Risk management has gone through a metamorphosis since the late 1970s, when it started with an increase in litigation against dentists for alleged malpractice. Early risk management courses taught dentists the importance of recording patient treatment. This evolved into the "records, records, records" mantra. By writing everything in the record, there would be a basis for a good defense if the dentist were sued. Then came the "inform before you perform" mantra. A solid defense could be developed for alleged malpractice by informing patients of the benefits, risks, alternatives and costs related to a procedure, and receiving their consent to perform the procedure. These definitely are important teachings on risk management.
A solid defense could be developed for alleged malpractice by informing patients of the benefits, risks, alternatives and costs related to a procedure, and receiving their consent to perform the procedure.
Risk management began with better records for the defense, then progressed to involving patients by informing them of the intentions to treat their dental needs. Now, not only should we keep good records and inform patients, but we also should include them in the diagnosis and decision-making processes with regard to the proposed treatment plan. By educating patients through proper mutual discussion, patients learn what their actual dental needs are and are able to take part in their treatment plan’s decision-making process.
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BASIC LEGAL TERMINOLOGY
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Today’s risk management must take into account not only defensive record keeping, but also educated-patient treatment planning based on evidence of need for proposed dental treatment.
Before further discussion of this new perspective, some basic legal terms need to be defined.
Negligence.
There are four parts to negligence: a duty to render care must be shown, a breach of that duty must have occurred, the patient must have suffered some damages and the damages suffered by the patient must be proximately caused by the breach of the duty. The plaintiff-patient must prove all four parts.
The standard of care.
Standard of care is defined as the skill and care that a dentist would bring to a similar case or that which ordinarily is used by reasonably qualified dentists in similar cases and circumstances.1 The standard of care is not what the top 10 percent of dentists are doing, it is not what a specialist is doing, and it is not what a dental school professor is doing. If you think of an egg and split it into fourths from top to bottom, it is the middle two-fourths of the egg and above that represent a reasonably well-qualified dentist.
Respectable minority rule.
The treating dentist is not liable merely by electing to pursue one of several recognized courses of treatment. Just because a prior treating dentist used different materials or performed a procedure differently, it does not make the prior dentist’s treatment below the standard of care.2
Last-clear-chance doctrine.
If you have information from another health care provider that you know or should have known to be incorrect and rely on that information, then you remain liable, as you have the last clear chance to save the patient from injury.
Informed consent.
I have extended the traditional components of informed consent because of the need to educate patients more completely and provide them with a better understanding of the proposed treatment. There are six parts to informed consent:
- – the proposed treatment;
- – the risks of that treatment (Dentists should try not to make a laundry list of things they think might go wrong, as they inadvertently may miss something. I strongly suggest that dentists add the words "but not limited to" to the introduction to their lists.);
- – alternative treatments available;
- – the benefits of the proposed treatment;
- – the prognosis of the proposed treatment;
- – the cost of the proposed treatment (I added this because many lawsuits have been filed when the patient finds out that the cost of the implant placement did not include the cost of the restorative phase or that the endodontic therapy did not include the crown).
The dentist needs to inform patients about all six parts of informed consent and the patient needs to agree to all six parts for consent to be complete. As with all legal doctrines based on state law, there are state variations to the elements of dental malpractice. Owing to the fact that individual malpractice situations may differ significantly, dentists should always seek personal legal advice that would be applicable to their situations.
It also is helpful in discussing risk management to understand why people sue. There basically are three reasons: the person was physically or mentally injured and has damages, the person needs money, or the person knows or is related to an attorney who would take approximately one-third of any money collected.3(p16) It also should be understood that anybody could sue anyone at any time for anything for any amount. If you are sued, remember that it is on the premise of alleged malpractice. The plaintiff’s attorney still must prove that malpractice (negligence as defined previously) has occurred.
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RISK MANAGEMENT AND PRACTICE ENHANCEMENT
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There are many sayings that have been used in past risk management discussions; for example, "records, records, records" and "inform before you perform." They served well in having the dentists create a solid defense as a basis for risk management. These sayings still serve important purposes and still should be well-respected in the field of risk management. Being in the information age, patients want to understand more so as to make their own informed decisions about their health. Therefore, patients need to be included more in the treatment-planning decision phase that is evidence-based. Newer sayings and phrases have evolved that reflect more current views; they include "treat your patients as your friends," "value-centered practice" and "evidence-based treatment." Combining the old and the new develops a new proactive perspective: "practice enhancement through risk management."
The risk management and practice enhancement concepts have a basis in patient communication. Through risk management, dentists are attempting to prevent lawsuits by informing patients (and receiving their consent) through communication. In practice enhancement, dentists are attempting to have patients accept a treatment plan of optimum dental care through communication. Hence, it is through communication with patients and prospective patients that dentists are able to achieve both risk management and practice enhancement.
Risk management in dentistry originally was designed to increase the strength of the defendant dentist in the case of a lawsuit and to decrease the costs of defending the lawsuit. The dentist has a better legal defense if the records are complete and legible and include documentation of the patients’ understanding of the proposed and completed treatment. Patient communication is not just describing a proposed treatment plan to a patient. It starts even before the patient enters your office. Communication includes the external and the internal marketing of the dental practice. External marketing includes advertising, direct mailings, the office’s appearance from the outside (including signage) and the community’s perception of the dentist and the office. Dental insurance companies heavily market their cost savings for dental care. By joining a preferred provider organization and being listed as one of their providers, you are externally marketing your practice. (A discussion of all of the advantages and disadvantages of joining a managed care organization is beyond the scope of this article.) Internal marketing includes the proper phone usage, office décor and cleanliness, scheduling sufficient time to discuss treatment with patients and build their trust, up-to-date equipment and an active recall system with needed oral home care products available.
Marketing of any type promotes the image of the dentist and the office. Many consumers make up their minds as to where to place their trust and spend their money based on the marketing of that good or service. Patients have become much more knowledgeable in their selection of service providers in whom they will place their trust based on the information they receive from another patient, external or internal marketing and the perception of the dentist and office within the community.
Risk management with a basis in patient communication already has started with a prospective patient’s perception of the dental office. The appearance of the dentist and staff also acts as an influence on the prospective patient’s decision to place trust in his or her new dentist. Professionally dressed dentist and staff members make a much better impression on a new patient than do shabbily dressed dentist and staff members. The staff members should be confident, caring, courteous, comfortable, competent and clean, also known as the "six Cs."
Dentists should learn to listen to patients, understand body language and learn techniques to allow patients to feel welcome and to build trust. One technique is to look the patient in one eye.3(p21) By looking in one of the patient’s eyes, the dentists is able to focus on the patient, and it allows the patient to feel he or she has the dentist’s attention and that the dentist is concerned about his or her dental needs. People often do not sue people they like or trust.4
Throughout all the steps of patient communication, from the marketing to the initial office contact on the phone to the eventual dentist-patient discussion regarding treatment, building the patient’s trust in the dentist and the office is paramount. By building a trusting dentist-patient relationship, the chances of a falsely alleged malpractice lawsuit being filed are lowered.
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IN THE OFFICE
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Once the prospective patient becomes a patient of record by scheduling an appointment and receiving treatment, dentists can start direct malpractice prevention. By conducting a thorough examination, which includes, but is not limited to, a proper medical history (including blood pressure); soft-tissue cancer screening; temporomandibular joint, or TMJ, screening; periodontal screening report, or PSR; a full set of radiographs; and a caries/restorative examination, dentists build a trusting dentist-patient relationship.
When reviewing the medical history with a patient, dentists should try to ask questions to confirm what the patient reported. For example, many patients do not report that they take aspirin daily when asked if they are taking any medications. This can lead to potential post-extraction problems, should an extraction be performed without proper precautions. Patients also frequently do not think that their having a heart murmur is important to dentists and, therefore, do not report it. Other patients may deny the need to be premedicated with the presence of a heart murmur, stating their physicians said it is not necessary. When this situation arises, dentists should contact the patients’ physicians regarding the type of heart murmur and to confirm that they do not need to be premedicated. Even if the physicians state that no premedication is needed, if dentists know differently, they have a duty to not work on such patients if they are not premedicated. This falls under the last-clear-chance doctrine mentioned earlier. Besides conducting a thoroughly completed health history at the initial visit, dentists also should update the medical history at subsequent visits to ensure there are no changes that would change the planned procedure or treatment plan.
Dentists can conduct a soft-tissue cancer screening thoroughly and quickly by palpating glands and directly viewing oral tissues. Any abnormal spots or areas should be noted and a biopsy should be performed on them, or they should be treated or be referred to the appropriate physician or oral surgeon. I have reviewed a case in which an intraoral melanoma possibly was mistaken for an amalgam tattoo. So, if dentists question a spot or an area, they should refer the patient to the appropriate physician or oral surgeon to confirm their diagnosis. It is always better to be safe and find out that the area in question is normal than to find out later from an attorney that a carcinogenic lesion was missed.
The TMJ screening also may be done quickly by palpating the TMJ and associated musculature and feeling for any crepitus, grating, popping or cracking. Dentists also should check for limited movement in lateral excursions and protrusive movements. They will find that most patients are within normal limits, and some patients may exhibit only sounds and are within the normal ranges of movement without pain. Dentists should be careful in their treatment of patients exhibiting only sounds unless they are well-studied in the field of temporomandibular disorders, or TMD. Treatment of sounds alone may lead to more complex treatment. Patients who exhibit definitive signs of TMD should be treated or referred to the appropriate professional. This screening provides a baseline of TMJ movements before extensive treatment in which patients can claim that the dentist caused TMD from occlusion, orthodontics, surgical forces or extensive time the jaw was open for treatment. Dentists should be sure to note any TMJ irregularities found during examination.
So there is no confusion as to when TMJ irregularities began, dentists can conduct the periodontal screening by following the PSR as promoted by the ADA5 and the American Academy of Periodontists. They should simply "walk" the periodontal probe around each tooth and spot-check areas of concern as indicated on the radiographs or as visually observed. Then they should divide the mouth into six parts and record the deepest pocket in each section. A code of 0 to 4 is given to each section. A section with a code of 0 (all probings 
3 millimeters, no bleeding, no calculus and no defects) is healthy and only requires routine preventive care. A section with a code of 1 (all probings 3 mm, bleeding present, no calculus and no defects) requires subgingival plague removal. A section with a code of 2 (all probings 3 mm and supra- and subgingival calculus present) requires subgingival calculus removal. A section with a code of 3 (probings > 3 mm and < 5 mm and supra- and subgingival calculus present) requires full-mouth charting and scaling. A section with a code of 4 (probings > 5 mm, supra-and subgingival calculus present, and osseous defects) requires full-mouth charting, scaling and root planing, referral to a periodontal specialist or further periodontal treatment after re-evaluation. Oral hygiene instructions always are given when periodontal conditions are discussed.
A good set of radiographs that will not fade to a nondiagnostic quality and a thorough caries examination, which would include a treatment plan to reconstruct any functional loss, are good ways to start record keeping for risk management and are a basis for patient communication.
Three major examination components—oral cancer, TMJ and periodontal screening—cover many of the alleged malpractice claims made against dentists for failing to refer patients to a specialist, failing to treat dental disease and causing iatrogenic TMD. Dentists also are providing excellent dental care to their patients when they diagnose all dental and oral conditions and TMJ function, as well as provide more necessary treatment, and they are creating higher production for practice enhancement.
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CODIAGNOSIS
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These preventive risk management protocols are good but still leave out the most important factor in preventing a lawsuit: trust. Dentists should gain the patients’ trust in them as reasonably knowledgeable, reasonably talented, caring dental health providers. To gain this trust, dentists need to include patients in making diagnoses. I call this important ingredient in practice enhancement through risk management, "codiagnosis."
Through codiagnosis you are able to involve patients from diagnosis through treatment planning. Let patients talk about their reasons for coming to see you, if not readily apparent. If they are not talkative, ask open-ended questions such as why they came to your office and what their expectations are. Once you understand patients’ concerns, wants and expectations, you can turn their needs into wants. Most dental expenditures are discretionary, and, therefore, a patient must want dental treatment, not just need it.
The treatment plan should be prioritized properly by four categories: pain, infection, function and esthetics. Of course, there are times when these categories intermingle and must be considered equally at the time of treatment planning. Many dentists spend too much time talking at the patient about how the treatment will be done. More time should be spent talking with the patient about the results of completing the treatment plan and how it will meet the patient’s needs, wants and expectations.
One of the first steps to codiagnosing is proper scheduling to allow enough time for the examination and discussion. Too many practices with which I have consulted have schedules that do not provide enough dentist-patient time to allow a trusting relationship to develop.3(p34) A new patient should be seen first by the dentist to develop a trusting dentist-patient relationship. I have found a one-hour appointment for taking radiographs and conducting an examination is sufficient for most patients. Sometimes, a second appointment and even a third are needed when there are many options for complex dental reconstruction to discuss. It may take longer for some patients to grasp this new role of codiagnosing with their dentist.
Treatment plans become a mutually decided outcome of codiagnosing with the patient and, hence, build a trusting dentist-patient relationship. People normally do not sue people they trust.
Remember to keep the patient’s best interests in mind when sequencing the treatment according to his or her dental health needs and financial concerns. A large restoration that may be used as a buildup for crown support at a later date can provide the patient with needed dental care. Temporary or interim treatment may be in the patient’s best interest until his or her periodontal conditions improve. Phasing in dental care provides a service to the patient and helps the patient trust you to provide his or her dental care. For example, the patient may only want a restoration but needs a crown. An explanation of the benefits of placing the crown should take place. After a discussion about the crown, the patient still may want to have only the restoration because of expenses or just does not want to have his or her tooth cut down. I recommend that you place the restoration and explain that it can be used at a later date as a buildup for the crown. If it fails early owing to size or other reasons, at least the patient understands there was a better alternative and may now agree to the crown. This way, the patient took part in his or her choice of dental treatment.
Throughout the codiagnosing process, you constantly should try to build a patient’s trust. However, be very careful of "puffery" or what I call "the setups" that routinely occur when discussing a patient’s expectations. The following statements often create a no-win situation for the dentist: "I can save that tooth," "I can make your smile beautiful again," "That will be an easy extraction." I am sure there are many others that make it easy for the patient to say, "That is not what I expected." I cannot emphasize enough the need to build a trusting relationship with your patients through codiagnosing to avoid lawsuits.
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THE FOLLOW-UP
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There are several patient management tools that help practice enhancement and build patient trust. After any possibly traumatic appointment, especially endodontic therapy and extractions, making a follow-up phone call that evening or the next day is a good way of promoting the quality of care you give your patients. If there is a problem or a patient concern, you are made aware of it, which may prevent further patient management complications before the patient questions the situation. Again, you are building trust.
Within the practice, I advise you to review the charts before filing them away. You do not need to do a complete audit; instead it is just a quick look at the last entry to check that it is proper, that the patient made an appointment or was put on a call list, and to see if any small problems are developing so you can address them before they become bigger or even develop into a lawsuit. This also allows for you to add anything that was inadvertently not written in the chart but should have been added. Your recollection still should be fresh. Two years later, if malpractice is alleged, your recollection will not be as fresh, and any changes to the chart then will be looked on as falsifying the chart. If you do so, do not just change the chart without noting the change or addition properly; be sure to write "late entry" and date and sign it. If something substantial needs to be corrected in the chart, discuss the situation at the next visit, if it is reasonably soon, or call the patient. Many lawsuits could have been prevented with just a phone call before the patient became upset.
If your practice management system is on computer and you are inputting all treatment plans, print an incomplete treatment plan list on a yearly basis. This is great follow-up, not just for production, but also to show patients you care about their dental health. Of course, the follow-up phone call must be made in a casual, nonselling manner. The call should just be to schedule a recall examination to make sure the patient’s dental needs have not changed drastically.
In addition to retaining patients and reactivating old patients, dentists also should know how to dismiss problem patients. Patient termination may be done properly by following several simple guidelines. In a letter, preferably certified, include the following:
- – a reason for the termination;
- – a termination "as of" effective date;
- – a two-week to two-month period, depending on your office demographics and the patient’s ability to find a new dentist, that you will be available for emergency needs;
- – the fact that the patient’s records will be available for transfer;
- – inform the patient of the condition and severity of his or her dental condition and the need to treat accordingly.
The patient must be in stable condition. Any treatment started, such as endodontic therapy, crown and bridge, or surgery must be completed with reasonable follow-up before termination.
One of the more common nontreatment causes of alleged malpractice is statements made by dentists who inadvertently cast dark shadows on other dentists’ completed treatment. Remember that we are human and that mistakes, slips and "oh-nos" will happen. Even if we have the best intentions, best training and most experience, the bad results, the abnormal anatomy or the psychologically challenged patients will find their way into our offices. For example, it is hard when a new patient is diagnosed with an open margin on a crown that is only one year old. If that happens, keep your findings factual and refer the patient back to the prior treating dentist if possible. Do not be condescending and do not tell the patient how bad the other dentist’s work is or how much better you would have done it. It could be a crown you placed that has deficiencies and that shows up in the other dentist’s office two years later. You may even call the other dentist to inform him or her in a professional manner of your findings and that you referred the patient back to him or her.
There are many procedures that lend themselves to technique differences that all dentists may not agree on. Different treatment philosophies exist in almost all phases of dentistry (for example, endodontics, oral surgery and orthodontics). There are many different techniques being used by many different dentists who have been trained in many different dental schools. The respectable minority rule, as mentioned earlier, was founded on this fact of health care training. Do not put the patient in the middle. Always put the patient first and be understanding of the other dentist, as well as of the patient.
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CONCLUSION
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Risk management and practice enhancement begin with patients and prospective patients’ communication and end with patients’ trusting their dentists. Working together with the patient through codiagnosis will reduce the risk of an alleged malpractice lawsuit and enhance your practice with more patients wanting to complete their treatment plans.
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ABSTRACT
BASIC LEGAL TERMINOLOGY
