Aug. 1, 2000
Dental litigation is at an all-time high. A visit from an independent dental examiner could turn into your worst nightmare if you don`t take steps to protect yourself.

Dental litigation is at an all-time high. A visit from an independent dental examiner could turn into your worst nightmare if you don`t take steps to protect yourself.

Allen Kaufman, DDS

Did you have a consent form signed for that surgical procedure that you performed? I hope so because, as an independent dental examiner, I could be your worst nightmare. By the time I usually become involved in a dental malpractice case, you may suspect something went wrong with a patient.

A patient may have requested a copy of his or her dental records, claiming that he or she is switching offices or seeking a second opinion. But, in reality, the patient wants the dental records for an attorney to review.

Maybe you have received a subpoena to supply a patient`s records to a medical-record reproduction company. If this occurs, an attorney already has been consulted. No matter what the scenario is, it`s too late for you to properly document your diagnosis, prognosis, treatment plan, or any complications or complaints the patient may have had. That is when I can become your worst nightmare!

As an independent dental examiner, I have the opportunity to examine your recordkeeping, radiographs, treatment plan, the execution of the treatment plan, patient information, and how you handled any complications that might have occurred. I get to scrutinize your treatment of a patient from the first time this person entered your office right up until the time the patient requested his or her records. If I accept a case, I truly and honestly feel the dentist has treated a patient in a substandard way. For taking this road in dentistry, I have been called a "scab" by some and shunned by others.

Previous substandard work

Organized dentistry recently has pushed the fact that we should not complain out loud if we see poor dentistry or hear horror stories about a previous dentist. Yes, you should look into the complaint - even to the point of calling the previous dentist.

What if you discover the complaint is valid? Should you really sweep substandard dentistry under the carpet if you feel the patient has been mistreated to the point of malpractice? If you review the disciplinary actions taken against dentists by the licensing boards, you usually find that the action is directed at those who do not pay their licensing fees on time, let their licenses lapse all together, use assistants or dental hygienists in a nonlegal way, advertise their practices improperly, or have a drug abuse problem.

It seems the only avenue open to patients who have received substandard dentistry is to sue. That`s why dental litigation is at an all-time high - and the number of cases is increasing daily! Part of my role, as an independent dental examiner, is to advise an attorney on whether a case is valid and legitimate prior to the attorney accepting the client`s case.

Before you form an opinion about me for being part of this line of work, let me briefly tell you how and why I started this service. I loved the practice of dentistry; but, after having my own private practice for 22 years, I was forced into early retirement for medical reasons. One of my attorney-patients suggested that I look into the field. Since then, I have joined a forensic organization and have taken numerous courses on litigation, forensics, and dental malpractice. I have become an advocate for properly executed, caring dentistry.

I strongly believe that the patient comes first. There should be no compromise for proper, logical treatment. If the end result is to be introgenic in nature, then there are no shortcuts and no excuses for a dentist not to recognize and correct mistakes as soon as he or she is aware of them. Excellence in dentistry should never be compromised. Your patient`s treatment starts the first moment he or she calls your office and makes an appointment. It is your responsibility to treat all of your patients equally and to the best of your ability.

Review health history

Review the patient`s health history in detail. Be aware of medical problems and medications being taken. Question your new patient about a family history of disease if he or she has symptoms that may be signs of systemic disease. Does the patient smoke or consume large amounts of alcohol? You should find out.

I still am baffled by the inadequate recordkeeping that I see. It`s a problem I observe with nearly every dentist`s records that I have reviewed. It doesn`t take long to document every procedure you do on a patient. Comments your patient may have made about concerns, including phone calls regarding their treatment, should be noted in the chart, along with your response. Include records of all phone conversations concerning the patient`s treatment in your chart notes, including the date and time of the call. Be certain that you or your staff initial all entries in the chart. Believe me, the time and expense it takes to document is miniscule in comparison to the time, expense, and mental anguish of litigation. You always should document such things as the type of anesthesia used, the amount used, and even needle size and gauge. Was there more pain than usual with an injection? Note it - you may have traumatized a nerve.

The documentation should continue to include all the medicaments you might have used during procedures. Of course, your procedure should be described in detail. Discussions with the patients - whether by you, your assistant, or your hygienist - should be included and initialed. You would be surprised at what comes up in patient allegations!

Surgery and endodontics

All surgical and endodontic procedures should be carefully documented. Obtain an informed consent from the patient prior to beginning treatment. (In Pennsylvania, an informed consent is required prior to endodontic therapy. It is now considered a surgical procedure.)

Make sure the patient initials each paragraph of the informed-consent form, along with signing and dating it at the bottom of the document. Check with your insurance carrier to determine what should be included in your informed-consent form. Insurance companies have samples for each necessary procedure or will help you design your own. If you have any complications or if the patient has any complaint - no matter how insignificant it is to you - write it down. Also note your treatment of that complication and your response to the patient`s concern. How you handle a post-surgical complication may depend on it!

Did you injure a nerve during an extraction or while placing an implant? The fact that you documented a patient`s complaint during the procedure may help you correlate what is causing a post-surgical complication, such as paresthesia. Be aware of everything that is happening and react to it accordingly. The fact that you can recall everything from a given day about that particular procedure (because the events are well-documented) - and that you have reacted with compassion and within the standards of care when a problem arises - will more than likely stop litigation before it begins.

Where endodontics is concerned, you should document everything - i.e., radiographs taken, your diagnosis, instruments used, the length of the instruments, canal-filling material, and the endodontic cement used. It is incredulous to me how dentists can do an entire endodontic procedure and not document these areas and sometimes not even have working radiographs. Then, when the oral surgeon?s radiograph clearly shows poorly filled canals, they try to defend themselves. When a patient loses a tooth because the endodontic procedure was done poorly and the procedure was not documented properly, this is substandard dentistry. Our patients deserve our very best for every procedure we perform. Keep in mind that if patients feel they have had substandard treatment, they will litigate.

If you are a general dentist, remember that you are held to the standards of the specialist when doing specialty procedures. If a procedure is not going as expected, cut your losses and swallow your pride. When you run into unwanted complications, treat the patient with understanding and compassion ... and document everything! Properly address the situation or refer the patient to a specialist. Explain that there were unforeseen complications and a specialist can better handle the procedure. Whatever you do, do not blow off the patient?s complaints, telling yourself that he or she is just being difficult or is a hypochondriac. The problem will not go away! Your reaction to the complaint may be the difference in being sued or not being sued.

When a patient decides to sue, your documentation of that patient?s treatment is your best defense. Have a treatment plan in writing, with a diagnosis and a prognosis included, and outlined in a logical and acceptable order. We all know there are many correct ways to Otreatment planO for any one patient. Just remember you are treating a fellow human being. Use all of your knowledge and ability to treat this patient within acceptable bounds. If your treatment plan is logically thought out and you document every step of the way ? especially, if there are complications ? you will have a solid defense if the patient litigates.

If the words, OIn my professional dental opinion, within a reasonable degree of dental certainty, the treatment rendered was negligent and substandard dentistry for the following reasonsEO appear at the end of a report about you, this means I have become your worst nightmare!

How to avoid litigation

Here are a few tips to help avoid litigation and to make you think about your recordkeeping. Hopefully, these tips will help you improve your recordkeeping, as well as the treatment you provide your patients.

(1) Park your ego at the door. Remember that you are not above or better than anybody else. In today`s litigious climate, that means you can and probably will be sued if your treatment is substandard.

(2) When doing re-evaluation examinations on your patients, don`t just look for new caries and check the periodontium. Re-evaluate the work you already have done. Are your endodontic procedures working, are the margins really closed on the crowns you seated, are the restorations you placed properly sealed and contoured, etc.? If you find any problem areas, correct them.

(3) Compare your recordkeeping today with your recordkeeping when you started practicing. It should be more, not less, detailed. You may be surprised at what you find!

(4) Sit at the front desk for an afternoon or just listen in on how the staff is handling phone calls. Are patient complaints being logged into the chart? Are you made aware of these types of calls? It is imperative that you respond to a patient when a problem arises. Make sure your staff handles these situations properly; do not just assume that they are! Check it out personally.

(5) Do yourself a favor and go to one of the half-day malpractice prevent seminars. Not only will you receive a discount on your malpractice insurance premium, but also you will be made aware of the dos and don`ts in dentistry. You actually will receive information to help you avoid litigation and an update on the laws governing dentistry in your area.

(6) The best offense is a good defense in litigation. Properly treat your patients and document everything. If need be, consider every patient as a potential lawsuit. If you have everything documented correctly, you will never have to rely on your memory of an event that happened years ago. Remember that there is a good chance that your memory will not sway a jury in your favor, but accurate recordkeeping will. If you acted properly and within the standards of dentistry, it should be there in black and white for all to see.