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Top 10: Best Ways To Avoid Litigation In Dentistry

Practicing dentists always dread a few aspects of their careers and being sued by an angry patient, or even having a complaint filed against you can ruin not only your day but destroy your happiness for months on end. Top Ten Nation believes being prudent starts in dental school. Develop good habits in dental school and continue throughout your practicing life. So what habits or tricks should you know early on? Read on and find out!

This article is not written by an attorney and this article does not in any way shape or form replace advice by an attorney. Always consult your attorney first and foremost when it comes to litigation or protection from litigation.

Top 10 Things To Know To Avoid Getting Sued As A Dentist

1. Have knowledge about who is most likely to sue or complain
Having a complaint filed against you to your state, territorial, or provincial dental board can mean missing valuable productive days as a dentist. So who complains the most when you’re practicing? You’d imagine at first it might be your irate patients. Think again! Most complaints to dental boards that dentists encounter are actually filed against them by their own employees! Employees can complain against their dentist employers for multiple reasons, but most reasons generally involve instances where employees are made to do something they believe is wrong in the first place. Forcing your employees to cut corners, jeopardize sterilization standards, or even perform tasks that demean or embarrass them can lead to complaints. Treat your employees like family and avoid litigation, treat them like subordinates and expect litigation!

2. Documentation
Quality records and chart entries reflect quality patient care, especially in the minds of tribunals/jurors. We all know this. Additional things to keep in mind in this regard:
- Make the chart entry as soon as possible after the patient’s visit
- Sign or initial the entry to clearly identify who made the entry
- Make the entry clear, concise and complete
- Do not note fees in the clinical record
- Do not make negative remarks about the patient

3. The real deal with informed choice and consent
Informed consent involves discussion of diagnosis, prognosis, nature and purpose of treatment, risks and benefits of recommendations, alternatives, and non-treatment. Informed choice implies that a dentist fully informs the patient of the above before obtaining informed consent for providing the services selected by the patient. Having the patient sign a consent form does not absolutely absolve the dentist of his or her responsibility to perform their treatment to the standards of care expected of a reasonably trained dentist. The motto here is that you need to have a heart-to-heart with the patient and be sure in your own mind that he or she is absolutely consenting to the treatment agreed upon. Having the patient sign the consent form is simply the icing on the cake that doesn’t really fully protect you. The consent form itself is also important, and as evidenced, it is next on the Top 10 list.

4. A well-designed, signed, informed consent form
With consent forms, you always want to list all of the procedures you’re obtaining consent for in terms that a non-dentally literate person can understand. Document the communication process. A well-designed, signed, informed consent form is neither overly-broad or extensively detailed. Both overly-broad or extensively detailed consent forms can actually work against you! A consent form that is too broad is a problem because the patient can later claim that actual disclosure of the treatment rendered did not occur. An overly detailed consent form, even if you have the patient initial every line or page can later be a problem in litigation because the patient can claim to have had difficulty actually understanding the discussion and they can even focus on omissions, as little as they can be and form a complaint around that omission.

5. Confidentiality and release of patient information – Patients with HIV/Hepatitis C
Courts in the United States have recognized that privacy concerns are of paramount importance, especially for people with HIV, Hepatitis C and similar conditions. Consent for an HIV test or the release of the results of an HIV test must be written, not oral, and must be HIV-specific, not general. Note that in Canada, there is no legal precedent on this matter (but it might be prudent to consider this). Always remember, when dealing with a patient with a condition such as HIV, privacy is critical. Never mark the exterior of these patients’ paper charts with alerts or flags that other patients can see. Never discuss these patients in public areas of the clinic or at the front desk. When communicating with other medical practitioners, it is prudent to err on the side of requesting an HIV-specific release.

6. Be wary of subpoenas
Remember that patients value their confidentiality and release of patient information is something that the litigation-weary dentist should constantly keep their eyes on. If you as the dentist receive a subpoena to release patient information and if simply release everything without thinking twice, you might be getting yourself into trouble. This can actually be a problem because if you release that information, it doesn’t always protect you from being sued by the patient for breaking the confidence they placed in you! Top Ten Nation does NOT suggest ignoring subpoenas or not following their directions. We simply suggest immediately consulting an attorney if you ever receive a subpoena. Let the attorney guide you as to how you should proceed, and never simply release the patient’s entire chart without considering how it may come back and bite you.

7. Ending the patient-dentist relationship
Sometimes the dentist needs to end the patient-dentist relationship. Keep in mind that the dentist-patient relationship, if terminated incorrectly, can end up back in the dentist’s lap as a “continuity of care” complaint. A dentist may not discontinue treatment as long as further treatment is medically indicated, without giving the patient reasonable notice and sufficient opportunity to make alternative arrangements. The patient's failure to pay a bill does not end the relationship, as the relationship between dentists and patients is based on a fiduciary, rather than a financial, responsibility. Appropriate steps to terminate the relationship typically include:
- Giving the patient written notice, preferably by certified mail, return receipt requested
- Providing the patient with a brief explanation for terminating the relationship (this should be a valid reason, for instance non-compliance, failure to keep appointments, etc.)
- Agreeing to continue to provide treatment and access to services for a reasonable period of time, such as 30 days, to allow a patient to secure care from another dentist (a dentist may want to extend the period for emergency services to 60 days)
- Providing resources and/or recommendations to help a patient locate another dentist of like-specialty
- Offering to transfer records to a newly-designated dentist upon signed patient authorization to do so

8. Fix clinical charting mistakes correctly
We all make mistakes, and in dentistry, hopefully the mistakes are not made in the patient’s mouth, but rather on computer or paper when the dentist is doing that dreaded paperwork. Mistakes such as this are fine as long as you fix them correctly!
- Correct an error as soon as possible after discovery
- Draw a single line through incorrect material, and the original entry must still remain readable
- Add your initials & date to the correction
- On next available line, explain reason for the change & initial and date this entry

9. Consider further documenting tips to develop a shield against litigation
Want to further protect yourself from litigation? Consider the following hints that can sometimes go above and beyond standard charting protocols:
- Never alter or amend charts (unless you correct mistakes appropriately as discussed above)
- Document patient compliments using quotation marks
- Document patient noncompliance, refusal to see a specialist/follow recommendations and reasons why
- Document bad or unanticipated results (these are not necessarily malpractice, but must be duly documented)
- Make sure to document treatment options after a poor result
- Make chart entries consistent with appointment book
- Note missed appointments, emergencies, rescheduled appointments, and cancellations
- Document follow-up telephone calls for difficult or invasive procedures

10. In the event of a legal claim
Even after taking all possible measures to handle all cases correctly, a dentist may become a defendant in a malpractice suit. The dentist should:
- Not panic
- Immediately contact her/his attorney or insurance carrier
- Not discuss the case with anyone else until after speaking with her/his attorney
- Record the circumstances involved in the serving of a summons
- Have clear documentation

Hopefully, as a dentist, you are never sued. Top Ten Nation unfortunately reminds you that the majority of practicing dentists do encounter complaints or lawsuits at least once in their career. We hope this small article protects our fellow dentists in their endeavor to help patients in maintaining their oral health without being caught up in the legal system!

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