Legal – Beyond the Bite

Management of Treatment Complications

by Florida Dental AssociationMay 31, 2018Leave a comment

By Sue Wilson, MBA, CPHRM, Patient Safety Risk Manager, The Doctors Company

Even when a patient is provided with care that meets the standard of care, complications may arise during, or as a result of, the treatment provided. It often is helpful to review this type of case to determine not only the root causes, but also how the complication was managed.

Case Study
A patient presented to a dentist for evaluation of tooth extraction and fitting of dentures. During the extraction, the patient complained of extreme pain and allegedly stated it felt as if the jaw had been broken.

The patient was discharged home and returned the following day complaining of pain, and presented with a swollen and bruised jaw.

A dental X-ray revealed a compound fracture of the left mandible. The dentist referred the patient to an oral surgeon, with a letter outlining the X-ray results and information about when the fracture may have occurred. The oral surgeon diagnosed a left displaced mandible fracture and admitted the patient to the hospital for surgical repair. The following day an open reduction internal fixation (ORIF) was performed and the patient was discharged a day later.

Subsequently, the patient developed complications and required several additional surgical procedures. The patient alleged the dentist was negligent in failing to properly document the extraction procedure, failed to maintain proper medical records, failed to take adequate pre-extraction X-rays, applied excessive force during the extraction that resulted in the fracture and failed to adequately assess the patient’s complaint by immediately obtaining an X-ray. The plaintiff’s expert dentist affidavit opined the dental care was below the standard of care and directly caused the subsequent injury and complications. Medical records from subsequent treating professionals revealed the patient continued to have pain, loss of jaw function and became anorexic as a result of inability to chew properly. The case was settled.

Documentation
It’s widely understood that health care records should contain a complete assessment of prior dental, medical, surgical and pharmaceutical history. However, there often is confusion about how to document complications or complaints. It’s important to objectively describe any complaint or complication arising during or following a procedure, as well as the assessment and actions taken in response to the complaint or complication. In this case, when the patient complained of pain, the dentist did not stop to determine the source or severity of pain and did not obtain an X-ray post treatment. Although the dentist stated in a letter to the oral surgeon he suspected the fracture occurred following extraction of a specific tooth that was ankylosed, he did not document the same in the patient’s record, nor did he document discussions with the patient following the procedure.

Recordkeeping
When a request is received for records and X-rays, a complete copy should be made and the originals retained in the office. In this situation, all original X-rays and medical records were given to the patient without keeping a copy, making it difficult to determine what was documented by the dentist and staff. When referring to another care provider, provide a copy of the medical records and X-ray films, but the original records and films should be kept and it should be documented that a copy was sent to the treating provider or given directly to the patient.

Communication
Maintaining communication with the patient and other treatment providers is essential. In a study of plaintiffs who were asked why they chose litigation against their health care provider, most responded they were seeking an apology and an explanation. It’s important to provide both to a patient who is potentially or actually injured. However, in many cases the cause of injury or complication is not known right away; therefore, it’s equally important not to assume blame, or to point to others as the cause of complication or injury.

Consult with Your Insurance Provider
When an adverse outcome resulting in potential or actual harm occurs, it should be discussed with your insurance company representative as soon as possible. In this case, the event was not reported until the patient requested her medical records and retained an attorney. At The Doctors Company, there are claim specialists and patient safety risk managers who can assist with communication, documentation, legal and regulatory questions and, if appropriate, compensation to the patient. Seek guidance from a patient safety risk manager or claim specialist before financial arrangements and agreements take place in connection with an undesired outcome, complication or injury.

Although zero injury is the goal, when an undesired outcome, actual injury or serious complication does occur, it often is how it is handled that determines the outcome for both the patient and the health care provider.

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 healthcare 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.

Is Your Patient a Victim of Human Trafficking?

by Florida Dental AssociationOctober 26, 2017Leave a comment

By Amy Wasdin, RN, CPHRM, Patient Safety Risk Manager II, The Doctors Company

Most health care providers are aware of their role and responsibility to identify and report victims of child abuse, elder neglect and domestic violence. However, there is another type of abuse that is on the rise and reported in every state throughout the nation. In 2016, human trafficking cases reported in the United States rose by more than 36 percent from 2015, according to the National Human Trafficking Hotline statistics.

Human trafficking occurs when a trafficker exploits another individual with force, fraud or coercion to make him or her perform labor or sexual acts. Victims can be any age (adults or minors), any gender, and from any cultural or ethnic group. The trafficker, or abuser, might be a stranger, family member or friend. This criminal industry is extremely profitable, generating billions of dollars worldwide. Lack of awareness and misconceptions by health care providers allow opportunities for identification of the victims to go unnoticed and unreported.

Victims of abuse rarely find opportunities to interact with other persons without approval from the abuser. A visit to a physician or dental practice may provide a rare opportunity for a patient to receive the help that he or she desperately needs. Research published in the Annals of Health Law in 2014 revealed that 87.8 percent of trafficking survivors reported that they were seen by a health care provider during their trafficking situation.

Human trafficking victims commonly are seen in medical and dental practices with the following conditions:

trauma such as broken bones, bruises, scars, burn marks or missing teeth
poor dental hygiene
pregnancy
gynecological trauma or multiple sexually transmitted infections (STIs)
anxiety, depression or insomnia

Victims usually are afraid to seek help for a variety of reasons that usually stem from fear, shame or language barriers. Health care providers and their staff should be trained to recognize the signs of human trafficking and know what steps to take.

Red flags to look for from the victim include:

fearful demeanor
depressed or flat affect
submissive to his or her partner or relative
poor physical health
suspicious tattoos or branding
lack of control with personal identification or finances
not allowed to speak for himself/herself
reluctant or unable to verify address or contact information
inconsistency with any information provided (medical, social, family, etc.)

Victims may be fearful and untrusting of their environment, so it is best not to directly ask an individual if they are a victim of human trafficking. Instead, the Department of Health and Human Services recommend questions such as the following:

Has anyone threatened you or your family?
Can you leave your job or home if you want to?
Are there locks on your doors and windows to keep you from leaving?
Do you have to get permission to eat, sleep or use the restroom?
Has someone taken your personal documents or identification?

Human trafficking is a federal crime and violators who are prosecuted receive prison sentences. The Trafficking Victims Protection Act was enacted in 2000 and provides tools to address human trafficking on a national and worldwide level. Many states also have laws and penalties for human trafficking.

If you suspect that a patient is a victim of human trafficking, please call the National Human Trafficking Hotline at 888.373.7888 or go to https://humantraffickinghotline.org/report-trafficking to report online. The hotline is not a law enforcement or investigative agency, but will take any possible steps to aid the victim and could result in a report to law enforcement.

Health care providers should follow state laws regarding mandatory reporting to provide notification of patient abuse or neglect situations. Unless calling the authorities is mandatory, it is recommended that you do not do so without the patient’s permission.

For resources and information on assessment tools, go to the National Human Trafficking Hotline’s Resources for Service Providers or Centers for Disease Control and Prevention.

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.

Challenges for Pediatric Dentistry

by Florida Dental AssociationDecember 1, 2016May 30, 2017Leave a comment

By Kim Hathaway, MSN, CPHRM, CPHQ, Patient Safety Risk Manager, Department of Patient Safety and Risk Management at The Doctor’s Company

Identifying legal guardianship and the rights of parents can reduce risk prior to treating a minor.

Treatment of a child with parents involved in an acrimonious divorce can present a dentist with unique challenges. When only one parent accompanies a minor patient for dental care, the practice may not anticipate custody issues. Parental disputes may be revealed only after care has been rendered. For example, the other parent might demand a copy of the dental record, object to the care rendered, or refuse payment for services provided without his or her knowledge or consent.

Disputes also can arise when minor patients arrive at the practice with someone other than a parent. A child may attend a dental appointment alone or with a surrogate care provider, such as a stepparent, relative, family friend or older sibling. In any of these circumstances, a practice should always identify the person who can provide consent by proxy.

Scenario 1
A father presented with his 5-year-old child and requested an evaluation to treat dental caries. The child previously had been evaluated by a dentist who recommended a treatment plan to include restoring teeth under IV sedation. The new dentist evaluated the child and advised that the restoration could be safely accomplished with oral sedation in two stages. The first stage was successfully completed and an appointment was made to complete the second stage. In the interim, the dentist received a letter from an attorney who represented the mother of the child and requested a deposition with the dentist. Conflict between the parents resulted in a decision that treatment for the child’s remaining dental restorations and method of sedation would be determined judicially. Because of the hostility and aggression from the mother’s attorney, the dentist was reluctant to provide future care for the child.

Scenario 2
A 10-year-old child had been under the care of an orthodontist for several years and was in the middle of the course of treatment with full orthodontic appliances. After several missed appointments and payments, the office manager called the patient’s home to discuss the issues with a parent. The office manager was informed that the parents were in the process of a divorce and that the father was responsible for the bill. When the office manager called the father to request payment, the father responded that he would not pay for the orthodontic care. The subsequent options for the dental practice were to continue to provide care for the patient without payment, remove the orthodontic appliances prior to the completion of treatment or risk that the patient would not return for treatment.

Scenario 3
An 11-year-old patient and her mother presented to the orthodontist with a complaint that the child’s teeth were crowded and crooked. The treatment plan was discussed with the mother, who signed the proposed plan during the visit. The orthodontist initiated phase one of the treatment, and monitored and managed the orthodontic appliances for several months. A surrogate care provider escorted the child to each office visit. As the development and eruption of the canine teeth progressed, it became necessary to extract the temporary canine teeth. The orthodontist discussed the extraction plan with the surrogate, and the practice called the patient’s mother, who provided permission for the extractions over the phone. Later, when the child’s permanent teeth had not yet appeared, her parents consulted with the orthodontist and expressed concern that the absence of canine teeth would negatively affect her appearance. The orthodontist explained that it might be a year before the teeth fully erupted. Upset by this response, the parents requested a copy of the dental record to present to their attorney. While preparing the record, the dentist realized that the surrogate care provider was the only person who had signed treatment consents. Further review of the dental record revealed that it did not contain documentation giving the surrogate the right to consent for treatment. A parental signature was limited to the treatment and financial plan.

These scenarios illustrate some of the situations that can be encountered when providing treatment to minor patients. Dentists need to understand the rights of parents and the complexities related to the legal consent of minor patients. Many risks can be mitigated through execution of a proper informed consent, and dentists should be familiar with consent laws in their state.

Risk Management Guidelines
The following strategies can help dentists recognize family situations when the individual holding legal consent is difficult to ascertain.

Identify the individual who holds legal consent for the minor and document this in the dental record. If this isn’t a parent, find out who has the legal right to consent to treatment.
If there is a question regarding custodial rights or minor consent, insist that the parents provide the legal document or court order.
Review patient dental records to determine the existence of any documents that establish the status of a custodial parent or legal guardian (divorce decree, restraining orders, etc.) and request a letter from the attorney that describes your legal obligations. Update the information on a regular basis.
Develop a “Conditions of Treatment” agreement for parents who are divorced or separating, consider including the following statements on your website, and execute the agreement prior to first visit:
The dental care of your child is the first priority.
Maintain an open dialogue regarding your child’s dental treatment.
The custodial parent has financial responsibility for dental payments.
Both of you are entitled to treatment information if you share joint custody.
If one parent has exclusive medical decision-making authority, the parent must provide a copy of the court order to the dentist to include in the patient record.
If you are not amicable, the dentist can terminate your child’s dental treatment.
Require a written consent by proxy when an individual other than the custodial parent or legal guardian accompanies the child. Request updated information on an annual basis regarding individuals who are authorized to accompany the child during treatment visits.
If permission or consent is obtained via telephone with a parent or legal guardian, document the communication.

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.

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

by Florida Dental AssociationDecember 10, 2015May 31, 2017Leave a comment

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 21^st 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.