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.

Licenses, Licenses and More Licenses

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

I have a valid dental license in the state of Florida — that’s all I need to practice here, right? Wrong. As just one example: you’ll also need an occupational license — maybe even more than one! Occupational licenses are required by county ordinance and city regulations, not state law. Any business operating within city limits may have to get a county license as well as a city license.

Not feeling the love? It gets worse, ‘cause you’ll also need a Federal Employer Identification Number (FEIN) — kind of like a social security number, but for a corporation instead of a natural person — and a National Provider Identification number (NPI).

You see, all four levels of government want to regulate you to protect the public from unsavory characters. Unfortunately, the only way government can keep these nasty people off the streets is to charge each licensee an annual fee for the privilege of practicing your chosen profession and feeding your family.

So, don’t forget: Get all your licenses and keep all branches of government well-funded.

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.

5 Things Every Florida Dentist Should Know About Records


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

1. Records are evidence (exculpatory or damaging).

2. They must be kept a minimum of four years post-treatment, but preferably at least seven years (statute of repose for medical malpractice).

3. They should contain an entry every time an examination, treatment or dispensing of drugs occurs.

4. They document the doctor who is primarily responsible for all dental treatment regardless of who actually did it.

5. If you get in trouble with the Florida Board of Dentistry, a count for “failure to keep adequate records” will be alleged.


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.