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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.


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.


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.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information, and the submission of any e-mails, do not create an attorney-client relationship.