March 2012, Volume 8, Issue 3
Published by AEGIS Communications
Management & Avoidance:
Risks & Liabilities of Dental Practice
An economy that continues to stress the limits of even well-balanced household budgets. An Internet age that provides sometimes credible, sometimes dubious information about dentistry. And an array of restorative treatment options to repair, alter, and maintain oral health that can leave even the well-informed confused rather than empowered.
Now, add to that mix OSHA standards, employment regulations, and countless employer/business owner requirements. Such is the dental landscape today, one dotted with increased risks and liabilities that could threaten daily practice, dentists’ lifestyles, their financial security, and their reputation.
“Dentistry is much more sophisticated today than years ago,” explains Richard Small, JD. “Dentists, as employers, face a variety of risks too extensive to summarize, as well as more common liability risks relating to patient care.”
Consider, for example, that independent contractor agreements do not protect the employer dentist if the patient is not informed that the treating dentist is an independent contractor and not an employee, says Edwin J. Zinman, DDS, JD. Additionally, in this modern day of implants and technologically advanced radiography, dentists face liabilities and risks if implants penetrate vital structures if cone beam computed tomography (CBCT) scans and surgical guides were not used, he says, adding that CBCT has been a paradigm shift in dentistry.
“New techniques exist today that didn’t before, and there’s a learning curve involved that requires dentists to have a plan for how they intend to get involved with newer and different treatment modalities,” observes Kenneth Treitel, DDS. “Standards of practice change—whether vis-à-vis regulations or more routine treatment with implants—that impact the way dentists diagnose and treatment plan cases.”
And today’s patients know that dentistry isn’t what it used to be, and neither is the dentist’s role in their oral healthcare. Patients are savvy, educated consumers who are knowledgeable about their conditions, preferences, and expectations based on information from the Internet and social networks like Facebook and Twitter, says Bruce Seidberg, DDS, JD. They’re armed with intelligent questions and less likely now than decades ago to blindly accept a dentist’s recommendation for treatment, he adds.
Simultaneously, insurance companies, Medicaid, and other government agencies are cracking down on fraudulent claims and under-reported income, leaving dentists navigating a quagmire of billing and tax law paperwork that is usually delegated to staff or accountants. Workplace and employment standards, associate and partnership agreements, and financial relationships with lending institutions combine with other non-clinical aspects of dental practice to compound a dentist’s risks and liabilities as a business owner and an employer.
“In today’s economic environment, there are more patients who aren’t paying their bills or who return complaining about their treatment. Staff that might have been fired are claiming wrongful termination if they’re unable to find a job right away,” observes Gary Baumwoll, Esq. “Unfortunately, many dentists who own their own practice don’t have a good grasp of what’s occurring with billing, personnel, and how associates are working, but when things aren’t done properly, it’s the person at the top—the dentist—who carries the risk.”
Among the “employer-related” and “financially based” risks dentists face are liabilities for work-related injuries to employees, vicarious liability claims for injuries to patients caused by professionals working for their practice, and even for mixed contract-tort claims arising from advertising and “social media” representations, Small says. Most of these risks can be insured, he notes.
According to Megan Urban, a dental consultant for Creamer & Associates, PC, financial risk categories include malpractice, employee labor or discrimination issues, embezzlement, disability, negative cash flow, and audits of all types. She advises dentists to have both term life insurance and personal disability insurance. Additionally, it’s critical that mandatory employment or labor posters, according to law, are displayed correctly in the office.
“The IRS is making a big push to collect payroll taxes, penalties, and interest for certain types of organizations—such as ‘S’ corporations—and there may be liabilities that the dentist isn’t aware of based on how they report their compensation,” elaborates Bruce Bryen, CPA. “Banks could request a secured position on the dentist’s resume if the collateral of the dental practice is insufficient, and associate buy-ins or partnership agreements could expose dentists to financial disputes and litigation if advisors—whether lawyers or CPAs—knowledgeable in dentistry weren’t involved in the process.”
Wayne J. Yee, DDS, notes that other business, financial, and employer-related liabilities involve the office environment itself (eg, improperly mounted monitors that could fall and injure patients or staff); failing to maintain disability and unemployment insurances; and failing to promptly record employee disciplinary actions and the counseling steps taken. Electronic data theft that leads to inadvertent release of HIPAA information and improperly backing up information also create risks and liabilities, he adds.
A dentist’s financial risks and liabilities also are greatly affected by clinical aspects of practice, Urban says, adding that the number-one clinical liability remains periodontal neglect and cut lingual nerves. With low reimbursements from insurances, some general dentists won’t perform risky procedures, but will refer to specialists, putting the specialists at a higher risk, she points out.
The risks and liabilities associated with the clinical aspect of the dental practice have at their core the dentist/patient relationship and the treatments themselves that dentists—or their associates and staff—perform. Claims tend to gravitate toward implants, oral surgery, and root canal cases, which tend to have stormy postoperative periods and can result in hospitalization and substantial pain and suffering, explains John Green, DDS, JD. Other claims could involve cosmetic dentistry—where patients have higher expectations and the cost isn’t covered by insurance, he adds.
According to Small, clinical risks and liabilities fall into two categories: inherent risks and risks caused by substandard care. “Inherent risks are those for which the dentist is not liable, in theory, because they are beyond the dentist’s control. State law recognizes that dentistry is part art, part science, and that everyone’s body reacts differently,” Small explains. “For these reasons, dentists are not legally responsible for risks inherent to certain procedures as long as the patient is advised of and accepts commonly known risks prior to consenting to treatment.”
Risks caused by substandard care are commonly referred to as dental malpractice risks, Small says. Dentists are liable for injuries caused by a breach of the standard of care.
Seidberg defines this category further, noting that malpractice is improper treatment that results in damage or injury; negligence refers to failing to meet the standard of care, practicing beyond the scope of competency or what the dentist’s license allows, or delegating to nonqualified people.
Stated differently, Treitel refers to acts of commission—things which the dentist has actively done, and acts of omission, in which there was something that dentists should have done or diagnosed but did not.
Patients who file dental malpractice claims bear the burden of proving the duty owed by the dentist, breach of that duty, and that the breach caused an injury, Small says.
“Duty comes with the concept of the doctor/patient relationship, which begins when there is reliance on what the doctor says to a patient,” Seidberg says. “That duty ends when treatment is completed.”
Green explains that employer dentists—or the “dental corporation”—are at risk of being brought into a malpractice case based on the conduct of other dentists in the practice, particularly if they’ve deemed them as independent contractors. In Illinois, for example, and other states, the employer is vicariously liable for any alleged negligent acts by dentists who work in the office, whether associates or independent contractors, he says.
“Also, dentists can incur professional liability when they refer outside their practice,” adds Yee. “For example, if a dentist refers a patient to an oral surgeon and later learns that the oral surgeon wasn’t qualified and made a mistake, the referring dentist is technically liable, also. Most dentists don’t realize that.”
Additionally, Yee believes that the greatest liability danger to a dentist may not be from patients, but rather from what another dentist may say about the quality of the previous dentist’s treatment or skills. Statements of facts and findings should always be objective, but comments based upon personal opinion must be tempered with consideration of not knowing all the facts. Whether the comments are true or not, negative comments from a dentist can trigger a lawsuit more often than any other reason, Yee adds.
Avoiding Malpractice Claims & Managing Risks
“The patient’s best interest is paramount; the dentist’s financial interest is secondary,” Zinman emphasizes. According to Seidberg, what can help dentists avoid malpractice claims is having affability, availability, and ability—and in that order. They must be easy to talk to, and listen to the patient. They should be approachable and gentle. Dentists also should be accessible to their patients and all new patients in need, and if they have a problem or issue, should be available to address it. Finally, he says that dentists must have the ability to perform to the standard of care and provide proper care. Yee notes that “standard of care” refers to the standard of care within a dentist’s location of practice and what other dentists would do in that location under similar circumstances.
However, Seidberg clarifies that the standard of care is that of reasonable care and diligence ordinarily exercised by similar members of the profession in similar cases in like circumstances given due regard for the state of the art. General dentists are held to the standard of specialist when doing procedures of that specialty. The standard of care is a national standard of care rather than within a dentist’s location of practice.
“You have to practice smart, which means you have to think before you treat, and you can certainly only treat within your competency levels,” Seidberg emphasizes. “Even though you think you can do something, if you haven’t done it in a while, or if you do it sporadically—for example, root canals—you must be comfortable before you treat.”
Additionally, before treatment even begins, Treitel says it’s imperative that dentists create a set of circumstances in which they have both a fully informed and fully educated patient. They also should recognize potential problems by thoroughly interviewing patients before they accept them for treatment.
“There are people whose expectations can be unrealistic and who have had contentious relationships with dentists for years,” Treitel observes. “The ability of dentists to interview patients is significant to identifying situations that could present increased liability. As dentists, we’re not obligated to treat either cases or patients we’re not comfortable with.”
Further, reasonable expectations are important to avoid litigation, Small explains. Expectations are shaped by a variety of factors, including advertisements and understanding the benefits and risks of treatment options and of no treatment. Factors beyond a dentist’s control, such as information they find on the Internet, also shape expectations.
Yee emphasizes the need for a comprehensive informed consent form that’s written in plain English with commonly understandable terms. For example, never use tooth numbers without first identifying what the term means. The form must be properly completed, signed, and dated prior to initiating treatment, he adds.
“Patients who need invasive care should be educated about their options, along with associated commonly known risks, and given the chance to ask questions before selecting a treatment plan. Limitations of treatment should also be discussed during this important process,” Small elaborates. “Documenting this process reduces risks because it confirms the patient was advised, made a choice, and accepted inherent risks and certain responsibilities as an important part of the treatment team. Informed consent forms also act as an important tool used by defense lawyers to prove patients were not only properly advised, but accepted ‘inherent’ risks.”
Therefore, it is incumbent upon dentists to fully explain to patients what their responsibilities are during treatment (eg, oral hygiene, smoking cessation), Yee says.
“If a patient consistently doesn’t follow homecare instructions and is noncompliant, they can be difficult to appease and placate,” Green says. “It’s important for dentists to know when and how to discharge these patients, and to do so in a manner that emphasizes that the decision is in the patient’s best interest. Broaching the subject is very difficult, but it’s necessary to avoid risks and liabilities.”
Having a good chairside manner, treating patients well, and having a good system for returning their calls—especially if patients have emergency issues—helps to keep the lines of communication open, Baumwoll says. And, when patients are upset, everything said and done, along with the dentist’s reasoning, must be documented.
“Communicate by asking the patient if there are any persistent, unresolved complaints posttreatment,” Zinman says.
Depositions from plaintiffs involved in lawsuits have included allegations that there was a delay by the general dentist or even specialist in reaching out to a colleague and confronting an issue directly, Green has observed. Therefore, he recommends that a general dentist evaluate a patient’s problem in a timely manner, and if necessary, refer to the appropriate dental specialist if the problem is beyond their skill or comfort level.
“I think the mantra you hear in depositions is that patients felt they weren’t being listened to by the dentist,” Green continues. “Following up with the patient postoperatively after a difficult procedure does wonders to put the patient at ease and helps them emotionally to know that they’re being cared for by a compassionate dentist.”
Consider treatments involving implants, for example. Zinman suggests that staying current with continuing education courses, using CBCT and surgical guides for implant placement close to vital structures, and calling patients the next morning for any persistent paresthesia symptoms if the implant or root canal overfill may have penetrated the inferior alveolar nerve canal can help to avoid malpractice claims. Further, he adds that when in doubt, refer it out—to a microsurgeon within 24 hours if the implant placement or root canal overfill may have penetrated the inferior alveolar nerve canal.
“I think the best defense is communication with the patient,” Green says. “It’s difficult to predict how the human body is going to react to certain dental procedures, and some outcomes are not what dentists expect, even though they’ve followed the proper protocol. The key to handling poor outcomes is working with patients, being sensitive to their complaints and financial needs, and being realistic about their expectations.”
Best Defenses & Preparation
Resonating commonalities among the pearls of wisdom for preparing for and defending against risks and liabilities are maintaining ongoing education, surrounding oneself with dental-specific advisors, and maintaining accurate, timely, and complete documentation and communication.
Urban says dentists can reduce conflicts with employees by maintaining an up-to-date employee handbook, approved by an attorney in their respective state, that covers all important policies within the dental office, and is legal according to state and national law. Every employee in the practice should be required to read the employee handbook and sign a statement that they have read the handbook and commit to following it. She also says that team training should include discussions regarding the handbook and answering questions and responding to team concerns regarding employment matters.
Yee notes that one of the best ways for dentists to protect themselves is by developing a set of procedures and steps as the office’s Standard Operating Procedures (SOP) manual. These should document exactly what is to be done in the same way every time, thereby preventing mistakes or omitted steps. All procedures and how they are performed should be included in the SOP manual, he says.
“One benefit of SOP manuals is the ability to check work for completeness,” Yee says. “Additionally, if dentists and their staff follow SOPs, then they can document their work as ‘as per routine’ and reference the SOP in their notes.”
According to Treitel, a very important factor in managing risk is the dentist’s level of record-keeping. He says that dentists who keep more thorough records are in fact more thorough in their evaluation and treatment of patients.
“The court system recognizes that if it hasn’t been written down, it hasn’t been done,” Seidberg says. “Patient records should be documented accurately, completely, and legibly, since they’re a business record.”
Treitel says that when there is a litigious action and attorneys are involved, the first thing they do is review a dentist’s records. The comprehensiveness of those records plays a major role in whether a case carries forward to a complaint or is dropped, and it is a major way in which dentists defend themselves.
Patient charting does not have to include every detail of treatment, but it should summarize key events so others can understand the diagnosis, treatment plan, complications and the result. Patient responsibility for a less-than-optimal result due to non-compliance should be documented. It is also important to establish closure when a patient fails to comply or return, particularly when patients are warned that their behavior will jeopardize their health, Small says.
Dentists occasionally conclude withdrawing from care is in a non-compliant patient’s best interest, Small explains. Some patients must find another dentist whose advice the patient will follow in order to achieve acceptable results, he says. When the documentation is good and dentists are confident they treated the patient properly, deciding to withdraw is more appropriate than wasting time trying to satisfy someone who will never be satisfied, particularly when patients make unjustified complaints to get out of paying a bill or are incessant complainers, Small adds.
Zinman advocates participating in and maintaining current continuing education course requirements as a means to help prepare for and defend against risks and liabilities in the dental practice. Additionally, he notes the importance of reviewing the diagnostic and therapeutic guidelines for the eight specialties recognized by the American Dental Association (ADA), each of which maintains its own guidelines for quality care.
According to Urban, all dentists must have adequate malpractice insurance. During a bad economy, some dentists put themselves at risk by trying to perform procedures they are not adequately trained to do and, as a result, significantly raise their exposure to malpractice risk, she says.
“Dentists who have agents and dental malpractice insurance companies that understand dental risks should use them as valuable resources when they need help in difficult situations,” Small notes.“Dentists should surround themselves with trusted and knowledgeable advisors, including a dental CPA, a dental attorney, and possibly a dental practice management advisor, as well as resources to stay abreast of OSHA and HIPAA requirements,” advises Robert Creamer, CPA, managing partner of Creamer & Associations, PC. “Dentists need to continue working on their practice, not just in their dental practice. This includes keeping up to date with continuing education—including clinical and management issues. Specific risk management courses also should be included in the dentist’s training.”
Dentists are the “leader” in their practice, and employees look to them for guidance and direction, Creamer says. Therefore, they must be willing to both assume the role and be the leader the team is looking to for leadership.
Clinically speaking, Zinman also suggests that dentists can manage their risks by avoiding penetration of biologic width space by placing restorations at the gingival margin or minimally below it, and not to place restoration margins to the depth of the sulcus. He says to consider crown lengthening surgery if restorations may invade biologic width space.
“Also, do not perform gingivectomies or laser sculpting to the depth of the sulcus on the same day as final restoration preparations and impressions,” Zinman cautions.
Unfortunately, Yee says malpractice and litigation in dentistry isn’t going away. He advises against “cornering your enemy” and forcing a malpractice case to occur, but rather to offer a path of least resistance by working out problems directly with patients.
“The best defense against malpractice is avoiding it altogether by understanding it,” Yee stresses. “Dentists can avoid a claim by understanding how they occur and preparing for them before they ever do.”
Advisors specializing in dentistry are essential, Bryen says. Someone who works with hundreds of dentists that represent a good cross-section of what’s happening across the country can relate to their clients with experiential advice. Ultimately, it translates into saving the time and money that would otherwise be spent working with attorneys through discovery, interrogatories, and eventually going to court, he adds.
“There is no one ‘best’ way to reduce the risk of litigation, but a common-sense approach should be pursued,” Small recommends. “Every case must be reviewed independently. When dentists are faced with difficult situations, they should always remember their primary goal: do what is in your patient’s best interest.”