Vicarious Liability Pinpoints Weak Staff Management

Most dentists are aware that they are responsible for the actions of staff members working in their offices. They also know that this responsibility extends to any treatment procedures provided by paradental or auxiliary personnel. It is less well known that the dentist`s liability also includes any explanations or verbal instructions given to patients by employees. The legal term for this responsibility is "vicarious liability."

Carol Tekavec

Most dentists are aware that they are responsible for the actions of staff members working in their offices. They also know that this responsibility extends to any treatment procedures provided by paradental or auxiliary personnel. It is less well known that the dentist`s liability also includes any explanations or verbal instructions given to patients by employees. The legal term for this responsibility is "vicarious liability."

Vicarious liability is an important risk and recordkeeping concept. It implies that even when the dentist is providing the sufficient standard of care, something that an employee does may hinder or damage the perception or delivery of treatment performed. Risk is increased for both the dentist and the patient when an employee performs delegated tasks with or without direct supervision.

The theory behind vicarious liability is that if an employer always is responsible for the acts or omissions of an employee, he or she will take care to delegate duties appropriately, train employees carefully and replace employees who do not follow the established protocols of the office. The law is intended to motivate employers to take sufficient care when assigning duties to employees and to specify such duties in detail. Employees who are considered independent contractors - such as other dentists or hygienists working in the practice - also fall under the responsibility of the owner-dentist.

Lost in the Shuffle of Ringing Telephones

For example, a dentist performs an incision and drainage of an abscess (07510) for a patient. The chairside assistant gives the patient postoperative instructions, both written and verbal, as well as a prescription for pain. The patient is told to arrange an appointment for a follow-up visit with the receptionist before he leaves. The chairside assistant does not accompany the patient to the front desk, but gives him a routing slip with instructions noting what appointment the receptionist should schedule. The patient is in a hurry and decides that he will call back later. He leaves the office.

Later that afternoon, the patient calls to tell the dentist that he is experiencing more bleeding, pain and swelling. The receptionist has three phone lines ringing, the dentist is with another patient, and all of the chairside assistants are occupied in treatment rooms. She tells the patient that some discomfort is to be expected and suggests he place a gauze square over the area and call back if his problem continues. No notations are made in the chart.

Two months later, the dentist receives a written request for records from the patient`s lawyer! The patient has been hospitalized with a facial abscess and had incurred thousands of dollars in medical costs and lost wages. The attorney asserts that the complications of the abscess were the result of instructions the patient had received from the dentist`s receptionist and, therefore, the dentist was liable.

Written Office Protocol Spells Out Staff Duties

What can be done to lessen the chance of such a problem? First, a dentist should have written office protocols that spell out responsibilities of the staff. If the receptionist had been trained to notify the dentist of all postoperative phone calls, as well as to document such calls, an effective protocol would have been established and the receptionist in our example would have been exceeding her job description by neglecting to inform the dentist. In the absence of protocols, little defense for the dentist can be made.

Secondly, patients who have had extensive or emergency treatment performed should be called by the dentist or a qualified auxiliary at the end of the day. Not only does this serve to prevent misunderstandings concerning post-operative problems, it demonstrates the desire of the dentist and staff to ensure the patient`s comfort and well-being.

Patients who have been called at the end of the day do not call the dentist in the middle of the night with fears and concerns that are not true emergencies. Patients who have been called at the end of the day also will put up with "understandable and expected" discomfort, with the assurance of staff that unexpected complications are cause for an immediate call and response from the dentist.

Thirdly, patient charts should contain a treatment schedule to provide for complete documentation and "next-appointment" planning. While routing slips may be effective for communicating some types of patient financial information between the front desk and the clinical staff, they are not effective as treatment-planners. If a patient does not come in for a post-operative appointment, the treatment schedule will show this and the front-office staff can be alerted. Follow-up phone calls and letters can be sent and documented in detail in the patient`s progress notes, further demonstrating the dentist`s and staff`s concern and proper post-operative protocol.

Finally, a chairside assistant always should accompany a patient to the front desk following treatment. Patients who are left to their own devices, following treatment of any type, may or may not schedule the proper, subsequent appointments.

After the next visit is scheduled, the chairside can restate instructions, check to make sure that the patient has necessary post-op supplies and provide an after-hours emergency phone number.

Carol Tekavec, RDH, is the author of two insurance-coding manuals, co-designer of a dental chart and a national lecturer. Contact her at (800) 548-2164 or at www.steppingstonetosuccess.com.

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