January 20, 2022 | 10 min. read
At some point in your career, one of your patients may have an unexpected reaction to a procedure or claim they didn’t fully understand the risks heading in. An error on your part may lead to further procedures down the road—procedures a patient didn’t anticipate, and perhaps can’t afford. Or they may decide, after agreeing to an expensive elective procedure, that they simply don’t like the results.
All these events could potentially lead to legal action. But how far that legal action goes—and the level to which it impacts your practice—will depend on how proactive you are in preparing for it. Because, while the risk of malpractice lawsuits may be all too real, it can be mitigated through great recordkeeping, confirmation of informed consent, and well-managed expectations.
To determine what it takes to effectively tick all these boxes, we spoke to several malpractice lawyers and asked them to share their insights and recommended best practices.
The best defense is a detailed patient chart
While most dentists learn about the importance of thorough recordkeeping in dental school, taking the time to put those lessons into practice is often easier said than done.
Too often, a patient complaint may be verbally addressed but not written down, or the information from a follow-up phone call may not make it into a patient’s records. These little missteps—while seemingly innocuous—can cause serious issues if that patient eventually takes you to court.
“Records are important evidence if a case does go to court. If you have poor recordkeeping, that could indicate you didn’t provide the requisite standard of care,” says Deirdre Wade, QC, a litigation partner at Cox and Palmer in Saint John, who focuses on insurance coverage and duty to defend issues, including professional liability.
Matthew Wilton, a litigator and named partner at Wilton Martin in Toronto, who defends dentists in Royal College of Dental Surgeons (RCDS) complaint matters, agrees. “If there’s a dispute, courts take the stand that if it’s not written down in the record, it didn’t happen—even if the dentist says they have a recollection,” he says. “The patient gets the benefit of the doubt.”
And what the courts view as sufficient recordkeeping—versus what you perceive to be thorough recordkeeping—may actually differ.
“One of the most common procedures dentists do is a restoration. They’re obliged to record, at a bare minimum, the tooth number and the tooth surface as well,” says Wilton. “But, in court, it’s not enough to write down ‘tooth 11 MODL’. You need to write down the materials you used, the discussion you had with the patient about the various treatment options, and, in some cases, cost. Otherwise, your records are deficient. You have to write down what you did, why you did it, and confirm that you got informed consent.”
Understandably, maintaining records to this level of detail for the sole purpose of protecting yourself from a potential lawsuit doesn’t always work. Given that malpractice suits don’t happen every day, it can be easy to let certain recordkeeping processes slip, particularly if your office is a busy one.
If you and your team are finding it difficult to stick to your recordkeeping goals, consider identifying other uses for your records.
“A thorough record can be a tool for a dentist to diagnose and provide treatment,” explains Danielle Barchyn, a malpractice lawyer at MTL Aikins LLP in Winnipeg. “If it’s prepared properly, a third party should be able to pick it up and understand what happened—say, if your patient’s care is transferred to another provider.”
You should also create recordkeeping processes that seamlessly fit into your daily routine.
“It’s important, especially for new dentists, to build time in the workday to make sure you’re charting properly,” Barchyn continues.
Six elements of a great record
While most dentists recognize that stellar recordkeeping is important when defending one’s practice against a potential malpractice suit, the definition of a great record is often unclear. This is likely because requirements often vary, depending on your jurisdiction and even the particular scenario.
That said, all of the lawyers we interviewed agreed that a robust patient record typically should have six key elements:
A detailed treatment plan
If you discuss a treatment plan with your patient, that discussion needs to be documented in your records—including the different treatment options you presented to your patient, the one they ultimately decided on, and how the treatment plan evolved over time.
“Sometimes, there can be multiple treatment plans entered into the chart and it’s not clear how the treatment plan progressed,” says Talia C. Profit, a litigation partner at Cox & Palmer in Moncton, whose practice focuses on civil and commercial litigation, medical malpractice, insurance, personal injury, class actions, property damage, and municipal liabilities. “For legal purposes, it can be helpful to get the whole treatment plan signed off prior to the commencement of any treatment.”
Additionally, if you order things like x-rays and teeth models, make sure they’re properly dated and included in the patient’s records. If your patient turns down a request for these types of procedures, make sure that’s documented in their treatment plan as well.
“Some people don’t want to pay for full x-rays if they aren’t covered by their insurer,” says Profit. “In this case, the dentist should explain why a full set of x-rays is recommended. If the person continues to refuse due to cost, that should be in their record.”
A complete medical history
Taking the time to understand your patient’s medical history, and making sure you have an up-to-date medical record, can be invaluable in the event of a malpractice suit.
“If prior dental work isn’t noted in a patient’s chart, a court might not know where this person was at when treatment began, which makes it hard to isolate what a particular dentist did,” says Profit. “Charts about previous dental issues and dental work are important to establish where a particular dentist began and finished.”
Additionally, certain medical issues can impact the success of a procedure—for instance, if someone is diabetic, they may heal very slowly. So not only does a dentist need to be aware of this type of condition, but they need to be able to explain how the condition could impact the procedure before moving ahead with it.
“Maintaining an updated medical history can be as simple as asking a patient if their general health has changed since you saw them last—or if they’re on any new medication,” says Wade. “You want to give your patients an opportunity to advise of any concerns they might have and document those, as well as your responses.”
Good records are free from abbreviations, acronyms, jargon, and illegible handwriting. After all, if you’re going to use them in court, the court needs to be able to read them. This is why electronic notes, rather than handwritten ones, are preferable.
“A lot of records we see in court are full of handwritten notes and abbreviations that no one can define. And because dental professionals see dozens or hundreds of people a week, they can’t possibly remember every specific treatment,” says Wade. “Your records should allow you to determine whether an appointment was run-of-the-mill or out of the ordinary. You should be able to know if you or someone else conducted the check-up. And if something is unusual, it should be appropriately documented, so it triggers some sort of recollection.”
Given that dentists are legally responsible for all activities that occur in their office, it’s important to make sure your team’s charting practices are consistent across the board. This means briefing everyone—from front desk staff to hygienists—on how you expect records to be updated, what information you want to see in them, and when you expect them to integrate recordkeeping into their workdays.
“In most cases, the dental hygienist will be the one asking a lot of questions. Or they may hear things you don’t—because some people are more comfortable chatting with them,” Wade explains. “Instruct them to make notes of patient concerns so, as the dentist, you can set aside time to address those concerns.”
As the dentist, you want to make sure you’re frequently taking time to update your notes, with consistent phrases and language, and confirm they’re accurate and error-free.
“A dentist may say ‘this is my usual practice’, but if it’s not documented, it’s your word against theirs. The court will look at the actual record but if there’s nothing to establish what you actually did, it’s going to be a problem,” says Wade.
All that said, practice makes perfect—so find a recordkeeping system that doesn’t negatively impact the efficiency of your practice or patient care.
“You don’t want to do things that are unnecessary, particularly if you want someone to review it quickly. What to include depends on what you’re recording—a clinical note of a patient’s history will be different than an operative report,” Barchyn says. “But guidelines also expect these records to be as contemporaneous as possible, so make it a habit to record as close to the event as possible. Daily recordkeeping is good practice and makes your notes a lot more credible.”
Heightened risks of malpractice
A malpractice suit can arise out of virtually any activity, but there are certain scenarios that incite legal action more frequently than others. These include (but aren’t limited to):
Failure to refer
If you’re a general practitioner conducting a specialized procedure, recognize you will be held to the same standard as a specialist.
“Don’t get into it if you don’t have that expertise,” Profit warns. “You should always feel comfortable referring a patient to a specialized practitioner.”
When people change their mouth because they want to—not because they have to—they’re more likely to sue if it doesn’t work out.
“People looking for changes to their appearance typically have very high expectations, which often makes them more likely to sue because they don’t get the results they imagined,” says Wilton.
Failure to adequately explore a patient concern or effectively document your actions (or inaction) can cause the courts to side with a litigious patient.
“If a patient says a tooth is hurting and you check and there’s nothing wrong, you should record that,” says Wade. “If problems develop later on, you want to be able to explain what you saw and what you did.”
Informed patient consent
In addition to robust patient records, informed consent is also integral in mitigating malpractice risks. What constitutes “informed consent” will depend on the services you provide, the province you’re in, and the types of patients you serve. And while it involves a patient-signed consent form, the truth is the form is only part of the package.
“The form itself is not the consent. The consent is the discussion with the patient,” says Barchyn. “The form can help streamline the discussion, but it’s not enough on its own.”
Wade agrees. “There are lots of standard forms dentists can use, but the form is not the be-all, end-all. You still have obligations as a professional to go through all those risks and ensure the patient understands,” she explains.
A robust informed consent form, therefore, must clearly outline the conversation you had with the patient before a procedure was conducted. While these forms will vary, good ones will typically include:
Of course, a form on its own is not enough to ensure consent—and prudent dentists will take strides to confirm their patients are truly informed before they sign on the dotted line.
“For some things, you can rely on implied or verbal consent, as long as it’s properly documented. For instance, if a patient comes to you in need of a filling, they’re essentially consenting just by being there. But at the same time, you should document that you explained what would happen, what it would feel like, and what the patient can expect after the procedure is done,” says Wade.
She adds that you should also consider who your patient is and customize your approach to make sure they really understand what they’re getting into.
“Some people don’t read well—or they don’t speak English or French as a first language. In these cases, you may need a translator involved or to rely on verbal explanations over written ones,” she says.
Test for informed consent
The test for informed consent at law is comprised of two parts. The first thing the court will look at is disclosure—or whether all risks were adequately disclosed. The second is causation—if the risks weren’t adequately disclosed, did that impact the patient’s decision?
Taking the time to generate robust notes and ensure patient consent can also help you manage patient expectations, which is the third element of a strong malpractice risk mitigation strategy.
“If a patient has a large filling, that increases the likelihood they may need a root canal on that tooth down the road,” explains Wilton. “If you fail to tell your patient there’s an increased risk of root canal, and they require one six months later, that patient could sue you for failure to disclose. If there’s no note—and if you didn’t include that in the risks section of your consent form—it could blow back on you.”
In many ways, these three elements—thorough recordkeeping, informed consent, and managed expectations—work together to help you cover your bases and prevent patients from successfully suing down the road.
“At the end of the day, you want to make sure you’re really communicating with your patients, and make sure they’re feeling heard,” says Barchyn.
This three-pronged approach also allows you to protect yourself from potentially-litigious clients—or avoid risky scenarios. When you’re in the habit of documenting everything, and following proper consent protocols, you may be less inclined to take on procedures that are out of your comfort zone—such as root canals or orthodontics—or identify potentially problematic patients and handle them accordingly.
“If you’re conducting a patient interview and realize they’ve been to three or four different dentists over the past few years, that’s a red flag,” Wade says. “This process will allow you to recognize the risk, so you can carefully manage that patient’s expectations and treatment plans moving forward.”
Expect the unexpected
It should be noted that a strong malpractice risk mitigation strategy doesn’t completely eliminate risk. You can follow all the best practices above—including robust recordkeeping, consent to treatment, and expectation management—and still find yourself facing a lawsuit.
Understanding this, it’s wise to supplement every effort of risk mitigation with malpractice insurance—a tool designed to protect yourself, and your practice, from severe financial repercussions. To learn more about malpractice insurance and what it involves, visit the CDSPI knowledge library for curated resources to help you learn about your risks and how you can manage them.