Malpractice - A Term That Strikes Fear in Practitioners

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Dental Malpractice is the fifth and final topic in this blog series dedicated to confusing legal issues encountered in the practice of dentistry. We’ll focus on the definition of malpractice, and reasons you may find yourself in a lawsuit.

Malpractice is a legal term describing a professional individual’s failure to deliver the standard of care because of ignorance or outright negligence. For a case to be considered malpractice, there must also be long-term injury, disfigurement, loss of normal function, or death. If the ruling is in favor of the patient, a monetary settlement is usually paid by the dental professional in question. Although rare, with one in seven malpractice cases being dental related, it can happen to even the most proficient and successful practitioners.

Reasons for a case of malpractice:

  • Failure to diagnose, treat, or refer an obvious cancerous lesion, periodontal disease, decay, periapical abscess, or periodontal abscess
  • Long-term or irreversible nerve damage resulting in loss of taste, disfigurement, or numbness
  • TMD caused by treatment
  • Wrongful death directly related to any procedure
  • Negligent delivery of anesthesia causing injury or death
  • Failure to evaluate and consider the patients’ medical history resulting in injury or death
  • Extraction of the wrong tooth/teeth
  • Complications due to negligence of any kind
  • Failure to secure a signed informed consent or performing treatment outside of the signed informed consent
  • Inappropriate behavior while a patient is sedated

While the reasons for malpractice suits are plenty, studies show that most cases are a result of tooth extractions where the patient wasn’t given an informed consent form. This signed documentation gives the dentist permission to perform the procedure after providing the patient with a complete understanding of why the procedure is necessary, methods by which the procedure will be carried out, the procedure itself, and the benefits and risks of following through with treatment.

Avoiding malpractice is absolutely the best approach. Have informed consent documentation in place and only proceed when signed.   Educate patients and take the time to listen to their expectations, and don’t abandon them after treatment. Review medical histories every single visit, review treatment plans, and diagnose and treat all patients as though your license depends upon it.

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Firing a Patient, Yes it's Possible! - Part 2

Firing a patient- Yes, it’s possible part two is the fourth topic in this blog series dedicated to confusing legal issues encountered in the practice of dentistry. Part one described why dismissing a patient might be necessary. Part two will discuss how to properly and legally end the doctor-patient relationship because if done improperly, a case of malpractice or abandonment can be made. Following are steps to end the relationship smoothly thus preventing legal issues.

  1. Send a certified letter with a return receipt- A simple phone call will not suffice in this instance. A certified letter with a return receipt must be sent to the patient. Because laws vary by state, you should consult with your attorney, but basically, the letter should contain:
    • Date of termination
    • objective and non-threatening language stating the reason for dismissal
    • a reasonable amount of time you’ll be available for emergencies
    • the patient’s current condition, any treatment plans, and consequences of not seeking care
    • willingness to forward any x-rays or records. Records and x-rays can’t be withheld due to non-payment in most states
    • information about finding a new dentist such as the local dental society. Don’t give specific dentist’s names
    • financial balance intentions
  1. Never dismiss a patient due to age, race, sex, religion, or disability. Also, never terminate a patient who is in a life-threatening situation, extreme pain, bleeding profusely, or has extreme swelling.
  2. If the patient’s insurance coverage is an HMO, DMHO, or capitation plan, you can’t refuse care until the third-party payer is notified and the patient is reassigned.
  3. If a patient is seeing a doctor in a group practice, termination must include every doctor in the practice.
  4. HIPPA rules and regulations must be followed to the letter. When records are sent to another dentist, the patient must sign a Release of Records Authorization. If records are sent by traditional mail, send certified with a return receipt. If emailing, the patient must give written consent to transfer records via email and notified that the information is sent through an unencrypted format on an open and unsecured e-mail unless you use a HIPAA-compliant secured service. You may charge up to 75cents per page, but it may be wise to refrain from charging any fees for processing in this case.
  5. If refunding any money to the patient, a Release of Liability or All Claims must be signed by the patient. These documents should contain a clause protecting you, your practice, and team members from defamation and slander. Furthermore, the clause should prohibit the patient from speaking and writing anything negative regarding your practice or your employees.
  6. Inform all team members of the separation. All team members must be made aware of the dissolution. No doctor or employee of the practice should refer to the patient improperly amongst themselves or to any other practice or patient. When speaking of the patient, state that there were administrative differences which couldn’t be resolved.

A quick word on abandonment. Abandonment occurs when a dentist terminates a patient without providing the patient sufficient time to select another practitioner or refuses to complete or follow up treatment for no valid reason. Don’t operate in this manner because doing so can easily result in a case of malpractice.

Before deciding to fire a patient, reconsider and decide if it’s worthwhile to sit down one on one and see if it can be avoided. Make sure all reasonable efforts to resolve issues have been exhausted. If termination the only solution, consult with your attorney and follow all instructions to avoid any legal consequences.

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Firing a Patient - Yes it's Possible - Part 1

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Firing a patient is the fourth topic in this blog series dedicated to confusing legal issues in the practice of dentistry and outlines dismissing a patient from your practice. The dissolution can be at any time deemed legitimately necessary before, during, or after treatment. The first part of this blog will cover why releasing a patient may be necessary. Part two will discuss how to dissolve your relationship with a patient ethically and legally.

Legitimate ethical and legal reasons you might dismiss a patient from your practice:

  1. The payment agreement was not fulfilled by the patient- Once a treatment plan has been agreed upon, the financial arrangements should be defined and explained to the patient by the team member dedicated to financial arrangements. Some patients are very clever and quite successful in delaying payments. Therefore, they must understand what dollar amount is covered by their insurance (including co-pays, maximums, and deductibles) and the dollar amount that they will owe. UCR (usual and customary rates) should also be made clear. Working with a third-party financing service for your patients is beneficial because you get paid immediately, and the debt is managed between the financier and the patient. If a patient consistently doesn’t pay on time or not at all, you have a strong case for
  2. The patient repeatedly cancels, no-show’s, or is chronically late for scheduled appointments- Unfortunately, this occurs more often than necessary. New and established patients should be fully aware of your cancellation, no-show, and late policies. In fact, it should be stated in writing along with other office rules and guidelines and signed by each patient. Be very specific about the policy and state the consequences of disregarding your valuable time.
  3. The patient becomes physically or verbally hostile or violent towards the doctor and/or team- this is a very serious violation of patient-doctor/team trust and respect. Regardless of the reason, a patient must never be permitted to become violent or abusive in any If this unfortunate situation occurs, it must be handled swiftly and with authority. This behavior should always result in automatic dismissal.
  4. The patient refuses to comply with home-care instructions and compromises the outcome of treatment- Great lengths are taken to assure a successful outcome for every patient during and after procedures. If a patient refuses to perform prescribed homecare and/or recommended appointment frequency, it may be time to part ways.
  5. The patient lied or willingly gave misinformation on their health history- Patients should never lie or be misleading about their health history. While some may not be upfront about their weight or whether they floss every day, giving false information or leaving out critical information (diseases, allergies, joint replacement and other surgeries, daily medications, heart abnormalities, etc.) that can be a health risk for the patient or the dental team is indefensible.
  6. Trust has been broken between the patient and the doctor- If for whatever reason something has occurred to break the doctor/patient trust, it’s time to sit down one on one and decide if trust can be regained. If not, an amicable separation is in order.
  7. The patient is exhibiting prescription drug abuse- The drug abuse may be a result of drugs you prescribed responsibly, or the patient is obtaining legal or illegal drugs from another source. Nevertheless, drug abuse is very serious and shouldn’t be tolerated.
  8. The patient won’t accept diagnostic record gathering or necessary treatment- It’s imperative that you be permitted to collect diagnostic data such as radiographs, periodontal charting, clinical charting, diagnostic models, etc. If a patient declines the gathering of pertinent diagnostic material, diagnosis and treatment planning will be practically impossible. Even if a patient agrees to diagnostic records, they may still refuse any treatment necessary for alleviating their issue. In this case, patient education is key, and the team should be well versed and confident in educating the patient. If a patient fully understands the importance of diagnostic tools and all available treatment options have been discussed, and they still won’t comply, it’s time to consider a parting of the ways.
  9. The patient is physically attracted to the doctor or a team member- Although awkward and embarrassing, this does happen from time to time. Occasionally it’s a harmless non-sexual flirtation, but other times, it’s borderline sexual harassment. Even if it seems innocent, there’s a very thin line, and if crossed, the outcome may become disastrous. Prevent this scenario by not engaging in inappropriate banter and be prepared to dismiss the patient early in the relationship.

Stay tuned for the second part of “Firing a Patient” where we’ll discuss how to successfully and legally ask a patient to leave your practice.

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Supervised Neglect

Dress Like a Dentist

Supervised Neglect is the third blog in this series dedicated to some of the confusing legal aspects of the dental profession.

Supervised neglect is when a doctor routinely examines a patient who exhibits symptoms of a disease or problem, but the patient is not aware of the situation and its progress. Sadly, supervised neglect occurs often by excellent and caring clinicians who mean no harm in treating patients. However, it can be very serious, and every attempt should be made to avoid this slippery slope.

There are many reasons supervised neglect occurs, and that’s why it’s important to keep the lines of communication open. Each patient should be apprised of their condition, treatment options, cost, time involved, risks, and benefits of proceeding with treatment versus doing nothing. Surprisingly, no treatment is a treatment option. Remember, the patient can only make an informed decision if they’ve been advised of and understand their oral status.

Why does supervised neglect happen?

  • Fear- Doctors fear telling their patients bad news. They don’t want to upset them and dread their reaction.
  • Responsibility- Often, doctors and team members feel responsible for the status of their patients. The patient’s oral health routine is a very important part of success or failure. If the patient has been informed of their condition, it’s their responsibility to maintain their oral health.
  • Little to no support- Depending on the clinical setting, doctors and hygienists may not receive the support they need to treat patients properly or refer them to a specialist.
  • Rejection- Some clinicians have difficulty discussing certain aspects of patient care because they fear that the patient will reject their recommendations.
  • Betrayal- Seeing patients on a regular basis for many years often makes them friends and family. Some doctors presume that if given distressing news, the patient will feel that they’ve been betrayed.
  • Assumptions- perhaps the biggest reason for supervised neglect is clinicians making assumptions. The most common assumptions are: the patient can’t afford the treatment, the patient is too old to care or spend the money, and guessing what the wants of the patient. Second guessing people is not ideal because you never truly know their thoughts and life status.

Supervised neglect can be avoided by being consistent with diagnosis, treatment, and patient education. Doing so will help in keeping legal ramifications away from your practice.

                                                    

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Informed Refusal

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Informed Refusal is the second blog in this series dedicated to some of the confusing legal aspects of the dental profession. Before diving into informed refusal, we’ll begin with its counterpart, Informed Consent.

Informed Consent is permission (usually written) given by a patient to a doctor acknowledging their diagnosis and awareness of all recommended treatment options so that they can make an informed decision. The document also contains information such as cost, time involved, possible consequences, prognosis, risks, and benefits.

On the other hand, Informed Refusal is a patient’s right to refuse a part or all of the proposed treatment and alternative treatment options. Many sources maintain that refusal forms don’t protect practices from legal consequences. For the most part, if the doctor performs the appropriate action using the standard of care, makes the patient aware of everything related to treatment, and has a signed document, they’re less likely to face legal consequences. Although patients have the right to refuse diagnostic record gathering and proposed treatment, they can’t permit substandard care. Also, the clinician shouldn’t allow themselves to deliver inadequate therapy.

Whatever the patient’s reason for refusal, (economics, fear, inconvenience, or denial) as long as all bases are covered, it’s less probable to be brought up on malpractice charges. Covering all bases includes complete patient education, signed documents, providing standard of care, and meticulous record keeping. It’s also wise to consult with a malpractice attorney for guidance and to secure properly worded documents for patients to sign.

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