case study – Beyond the Bite

Referral and Negligent Referral in a Dental Practice

by Florida Dental AssociationJune 29, 2017June 29, 2017Leave a comment

By Kim Hathaway, RN, CPHRM, Patient Safety Risk Manager, The Doctors Company

Failure to diagnose and failure to refer are common issues seen in dental claims.

Dental practice claims alleging failure to refer, or failure or delay in diagnosis may arise from a general dentist’s lack of referral to a specialist. On occasion, patients have asserted their general dentist referred them to a specialist who provided substandard care and that the referral itself was negligent. Dentists referring care outside their background, experience or training must take care to avoid liability issues associated with referrals.

Case Study
During a routine prophylaxis visit, a middle-aged male reported a mass under his tongue, which his general dentist evaluated as an aphthous ulcer (benign and non-contagious). Several months later, another provider biopsied the mass and diagnosed Stage IV squamous cell carcinoma. Surgery and radiation treatment were undertaken, and plastic surgery was required. The patient alleged dental negligence and failure to refer to a specialist. The defendant dentist claimed that the patient had been told to follow up with his primary care physician (PCP) or an oral surgeon.

There was no documentation of a formal referral to a specialist or PCP, nor was there documentation of the dentist’s observations or referral recommendation. The adverse result in this case may have been avoided or the impact lessened if the dentist had documented his observation, evaluation and testing to demonstrate a low suspicion of cancer, or if there had been a documented referral with follow-up on the referral.

Clinical Comfort Level
When specialists are unavailable, or the necessary care takes a patient outside of his or her local community, the patient may ask you to provide the treatment. Treatment that is outside your training or experience may increase the risk of injury to the patient. The risk generally lessens if the treatment is undertaken by a specialist. In addition, the patient cannot waive your professional duty by consenting to a negligent act. If the patient is injured, you will be judged against the standard of care for that specialty.

Do not let the patient pressure you into a treatment plan beyond your comfort level. It is important that you know your own and your staff’s limitations. Explain that the referral is the best treatment plan for the patient. Discuss that choosing no treatment may result in an adverse outcome, disability or death. Spend more time helping the patient find the necessary specialist and clearly document your discussions with and counseling of the patient. If the patient refuses specialty care, carefully document an “informed refusal.” Consider terminating the patient from your practice if after thorough counselling the patient continues to refuse your recommendations.

The American Dental Association’s General Guidelines for Referring Dental Patients notes: “In some situations, a dentist could be held legally responsible for treatment performed by specialist or consulting dentists. Therefore, referring dentists should independently assess the qualifications of participating specialist or consulting dentists as it relates to specific patient needs.” Vicarious liability is a concern if you refer a patient to a specialist who lacks skill or judgment.

Patient safety is the primary focus when making a referral. Familiarize yourself with the specialists’ communication skills, clinical judgement and competence. Explore complaints or evidence of poor care provided by the specialist. Find another provider in the community if a pattern of poor care develops. Consult with colleagues before recommending a specialist who you do not know well. Solicit feedback from both the specialist and the patient.

Communication
Effective communication is critical to a successful referral. Explain to the patient why the referral is needed for a particular treatment or condition and that you will remain the general dentist. Let the patient know what to expect from the specialist and the treatment, and reassure the patient that you will remain in contact with everyone to ensure the best possible outcome. Schedule the appointment while the patient is still in your office. If the patient needs to reschedule or cancel, the patient may; however, your staff has facilitated the referral.

Proactively avoid miscommunication between the dentist and specialist by providing a formal written referral. Always document the details of phone referrals followed by a written referral after the call. Referral letters should include the following information:

patient demographics and identification
date of the referral and last date the referral may take place
evaluation and treatment completed to date
copies of diagnostics performed, including information about when it was collected
diagnosis and prognosis
desired evaluation or care the specialist is requested to complete
your plan for after-care following the specialist’s intervention
a request for a consultation report and ongoing status reports

Tracking
Tracking patient referrals and return visits is essential to efficient patient care. A centralized and uniform tracking process should be kept separate from the patient’s record. The tracking should cover the timeframe from the patient’s referral to the return visit to the general dentist. Have your staff make this return appointment at the time they make the specialist appointment to avoid missed attempts to follow up. The tracking system should provide a reminder or task to move the process along or documentation for why it has not progressed. If the referral is not completed in a timely manner, the process should include contacting the patient and specialist to facilitate care.

Documentation
Carefully document the referral process. In the event of a claim resulting from the referral and treatment, documentation is the best evidence. Documentation of the evaluation, treatment and discussions with the patient that lead to the referral is critical. Copies of written communications and evidence of verbal communication, including phone messages with both the patient and specialist, must be kept in the patient record. Refusal or nonadherence to care must be recorded, with evidence of efforts to overcome the refusal or nonadherence. Finally, if the patient fails to seek specialist care despite your efforts, carefully document the events that lead to a decision to withdraw from further treatment of the patient. This decision should be followed by a properly executed letter terminating the dentist-patient relationship.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

Case Study: Unethical Treatment Leads to Lawsuit and Dental Board Action

by Florida Dental AssociationAugust 11, 2016May 30, 2017Leave a comment

By Kim Hathaway, MSN, CPHRM, CPHQ, Patient Safety Risk Manager, Department of Patient Safety and Risk Management, The Doctors Company

A celebrity dentist performed excessive treatment and committed ethical violations.

A 46-year-old male was evaluated by a general dentist, who conducted an examination with X-rays. The dentist determined that two dental surfaces were decayed and one tooth had a possible fracture. Excessive wear to the teeth was not indicated, and pretreatment photographs revealed good stippling of the gums.

Five days later the patient presented to a celebrated dentist who practiced general dentistry with advanced training in cosmetic procedures. The dentist was widely known through appearances in multiple television commercials, coverage on reputable news channels and his website. This media exposure created an assumption by the patient that the dentist’s professional qualifications were undeniable.

According to the patient, this publicity was a determining factor for his selection of the celebrated dentist to continue his treatment. During the initial evaluation, the patient complained of a “gummy” smile, as well as chipped and discolored teeth. The dentist performed restorative procedures that resulted in patient fees of $47,000.

A review of the dental record indicated that medical history, initial examination, X-rays and photographs had been repeated by the celebrated dentist prior to treatment. According to the second assessment, the patient had decay on 45 dental surfaces, tooth fractures on 77 surfaces and 31 teeth worn down by one-third to one-half. Gingival recession and tetracycline staining also were noted.

Although the diagnosis and treatment plan were vastly different from those of the original dentist, the patient agreed to undergo the procedures. Following the restoration, the patient remained unhappy with his appearance and experienced unrelenting pain. The pain led to gum surgeries, multiple root canals and significant weight loss. As a result, the patient was ultimately examined by five additional dentists. All of these dentists agreed the procedures performed by the celebrated dentist were below the standard of care. The estimated cost of the examinations by the additional dentists totaled $63,000.

The patient pursued a claim against the celebrated dentist, resulting in an indemnity payment.

A complaint also was issued by the state’s dental board. According to the complaint, the dental record indicated a recommendation of crowns to nine teeth, veneer treatment on 11 teeth, laser treatment on six teeth, a bridge on three teeth and one implant. Other procedures also were performed, including laser treatments to restore the patient’s smile.

Diagnostic imaging and other pretreatment photos did not support the need for restorations. Some teeth that had been diagnosed with decay and/or fractures were not treated. There were other accusations of ill-fitting restorations on multiple teeth.

The complaint contained ethical declarations, including that the dentist failed to address the patient’s concerns appropriately when he complained of pain. The dentist incurred charges of unprofessional conduct, excessive treatment and repeated acts of negligence. The dental board determined that the dentist provided substandard care that was indefensible, unnecessary and incomplete. The allegations were compounded because it appeared the dentist had rewritten a portion of the chart and that critical evidence had been destroyed. This rendered the dentist unreliable in his own defense.

Risk Management Discussion
According to the American Dental Association’s Principles of Ethics and Code of Professional Conduct (ADA Code), “The dental profession holds a position of trust within society.” The celebrity status of the dentist and the media coverage displayed on the dentist’s website indicated to the patient that he could rely on this dentist and trust him more than other dentists. The dentist violated each of the five fundamental principles of the ADA Code: patient autonomy, non-maleficence, beneficence, justice and veracity.

The following strategies can help you avoid unethical allegations:

Understand and practice under the ADA Code.
Provide only tests and treatments that are reasonable and necessary, with documentation to support the necessity of services provided.
Research and follow state regulations related to advertising as well as regulations regarding all aspects of a dental practice.
Exercise caution in advertising to avoid false or misleading claims about treatments, experience, certification or credentials that might misinform patients about the qualifications of a provider.
Display your credentials clearly and accurately. General dentists who perform complex prosthodontic or periodontal treatments, or practice as experts or specialists may be held to a higher standard of care than general practitioners.
Do not alter or destroy the patient record. In the event of a claim or litigation, the alteration will likely be perceived as a deliberate act to deceptively reflect care or explain a less than perfect outcome. Altering the patient record also may result in a regulatory agency disciplinary action and create lasting reputational damage. Concealing damaging evidence will render a case indefensible.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

Case Study: Documentation and Scope of Practice Issues

by Florida Dental AssociationJune 2, 2016May 30, 2017Leave a comment

By David O. Hester, FASHRM, CPHRM, Director, Department of Patient Safety and Risk Management

Obtaining written and verbal informed consent and patient response to follow-up care are crucial steps to improve patient safety and mitigate risk in your practice.

The patient, a 52-year-old female, contacted her dentist and stated that she had two broken teeth. Upon examination, the dentist recommended the removal of what remained of the broken teeth. The surgery was performed the next day to remove the teeth. The patient was discharged in good condition. The dentist did not have the patient sign an informed consent form prior to the procedure. The dentist later testified that he explained possible complications to the patient. However, the dental record did not include documentation confirming the verbal informed consent discussion. The day after being discharged, the patient called the dentist’s office and reported extreme pain at the surgical site. She requested to speak with the dentist but was told that the dentist was unavailable. She asked for an appointment, but was informed that the earliest appointment would be in five days.

The receptionist did not document the phone call and the patient testified that she was instructed by the receptionist to “just take some Tylenol.” The patient sought treatment from a second dentist. An examination by the second dentist determined that root tips had been left in place during the procedure and deep infection had occurred at the surgical site. The patient required further surgery and antibiotics to fully recover.

The patient pursued a claim against her original dentist.

Risk Management Discussion
An allegation of improper performance of a procedure is a common source of dental claims. The original dentist did not obtain a signed informed consent form. In addition, the dental record did not note that possible complications from the surgery were discussed with the patient. In this case, the original dentist did not remove all of the root tips, which caused pain and the need for additional surgery by a second dentist. The case was further complicated by the lack of policies and protocols to ensure all office staff follow guidelines within their scope of practice and job responsibilities. Guidelines are crucial to correctly triage inquiries to the appropriate staff member and/or the dentist for a timely response to the patient.

The following steps can help you improve quality and mitigate risk:

Explain the proposed treatment, expected results and potential complications to the patient. Have the patients explain what he or she expects from the proposed treatment.
Document all verbal discussions regarding the treatment plan in the dental record, including confirmation that the patient provided verbal understanding.
Develop policies and protocols that guide staff to ensure the timely follow-up of patient inquiries.
Ensure that all staff members document in the dental record telephone calls received from patients.
Educated all staff members and develop policies that ensure they do not practice outside of their license, expertise or scope of practice.

The guidelines suggested here are not rules, do not constitute legal advice and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

Reducing Aligner Challenges and Increasing Patient Compliance

by Florida Dental AssociationMarch 3, 2016May 31, 2017Leave a comment

By Dr. Payam Ataii

A Case Study Using the Propel System® with Invisalign®

In the following case study (Figs. 1a and 1b) I used the Propel System® (Propel Orthodontics) in conjunction with Invisalign® clear aligner therapy (Align Technology) (Fig. 2). Through a scientifically proven, patented process called micro-osteoperforation, the Propel System® stimulates the alveolar bone to induce an inflammatory response, accelerating tooth movement in the treated areas — 50-60 percent faster movement when compared to traditional orthodontics alone¹ (Fig. 3). As a result, I was able to intercept an Invisalign® case that was not tracking properly by using Propel in order to get the case back on track. Using Propel helped ensure that all challenging orthodontic movements were achieved as planned avoiding additional treatment time, patient inconvenience and cost (Fig. 4). The patient could resume treatment with her current aligners once the case went through a refinement process (Fig. 5).

During my presentation at the Florida Dental Convention (FDC) this June, I will review clinical factors such as clinician experience, patient compliance, attachment engagement and interproximal reduction accuracy using cutting-edge technology such as the Propel System®. In my opinion, the Propel system is a powerful tool to help recover the aligner protocol and finish with beautiful results on challenging cases.

Dr. Ataii will be speaking at FDC2016 on June 18. His course, “Using Micro-osteoperforations to Increase and Accelerate Aligner Cases for General Practice,” will be at 2 p.m. For questions or support in Florida, contact Jim Sieg at jsieg@propelortho.com.

(To view the photos below, click to enlarge each image.)

Fig. 1a

Fig. 1b

Fig. 2

Fig. 3

Fig. 4

Fig. 5

¹ Alikhani M, Raptis M, Zoldan B, Sangsuwon C, Lee YB, Alyami B, Corpodian C, Barrera LM, Alansari S, Khoo E, Teixeira C. Effect of micro-osteoperforations on the rate of tooth movement. Am J Orthod Dentofacial Orthop. 2013; 144 (5):639-648.