Know Your Rights

Dentists are often uncertain as to their rights and responsibilities relative to communications from a patient's attorney or an unexpected visit from a representative of a state regulatory agency. Other issues arise such as hostile patients, when to terminate a patient, and how. These issues are extremely important and warrant more than fear or uncertainty. In short, remember the adage, 'when in doubt, ask.'

Communications from attorneys can occur when they are seeking patient records or other information related to patient treatment. The first question which must be answered is whether or not the attorney has the right to obtain the records, and looking to that answer, whether or not the person purportedly represented by the attorney has the authority to obtain, or authorize the release of, the records. The dentist should never hesitate to require a valid authorization to release records appropriately executed by the patient or patient's legal representative. And a dentist should never release records pursuant to a subpoena or other apparent legal process without first consulting with legal counsel experienced in such matters. For example, a real estate attorney is not appropriate. Most importantly, the records are the property of the practice, not the patient. The original records should always be retained by the dental office.

Domestic Relations Situations

In domestic relations matters, a dentist is frequently 'in the middle' relative to treatment decisions, payment responsibility, and with whom to discuss patient care related issues. There are situations where one parent may not want the other parent to be aware of a child's appointment or dental treatment. An office staff member can inadvertently put the office in a difficult position by divulging to the non-custodial parent information about the dental treatment needed or rendered, fees incurred or projected, or any information provided by the other parent related to employment, insurance or other personal matters. If both parents claim they have sole authority or custody of a child, but that the 'other' parent is responsible for payment, request a copy of an order from the court that specifies who is authorized to make dental treatment decisions for the child and who is responsible for dental care expenses. Don't allow the dental office to take sides or be put in the middle.

Treatment Recommendations and Negative Comments

All dentists have a duty to fully and candidly report examination findings and treatment recommendations to the patient, regardless of what was previously done … or not done ... by another dentist. But you have no duty to 'connect the dots' relative to giving an opinion on the standard of care rendered by another dental practitioner.

On occasion an attorney may call or otherwise communicate with the dentist in an attempt to 'clarify' treatment recommendations or examination findings on a particular patient. The patient may actually want to seek damages or a refund from a previous dentist and could have consulted with an attorney. The attorney, in turn, may want the current dentist to give a statement that is critical of a previous, treating dentist. While the patient may be understandably aggrieved by previous treatment or lack thereof, it does the current dentist little good to either intentionally, or inadvertently, become immersed in an adversarial proceeding. Stating in writing what your treatment recommendation might be is fine. But stating that you intend to replace dental work that was 'below the standard of care' will only inject yourself into adversarial proceedings.

Simply stated, it is one thing to recommend the replacement of a bridge that is only six months old, but quite another to state that 'but for' the previous practitioner's negligence, the bridge would not require replacement! One is an objective, truthful opinion, but does not constitute an opinion as to the standard of care rendered by anyone. And while it might be honest to state that such a replacement is not normally the case, it is only your treatment recommendation and professional opinion. Remember, Karma.

Reports to Third Parties

A dental practitioner may also be asked to render a written report of examination findings, treatment recommendations and projected or incurred fees for purposes of assisting a patient involved in an accident of some kind. This is often needed for purposes of third party indemnification or recovery of damages suffered. Such reports are commonly obtained from treating physicians and should be viewed as necessary and appropriate by any dentist.

It is also reasonable and customary for a healthcare practitioner to be compensated for professional time expended in drafting such a report, in addition to charging a reasonable fee for the duplication and production of patient records, radiographs, etc. Copies of all such communications should be maintained in the patient record and should include the request for the report as well as the appropriate authorization from the patient.

Visits by State Regulatory Boards

It is also not unusual for a dentist to be visited by a representative of a state regulatory board or other agency. Such a visit is usually unannounced and might prove to be very inconvenient for the dentist. It is not unreasonable for a dentist to expect the professional courtesy of a prior appointment by such a representative. It is not reasonable for any outside entity to walk in unannounced. Even if the agent has a subpoena that seems to order 'immediate' compliance for producing patient records for example, NOTHING should be done without first consulting legal counsel. Nor is it failing to cooperate in an investigation by simply ascertaining your legal rights and responsibilities prior to producing anything to anyone. The only legal process that requires immediate compliance is a lawfully executed search warrant issued by a court with appropriate jurisdiction.

A dentist is not required to interrupt patient care and disrupt the overall patient schedule by attempting to immediately accommodate anyone's unexpected visit. In reality, such a disruption to the office routine and schedule can only be expected to increase the potential risk to the dental office as a result of either 'hurried' patient care, staff confusion, or long waits by patients which do not engender patient good will.

Although a board investigator or agent might appear aggravated or hostile upon learning that the doctor cannot make time for such an unannounced meeting, the dentist's foremost obligations are to the patients, the staff, and the dental practice itself.

Protocol Needed

Such unexpected encounters by an attorney, process server, or board representative should be anticipated and planned for. Just as the office should have a protocol for dealing with patient emergencies, there should also be a protocol for encounters that involve legal rights, obligations, and potential liabilities. A 'point man'/staff person' should be responsible for responding to any such inquiry, whether by phone or in person. The straightforward response should indicate that office protocol and policy requires that legal counsel for the dental office be consulted prior to any communication between the office and any non-patient or patient representative. Such is necessary to insure the protection of patient privacy, accidental disclosure of proprietary or privileged information, and to avoid inadvertently subjecting the office to unknown legal liability. Additionally, malpractice insurance carriers are required to be notified under certain situations. As an analogy, if someone handed the dentist a complicated tax form and asked for his or her comment, the dentist would very likely respond that he/she is not a CPA and defer all questions to the practice CPA. Similarly, any visit by a local, state or federal regulatory agency, or correspondence, should be directed to the attorney representing the practice. And do not provide written or oral statements on any topic to any 'third party' without first consulting with legal counsel. Make sure that your staff is aware of these issues and that they refer ALL such inquiries to legal counsel.

In short, an attorney for the practice is the appropriate interface between the dentist, the practice, the patient, and any 'outside' contact. Allow the practice's legal counsel to handle those situations and the dentist should steadfastly avoid making decisions or being inadvertently drawn into matters that could impact on practice or personal liability. Do not attempt to make legal decisions without consulting with an attorney. As is well known in the legal arena, an attorney who represents himself has a fool for a client!

While it is clearly not necessary for a dentist to be aware of the multitude of legal issues that touch and concern a dental practice, it is necessary to be aware that legal counsel for the practice should be identified for the staff, contact information provided to the appropriate staff persons, and a written office policy that clearly prevents any incursion into the office, or release of information from the office, unless and until cleared by the dental practice legal counsel. As dentists we are trained to handle virtually every dental related patient issue. But we usually have no training in legal risk management. Recognizing this is not admitting ignorance, but is a reflection of wisdom. As stated in a movie by Clint Eastwood, many years ago: "A man's got to know his limitations!"

Never compromise your legal rights just to appease, or please, anyone.