Identifying risks can prevent malpractice lawsuits.
Risk management in a dental setting can be of great benefit for little expense. It’s easy to educate a staff to promptly identify and investigate problem situations.Recognizing the need for good documentation and identification of problems can help you avoid claims and lawsuits. While these techniques will not always prevent a claim, they will provide the best defenses to claims.
Mistake No. 1
Failure to recognize problem patients
Early recognition of problem patients is important for risk management. Problem patients may exhibit traits that include lengthy care histories from many providers, courses of care dominated primarily by emergency visits, constant complaints about past or current care, ongoing failure to pay for services, and consistent failures to adhere to advice and instructions. These traits are common in plaintiffs and litigious patients. Prudent practitioners who identify these traits early may discharge or not accept these patients. Often, such decisions save time, money, and aggravation. If you care for such a patient, document the care and issues of the problem.
Solution: Develop systems that will alert you to problematic patients early to determine if patients are worth long-term aggravation.
Mistake No. 2
Pursuing collections for patients where care may be at issue
Many malpractice claims arise when dentists pursue collection claims. Once a malpractice claim is filed in response to a collection claim, a defense to the malpractice claim (however thin) must be made. It is within the control of the practitioner to pursue formal collection of monies owed, but much of the dentist’s control of the situation becomes lost. Therefore, any decision to pursue a collection matter - by letter or action - should be evaluated carefully before being pursued. Assess whether you are prepared to defend all of the care if a claim is made, as well as the nature and traits of the patient (i.e., is this a problem patient?). Weigh the amount of money involved against the risk of a claim. If a claim for collection is asserted, be sensitive to the manner of collection and the personality of the person seeking the unpaid monies in further attempts to avoid a malpractice claim.
Solution: Perform a risk-benefit analysis before each collection attempt.
Mistake No. 3
Failure to advise staff of the need for consistent, accurate, complete documentation
A well-documented chart is the best witness in a lawsuit. It is made contemporaneous with events, it has no faded memory, and it has no bias or prejudice. Ensuring that all aspects of patient care are documented in a timely, chronological, consistent, legible manner is key to proving that you rendered good, quality care. The first thing a potential plaintiff’s attorney will do to determine whether to file a lawsuit is to obtain and review a copy of the chart. A well-documented chart outlines all of the dental care and provides a clear chronology of the potential basis for a claim, with no gaps within which a plaintiff’s expert can claim, “If it is not documented, it was not done.” Every staff member who writes in the chart must be aware of these issues. Timed, dated, contemporaneous entries detailing the action, care, communication, prescriptions, phone calls, missed appointments, instructions, and refusals with consistent approved abbreviations make a good chart.
Solution: Document, document, document. Chart in a clear manner that can be deciphered by others.
Mistake No. 4
Failure to maintain a good chairside manner with patients
Patients who like and respect their providers are less likely to file lawsuits. The manner and method in which a dentist and staff members render patient care have a significant impact on decreasing or increasing risk. Even if quality care is delivered, if a patient has to wait 45 minutes for every appointment, never gets an apology, and the staff is brusque and unfriendly, that patient might become angry at the dentist or group. Staff members who cannot maintain good attitudes with patients should not deal directly with patients. If a serious or unexpected problem occurs, a patient who thinks he or she has a poor relationship with the dentist or staff members will not hesitate to talk with a lawyer and pursue a claim. A good relationship with the patient can overcome that. If a suit is filed, a good patient relationship always works to the dentist’s benefit in favorable testimony by the plaintiff and keeps damages down and plaintiffs reasonable.
Solution: A good chairside manner by you and your staff matters.
Mistake No. 5
Failure to designate a point person to oversee risk-management issues, recognize problem situations early, and investigate them
Early identification of problematic areas or trends that might result in claims can be beneficial, especially if corrections can be made before problems arise. Methods and procedures that identify and sort issues and spot trends must be instituted for prevention. The best way to identify problems is for a designated person to receive reports of problems, similar to the incident-reporting system at hospitals. Staff members must be educated to report events made in an office setting. Reports should be verbal only. For example, when a patient schedules a procedure and says that he or she does not understand the procedure or its risks, that should be reported to the point person. Such identification could show that a dentist’s patients are not following the informed-consent process. Before a claim arises, you could educate the staff on the need to follow protocol, or additional double checks could be instituted. Early problems can be resolved prior to claims.
Solution: Designate a point person to oversee risk management and identify problems.
Mistake No. 6
Failure to avoid negative comments and remarks about other treaters or providers.
No dental provider or staff member should criticize other providers in front of patients or in a chart. Document facts, but critical opinions or comments heard or viewed by a patient or attorney will foster potential litigation and may serve as the basis for expert opinions in a lawsuit. Criticism of prior treatment will involve the criticizing treater in a suit against the prior treater. Beware also of patients attempting to elicit criticisms - they may have already considered or instituted a lawsuit against another. Dentists are well-served in rendering treatment recommendations based on objective evaluation, not plaintiff’s subjective claims or descriptions of the history of care.
Solution: Criticisms should not be part of patients’ charts or communications.
Mistake No. 7
Failure to follow up
A common area for claims is when dentists fail to document follow-up with patients on important issues or recommendations. Copies of notes on failed appointments, reminder calls or notices, instructions, prescriptions, and attempts to ensure patients return for care should be part of the charts.
Solution: Follow up with patients and document that follow-up was done.
Mistake No. 8
Failure to properly discharge patients from care
Once a patient has been discharged from care, the statute of limitations may begin to run, and obligations under the dentist-patient relationship likely end. Often, this discharge process is informal and not well-documented. Creating a formal procedure and supporting documentation in the chart (including communication to the patient) will help establish a cutoff to liability.
Solution: Formalize the discharge process, and document the steps taken.
Mistake No. 9
Failure to refer when needed
Dentists who know and understand the limitations of their practices and expertise have taken a large step to manage and minimize their risks. Dentists who fail to do so might develop problems from lack of expertise, often resulting in patients seeking care from specialists. In this scenario, specialists, if pressed, often criticize general practitioners as exceeding their expertise. Specialists can be favorable experts for plaintiffs, as by virtue of their specialties, their expertise is greater than that of general practitioners. When situations necessitate referrals, the referrals should be well-documented with reasons for referrals and, if urgent, prompt action should be taken with patients and specialists. Such actions could cut off liability for general practitioners.
Solution: Do not hesitate to refer when appropriate, and document the process.
Mistake No. 10
Reliance on systems designed to remove narrative progress notes and descriptions of communications
In a lawsuit, the chart and documentation of communication with patients and other treaters are the backbone of a defense. A well-documented chart is a key witness and preserves facts and actions forgotten over time.While technology can help busy practitioners, preprogrammed checklists or forms alone do not create the type of documentation most helpful to defenses. The narrative descriptions or issues pertinent to patients’ care help create a more comprehensive picture of the entirety of care, as well as spark memories of those who might be called to testify years later. The clearer the picture, the better the defense.
Solution: Only use charting programs designed to allow and encourage narrative notes.
Linda J. Hay, J.D.
Hay is a partner at Alholm Monahan Klauke Hay Oldenburg, LLC in Chicago. She graduated from The John Marshall Law School in 1986 and has defended dental professionals for more than 15 years. She may be reached at firstname.lastname@example.org.