Managing Malpractice

Steps to help avoid legal actions and the process for dealing with them when they do occur.

MAINTAINING YOUR DEFENSIBILITY

Part of our mandate at CDSPI is to offer information to help dentists avoid legal issues with their patients wherever possible, and mitigate damages when legal action occurs. In many cases, dentists could have helped themselves with a bit of preventative medicine.

Here are some ways to fortify your “defensibility”:

KNOW YOUR PATIENT

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In addition to your examination, diagnosis and proposed treatment, staying current with your patient’s general health is critically important. You may have a long-standing relationship with a patient, but it’s important that their medical history be updated at each new appointment. Has their general health changed in any way? Are they on any new medications? How might this impact medications you may use or prescribe? Make sure you get this information, and record and date it.

A patient’s satisfaction with your work is sometimes dependent on their attitude before you even start treatment. With this in mind, you need to be extremely cautious in managing their expectations. A certain percentage of your patients will be overly anxious about their appearance, and in the most extreme instances, patients may have obsessive preoccupations with imagined or slight imperfections, which makes satisfaction highly problematic. You need to be aware of any anti-depressants or other psychiatric medicines your patients may be taking, or if they have a history of treatment of psychological or psychiatric conditions.

OBTAIN INFORMED CONSENT

To avoid “He said, she said.” disputes, it’s important to obtain written, signed consent for most treatments. Consent to Treatment forms are available from your dental association or from CDSPI. A verbal consent on simple procedures will be sufficient, if it is specifically charted. In addition to itemizing the procedures that will be performed, the form should clearly indicate that the patient understands and acknowledges the purposes of the treatment, possible alternatives (including no treatment), the risks involved, and possible complications. Recommendations for treatments to be performed by specialists should be recorded, as well as copies of any referral documents. In addition, the requirements for post-treatment compliance for the best possible outcome should be noted. Ideally, this should all be reviewed with the patient before, rather than on, the day of any procedure.

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KNOW YOUR LIMITS

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There are a number of reasons to refer a patient to a specialist including your skill, experience and comfort level, the complexity of the case, the patient’s medical status, or their wishes. It’s never a good idea to take on more than you can reasonably handle. General dentists are trained in a wide variety of procedures, so some find it hard to resist the temptation to do complex tooth extractions or multiple dental implants when they would be best referred to qualified specialists. The provincial and territorial registrars set out Scope of Practice Guidelines for general dentists and specialists, so ignorance is not really a basis for a defense. Legally, a general dentist is held to the same standard of care as a specialist, so it’s not in your best interest to take on unnecessary liability.

SCREEN FOR ORAL CANCER

The dental community is the first line of defense in early detection of oral cancer, so we strongly encourage screening. This three-part process should include a review of health history, and both extra-oral and intra-oral examinations. If you have any suspicions, the patient should be referred immediately to the appropriate specialist. The CDA and most provincial and territorial dental associations are now recommending annual screening for oral cancer. Litigation is now more prevalent when possible oral cancers are not investigated.

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LEGIBILITY AND UNDERSTANDABILITY

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If your charts or other notes are not clearly legible, their value as evidence may be compromised. Also, some dentists develop their own abbreviations, acronyms or other jargon that may not be generally understood. Try to avoid this. Even with computerized charting and records, you need to make sure entries are complete and comprehensible.

CHART, CHART AND CHART

In most cases, when a patient is dissatisfied with the outcome of a treatment, a solution can be found. But when a resolution can’t be found, the issue may head toward a courtroom. To prove their case, a patient’s counsel will attempt to use poorly kept records as evidence of a breach in the required standard of care. This includes any lapses, errors or inconsistencies to draw negative inferences about sub-standard care. The more thorough your records, the better your chance of success.

 

Here are just some of the issues that are frequently encountered:
• Not noting prior dental work in the chart’s dentition diagram;
• Lack of regular updating to show the current status of dentition;
• Lack of detailed observations, including non-compliance when it occurs;
• Improper notation of examination results;
• Treatment plans that aren’t updated.

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DATES

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This is a frequent source of grief for dentists who are defending a case, particularly where chronology is relevant. Clear dates should be applied to all notes and patient communications, X-rays (particularly for non-digital images) and other diagnostic results, and models of a patient’s teeth at various stages before, during and after a procedure.

DON'T MAKE PROMISES

This is something to avoid, either in written form or verbally. It’s natural to want to be reassuring and optimistic with your patients, but they tend to have long memories, and sometimes, unreasonable expectations. Anything approaching a guarantee is never a good idea.

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This information is provided by John Barry, QC, an attorney who has represented many dentists and others in the health care community. Mr. Barry has been recognized annually in both Best Lawyers in Canada and the Canadian Legal Lexpert Directory since both ratings were established.

WHEN ISSUES ARISE

No matter how diligently you strive to provide the highest possible standard of care, the potential of a malpractice suit is an ever-looming reality for dentists. This is an overview of the process that typically happens when a patient complaint occurs.

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ADEQUATE COVERAGE

The amount of malpractice insurance you require may vary according to your patient demographics, your specialty, if any, and the types of procedures you typically perform. CDSPI Malpractice Insurance is offered in all provinces and territories except Ontario and Quebec. In Ontario, CDSPI Excess Malpractice Insurance1 is available in excess of the $2 million primary malpractice coverage mandated by the Royal College of Dental Surgeons of Ontario (RCDSO)2. See the following brochures for details about available coverage: cdspi.com/malpractice or cdspi.com/excessmp for Ontario.

Malpractice Insurance and Excess Malpractice Insurance are arranged for by CDSPI Advisory Services Inc. and underwritten by Aviva Insurance Company of Canada.
1. You must be a dentist licensed to practise in Ontario and a member of the Ontario Dental Association to be eligible to apply.
2. CDSPI Advisory Services Inc. is not affiliated with the RCDSO.