Practitioner Q&A
Should I Settle?
By Frank Recker, DDS, JD
Q: I have a pending malpractice suit in which my malpractice carrier, through
legal counsel, has obtained opinions from potential experts that seem
to be critical of my care. In particular, they criticize my record keeping,
but the suit is related to an implant failure. They are encouraging me
to “settle.” Does this make sense?
A: Possibly. A malpractice suit requires a legal relationship between the
dentist and the patient, which is normally easily established. The plaintiff
must also establish that the dentist’s failure to meet the obligations
required by that legal relationship - that is, rendering care “within
the standard of care.” The last components required for a malpractice
suit to “get to court,” are sufficient proof that whatever
you allegedly did or didn’t do “within the standard of care”
resulted in, or “proximately caused,” the alleged damages
to the patient.
For example, if you failed to take a medical history and the patient died
because of a bleeding condition you would have discovered with a medical
history, such would demonstrate the connection between the lack of a medical
history (substandard care) and the ‘damage’ (bleeding to death)
suffered by the patient.
In many cases, while an expert is critical of a failure to have complete
records, or the failure to have complete periodontal charting, etc., these
failures cannot be shown to have “resulted in” or “caused”
the alleged damage to the patient.
Remember, the vast majority of dental malpractice cases are settled before
trial. Unquestionably, many are settled that could have been successfully
defended. But the dynamics of trying a case often make it more cost effective
for an insurance carrier to encourage settlement, rather than incur the
costs and any risk of loss. And perhaps equally often, the defendant dentist
doesn’t want to go near the courtroom!
Is It Worth Your License?
By Frank Recker, DDS, JD
Q: A patient absolutely insists that I perform the treatment she needs
in the upper anterior quadrant, including period, implant and restorative,
but refuses to accept any treatment recommendation for the posterior quadrants.
In other words if you can’t see it, she isn’t concerned about
it, even in the presence of active disease. As long as I tell her she
definitely needs the posterior work done and she signs a statement that
she understands this, can I move forward and only focus on her “front
teeth?”
A: Patients cannot consent to negligent treatment. Your duty is to practice
within the standard of care and the standard of care requires you to exercise
your professional judgment in a prudent manner. Unless the standard of
care for her overall oral health does not require that the posterior work
be performed first, you are okay. BUT, if the standard of care in the
dental community would conclude that you were negligent in not first performing
the posterior dental procedures, either for dental or medical reasons,
you could be deemed liable both from a civil malpractice standpoint and,
even worse, a state dental board.
My suggested response to any such inquiry is to calmly state that while
you understand the desire to treat “area A” first, your licensing
board could consider doing so below the standard of care and put your
licensee in jeopardy. You simply have too much invested in your license
to risk losing the right to practice your profession by ignoring your
professional judgment. If that doesn’t cause her to change her mind,
she should be told that you simply cannot treat her. I have seen multiple
dental board cases where accommodating such a patient gives rise to an
appearance of treating solely for financial gain, and a breach of the
standard of care.
Negligent Referrals
By Frank Recker, DDS,JD
Q: Is there any way I can be liable for referring my patients to a specialist
if the outcome is substandard in some way and the patient sues the specialist?
A: Generally speaking, no, because they are independent practitioners over
whom you exercise no control. You are not directing them how to perform
any specific procedure. They are using their independent judgment and skills.
On the other hand, if you knew or should have known that a certain specialist
has little skill or training in a specific area of dentistry (such as
implants) or that you have seen multiple failures emanating from his/her
office, or you know they do not practice within the standard of care in
some respect, then you could be at risk for making a negligent referral
if an adverse outcome is experienced by your patient. One example is just
assuming that an oral and maxillofacial surgeon or periodontist is proficient
at placing implants. That could be a totally erroneous assumption.
Another example would be referring to an orthodontist that does not take
diagnostic records required by the relevant standard of care. If you were
aware that an orthodontist routinely begins orthodontic treatment at the
first consultation appointment with a new patient, and does not take pretreatment
cephalometric radiographs, perform tracings and conduct an appropriate
analysis, and also does not take and analyze diagnostic models before
commencing treatment, you could be liable if the treatment outcome is
adverse and below the standard of care. A diligent plaintiff’s attorney
would delve into the treatment performed on his client, and very possibly
make you an additional defendant for failure to exercise due diligence
in making the referral.
In summary, you have a duty to know the training, experience, practices
and protocols of the specialist to whom you refer. You should also obtain
a first-hand knowledge of their typical treatment outcomes for the services
you are contemplating for your patient.
"Leeway" in Standard of Care?
By Frank Recker, DDS, JD
Q: I am a general dentist just learning how to place implants. I didn’t
have any implant training in dental school. Am I given more ‘leeway’
in how my treatment is judged?
A: No. The standard of care is the standard of care. But because implant
dentistry is not a specialty area of practice, you would be held to the
standard of care expected of the dental profession in general (competent),
not a specialty standard. On the other hand, when you perform endodontic
therapy, for example, you are held to the standard of the endodontist,
i.e., the specialty standard.
The Insurance "Trap"
By Frank Recker, DDS, JD
Q: I recently made a report to my malpractice insurance carrier about a
patient demanding a refund and implying a lawsuit if they didn’t
get it. My insurance carrier denied the claim saying I didn’t report
it soon enough. When exactly am I supposed to make a report to a malpractice
insurance carrier?
A: In short, it depends on your policy language. But interpreting that
language might require some effort to understand what it is saying. An
insurance company will direct you to the language of the policy, which
is akin to directing me to a Spanish dictionary to learn Spanish. And
whatever the language is, it’s subject to interpretation by the
carrier, unless you challenge their response in court.
I recently had a dentist client who made a report to her insurance carrier.
They denied coverage, directing her to the policy language requiring her
to report a “medical incident that may result in a ‘claim’
against you…” Then, only if they receive “notice”
of a “medical incident” prior to any “claim” will
they provide coverage. The “trap” is what they consider a
“medical incident” that needs to be reported, prior to any
claim. In this case, an attorney for the insurance carrier concluded in
writing that my client failed to report what he considered to be “medical
incidents.” These “medical incidents” included notes
in her patient records:
….A difficult patient
….Patient does not understand how the body and teeth work
….Patient complaining about sensitivity
….Patient complaining about “hurting”
….Patient reported “sharp pain”
….Patient thinks gum was traumatized
….Patient asked for his money back
….Patient later moaned about severe pain
….This was a frustrating and demanding patient
In my response to the attorney for the insurance carrier, I indicated that
“based upon these criteria, every dentist insured by the carrier
would be wise to report as a potential “claim” whenever anyone
sits in the dental chair!”
Know your particular policy language and if it is vague, ambiguous and
subject to interpretation, call your agent and ask for an understandable
version of their reporting requirements. Don’t think that just because
you pay premiums on time the carrier is ready and willing to defend you.
Termination for Insubordination?
By Frank Recker, DDS, JD
Q: My dental assistant saw me use the same gloves on several patients and
brought it to my attention in a degrading manner. Can I terminate her
for insubordination?
A: I would suggest a quiet after hours discussion with her — In the
presence of your office manager or supervisor — to reiterate how
seriously you take infection control matters, notwithstanding an oversight
on your part caused by multiple mental distractions. I would also point
out that you expect her to take infection control as seriously as you
do, and to immediately point out any oversight on anyone’s part,
or any other breach of infection control protocols. Under no circumstances
should you feel “hostage” to an employee or fear what they
might do. We all make mistakes, and the more defensive we act, the guiltier
we appear.
Challenging Your Dental Insurance Audit
By Frank Recker, DDS, JD
Q: I recently received a request from a dental insurance carrier to provide
them with a specific list of patient records for “audit” purposes.
Do I have to comply?
A: Dentists often express concern and frustration over such “audits”
by various dental carriers or plans, such as Delta Dental. Most policies
give the company the right to access the dental records of insured participants
for such purposes. But the dentist is often concerned about issues relating
to forgiving co-pays, deductibles, charging other companies or plans different
fees for the same services, or perhaps charging out procedures that are
not documented in the patient records. Such audits underscore the importance
of maintaining accurate treatment and billing records. Cooperation, without
panic, is the best way to deal with such inquiries.
Depending on how the “audit” proceeds and the outcome, here
are some concerns, questions, and issues that should be considered about
how the “audit” was performed:
- Who reviewed the material submitted? Was it a dentist who will be or actually
did review the records for treatment determinations as opposed to a non-professional,
administrative staff person?
- Did the insurance company use an extrapolation methodology which is appropriate
for the procedures at issue?
- Will an extrapolation based determination meet accepted standards or judicial review?
- What is the policy language relating to the CDT or CPT codes utilized?
- Is the company “bundling” or “down coding,”
- Is the dentist consultant properly licensed in the state in which the dental
office is located?
Such audits are important to insure plan integrity and prevent abuse, but
the audit process itself needs to be scrutinized if the results appear
unfair or unjustified.
Is This the Right Exit Strategy?
By Frank Recker, DDS, JD
Q: A well-known dental corporation, or I should say “dental management”
corporation, is interested in purchasing my practice. Is there any downside to this?
A: First of all, these companies usually consist of investors looking to
make money on the practice of dentistry. They have little connection to,
or concern about, patients. That is simply because they are not dentists.
And while they cannot, in most states, directly own or operate a dental
practice, there is usually a professional dental corporation that technically
purchases the pure “dental assets” and the non-professional
corporation purchases everything else, including the right to perform
all non-dental related management services and employ all non-licensed
personnel. They in turn contract with a professional corporation to hire
you, the previous owner, and any other professional employees.
But make no mistake, the non-dental owner controls everything and “calls
the shots.” Your employment contract will give the management company
almost unfettered right to oversee your activities and even terminate
you from your former practice, at any time. While this may seem unwise
from a goodwill perspective, it happens frequently. And you will then
face a rather onerous restrictive covenant relating to distance and time.
That’s also when you will encounter professional challenges about
“abandonment” and patient ill will, especially if located
in a small community. Your dental board will likely receive complaints
and look into the arrangement, but you have not “abandoned”
any patient, as the management company and the PC involved are responsible
for ongoing patient care since you no longer own the practice.
So my advice would be to make sure your attorney carefully reviews the
proposed documents related to the transaction to at least insure that
you aren’t unnecessarily indemnifying the purchasing companies,
the legal relationships involved, the restrictive covenants, and that
you really feel okay about having no control over the operations of your
former practice. After you sell, you will be bound by their operational
policies, structure, schedule, and will find yourself interacting with
non-dental professionals who are your “bosses.” Prior to any
purchase, they will conduct a thorough due diligence of your practice,
and you should do the same relative to their history in both your state
and other states. Speak with other dentists who have sold their practices
to them and subsequently worked as an employee.
Many dentists have experienced relief upon the sale of their practice to
such companies, and continued as an employee dentist for the purchaser.
Others have sold their practices only to encounter challenges about corporate
policies, rigid rules, dissatisfaction with non-dental management and
control, and ultimately terminated with little or no cause and faced with
the challenge of practicing beyond a 25 mile radius.
Editor’s
Note: In the Summer 2013 AAID News, the AAID published an interview with
Dr. David Gimer, who sold his practice to a dental management corporation. Click
here to read that first-person interview.
Did I Just Break the Law?
By Frank Recker, DDS, JD
Q: A dental board investigator stopped in and requested copies of five
patient records, and asked to review several others. I complied with his
request, but later wondered if I might be violating some law? Did I?
A: Probably yes. Patient records are subject to multiple laws and regulations
in order to protect the privacy of medical information and other related
rights of the patient. States have statutes relating to “privileged”
medical/dental records and what is required in order to lawfully disclose
their contents. Perhaps more importantly, HIPAA regulations consider such
information as “protected health information” or PHI. A dental
office is a “covered entity,” which must comply with those
regulations. Even a subpoena from a dental board may not be sufficient
to lawfully compel you to produce PHI. The HIPAA regulations restrict
an administrative subpoena to information that is
“relevant and material to a legitimate law enforcement inquiry; the
request is specific and limited in scope to the extent reasonably practical
in light of the purpose for which the information is sought; and ‘De-identified’
information could not reasonably be used.”
A dental provider cannot assume that even a subpoena will protect them
from violating HIPAA. Do not make such decisions without guidance from
legal counsel and never release original patient records without a court
order. A dental provider simply has too many legal obligations that preclude
any spontaneous response to any such request, even in the form of a subpoena.
Deferring any response to any such request, pending a review and authorization
from your attorney, will be respected by a court and not result in any
allegations of refusing to comply or impeding an official investigation.
Only a search warrant issued by a court of law demands immediate compliance.
But the Patient Said He Couldn't Afford It!
By Frank Recker, DDS, JD
Q: I routinely provide alternate treatment plans to my patients. However,
I don’t waste time drafting a plan that I know would be totally
impossible for the patient to accept for financial reasons. Is there any
problem with this approach?
A: I must confess that when I practiced clinical dentistry I often made
“financial decisions” for the patient. I made assumptions
about what the patient could afford based upon past experience with the
patient, or the patient requesting the least expensive option. For example,
I did not propose fixed bridgework to a patient on public assistance or
to a father of a family of 8 who expressed his inability to even make
monthly payments on routine dental care. Therefore, I often omitted presenting
treatment plans that were clearly beyond the financial reach of the patient.
However, that is a flawed approach. I have recently dealt with several
dental board cases in different jurisdictions in which the issue was not
providing the patient with all the treatment options, including ones that
were extremely costly, even though the patient had indicated a lack of
financial resources. One dental board case solely involved a disgruntled
patient who eventually became unhappy with his treatment choice (prosthetic
appliance over implants). He had expressed a lack of money and a desire
for the least expensive option to his treating dentist, prior to the dentist
formulating a treatment plan. But when he later ended up in another dental
office and was told about the more expensive and more stable alternatives,
he became irate and complained to the dental board. The first dentist
was taken to task for not clearly documenting that he had provided the
more expensive treatment options to the patient.
In short, don’t make assumptions about what a patient can afford
when presenting treatment options, but instead provide every patient with
every reasonable treatment plan, regardless of the cost.
Should I Stop Advertising?
By Frank Recker, DDS, JD
Q: I received a “warning” letter from my state dental board
advising me to stop advertising
sleep
dentistry and
dental
implantology because I was a general dentist. They pointed to a rule which prohibited
using words or phrases that were “inherently misleading” and
that “”implied specialization.” I use IV sedation (not
general anesthetic) and am highly credentialed in implant dentistry. Should
I be worried?
A: A dental board serves a very legitimate purpose in protecting the public.
However, most boards are ill-informed relative to imposing advertising
restrictions. It is one thing to enact regulations that restrict commercial
free speech; but it is something else to be able to constitutionally justify
such regulations. A dental board cannot simply decide, on its own, what
constitutes lawful restrictions on free speech. It must have evidence,
not just speculation, to support any such restrictions.
For example, in a recent Indiana case (decided December 31, 2014) in which
this writer defended the dentist, the Indiana Court reversed a Dental
Board order finding that the dentist had violated its advertising rules,
and declared that the Board rules violated the Constitution of the U.S.
In arriving at its decision, the Court noted that the State had no surveys,
studies, data, or empirical evidence of any real or potential harm to
the public that it was purportedly attempting to prevent by enacting the
rules at issue. A board cannot simply decide on its own that restrictions
on commercial free speech are justifiable.
For example, a dental board regulation prohibiting a dentist from advertising
his/her photo while wearing a white lab coat because the public might
think the dentists were physicians would not be upheld. Such a conclusion
by a board, in the absence of empirical evidence of such harm, is not
constitutional. In the same vein, without such evidence of harm, a prohibition
on words that “imply” specialization would likely not be upheld.
Any dentist facing a challenge or threat of disciplinary action because
of alleged violations of a dental board’s advertising rules would
be wise to consult with legal counsel well-versed in the legal issues
relating to commercial free speech. In my experience, too many dentists
are willing to “admit” such violations rather than challenge
them. And, remember, insurance company-retained defense counsel will not
challenge any such regulation as the insurance carriers will not pay for
such challenges prior to formal disciplinary action, when the dentist’s
license is put in jeopardy. And, it is very possible that insurance carrier-retained
counsel will not raise First Amendment constitutional issues in any forum,
as they are generally not familiar with this area of the law.
In the Indiana Board case noted above, the dentist was formally charged
with violating multiple advertising regulations, at which time counterclaims
were filed against the Board alleging that the Board action violated his
rights to commercial free speech. After a hearing, the Board’s Order
finding the dentist guilty was appealed to the Court, which later concluded
that the Board had violated the dentist’s constitutional rights
to commercial free speech, and reversed the Order of the Board.
Forgiving Co-pay Requirement
By Frank Recker, DDS, JD
Q: I routinely forgive the patient co-pay for full crowns and I advise
my patients of this policy. I assume this is legal because I am telling
my patients what the actual charge will be before I commence treatment?
A: I believe such a practice could be viewed as deceptive or fraudulent.
If you routinely forgive co-pays for crowns, then you are saying that
you routinely accept ‘x’ dollars as payment in full for that
service. Then in reality, your ‘UCR’ fee (Usual, Customary,
Reasonable) for the crown is not what you are billing the insurance company,
but the amount that the insurance company pays. Therefore, you should
be invoicing insurance companies the amount you routinely accept as payment
in full, because that amount is really your ‘UCR’ fee.
Q: My dental assistant saw me use the same gloves on several patients and
brought it to my attention in a degrading manner. Can I terminate her
for insubordination?
A: I would suggest a quiet after-hours discussion with her – in the
presence of your office manager or supervisor-- to reiterate how seriously
you take infection control matters, notwithstanding an oversight on your
part caused by multiple mental distractions. I would also point out that
you expect her to take infection control as seriously as you do, and to
immediately point out any oversight on anyone's part, or any other
breach of infection control protocols. Under no circumstances should you
feel 'hostage' to an employee or fear what they might do. We all
make mistakes, and the more defensive we act, the guiltier we appear.
Going Digital: What About the Old Paper
By Frank Recker, DDS, JD
Q: I am completely going digital in my office and want to dispose of all
old paper records generated for my patients in the past. Can I do that?
A: In the dental office setting, transitioning to a completely digital
environment is commendable and can enhance and expedite patient care.
Such would include photos, radiographs, scans, and all entries related
to patient care and treatment. However, the underlying paper records compiled
"pre digital" should be maintained indefinitely. One way around
keeping such old, "hard" records in storage would be to scan
all paper documents into PDF files and then move such files into the computer
database. That way it is not necessary to maintain/store the "old"
paper records and they can be disposed of after scanning into the computer
system. It goes without saying that multiple system "back-ups"
be employed to safeguard all such patient electronic data.
Open Margins:
Negligence, informed consent, or routine dentistry?
Q: I am concerned that I may have to defend myself before my state dental
board as a result of seating a crown with an 'open margin' and
allegations of 'Substandard care.' What can I do?
Most of us will finish our respective careers in the dental profession
having escaped peer review proceedings, malpractice suits, or dental board
investigations. But for those unlucky dentists who have been, or become,
victims of some civil or dental board 'radar gun,' preparedness
and awareness are the wisest options.
Many cases I have handled over the years involve a dental board using the
'Microscope' of a dental consultant with 20/20 hindsight, and
scrutinizing every chart entry on one or more patient charts. As part
of this 'screening' (I might slip and refer to it as 'targeting')
process, every radiograph is carefully reviewed and scrutinized.
Anyone who has practiced dentistry for more than one week after dental
school realizes that, not infrequently, open margins on full coverage
restorations are very difficult to detect, pre-cementation. And a pre
cementation radiograph, assuming it even were the standard of care which
I do not believe to be the case, is simply a two dimensional picture of
a narrow portion of the 360 degree margin.
Nonetheless, dentists are often accused of 'substandard care' if
a dental board expert detects an open margin on a radiograph, or such
is found by a subsequent treating dentist with whom you just concluded
litigation over a jointly owned race horse. In short, your work is being
criticized by less than compassionate colleagues, or a state-licensing agency.
I have yet to meet, or should I say 'cross examine,' any dentist
(prosthodontist or otherwise) who did not admit that at some point in
their professional career they seated crowns with open margins. Well,
it seems to me that if the majority of the profession has encountered
such, doing so is not per se 'below the standard of care.' But
we all know an open margin is not our objective. So where does it fit in?
In my experience, and in my many years of dental board and malpractice
cases, an 'open margin' alone will not sink your ship. As long
as reasonable diligence is exercised at the next recall appointment, at
which routine bitewings may be taken, and all accessible margins are carefully
checked for any openings, that meets the standard of care. Importantly,
if an open margin is encountered, the patient should be advised that replacing
the crown is recommended. The only 'option' the patient could
also be given, is that the marginal opening is not what it should be,
a chart note is placed, and the patient is told that although replacement
at the immediate time may not be critical, if you see anything develop
in the way of periodontal disease or tooth structure breakdown around
the open margin, replacement must be effectuated immediately.
Charting your marginal flaws and making full disclosure to the patient
are paramount. Not discovering the open margin that could have been discovered
in the exercise of reasonable care, or not advising the patient of it
IS below the standard of care.
But seating a crown or even multiple crowns with an open margin is, although
not God like, certainly 'dentist like.'
Q: Perhaps it's my social network, but it seems that every time I'm
at a social gathering I'm being asked to write a prescription for
some type of medication for a friend. Of course I'm a licensed dentist
with a DEA permit, but I'm still reluctant to do it. Could there be
a problem with my writing such scripts?
A: There certainly can. First of all, you have unwittingly created a legal
duty to render treatment (that includes writing a prescription) within
the standard of care of the profession. And the dental profession typically
requires that only a patient of record receive a prescription (emergencies
being an exception). So if by chance you write a prescription for a non-
patient of record, you are putting both your license and malpractice insurance
coverage at risk. For example, if the 'Friend' suffers an anaphylactic
shock, you are in a virtually indefensible position from a malpractice
standpoint. So you risk both a serious malpractice suit (which may not
be defended by the insurance company since it was not a patient of record)
and you risk disciplinary action by your state dental board for practicing
below the standard of care or writing a prescription for other than legal
and legitimate therapeutic purposes. In short, stay safe and keep the
prescription pad in your pocket!
Expert Witness: To be or not to be?
By Frank Recker, DDS, JD
Q: One of my patients and his attorney asked if I would serve as an expert
witness in a malpractice suit against the patient's former dentist
regarding implant treatment. Is there any reason that I should not?
A: First let me say that I support anyone's right to seek redress for
any injury through the court system. But having said that, you need to
think, and be very cautious, before throwing stones at another dentist.
Within the past week, I took the deposition of a general dentist who was
the patient's expert against my dentist-client relative to implant
treatment. While under oath, the "expert" could not tell me
the accepted implant modalities, the types of bone and how various bone
types could affect implant choice and placement. He was not able to delineate
where he obtained any education, training or experience in implant dentistry,
other than an occasional dental society lecture. When I asked him to describe
placement of sub periosteal implants, he said that they were just another
type of implant that went "into" the bone.
He began to chastise my client's fabrication of a lower, implant supported
"over denture" by saying the dentures were made about 11
mm "over closed" in vertical relationship. But he could not
explain why the patient was repeatedly breaking the new lower, implant-supported
denture (with a new 11 mm, additional vertical opening) made by him.
When I reviewed his billings to the dental insurance company (which he
never dreamed I would do), I questioned his charges for "laboratory
relines" and other lab required repairs when in fact he had only
performed chairside, acrylic repairs. He had also "misplaced"
his laboratory prescriptions, which are required to be maintained by law.
To add insult to injury, he had failed to write down any diagnosis upon
his first "comprehensive exam" of the patient, failed to formulate
or document even one treatment plan, and failed to record any perio probing
around the implants placed by my client. These were just a few lapses.
His patient records were, to be blunt, abysmal, and he finally conceded
that HIS records fell below the standard of care in multiple respects.
After the deposition had ended and he was asked if he wanted to review
his testimony after the court reporter had transcribed it, he asked the
plaintiff's attorney if any of the answers he gave could be "changed!"
When the patient/plaintiff's attorney said "no," the 'expert'
replied, "then why should I review it?"
The obvious moral of the story is simple: If you want to serve as an expert
witness against another dentist, make sure your own house is in order
before doing so. Otherwise, it could very well come back to haunt you.
The "expert" in this case could now face charges of insurance
fraud and substandard care by the dental board.
Employee with "Attitude"
By Frank Recker, DDS, JD
Q: I recently terminated a dental assistant who continually demonstrated
an "attitude" towards me and my other employees. I know from
several comments she made that she will do anything to make trouble for
me with my other employees, patients, and the state board. Is there anything
I can do about this?
A: I am frequently involved in defending malpractice suits and dental board
actions instituted by disgruntled, former employees. My first comment
would be to encourage all dentists to perform "due diligence"
on any job applicant. Important information can be obtained through a
company that performs background checks, or even public records accessible
via the Internet. If such problems occur as a result of a vindictive former
employee, look carefully at potential legal remedies. In many situations,
the former employee will attempt to make false accusations and disparage
the dentist. False comments such as "crook," "fraud,"
''hack"' and the like can constitute
''defamation per se." That simply means that the law does not require proof of actual damage
from such statements, as such is presumed. There are other laws that are
often ignored by such former employees, including protecting proprietary
information, patient privilege/confidentiality, HIPPA regulations, and
interfering with business relationships (employees or patients). A dentist
employer should be aggressive in protecting his/her reputation and the
dental office staff from such behavior. I have often directed letters
to such terminated employees putting them on notice that swift legal action
will be taken if such conduct continued.
Flirtatious Assistant
By Frank Recker, DDS, JD
Q: I have a very flirtatious, long-term, dental assistant who doesn't
shy away from making suggestive remarks to me. Because I'm married,
she repeatedly says that she envies my wife and that I don't get the
"attention" that I "deserve." She also makes a habit
of, playfully, pushing her well-developed chest against me when I'm
washing my hands at the sink or working in the lab. Am I at risk in any
way from a legal perspective?
A: If the facts were shown to be as you have stated, then the answer is
"no." But that doesn't mean she couldn't attempt to
cause you grief. I recently had a case where such a dental assistant quit
to find another job with better hours. So far, no problem. Then, sometime
later, she called my client (her former boss) and engaged in a "remember
this" type conversation on the phone. By the time my client realized
he was being recorded because of the suggestive nature of the questions,
she terminated the call.
Less than a month later he was faced with a "demand" for $100,000
or face a sexual harassment lawsuit. An offer of $15,000 to avoid the
cost and embarrassment of litigation was refused, and the former assistant
filed suit. After about nine months of litigation, and two attempts to
have him served with the suit at his home, the matter was settled. Fortunately,
he had other employees who observed her behavior, both with the doctor
and many male patients. Also, other employees knew of her extramarital
affairs and escapades, which clearly negated her claims of "emotional
distress" on the job. The suit (and our counterclaim) was settled
for $18,000 just to avoid additional expenditures for litigation. Clearly
this was an attempt at extortion, to which my client would not succumb.
The lesson is, don't condone such behavior in the office. And always
remember, some states allow the recording of two-person telephone conversations
in which you are one of the parties, but without your knowledge or consent.
Video Cameras in My Office: Friend or Foe?
By Frank Recker, DDS, JD
Q. A sales person has suggested that I add video cameras in my dental office.
Is this a good idea?
A. Every dentist is aware that pre-operative and post-operative photos
are an essential component of risk management. Such photographs document
the condition of the oral cavity when the patient first presents to the
office, and the condition or post treatment status after treatment is
completed, or a component of treatment has been completed. These images
can also be helpful to patients in understanding their oral condition,
such as documenting a comparative representation from an esthetic or functional
perspective.
The question has often arisen as to the potential use of video cameras
in the office. If a picture is worth a thousand words, perhaps a video
is worth much more. We see video recordings on television almost every
day, used for a broad spectrum of purposes, from identifying criminal
suspects to alerting the public about a missing child or kidnap victim.
Videos are often used in revealing safety hazards on roads or the causes
of serious automobile accidents.
From a dental-legal risk management perspective, there are many cases that
could have been avoided, or quickly resolved, had a video recording existed.
Such actual incidents include patient assaults on dental staff, assaults
by dental staff on patients or other staff persons, employee theft, drug
diversion, as well as criminal trespass. But the use of video recordings
of any patient encounter should be treated as privileged and confidential,
similar to any other protected patient information, unless disclosure
is required by lawful process.
In today's society, video recordings can be invaluable evidence of
what did or did not occur, as well as the person or persons responsible.
The modern dental office should consider the use of such technology as
a potential adjunct to the complete risk management portfolio.
Fees
By Frank Recker, DDS, JD
Q: Do I have to charge the same fee for a specific service to every patient?
A: Generally speaking, a dentist is required to charge his or her UCR fee
(Usual, Customary, and Reasonable) and cannot have multiple fee schedules.
Of course such is allowed if the practitioner has a 'participating
provider' agreement with multiple insurance companies which, by contract,
delineate the allowed fee for specific procedures.
Forgiving Co-pay Requirement
By Frank Recker, DDS, JD
Q: I routinely forgive the patient co-pay for full crowns and I advise
my patients of this policy. I assume this is legal because I am telling
my patients what the actual charge will be before I commence treatment?
A: I believe such a practice could be viewed as deceptive or fraudulent.
If you routinely forgive co-pays for crowns, then you are saying that
you routinely accept 'x' dollars as payment in full for that service.
Then in reality, your 'UCR' fee (Usual, Customary, Reasonable)
for the crown is not what you are billing the insurance company, but the
amount that the insurance company pays. Therefore, you should be invoicing
insurance companies the amount you routinely accept as payment in full,
because that amount is really your 'UCR' fee.
Delinquent Patient Accounts
By Frank Recker, JD, DDS
Q: How long do I have to wait before turning over a delinquent patient
account to collection?
A: There is no specific time requirement. Some dentists turn accounts over
to collection within 60 or 90 days of delinquency. The only concern is
whether or not doing so would precipitate a malpractice suit. But such
'retaliatory' suits usually result from filing a collection suit
against a patient, as opposed to turning the delinquent account over to
a collection agency for routine collection activities. The determination
as to whether or not to file a collection suit will depend upon the relevant
statute of limitations for a potential 'counter' malpractice suit
and the amount at issue.
Fee Agreements
By Frank Recker, JD, DDS
Q: My patient clearly understood, and signed the fee agreement that he
was to bring the final portion of his prosthetic fee to the seating appointment.
When he arrived, he acted as though he had forgotten his checkbook and
credit cards. We told him that we had to cancel the appointment anyway
because we were overbooked. What should I do if this happens again?
A: Good question! Every dentist has encountered this situation and what
to do is dependent upon each scenario. For example, if the patient has
been "difficult" and you want to get the work seated and not
have to deal with him again, then seating the work would be the best option.
At least then that portion of the treatment is finished and you can proceed
to bill or send the account to collection if it becomes necessary, without
risking patient hostility or adverse dental consequences by allowing the
patient to remain in temporary appliances. On the other hand, if you are
confident that the patient has no intention of paying the remaining portion
of the fee and the fee is significant, you have every right to defer final
placement until the patient performs their part of the 'bargain.'
But warn the patient (and note in the chart) that their failure to pay
as previously agreed is delaying the completion of treatment and that
could jeopardize their dental condition if allowed to continue much longer.
Read the Fine Print
By
Frank Recker, DDS, JD
Q: I recently had to advise my malpractice insurance carrier about a malpractice
suit that was just filed against me. It wasn't easy obtaining the
contact person to whom I needed to report and I was becoming afraid I
would lose coverage. Can this be avoided?
A: I have often encountered distressed dentists who either cannot make
contact with the appropriate insurance company representative, or have
difficulty finding out what steps to take in a suit or threatened suit,
or just feel uncertain whether or not coverage provided in their policy
will apply.
The first thing every dental practitioner should do is to be familiar with
WHERE your insurance policy is kept, and take the time to read it carefully
and be familiar with its terms, and most importantly, endorsements or
exclusions. While dental malpractice companies want to provide coverage
for a dentist, as a business they will first look to see if the policy
even affords coverage. In short, the first thing they will do is to find
out the facts of the issue at hand: when the dentist first knew something
might be coming and whether or not they provide coverage for any dental
corporate entity that might exist (which is always named as a defendant).
Some of the reasons they might deny, or attempt to deny, coverage would be:
1) Failure to report the "claim" when you first received notice.
I don't recommend reporting over an angry patient or a poor outcome,
but when you have received notice from an attorney or written or oral
notice from a patient that threatens or implies a lawsuit that is a trigger
that should result in a memo to the carrier.
2) A procedure that is excluded from your policy. Policy language changes
but very few dentists take the time to actually review their policies,
as it is as much fun as reading a dictionary. But several important items
will tell you whether there are exclusions for any Botox or dermal filler
administration, or if the "covered" administration is limited
to "dental therapeutic" purposes, as opposed to cosmetic purposes.
So if a patient requires Botox injections, for example, for purposes of
TMD or related musculature issues, make it clear on the chart why it is
being administered. Although a policy may exclude "damages"
resulting from cosmetic Botox or dermal filler administration, it would
nonetheless provide defense coverage (a lawyer to defend) in any suit
relating to these applications. The insurance policy may exclude payment
for "damages" resulting from these cosmetic applications, but
since both can be reversible procedures it is hard to contemplate a scenario
where significant patient "damage" could even occur.
Another often-overlooked scenario is coverage for a dental board investigation
or formal board action. The typical policy might provide, for example,
$25,000 in defending such an action, but it might also contain conditions.
Such could include that the insurance carrier chooses defense counsel.
However, often a carrier will allow the dentist to select his or her own
attorney, but only if that attorney is experienced in such matters and
the dentist insists on the right to select his or her own attorney.
On the other hand, if the carrier retains the right to choose its own "panel
counsel" (a firm that has agreed to accept a lower hourly rate),
the dentist needs to make sure the lawyer selected has experience in board
matters. A malpractice defense attorney should not be blindly accepted
for a state regulatory proceeding. Find out how many dental board cases
the lawyer has handled, and obtain the names of several previous clients/dentists/references.
Many malpractice attorneys perform dental board defense, but most are
precluded from being "aggressive" in such representation, such
as filing counterclaims against the Board for constitutional violations
or other legal challenges. This is so simply because the attorneys don't
want to have "hard feelings" with their board contacts as they
will be getting new dentist clients from the insurance carrier.
Very few dental malpractice attorneys have handled more than one or two
"contested hearings" (trials) in dental board cases. Avoiding
a formal hearing costs the insurance company less and preserves the attorney's
"goodwill" for the next case to be settled. In my experience,
many insurance-retained defense attorneys have greater allegiance to the
carriers than the dentist-client. So, if you find yourself in a situation
where you are forced to accept a lawyer selected by the insurance carrier,
state in writing that you want to be copied on ALL correspondence, emails,
and memos drafted by legal counsel, including everything sent to or received
from the insurance carrier. And it might be worth spending some money
out of your own pocket to have your "personal" counsel oversee
the handling of your case.
Most importantly, any disciplinary action by any board results in a report
to the National Practitioner Data Bank (NPDB). In turn, this can result
in a loss of credentialing by various dental insurance companies or administrators,
loss of hospital privileges, and increased malpractice insurance premiums.
The importance of the selection of legal counsel cannot be overemphasized.
It is obviously imperative that every dentist fully read and understands
the terms of his/her malpractice insurance policy. Is it "claims
made" or "occurrence" policy, and does it provide sufficient
coverage with or without exclusions. Take the time to speak with your
insurance agent or representative to find out these important issues,
before you ever need to seek coverage for anything!
Insurance Audit and Big Payback
By Frank Recker, DDS, JD
Q: I am being audited by a dental PPO regarding many patients I have treated
under their plan. I received a preliminary report indicating that they
found 10 instances where I allegedly placed crowns that were not "medically''
indicated. They then "extrapolated" their 10 cases/findings
and concluded that I had done the same thing on 120 other patients. They
are seeking a substantial financial recovery from me. What is my recourse,
if anything?
A: There is nothing more frustrating than having your treatment called
into question by a dental consultant who may be a thousand miles away
from your practice. My first concern relates to whether or not that consultant
is licensed to practice dentistry in your state. It is my position that
when another dentist attempts to diagnose and second guess your treatment
decision, that dentist is 1) practicing dentistry in your state, and should
therefore be licensed in your state, and 2) practicing below the standard of care.
If you made a diagnosis relative to any patient that was only based on
two dimensional radiographs and reviewing a clinical record but without
examining the patient's mouth, you would be practicing below the standard
of care. Yet it seems dental consultants do just that every day.
In any such audit, get familiar with your state's Dental Practice Act
as it may require licensure for any dental consultant making such 20/20
hindsight treatment decisions with or without examining the patient. You
might also consider formally protesting such an action and request that
the insurance
Company send to your office a currently licensed dentist in your state
for a review of all the patient records for any one patient and a clinical
exam. In my view, anything less is an insurance company aiding and abetting
the unlawful practice of dentistry under the guise of determining "medically''
necessary treatment.
As to the extrapolation methodology employed in turning a 10 patient "finding"
into a broader universe of patients, in general courts can support such
findings if they have the appropriate scientific/mathematical underpinnings.
But such extrapolations can also lack the appropriate supporting methodology
and be subject to challenge. Just because an insurance company uses an
extrapolation to justify their claim that they are entitled to a much
larger reimbursement does not make it immune to challenge. Patients are
unique, as are their dental conditions, and every dental situation can
be different, regardless of whether or not each crown or restoration has
the same COP code listed in the insurance company extrapolation!
Accidents When Treating Patients
By Frank Recker, DDS, JD
Q: I encountered a situation where a patient swallowed a crown during the
seating process, but refused to seek medical attention. Am I liable if
anything happens to the patient?
A: First of all, let's assume, for example, you were seating #30 on
a patient with a difficult access, a sensitive gag reflex, and large muscular
tongue. In such a scenario, a rubber dam is likely indicated prior to
attempting to seat the crown. In many or most situations crown seating
can be accomplished with cotton rolls and without a dam. But in the scenario
above, it may have been negligent for you to fail to use a rubber dam.
In the case of negligence on your part, swallowing a crown could have been
prevented by placement of the rubber dam in that scenario. Assuming you
were negligent in not doing so, any proximate damages caused by such negligence
would be your liability. Urge the patient to seek immediate medical attention
via the emergency room. Thoroughly document in your notes what occurred
and your instructions that the patient immediately obtain medical care.
Be sure your instructions are witnessed by a staff member and that they
also initial the notes. The patient has a duty to mitigate (lessen or
minimize) any potential damage in any such situation and bears the responsibility
for not doing so should he/she choose to not follow your advice. Such
an incident may require a recovery of the crown directly by the appropriate
physician.
Whatever the cost, assuming you believe you could have prevented the incident,
indicate to the patient your willingness to absorb any related medical
expenses. You may or may not want to contact your insurance carrier to
handle the matter, but if the amount is reasonable and you can directly
reimburse the patient and obtain a signed "release," it would
be better to do it yourself and avoid a malpractice insurance carrier
report to the NPDB. But if legal action is threatened, have no further
discussions with the patient and refer the matter to your professional
liability carrier.
When a Patient Requests Records
By Frank Recker, DDS, JD
Q: I recently had a patient request a copy of their dental records. Should
I be concerned or notify my malpractice carrier? I am not aware that this
patient was unhappy or angry, but I had this happen several years ago
and learned it was for an unexpected lawsuit.
A: Every patient is entitled to a copy of his or her dental records, and
the dentist is permitted to charge a reasonable fee for copying them.
It is often easier to download the records as a pdf or jpeg file onto
a digital medium, in view of today's technology and digital imaging.
Then the patient can easily copy them, or transmit them to a third party.
Have the patient sign a release if the records are being sent to, or picked
up by, anyone other than the patient. And
remember, a patient record includes billing information, treatment plans,
informed consents, clinical notes, patient registration and medical history,
EOBs, lab slips, and all photos, radiographs, and models, etc. A photograph
of a model might suffice, at least initially, depending upon the purpose
of the request. At a minimum, it indicates the thoroughness of your documentation
and dispels any potential impression of "hiding" anything.
While I can't deny that such requests are often a prelude to being
scrutinized by another dentist, or an attorney, it could be a harmless
request because the patient is relocating, or another dentist just wants
to know the dental history and simply asked the patient to obtain the
records. Or, the patient might have been involved in an accident and needs
the records to recover for damages incurred. Never tell a patient that
you will only provide a copy of their records to another dentist.
On the other hand, if a patient is seeking records for potential suit purposes,
it changes nothing relative to the dentists' obligation to provide
a copy. I would only discourage any inclination to call the patient, to
question the patient about the request, or in any other way appear to
be concerned about the patient's motivations. Such actions may well
appear to be self-serving, or even intrusive.
However, complying with such a request should not trigger a dentist's
responsibility to timely notify a malpractice carrier about a potential
claim. There is no reasonable expectation of a patient making a claim
against you unless the request for records is coming directly from a law
firm or the patient has previously expressed anger, dissatisfaction, or
threatened suit. Lastly, the original records should never leave your
possession, for any reason or purpose, as they are the property of the
dental practice. Even if a subpoena "orders" the production
of original patient records, doing so could jeopardize your malpractice
insurance coverage.
Fraud?
By Frank Recker, DDS, JD
Q: I have heard that any changes made to dental records after the actual
date of treatment constitutes "fraud" or "alteration of
records." I have made changes to various patient records, for various
reasons, on many occasions. Is this wrong?
A: Interestingly, I have a pending client matter in which one of the primary
issues is an allegation of "altering records." In fact, the
opposition's expert report termed it "fraudulent" entries.
It really boils down to semantics, intent, and the nature of the additions,
alterations, or changes made.
Health practitioners are responsible for developing and maintaining accurate
patient records. Some states even have specific regulations that delineate
the items that must be included in patient records. In general, these
include complete name, date of birth, health history, medical history,
treatment plans and options, and evidence of informed consent by the patient,
in addition to sufficient detail relating to diagnostic justification
and actual treatment rendered.
In my pending case, the dentist was aware that a third party was going
to scrutinize his records on a particular long-term patient. So prior
to forwarding a copy of the records to the third party, he went through
each page to make sure everything was legible. On several different treatment
dates, spanning about three years, he made small additions to specific
visits. They were intended to make what he did, and why, clearer. For
example, on one date he fabricated a crown, and later added "fractured
restoration" so those reading it would more clearly understand his
diagnostic rationale. Radiographic evidence already showed an extremely
large restoration, so he really didn't need any further diagnostic support.
None of the several additions he made changed the diagnosis, treatment
plan, or "crossed out" any prior notations. The additions did
not constitute false statements, as nothing he added was false. He had
no "intent" to deceive anyone and the additions were not material.
Nonetheless, the third party is alleging "fraud" and "alteration
of records."
To establish fraud, one must show intent to mislead and deceive. As to
the "record alteration" issue...yes, records were "altered"
in the sense that additions were made, thereby "altering" the
records as they had existed, but that alone means nothing. More accurately,
the records contained post treatment "additions" that did not
result in any material change to the previous content; did not constitute
"new treatment date" additions to the records; did not alter
the treatment performed, fees assessed, or patient consent. They were
simply minor supplements to provide more clarification to the treatment.
Needless to say, this allegation would not have been made had the dentist
placed a contemporaneous date for the entry addition, and initialed the
addition to indicate who had made them. Only because he failed to do so
is he facing these allegations.
If you are wondering how the issue arose in the first place, the doctor's
office manager had previously provided a copy ("pre-addition")
to the patient without the doctor's knowledge. Of course, his staff
should have placed an entry in the chart indicating that the patient had
received a copy, and when. Then the dentist would have realized that any
"addition" he might make needed a date and accompanying notation
so the "differences" would be obvious and not an attempt to
hide anything.
Conclusion: Every time you go back to make additions, corrections or changes to a patient
record, assume that it has already been copied and given to the patient
or another practitioner then you will instinctively remember to date and initiall.
How to Apologize to a Patient
By Frank Recker, DDS, JD
Q: An extensive treatment plan was completed on one of my more difficult
patients. Along the way, we encountered just about everything that could
go wrong. I was confident that the treatment was all performed properly,
but I apologized to the patient several times for each difficulty we encountered.
The patient is now hinting that I should pay her for what she "went
through," because she obviously interpreted my apologies as admitting
some kind of wrongdoing. Should I never be courteous and extend an apology
of any kind to a patient for some discomfort or any treatment difficulty
they encounter?
A: Dentists and other health care practitioners are often confronted with
a situation where the treatment was rendered appropriately but the patient
is unhappy with the results. Another scenario is when an unforeseen event
occurs, such as a temporary paresthesia or difficult postoperative healing
period, and every caring health care provider feels "empathy"
for the patient. Often times, I am asked whether an apology should be
noted in the records, or just not made at all.
It is clear that when patients feel that the practitioner relates to what
they are going through, the patient is happier. Studies have shown that
patients are far more reluctant to institute litigation if they believe
empathy or compassion is felt by the health care provider. And public
policy, as expressed in many state statutes, encourages expressions of
honest compassion and open communication with patients and families following
unanticipated outcomes. To that end, about 36 state legislatures, plus
the District of Columbia, have enacted "apology statutes," which
allow physicians and dentists to speak openly with patients without fear
of retribution in the legal system.
The Ohio apology statute is one example of the wording and objectives of
such a law:
"In any civil action brought by an alleged victim of an unanticipated
outcome of medical care....any and all statements, affirmations, gestures,
or conduct expressing an apology, sympathy, commiseration, condolence,
compassion or a general sense of benevolence that are made by a health
care provider or an employee of a health care provider to the alleged
victim, a relative of the alleged victim, and that relate to the discomfort,
pain, suffering, injury or death of the alleged victim as a result of
the unanticipated outcome....are inadmissible as evidence of an admission
of liability or as evidence of an admission against interest."
Clearly the purpose of such "apology'' statutes is to encourage
expressions of compassion without exposing the practitioner to legal jeopardy.
However, such laws do not shield statements or expressions that admit
liability or fault. For example, one case held that because the physician
said "I take full responsibility for the outcome and it was my fault"
was admissible. Another example was when a practitioner said he was the
"captain of the ship" and assumed responsibility was deemed
to be an admission of guilt and was admissible in court in a subsequent
malpractice suit.
The bottom line is that you can be compassionate, and express an apology
for what the patient is encountering or what difficulties were experienced,
but without making statements that constitute "admissions" or
guilt of malpractice. When I first entered the practice of dentistry many
years ago, a very old local dental practitioner had just died. Upon seeing
many of his former patients, I was
Amazed at the substandard dentistry he had rendered. But in virtually every
instance, the patients praised his skills and his likeability. In short,
if they love you they are very reluctant to take any adverse action against
you! That is the objective of "apology'' laws.
Patient dissatisfaction with a colleague:
To share or not to share with previous dentist
Q: I received a call from a colleague, a new patient's former dentist,
wanting to know why the patient left his practice and came to me. I didn't
want to hurt his feelings, so I didn't go into much detail about the
patient's dissatisfaction with him or the patient's comments about
a potential malpractice suit. Should I have been more forthcoming and
warned him?
A: First of all, you shouldn't be talking with anyone over the phone
about any patient without the patient's consent. When speaking with
the patient's referral or another practitioner who is treating the
patient, there is an implied consent by the patient to discuss the patient's
condition or care. However, this does not automatically apply to the patient's
former dentist. In fact, I have seen patient's become justifiably
very angry when they found out that their new dentist had spoken to their
former dentist about them. It can create both an unhappy patient and legal
jeopardy. There are too many privacy related laws that protect patient
information. Because of these, no discussion of any patient by any dentist
or dental office employee should occur either in, or outside, the office
unless patient consent, either express or implied, has been obtained.
Did I Discriminate
by
Refusing Treatment?
By Frank Recker, DDS, JD
Q: Is it true that if I have accepted a new patient for a cleaning and
diagnosis appointment that I cannot refuse to treat them or send them
to another dentist? Is that discrimination?
A: A cleaning and dental checkup, even with a diagnosis, does not bind
you to treat the patient or continue to see the patient. As long as your
reasons are based upon dental judgment (condition too complicated for
your abilities, patient has serious emotional difficulties which in your
judgment would jeopardize treatment success or patient satisfaction, etc.)
you cannot be held liable for discrimination. On the other hand, IF your
decision to let the patient go is based upon gender, age, religion, HIV
status, or other protected classifications, you would be violating statutory
provisions protecting those considered to be handicapped, and upon which
no discrimination is permissible.
Patient Records
By Frank Recker, DDS, JD
Q: What do "patient records" include?
A: Generally speaking, patient records include all documents completed
by the patient (i.e., medical/dental history, employment and insurance
information, dental office records regarding charges, payments, insurance
billings) radiographs, copies of lab slips/orders, copies of prescriptions
written, informed consent documents signed by the patient, etc. If complete
patient records are requested, with the appropriate patient releases signed,
all of the above documents should be produced. If it is easier for the
dental office, all documents can be placed on a diskldvd. The dental office
has the right to charge a reasonable fee for document production/duplication.
The originals remain the property of the treating dental office.
With Patients like This...
By Frank Recker, DDS, JD
Q: I have a good friend who is always urging me to 'save him money'
by skipping required cleaning appointments, taking fewer radiographs,
'patching' a tooth that needs a more extensive restoration, or
refilling antibiotics or pain meds for a perio condition that he won't
allow me to treat. I am really at a loss to say no to him. Any suggestions?
A: Yes. Tell your good friend that because you're such good friends
you know he doesn't want you to lose your dental license! Briefly
explain that, while he may be happy with receiving substandard care, you
are putting your license in jeopardy in spite of his happiness. A dental
board doesn't need a patient complaint or malpractice suit. All they
need is a deviation from accepted standards of care...even with a happy
patient...and your license could be in jeopardy.
Patient Termination
By Frank Recker, JD, DDS
Q: My hygienist is very attractive and 'busty.' Several male patients
behave in an aggressive manner and make ongoing sexual innuendos to her
during their cleaning appointments. She has complained to me on several
occasions but I don't want to antagonize good patients. Should I ask
her to just ignore their behavior, stay professional, and do her job?
A: You certainly could tell her that, but it would be an unwise decision!
Essentially you are knowingly permitting a 'hostile work environment'
by allowing her to be subjected to sexual harassment on the job. You need
to speak privately with each patient involved and give them an option:
be respectful of your staff or be discharged from your practice. If they
don't change their behavior, send the potential liability somewhere else!
Patient Termination
By Frank Recker, JD, DDS
Q: My front desk staff overheard a patient speaking to another patient.
The 'speaker' complained about the dental treatment she received
on a previous visit to our office. Can I terminate that patient?
A: You are permitted to terminate any patient for any reason, other than
one based upon a statutorily protected classification, such as age, religion,
race, HIV status, etc. In your example, the most prudent thing might be
to ascertain the source of the patient's apparent dissatisfaction
and attempt to resolve it. But if the patient is a known chronic complainer
whom you have already tried to satisfy, it might well be time for termination.
If the patient speaks negatively in the waiting room, it's also likely
happening in the neighborhood.
Dispensing Drugs from Your Office
By Frank Recker, DDS, JD
Q: I have a drug cabinet that contains various drugs for potential direct
dispensing to patients. I sometimes worry about this and the risk of theft.
Am I overly concerned?
A: After having represented so many dentists throughout the country in
a multitude of legal matters, I am opposed to anything that unnecessarily
adds to the "pile" of risk management issues.
The only medications I would keep on hand in the office would be over-the
counter items that do not require strict oversight and documentation.
Such would include acetaminophen, ibuprofen, or a combination of over-the-counter
medications such as caffeine, aspirin, and acetaminophen.
I have seen too many episodes of stolen controlled substances, poor documentation
of dispensing meds to patients, or excessive dispensing of such medications
that bring into question the "standard of care" for prescribing
in any given situation.
In today's environment, drug seekers and the unlawful use or prescribing
of drugs are high priority items for law enforcement. Prescribing practices
are now something that can be accessed online in many states. Both the
practitioner's prescribing of, and the names of patients receiving,
controlled substances are available to multiple enforcement agencies such
as medical boards, dental boards, and pharmacy boards, as well as local
or state law enforcement.
In short, I would much prefer that a dental practitioner write a prescription
for controlled substances, along with having a prudent rationale for doing
so clearly noted in the patient record. I would advise against keeping
controlled substances in the office for purposes of dispensing to patients,
as the "risk/benefit" ratio is too great.
Risks of Keeping Controlled Substances in Your Office
By Frank Recker, DDS, JD
Q: Many dentists possess DEA registrations in order to prescribe and/or
dispense controlled substances. Are there any potential risks in keeping
such medications in my office?
A: DEA regulations require that all purchase records of controlled substances
be kept on file for inspection by the DEA. Obviously, patient log books
need to be accurately maintained which reflect every time a controlled
substance is dispensed or administered to a patient. Those logs books
are often audited by DEA agents and compared with purchase records to
verify the amounts purchased and documented, and the legitimate and proper
handling of such medications.
Disturbingly, in a case handled by this author two months ago, the DEA
charged a dental licensee with failing to obtain "prior approval"
from the DEA before "squirting" excess/unused IV medications
down the drain. Almost any dental practitioner who uses IV sedation or
general anesthetic IV drugs has encountered this scenario. And both the
government's expert (Dr. Dan Becker) and the Respondent's expert
(Dr. Joel Weaver) testified that THEY dispose of excess/waste medications
in the same manner, i.e., noting the amount to be disposed, disposing
it down the drain, and having a witness also sign the patient drug log
to verify disposal.
Nonetheless, the DEA judge in D.C. {Chief Judge Mulrooney) concluded in
his decision
{December 22, 2011) that DEA Form 41 must be completed and sent to the
DEA, listing the "waste" drugs to be disposed, and obtaining
prior DEA approval, BEFORE any such disposal occurs. This case is under
appeal as the decision would have far reaching, cumbersome and costly
effects on the everyday practice of IV sedation and general anesthesia
by any dental practitioner.
Post-Termination Access to Collection Reports
By Frank Recker, DDS, JD
Q: My former associate dentist, who was paid on a percentage of collections,
claims he is entitled to access my computer system to check on payments
that might have been received after he left. He was terminated about six
months ago. Am I obligated to do what he is asking?
A: These issues should be covered in any employment contract with an associate
dentist. Typically, a contract will provide that a current employee being
paid on collections has a right to review that data. A former employee
is entitled to receive computer printouts showing payments received for
a specific period of time after termination. This period varies, but typically
it lasts about 90 days, after which he receives no payments and no printouts.
However, the contract (which is negotiated prior to employment) could
state that the dentist is not entitled to any payments received after
termination.
Any "post-termination" right to access your office records should
be limited to copies of patient records for purposes of defending a malpractice
suit. But again, in the absence of a written contract specifying your
obligations and the employee's rights, the former employee could challenge
you to obtain access to data relating to patient collections for work
he did long ago.
This is one reason why I favor paying associates on a percentage of production,
as opposed to collection. A lesser percentage payment would be involved,
but the employee gets paid immediately and the employer is relieved of
any obligation to report anything to a former employee. Since the employer
controls the front desk and all payment arrangements, the employer could
limit the employee dentist's patient treatment to patients who pay
in advance or who pose no risk of uncollectibility.
Ties that Bind?
By Frank Recker, DDS, JD
Q: I have been working as an associate in a large dental practice together
with the sole owner of the practice, also a general dentist. He has a
professional corporation and I have never had a contract. He told me he
is selling the practice and asked me to sign an employment contract prior
to the sale. Should I sign it?
A: Recently a client in the same situation sought my advice on a similar
matter. She had worked for her employer/dentist for about 15 years and
all of a sudden faced enormous pressure to sign a contract, prior to the
sale of the practice and prior to even meeting the, soon to be, new owner.
She had received very little prior notice of the sale.
The proposed employment contract simply recited the "terms" under
which she had worked for the past 15 years. It did not propose an increase
in compensation or provide for any benefits. But what it DID contain was
a non- compete clause, restricting her ability to leave the practice
and open her own office within a certain radius of her employer's
office. And, as is typical, that contract was assignable to the prospective
purchaser of the practice.
It was clear that her employer/owner of the practice had negotiated a sale
of his practice based on the gross income of the corporation. But my client
had contributed about 50% of the gross income of the dental corporation
over the past several years. So clearly, the owner was "selling"
my client's goodwill and the buyer was astute enough to seek a non-compete
from my client. And, unfortunately, she faced enormous pressure from her
long time employer to "sign" the contract. After refusing, and
after the practice sale, the prospective purchaser met with her and asked
her to sign a "letter of understanding" regarding her employment.
She was advised against doing so as the new owner was obviously looking
for anything he could potentially use to allege breach of contract (letter),
breach of fiduciary obligations, wrongfully obtaining proprietary information,
etc., if she left the practice.
In the end, my client decided to leave and go down the street to establish
her own practice. Although she had never really considered it before,
the manner in which she was treated and the blatant attempt to "box"
her into a sudden non-compete with no additional consideration made her
rethink her employment status. She informed the new owner she was leaving,
and was instantly busy after opening her new practice. She later learned
that the new owner of her former practice had wisely withheld sale proceeds,
contingent on whether or not she stayed in the practice.
If you employ dentists and don't have a written contract with them,
you are potentially vulnerable to a similar situation occurring.
Non-Compete Agreements: Reasonable or a Tactic to Restrict
All Competition?
By Frank Recker, DDS, JD
Q: I am employed by a well-established practitioner who has been in the
same location for 25 years. I have only worked for two months and already
know that I am not a good "fit" in this office. My contract
has a very restrictive non-compete, i.e., over 20 miles for two years.
Is there any chance of successfully challenging that provision?
A: Most state laws will honor a non-compete if it is "reasonable"
and does not prohibiting fair competition. I have seen many contracts
with restrictive provisions that are obviously intended to exclude any
competition. For example, some well-established practitioners hire many
young dental graduates, knowing that they will not succeed in the practice
and soon want to leave. With such restrictive covenants, it is clear that
the employer dentist is simply negating any potential competition from
a young dentist moving into the area. Many legal challenges to such restrictive
covenants result in negotiated resolutions which narrow the time and/or
distance. A court can modify any restrictive covenant that it finds in
violation of state statute or otherwise contrary to the legal parameters
for such provisions. In short, prospective employee dentists should carefully
consider the non-compete provisions before signing, and prospective employer
dentists should attempt to prevent "unfair'' competition,
as opposed to all potential competition.
Problems with an Employee I Discharged
By Frank Recker, DDS, JD
Q: I recently discharged an employee who worked at the front desk. Since
that time I have learned that she took patient names and contact information
and has "blasphemed" me to her friends and co-workers at her
new place of employment. Is there anything i can do to stop this?
A: Yes! Most "internal office" records, including patient information,
computer generated data, business forms, and patient provided records
are private, proprietary information belonging to the office and may also
be protected under the respective state law and HIPPA. A former employee
has likely breached a fiduciary duty to act in the best interests of the
employer during the employment period. If such documentation and office
information was withdrawn or "downloaded" during the employment
period a wrong has occurred. Also, the dental office has a duty to protect
privileged and confidential patient information. A direct action to court
seeking a restraining order against the dissemination of such information
by the former employee may be a viable option.
If the former employee is making disparaging comments about your office,
your business operations or your dental skills, a court action could be
instituted seeking a restraining order and damages. In any situation,
it would be wise to immediately place the former employee on notice of
potential, imminent legal action, and demanding that all such conduct
cease and desist, and that all records or office data be immediately returned.
Probationary Period for New Employees
By Frank Recker, DDS, JD
Q: I always tell my newly hired employees that they are on a probationary
period for 30 days. Do you recommend a longer period of time?
A: I don't recommend any 'probationary' or 'trial'
period. Most states are employment at will states, which means you can
terminate an employee at any time, with or without cause. The only issue
is whether or not they are entitled to unemployment compensation. But
a 'probationary' period implies that once they have passed that
mark, their employment is something more than 'at will.' If you
can terminate anyone for any reason at any time, what's the purpose
of a 'probationary' term? An attorney for the employee would argue
that, having 'passed' the probationary term, the employment can
only be terminated for cause, and they would interpret 'cause'
as nothing short of assaulting their employer or some other equally egregious act!
Botox and Dermal Fillers: Dentistry or Medicine?
By Frank Recker, DDS, JD
Q: I'm planning to attend the workshop on Botox at MID's upcoming
Annual Meeting. I expect to be instructed on the proper use of Botox and
dermal fillers on dental patients. But I don't know how my state dental
board feels about this issue. Is it legal to perform these procedures
in a dental office?
A: Several dentist/clients have been charged by their respective dental
boards with allegedly violating the state's dental practices act because
of the use of Botox and dermal fillers in the practice of dentistry. I
believe the courts will ultimately decide that they are wrong if their
statutory definitions are typical of most states.
Most dental practice acts define the practice of dentistry using terms
such as "correcting defects, deformities or diseases" of the
"teeth, jaws and associated structures," First of all, no health
care professional has inserted more needles into the oral cavity than
a dentist. Both of these procedures involve the insertion of needles only.
And both procedures are reversible.
As to the definition of the practice of dentistry, the language of most
state statutes would encompass these procedures as within the practice
of dentistry. If a Board passes a regulation or a policy determining that
these procedures can only be performed by oral surgeons, such an action
can reasonably be interpreted to constitute a "taking without due
process" as such a rule or policy would appear to unlawfully constrict
the statutory definition of dentistry, as well as appear to potentially
violate the tenets of "equal protection" of the law.
As a general dentist, although I do not presently practice clinical dentistry,
I support those states that have determined that such procedures are permissible
to be performed by dentists, especially general dentists. From a liability
standpoint, it's hard to imagine any permanent damage that could flow
from such treatments. Botox can be a great adjunct in treating symptoms
relating to TMD or cosmetic dental procedures. Dermal fillers can also
be very helpful in attaining a more pleasant cosmetic result in relation
to smiling, anterior cosmetic dental procedures, or general enhancement
(correcting a defect) of the teeth, smiles, etc.
In summary, check with your state dental board about their position on
general dentists performing these procedures. As has often occurred in
the past, some states base their position more on political pressure received
from various quarters, than on a thorough legal analysis.
Second Guessing Treatment Plan
By Frank Recker, DDS, JD
Q: If a patient chooses a less expensive, and much less ideal, treatment
plan, can I be criticized for performing that treatment by a colleague
who may subsequently see the patient?
A: Such criticism happens far too much, and often precipitates a dental
board inquiry or malpractice suit. The criticism is not justifiable if
the patient was presented multiple treatment plans, the cost differences,
and the risks/benefits of each treatment plan were explained to the patient.
Then, the patient must have made an 'informed consent' to the
treatment plan (i.e., he/she was presented with the options, understood
the risks and benefits of each, and made an "informed" decision,
usually documented in writing).
Unfortunately, often a patient chooses a less expensive dental implant
treatment plan and is subsequently dissatisfied with, for example, the
stability of the appliances. Notwithstanding the fact that more expensive,
optional treatment plans were presented, the patient subsequently sees
another dentist who may opine that the treatment the patient received
was "below the standard of care." Such a characterization is
not fair unless the treatment implemented was itself
performed below the standard of care.
For example, I may accept the placement of a larger restoration on a tooth
in my mouth, at a far less cost than full coverage, but KNOWING that I
was accepting a less ideal plan and understanding the risks attendant
with that treatment method. But both treatment options can be within the
standard of care, and often are. Nonetheless, a subsequent dentist.....with
the gift of 20-20 hindsight....may be critical of the previous dentist
for not insisting on full coverage, having the benefit of knowing that
the tooth eventually broke down. But even here, if a larger restoration
was one option within the standard of care, the treating dentist did nothing
wrong. Dentists need to try to be less critical of any situation they
encounter involving another dentist. Patients often "forget'"
what they were told or "misstate" what occurred at their previous
dental office.
Malpractice or Short of Standard of Care?
By Frank Recker, DDS, JD
Q: I occasionally see a new patient whose dental work I can immediately
identify with one area dentist. In other words, it's terrible! Should
I tell the patient the truth about the gross malpractice in their mouths,
or protect a local colleague?
A: If what you mean by 'telling the truth' is reporting that existing
work needs to be replaced or that it doesn't meet what you believe
the standard of care requires, tell the truth. But you can do so in a
manner that does not indict someone else. After all, you weren't present
when the work was done, you do not know under what conditions the work
was rendered, and you do not know what the dentist advised the patient
about the work. In short, be brutally honest in your OPINION as to the
existing dental work and what should be done, but don't make unsupported
conclusions as to 'malpractice," 'incompetence' or other
derogatory comments.
Standard of Care
By
Frank Recker, DDS, JD
Q: Another dentist told me that the standard of care requires that I perform
an implant treatment plan on any patient for whom implants could be an
option. I already know that some patients can't afford it or aren't
interested. Why should I bother to formulate a treatment plan? I'm
not even that comfortable placing implants.
A: Implants have evolved into an accepted, everyday treatment modality.
The standard of care requires that we obtained an "informed consent'
prior to any treatment being rendered to the patient. An informed consent
requires that we present to each patient every reasonable treatment option,
and the risks associated with each option. In most patients with missing
teeth, implant therapy is a viable option. So for example, most patients
who are missing teeth should be presented with the options of a removable
partial denture, a fixed bridge, or implant therapy supporting a fixed
and/or removable appliance. For each plan presented, the foreseeable risks
must also be presented. Such would include, in the case of implants, infection,
failure to integrate, loss of the implant(s), etc. The more written information
we provide to the patient, the better. If you are not comfortable placing
implants, you should refer to someone who is while you are obtaining more
education and training through the MIDI.
My office manager is blackmailing me
By
Frank Recker, DDS, JD
Q: My office manager advised me that if she were ever fired, she would
"make life miserable" for me. She is aware of some "favors"'
I have done for several patients when filing their insurance claims. I
can't think of anything else she would know that could be harmful
to me. Any advice?
A: Over the past 25 years I have represented dentists with a multitude
of legal problems caused by current or former employees. The legal issues
included malpractice claims, dental board actions, theft of patient records
or computer data, slander, and insurance audit/fraud investigations. My
first suggestion would be to keep your house "clean" and practice
as though you were on a
Dateline hidden camera investigation! Next, have your employees sign a document
that binds them to confidentiality, protection of patient and office (proprietary)
information, and requires that they arbitrate any dispute arising out
of their employment. While this won't guarantee headaches caused by
employees, it will minimize the risk.
Must I participate in Medicaid dental program?
By Frank Recker, DDS, JD
Q: My local dental society urges its members to become providers for Medicaid
dental programs to service the dentally needy population and address the
'access to care' issue. Am I missing something or are these programs
really not worth fooling with?
A: This issue has been the topic of debate for many years, certainly extending
back to when I rendered clinical dental services. Most people eligible
to receive Medicaid dental services are good people having a hard time.
The problem arises from those recipients who have no respect for keeping
appointments, being on time, their vital role in dental health, or appreciating
the services rendered. Add to this the fact that reimbursement rates are
too low and an "audit" from the entity administering the program
adds to the potential aggravation. Lastly, I have had clients face large
civil recoveries and/or criminal action as a result of overzealous auditors
employed by the oversight agencies. Practically speaking, albeit unfortunately,
it is no surprise that most dentists choose not to participate.