tive." Once such a statement is made, the clinician 
may be placed in a situation in which the clinician 
did something or disagreed with something the 
"expert" has written. In most states a clinician can be 
impeached by anything an author states, once the 
clinician agrees that the author is "authoritative." 

5. The clinician should not argue unnecessarily with 
the other attorney. The clinician's temper should 
not be shown (this will only educate the clinician's 
adversary as to what will upset the clinician in 
front of a jury, who will expect the dentist to act 
professionally). 

6. The advice of the clinician's lawyer should be fol 
lowed. (Even if retained by the insurance company, 
the attorney is required to represent the clinician's 
interests, not that of the insurance company or 
anyone else.) 

Most anxiety related to litigation comes from the fear 
of the unknown. Most dental practitioners have limited 
or no exposure to litigation. It must be kept in mind that 
dentists prevail in most cases. Only about 10% of cases go 
to trial, and dentists win well over 80% of these cases. 

Unfortunately, a malpractice trial requires a 
tremendous investment of time, energy, and emotion, all 
of which detracts from patient care. Most dentists have 
no choice; they must defend themselves. Dentists who 
are prepared and who possess reasonable expectations of 
each step of the litigation process usually experience 
less anxiety. 

MANAGED CARE ISSUES 

The influence of managed health care has greatly 
changed many aspects of dentistry. This includes the 
doctor-patient relationship and the way decisions are 
made regarding which treatment alternatives are most 



Medicolegal Comidemthm CHAFFER 12 245 



appropriate. Dentists are often placed in the middle of a 
conflict between a desire to provide optimal treatment 
and a health care plan's willingness to approve appropri- 
ate, needed care. 

Traditionally, the patient chose whether to elect a 
compromised treatment plan or even no treatment. 
Under managed care, however, some patients are being 
forced to accept compromised treatment or no treatment, 
based on administrative decisions that may be driven 
more by cost containment pressures than sound dental 
judgment. 

In some cases a "gag provision" is included in a den- 
tist's contract with a managed care organization. This pre- 
vents the dentist from criticizing managed care organiza- 
tions and sometimes prevents a dentist from presenting 
an alternative for care not covered by the third party 
provider. This obviously creates a conflict between a con- 
tractual agreement with the company and the ethical and 
professional responsibility of the dentist to the patient. In 
some states this provision is illegal and unenforceable. 

In 1995 the American Dental Association (ADA) Coun- 
cil on Ethics, Bylaws, and Judicial Affairs issued the fol- 
lowing statement underscoring dentists' obligation to 
provide appropriate care: 

Dentists who enter into managed care agreements 
may be called upon to reconcile the demands 
placed on them to contain costs with the needs of 
their patients. Dentists must not allow these 
demands to interfere with the patient's right to 
select a treatment option based on informed 
consent. Nor should dentists allow anything to 
interfere with the free exercise of their professional 
judgment or their duty to make appropriate referrals 
if indicated. Dentists are reminded that contract 
obligations do not excuse them from their ethical 
duty to put the patient's welfare first. 2 

Dentists may have a responsibility to advise patients 
that a "compromised" treatment plan has been approved 
by the managed care organization. The dentist should 
seek the patient's consent to provide such treatment after 
the pertinent risks, complications, and limitations have 
been reviewed, along with an explanation of more opti- 
mal treatment options. Dentists should consider advising 
in written form both patients and third party payers of 
reasonably expected outcomes when the appropriate 
treatment is not available because of improper decisions 
by third providers. 

Telemedicine, Electronic Records, and the Internet 

Recent technologic developments have induced changes 
associated with medical and dental practices. The increas- 
ing popularity of computers and the Internet has given 
birth to new potential duties and liability concerns. Dig- 
ital imaging and radiology, combined with the Internet 
capabilities for communication and even video confer- 
encing, has created situations where patients may receive 
advise without the traditional doctor-patient interaction. 
The conversion to electronic rather than paper charts is a 
growing technology, with many potential applications 
for a modern dental practice. 

A dentist's legal duty to a patient is currently linked to 
the existence of a doctor-patient relationship. Determin- 



ing whether this relationship exists, however, is no 
longer a simple task. The advent of internet marketing, 
telemedicine and other modes of providing information 
or advice through an electronic media, without the direct 
ability to examine, diagnose, and recommend treatment, 
has clouded the issue of whether a doctor-patient rela- 
tionship (and a legal duty owed to a particular patient) 
exists. Courts in several states are beginning to make deci- 
sions that may provide some guidance related to these 
evolving issues, although controversy still exists. For 
example, a recent court decision has determined that a 
physician who consults with a treating physician over the 
telephone owes no legal duty to the treating physician's 
patient when treatment options were relayed during a 
telephone call. However, another court recently ruled 
that a doctor-patient relationship could be implied when 
an on-call physician is consulted by telephone by an 
emergency department physician who relied upon the 
consulting physician's advice. 4 

Defining clear rules that can be relied upon by practic- 
ing dentists who provide direct or indirect advice over the 
telephone, Internet, or through web sites, will not be an 
easy task. Many questions remain unanswered. Do the 
laws of the state in which the patient lives or those in 
which the dentist practices actually control this issue? Is 
the dentist practicing dentistry in another state without a 
license? Is the advice offered by electronic means intend- 
ed for general information and not intended to be relied 
upon by patients or the treating dentist for specific care? 
Will the electronic transfer of the information such as the 
patient's chart or billing information violate state or fed- 
eral privacy laws? Can the dentist protect the informa- 
tion from manipulation or misuse if sent electronically? 

Over the coming years it, will be extremely important 
for practitioners to monitor trends in dental care as the 
Internet, information storage and transfer, and doctor- 
patient relationships are affected by advancing technolo- 
gy. Current federal rules governing the electronic mainte- 
nance and transfer of records are provided in detail in the 
Healthcare Insurance Portability & Accountability Act 
(HIPPA). 

SUMMARY 

In addition to providing sound technical care, the den- 
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 
improved communication and by providing any infor- 
mation that may enhance patient understanding of 
treatment. Adequate documentation of all aspects of 
patient care is also necessary. Clinicians face a constant 
struggle to document quality care and advice to the 
patient. The law only requires that such efforts be rea- 
sonable, not perfect. 

This chapter is intended to provide suggestions to be 
considered by individual dentists. It is not intended to 
establish, influence, or modify the standard of care. Med- 
ical and dental malpractice laws vary from state to state. 
When confronted with medicolegal issues, all health care 
providers should consult local counsel familiar with the 
laws and regulations that apply in their jurisdiction. 



y. ;■/'/■ 



246 PART U 



Principles ofExodontia 



REFERENCES 



1. Americans with Disabilities Act of 1990, 42 USC, 
section 

12101. 

2. ADA Counsel on Ethics, Bylaws, and Judicial Affairs: 
How to 

reconcile participation in managed care plans with 

their eth 

ical obligations, ADA News, Feb. 6, 1995, p 12. 

3. Hill v Koksky, 186 Mich App 300, 1993. 

4. Oja v Kin, 229 Mich App 184, 1998. 



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AAOMS Mutual Insurance Company: Risk retention 
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Int 17:121, 1986. Physicians Insurance Company of 
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