Altering Dental Records Can Result in Significant Penalties

By Jon M. Pellett, JD, Managing Attorney – Administrative Defense, Medical Investigation Defense Unit, The Doctors Company

The Florida Board of Dentistry (BOD) takes a dim view of those who alter dental records. If a licensee is found to have altered a dental record, the BOD has a full range of penalties available to address the violation, including loss of the dental license and significant monetary penalties.

The Florida Department of Health (DOH) is the agency charged with investigating and prosecuting violations of the Dental Practice Act, including the issue of whether dental records have been altered in violation of the requirements of the BOD. The DOH has a wide range of statutory violations to choose from when presented with altered dental records.

Under the BOD’s Rule 64B5-13.005(3), if the DOH believes the alteration of the dental record was intentional and constituted fraud or making a false or fraudulent representation, it will seek a minimum mandatory fine not to exceed $10,000 for each count or separate offense, in addition to any other penalties outlined in the Board’s disciplinary guidelines.

Typical charges for altering the dental record include the following possible violations and subsequent penalties:

TDC table

Most professional licensing boards view altered records as evidence of a fundamental character flaw in the licensee and they will seek the higher range of penalties including suspension and loss of the license. The BOD is no different.  

Although permittable, if you need to make a late entry in the dental record, to avoid any allegation that you are seeking to alter the dental record, you should follow the BOD’s rule on record keeping. Rule 64B5-17.002(2) states: “Record Alterations: Any additions, corrections, modifications, annotations or alterations (hereinafter ‘change’) to the original dental record entry must be clearly noted as such and must include the date when the change was made, must be initialed by the person making the change, and must have an explanation for the change. An original entry to the record cannot be partially or wholly removed. Rather, to represent the deletion of a record entry, the entry must be struck through where it will remain legible. A change made on the same date of the original entry must also include the time of change.”

This requirement is applicable to handwritten records and electronic records. If you have any doubts before you make alterations or changes to a dental record, consult with an attorney.

 

Reprinted with permission. ©2018 The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.

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.

 

 

The Florida Board of Dentistry — More Than Just Discipline

The Florida Board of Dentistry (BOD) was established to ensure that every dentist and dental hygienist practicing in Florida meet the minimum requirements for safe practice. The practice of these professions is a privilege, not a right.

So what is the function of the BOD? It may surprise you, but the BOD is responsible for more than just discipline. They promulgate rules covering licensure and the regulation of the dental profession. They also monitor dentists and dental hygienists in their service to the people of Florida. For example, they cover sedation permitting and inspections, and dental laboratory registration — and you may remember the recent records rule revision.

The full BOD meets quarterly, but the BOD has different committees and councils that meet in the interim to discuss and debate issues before sending them to the full BOD for a vote. The committees and councils include: the anesthesia committee, rules committee, council on dental assisting, council on dental hygiene, ADEX committee, CDCA committee and a board budget liaison. The councils and committees usually meet via conference call throughout the year. The anesthesia committee and hygiene council are by far the most active.

All BOD meetings and conference calls are open to the public and dentists are encouraged to attend. It can be an eye-opening experience! And remember, it is much better to be a spectator than a participant in BOD disciplinary cases. All meetings, times and locations are posted on the BOD website at www.floridasdentistry.gov.

The board consists of 11 members appointed by the governor and confirmed by the Senate. Seven members must be licensed dentists actively engaged in clinical practice; two members must be actively practicing dental hygienists; and two members must be consumers employed in a field or occupation that is not related to the dental profession. The current members include: Dr. Robert Perdomo, chair; Dr. Joe Thomas, vice chair; Drs. Joe Calderone, Naved Fatmi, Bill Kochenour, Claudio Miro and T.J. Tejera; hygienists Ms. Cathy Cabanzon and Ms. Angie Sissine; and, consumer member, Mr. Tim Pyle. There is one consumer member position open on the BOD that the governor has not yet filled. To learn more about becoming a member of the board, visit the Governor’s Appointments Office website or email appointments@eog.myflorida.com.

Dr. Don Ilkka serves as the full-time FDA liaison to the BOD. The FDA also is represented at all meetings and conference calls by Director of Third Party Payer and Professional Affairs Ms. Casey Stoutamire. The FDA’s Governmental Action Committee monitors all BOD activities and holds conference calls to discuss issues and strategies before each meeting of the board. Please feel free to contact Ms. Stoutamire at cstoutamire@floridadental.org or 850.224.1089 with any questions about the BOD and its work protecting the citizens of Florida.

 

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

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.

 

Reprinted with permission. ©2016 The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.

Why Soliciting New Patients by Phone is Different Than Advertising by Mail

By Graham Nicol, Esq., Health Care Risk Manager, Florida Bar Board Certified Specialist (Health Law)

Q: In Florida, a dentist cannot lawfully solicit members of the public to become patients either in-person or by telephone. Does that mean dentists can solicit new patients via the mail?

A: Yes, it means exactly that. The Board of Dentistry distinguishes between in-person or telephone solicitation versus that done by mail. The reason they treat the communications differently based on phone versus mail is that phone solicitation “cannot be supervised, may exert pressure and often demands an immediate response without affording the recipient an opportunity for comparison or reflection.” A patient is not under pressure via television or radio advertising or by receiving a flyer in the mail.

As 21st century Americans, we all quite effectively ignore advertising and junk mail, but hanging up on a telephone caller is harder to do. So don’t call strangers on the phone asking them to be your patients. Even worse, don’t stroll door to door looking for patients like it’s Halloween! Getting arrested for trespassing is never going to build your practice.

 

This blog is for informational purposes only and is not intended to be a substitute for professional legal advice. If you have a specific concern or need legal advice regarding your dental practice, you should contact a qualified attorney.