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Risk Management Helping to Prevent Dental Malpractice Lawsuits Risk Management a 2 hour Continuing Education course sponsored by the Chattanooga Area Dental Assistants Society and presented by Karen Castleberry, CDA, RDA, BS Associate Professor, Chattanooga State Community College CADAS is approved by the Tennessee Board of Dentistry as a CE provider for dentists, dental hygienists, and dental assistants To Earn 2 hours of CE Credit 1. 2. 3. 4. 5. View this power point presentation Go to http://tndaa.org/tndaa/CADAS.html and Click on “Post-Course Exercise” Complete the post-course exercise. Return the first page of the post-course exercise with $20 (FREE for students, ADAA members) Allow 2 weeks for your certificate to arrive via USPS Introduction: While the dentist is ultimately responsible for patients in his/her care, dental auxiliaries must constantly be aware of the need to take extra care to protect their dentist/employer from liability. Goals of this course: to enable dental auxiliaries to help prevent unnecessary malpractice lawsuits in the dental practice to identify opportunities to improve the quality of patient care. to stimulate thought and trigger discussion among the dental team members and to increase awareness of vulnerabilities in your practice. Malpractice Just the fact that a patient takes legal action against your dentist/employer – does not mean your dentist has done anything wrong. Anyone can sue anyone for any reason Disclaimer – this presenter is not an expert in dental jurisprudence and completion of this course offers no guarantee of protection from lawsuits. But by increasing awareness and using common sense, we can be an asset in the event that litigation does occur. Understanding Malpractice The following four conditions must exist for a malpractice lawsuit to be successful DUTY DERELECT (commission or omission) DAMAGES DIRECT CAUSE 1 An Example: “Settlement Reached in Death at Dental Office” – Aug. 2008 A settlement was reached in a wrongful death case in which a high school principal died during a routine dental procedure in Chicago, IL. The patient was over medicated while undergoing a routine procedure and was not monitored properly. The doctors performing the procedure are currently on probation and the dental office will pay $8.5 million to settle this medical malpractice and wrongful death lawsuit.3 An Example, cont: In this case, a dentist/patient relationship had been established, and clearly there was a DUTY owed. A DERELECT OF DUTY occurred when the dentist committed the error of over medicating the patient and omitted, or failed to provide proper monitoring of the patient. The patient suffered DAMAGES (death), and the DIRECT CAUSE of the patient’s death was the dentist’s dereliction of duty. Identifying Areas of Vulnerability The “Areas of Vulnerability” discussed in this course were identified using the results of a 2005 survey conducted by the ADA on the frequency, severity and causes of dental malpractice claims reported between 1999 and 2003. Fifteen dental professional liability insurers participated and together they insured nearly 104,600 licensed dentists. The survey also identified errors or inadequacies in the patient record preventing successful defense against unfounded allegations of malpractice.4 Areas of vulnerability Dental auxiliaries can minimize risks by recognizing these area of vulnerability and identifying ways to help protect their employer/dentists and their patients from these risks. Twelve broad categories are discussed here. Area of Vulnerability #1: The health history is not clearly documented or updated regularly What you can do The medical history form should include Complete physician information (Leave no blanks!) Complete name and dose of all medications including non-prescription, herbal supplements, and recreational. Ask patients to bring Rx bottles. A statement that the information supplied by the patient is accurate and complete, and the patient should sign and date the form. What you can do Keep in mind, the patient may not be able to read the health history and other forms. About 14 percent of U.S. adults, or 1 in 7, can’t read.5 Nearly one in five uses a language other than English.6 What you can do Update the Health History at every visit and document this in the treatment record or on a separate form. Have the patient sign and date the documentation. Take the patient's blood pressure before treatment begins. Area of Vulnerability #2: Failure to Diagnose What you can do Only the dentist can diagnose and recommend treatment, but the well-trained dental auxiliary must be able to anticipate the diagnosis and treatment. The dental auxiliary must be able to provide the dentist with quality diagnostic aids. (a variety of radiographic surveys, study models, charting, etc) What you can do Know that patient refusal to have x-rays does not relieve the dentist of the responsibility to diagnose, even if patient signs a waiver Document all radiographic exposures and other diagnostic tests and record the dentists findings in the patient treatment record Retain “before” and “after” study models What you can do Document that the health history was reviewed at every visit. Listen to the patient Recognize signs and symptoms of oral cancer and report suspicious lesions to your dentist immediately; document the dentist’s preliminary findings Provide patient literature and encourage frequent self- exams What you can do Thoroughly interview the patient regarding the “chief complaint” and document using SOAP notes. S = Subjective. (symptoms described to you by the patient – ask questions!) O = Objective. (signs you can observe clinically) A = Assessment. (diagnosis) P = Plan. (treatment plan) Area of Vulnerability #3: Adverse Results What you can do Help prevent “wrong tooth” cases allegations of assault (physical restraint, sexual assault) small items from being swallowed or aspirated Never make promises or guarantee your dentist’s work. Refrain from offering a prognosis you are not qualified to make, like “it’s probably nothing” or “you’re going to be ok”. Area of Vulnerability #4: Failure to Obtain Informed Consent What you can do The consent form should include information regarding: A description of the proposed treatment Benefits and consequences Common and severe risks Reasonable alternatives, including the risks and benefits of each The patient’s financial obligations What you can do Know that it is not always enough to obtain a patient signature on a form– the patient must understand what he/she is signing! The dentist or the auxiliary must explain the terms of the consent form. Make use of patient education brochures and videos Be familiar enough with procedures that you can give the patient adequate information Allow time for questions and answers, and if you don’t know the answer, ask the dentist. What you can do Informed consent for minors For minor children, the parent, custodial parent, or legal guardian must give consent. When parents live separately, the child’s personal information form should indicate which of them is the custodial parent. When separated parents share custody, the child’s record should contain letters from each providing consent and authorization to treat. What you can do It is best to obtain written consent for all procedures, but patients must sign a written consent when New drugs are used Experimental procedures of clinical testing is involved The patients’ identifiable photograph is used General anesthetic is administered Minors are treated in a public program Treatment takes more than one year to complete Area of Vulnerability #5: Failure to Refer What you can do It is possible that the patient might not understand that he has been referred to a specialist, nor the importance of complying with the referral. The auxiliary must Make sure the patient understands to whom he is being referred and why If possible, telephone and make the appointment for the patient. Provide the patient with the name, address, telephone number and a map to the dentist to whom you are referring and the date and time of the appointment. Document the referral in the patient’s treatment record Area of Vulnerability #6: Anesthesia Complications (Particularly with Sedation or General Anesthesia) What you can do Be prepared for emergencies! Keep AED and emergency kit current and readily available. Check respiratory devices for aging. Keep a log of monthly reviews of emergency kit and equipment. Maintain current CPR training; seek and document additional related training Post emergency information beside each telephone Have emergency plans in place and practice. What you can do Document health history update at every visit Obtain baseline vital signs and monitor vital signs continuously Have physician information readily available Be familiar with patient medical conditions and medication side effects, interactions, etc. and alert dentist Confirm pre-op and post op instructions (NPO, Driver, prophylactic antibiotics, if indicated, etc) What you can do Document types and amounts of anesthesia and other medications Remember that dental assistants can not administer nitrous oxide Never leave a patient who has been sedated unattended. Thoroughly document all incidents Provide oral and written post-operative instructions to patient and care-giver prior to dismissal Record patient status upon dismissal Area of Vulnerability #7: Failure to Appropriately Treat Medically Compromised Patients What you can do Update health history and update it at each visit. Confirm that the patient has taken all recommended pre-medication(s) including prophylactic antibiotics Provide physician contact information if consultation is necessary “Flag” the treatment record and alert the dentist to the patient’s special needs What you can do Become familiar with medical conditions that affect dental treatment such as patient positioning, length of procedure, need for assistance, etc. Keep a current PDR or other drug reference book nearby Rehearse transferring a patient from a wheelchair or other device to the dental chair to prevent patient injury from falls Offer assistance to patient who might need help Area of Vulnerability #8: Equipment Failure What you can do Learn the proper care and maintenance of equipment used in dental procedures. Inspect equipment regularly and maintain a log of the inspections. Look for wear, frayed cords, deteriorated rubber or plastic parts Report malfunctions to the dentist immediately. Keep a report of service on major pieces of equipment. Routinely use biologic monitors to document the effectiveness of sterilization equipment and keep the results in a log Area of Vulnerability #9: Auxiliary Performance Causing Claim What you can do Never exceed the your Scope of Practice by performing procedures that are not legal. (practicing dentistry without a license and can jeopardize your dentist/employer’s license) Maintain current knowledge in field Never diagnose or recommend treatment Be gentle when retracting lip, tongue, cheek during dental procedures. What you can do Intercept sudden movements by patient Transfer instruments only in the transfer zone and place instruments firmly in the dentist’s hand. Retrieve instruments firmly as well. Be familiar with products and materials to avoid injury caused by misuse Maintain professional interpersonal relationships, rapport with Dr., patients, and staff Never make critical remarks about dental treatment rendered by your employer or another dentist. Area of Vulnerability #10: Understanding abandonment: Abandonment - the discontinuation of care after treatment has begun, but before it has been completed. Abandonment includes Refusing to treat a patient of record without giving the patient a written notification of termination Failure to notify patients who will treat them in an emergency if the dentist is not available. (After hours, even deceased dentists) What you can do Be certain you understand who is “covering for” your dentist and have contact information. Make sure to activate the answering service or to leave an emergency contact number on the office voice mail. Never refuse to see patients of record – even if they owe the dentist for previous services. What you can do ONLY the dentist can decide to dismiss a patient! To properly dismiss a patient, The dentist must notify the patient in writing The patient must be given a reasonable time to obtain a new or substitute practitioner, usually 30 days. The dentist must be available to provide the patient with emergency care during that time, The dentist must cooperate in the care by the new practitioner (forward records). Area of Vulnerability #11: Errors in the Treatment Record Types of Errors in the Treatment Record: Failure to document: Treatment plan Health history and updates Informed consent and informed refusal Patient Assessment (SOAP notes) Treatment rendered Reasons for deviation from the original treatment plan Telephone conversations with patient Types of Errors in the Treatment Record Failure to document , continued Pre and post operative instructions Routine full-mouth periodontal and oral cancer screenings Referral to or consultation with another practitioner Prescription orders name and relationship of the person giving consent is for minors or patients who are incapacitated Types of Errors in the Treatment Record: Words, symbols, or abbreviations are ambiguous Records are not legible (a sloppy record implies a sloppy dentist!) Insufficient records given the complexity of the issue Comments about the cost of treatment and the patient’s payment history included in treatment record X-rays were inadequate for the procedure Types of Errors in the Treatment Record Alteration of records Lost records/x-rays Records not written in ink Record contains notes related to discussions with an attorney or insurer regarding a possible malpractice lawsuit Critical or subjective personal comments about the patient in the chart. Deletions, additions, or corrections are not made properly in patient records What you can do Each entry must be dated and initialed by the person making the entry and, if the entry involved clinical treatment, the dentist’s initials must be included. Also document refusal of treatment, broken or canceled appointments, when the patient discontinues treatment. This information can be useful in documenting “contributory negligence”. Have the dentist review, initial and date correspondence, lab reports, etc, before filing the form in the patient record What you can do Progress notes must include all pertinent information related to the procedure performed. It is better to record too much information than too little. Bottom Line: If it is not in the chart, it didn’t happen!! What you can do Never erase, white out, scribble over, obliterate, remove or change a chart entry. If an error occurs, correct it properly by making a single line through the error, make the correct entry, and initial and date the correction. Electronic data management systems tracks changes. You may update the record by making late entries, but the original information should not be changed. Back up electronic data regularly. What you can do Disposal of records Keeping patent records forever in impractical. Only the dentist may authorize the destruction of records Follow your sate’s recommendations regarding the retention of medical/dental records. For example, under Tennessee law, the patient record must be kept for ten years after the last patient visit. The medical record for minors must be kept for one year after they reach the age of majority or for ten years after the last patient contact, Whichever is longer. 6 What you can do Disposal of records, cont. X-rays and other imaging products may be destroyed after four years, but only of there is a separate report interpreting the images.6 Patient records that are in dispute must be retained until the dispute is resolved, or the above rules have been met, whichever is longer.6 Keep a log of destroyed records Shred or burn records to preserve confidentiality Area of Vulnerability #12: Allowing hazards to exist What you can do Create a safe environment for your patients Provide patients with protective eyewear; protect their clothing and personal articles. Keep spills cleaned up to avoid slipping and falling Keep pathways free of obstructions (electrical wires, vacuum hoses, x-ray machines, boxes, etc.) Secure rugs to prevent slippage and falls What you can do Understand risks associated with equipment and materials such as lasers, electrocautery devices, tooth whitening devices, exothermic materials, etc, and take appropriate precautions Design emergency plans and periodically schedule “drills” to manage medical emergencies, special needs of medically compromised patients, fires or natural disasters; post evacuation routes. Never treat patients if you are impaired by drugs or alcohol. Conclusion Some areas of vulnerability for dentists are somewhat beyond the control of the dental auxiliaries. We should always strive to be alert to what is being done or said so we can accurately relay the information in the event we are asked to give a deposition. Avoid opinions – state the facts! Wait to be asked – do not volunteer any information Remember the doctrine of Res Gestae, meaning, “Part of the Action” Statements made spontaneously by anyone (including the dental auxiliary) at the time of an alleged negligent act are admissible as evidence and may be damaging to the dentist and dental auxiliary in a court of law. “Silence is Golden” – avoid “oops” and “Uh-oh’s” and even “Sorry’s” Risk management not only improves patient care and reduces risk exposure, but it also brings the dental team together in an effort to improve patient care. Sources: 1. 2. 3. 4. 5. 6. 7. 8. Bird, Doni L. and Robinson, Debbie S., Modern Dental Assisting, Ninth ed. 2009, Saunders/Elsevier Publishing Co., St. Louis Dental Malpractice by Levin & Perconti, August 14, 2008 http://medicalmalpractice.levinperconti.com/103dental_malpractice/ ADA Survey http://www.ada.org/prof/resources/topics/riskmanagement_survey.pdf Britt, Robert Roy, “14 Percent of U.S. Adults Can't Read, posted: 10 January 2009 12:23 pm ET, http://www.livescience.com/culture/090110-illiterate-adults.html Non-English speaking households on rise: While Spanish is still the most common, Russian and Chinese are also one the rise. Associated Press, Published October 9, 2003, http://www.sptimes.com/2003/10/09/Worldandnation/Non_English_speaking_.shtml Schwab, Carol A., JD , et al,“Legal Issues in Health Care, Medical Records”, UT Health Science Center, Dec. 2007 http://www.utmem.edu/Medicine/legaledu/UT/factsheets/MedicalRecords.pdf Graskemper, Joseph P., DDS, JD, “A New Perspective on Dental Malpractice; Practice Enhancement through Risk Management”, JADA, Vol. 133, June 2002, 752-757 Risk Management Helping to Prevent Dental Malpractice Lawsuits Part II - Applications To Earn 2 hours of CE Credit 1. 2. 3. 4. 5. View this powerpoint presentation 2. Go to http://tndaa.org/tndaa/CADAS.html and Click on Post-Course Exercise Complete the post-course exercise. Return the first page of the post-course exercise with $20 (or proof of student or ADAA member status) Allow 2 weeks for your certificate to arrive via USPS 2009 CADAS Schedule Thursday, September 3, 2009 at Chattanooga College, 3805 Brainerd Rd. 6:30 - 7:30 pm CE Course: "The Role of the Dental Team in Forensic Dentistry" Dr. Robin Smith, DDS, (1 CE) Fee: $10. FREE for students and ADAA members 7:30 Business meeting following CE course Thursday, October 15, 2009 at Chattanooga State Community College, 4501 Amnicola Highway - Room HSC 202 6:00 pm Social Time- Bosses Day Celebration – dentists attend CE course free!! 6:30 -7:30 CE Course: "Micro abrasion Restorations using the KCP Machine", Jim Holloway, DDS (1 CE) Fee: $10 FREE for students, ADAA members and Dentists Friday, October 23, 2009, at Chattanooga State Community College, 4501 Amnicola Highway - Room HSC 2027 1:00 - 4:00 pm SUPER CE course: "Eating Disorders", Dr. Steve Filler and Dr. Karen Filler (4 CE's) Fee: $40. FREE for students and ADAA members 2009 CADAS Schedule Saturday, October 24, 2009 at Kaplan College, Envious Lane, Nashville, TN - TNDAA Fall Conference- includes Monitoring Nitrous Oxide Course, Business meeting, CE courses, workshops, vendors, Fun! Thursday, November 5, 2009 at Chattanooga College. 3805 Brainerd Rd. 6:000 pm Social Time 6:30 -7:30 pm CE Course: “Prescription Fraud”, Det. Jeff Parton, Hamilton County Narcotics & Special Operation Unit (1 CE - Meets Chemical Dependency requirements) Fee: $10. FREE for students and ADAA members Thursday, December 3, 2009 - Ryan's on Lee Highway 6:30 - 8:30 pm Christmas Party - bring a wrapped ornament to exchange 2010 Schedule available at http://tndaa.org/tndaa/CADAS.html For more information about membership in the American Dental Assistants Association, visit www.dentalassistant.org Be a Smartie! Join Today!