Legal Risk Management for the General Dental Practice

1
Legal Risk Management for the General Dental
Practice

• Cathy Turbyne, RDH, MS, Ed.D.
• Karen Packard RDH, MS
• Turbyne Associates, Auburn, ME
• June 17, 2006

2
Objectives

• To recognize and understand the legal risks
• that face dental care providers.
• To personally evaluate your practices
• management of patients, records,
• treatment, and dental procedures for
• legal vulnerability
• To plan and implement corrective measures
• for the identified areas of risk with a
• timeline.

3
What is Law?

• It is a composite of federal and state statutes,
  procedures, and regulations, court decisions,
  rulings of governmental agencies, and
  presidential edicts or executive orders. J.
  Davison, RDH, JD
• (Rules made by humans regarding social conduct in
  a legally binding and formal manner).
• Statutory Law Legislative Enactments
• includes Federal/State Agency Regulations
• Common Law Judicial Decisions

4
What Laws Govern Dentistry

• Federal/State Constitutions
• Civil and Criminal Statutes/Case Law
• Federal/State Agency Laws (FDA,
• OSHA, DEP, HIPAA, MBL, DHHS).
• MBDE Rules and Regulations
• Federal/State Public Health Laws
• Local Ordinances

5
What Laws Govern Dentistry

• Federal Statutes Relating to Employment
• Civil Rights Act
• Pregnancy Discrimination Act
• Age Discrimination Act
• Immigration Control and Reform Act
• Equal Pay Act
• Americans with Disabilities Act
• Consolidated Omnibus Reconciliation Act (COBRA)
• Family Medical Leave Act

6
Maine Statutes Relating to Employment

• MRSA Title 5, 4572 Human Rights Act/Sexual
  Harassment
• MRSA Title 26, 626 Pay
• MRSA Title 26, 884 State Medical Leave Law
• MRSA Title 24-A, 2809 Health Insurance
• MRSA 24-A, 2215 - Disclosure Limitation
  Conditions
• MRSA Title 26, 601, 602 Meal and Rest Break Law
• MRSA Title 26, 631 Personnel Files
• MRSA Title 26, 681-690 Drug Testing
• MRSA Title 26, 1709 Right to Know Law

7
Maine Statutes Relating to Employee/Patient Safety

• MRSA 5, Chapter 501, Public Health AIDS
• MRSA 22, Chapter 258, Rules for Control of
  Notifiable Diseases
• MRSA 22, 19201-19206, Medical Conditions,
  Informed Consent, Confidentiality of AIDS
  Testing, Anonymous Sites, Source Testing,
  Records Release, Restrictions on Revealing Test
  Results, Coordination of Services.
• MRSA 22, 1542, Smoking in Public Places
• MRSA, 22, Radiation Safety Act
• MRSA 24, Medical Record Confidentiality.
• MRSA 26, 251, Video Display Terminal Operators

8
Ethics

• A study or realm of moral action, conduct,
  motive, or character, concerned with conforming
  to a professional standard of conduct and care.
  (The circle of obligation includes other
  professionals, employees, patients, and society).
• Common principles, values, conduct, and
  obligations involve personal and professional
  accountability for your actions and the actions
  of those working for you.

9
Conduct

• Civil Negligence/Medical Malpractice Tort
  Remedies (Victim Initiated/compensation)
• 1. Special Damages Medical bills/lost income).
• 2. General Damages Suffering
• 3. Contract Damages Breach of agreement
• 4. Punitive to punish deliberate wrongful
  conduct
• Criminal Negligence or Practice
• (State Initiated/punishment)
• Assault, rape, burglary, murder.

10
Maine Board of Dental ExaminersEstablished 1891,
to protect the lives and health of Maine citizens
through regulation of the practice of dentistry.

• Dental Law Legislature delegates authority
  through the licensing statute to the MBDE.
  Interpretation of the statute is based on rules
  and regulations established for the dental
  profession.
• (They must follow the procedures required by any
  other applicable statutes).
• Primary Goal is to maintain high quality health
  care by disciplining incompetent health care
  providers before and after patients are injured.

11
Summary of the Law and Ethics

• A single act or omission by a dental health
  professional may be
• 1. A breach of ethics.
• 2. A cause for revocation of membership in a
• professional association or other action.
• 3. A cause for disciplinary action by a
  licensing
• board, including loss of a license.
• 4. A cause for civil action in a court of law.
• 5. A cause for criminal action resulting in
• incarceration.
• 6. A combination of any of the above.

12
Court System - Maine

• Maine State Supreme Court
• (Appellate jurisdiction only)
• Maine Superior Court
• (Trial, appellate, civil, and criminal
  jurisdiction)
• Maine District Court
• (Trial jurisdiction, traffic matters, probate,
  family matters (divorce), arraignments for
  felonies, small claims, juvenile cases and
  criminal misdemeanors

13
Legal Rights that Define RELATIONSHIPS Between
Individuals

• A Tort is a legal or civil wrong committed by one
  person to the person or property of another. A
  civil action is brought seeking economic
  compensation for the wrong doing.
• Torts are classified into 3 categories
• a. Unintentional Acts Negligence
• b. Intentional Acts Intent to cause harm
• c. Strict Liability Based on the nature of
  
• the activity

14
Unintentional Acts

• LIABILITY One person is liable to another when
  he or she is legally obligated to pay for the
  injury or injuries that he or she causes another
  individual.
• A health care providers failure to adequately
  perform a legal duty owed to the patient or by a
  violation of the patients rights.
• Patients can seek remedy through tort or contract
  law. Time limitations/measure of damages apply.

15
Definition of Duty

• Duty An obligation in law, that one owes to
  another person or a business.
• Duty of Care
• When one affirmatively acts in a way that
  creates a relationship with another individual.
  -When a dental provider begins treatment with the
  patients consent. -Making an appointment with a
  new patient to treat a specific condition may
  create a professional relationship.

16
Standard of Care

• The degree of care that a reasonably prudent
  professional should exercise.
• Conforming to reasonable professional practice,
  confirmed by comparative practice, research, and
  expert witnesses (qualified in knowledge, skill,
  experience, training, and education).

17
RES IPSA LOQUITUR

• The thing speaks for itself The instrument
  that caused the damage was under the defendants
  exclusive control.
• In Dentistry
• A foreign body is left in the mouth.
• Treatment has been performed on the wrong tooth
• A patient is injured while unconscious.

18
Resondeat Superior

• Let the master answer
• The principle that, generally, an employer is
  liable for the wrongful acts of an employee, if
  the employee was acting within the scope of his
  or her employment.

19
Contributory Negligence

• An affirmative defense that may be used by the
  dentist, which can be a complete bar to a
  patients recovery of damages.i.e. the patient
  contributed to his or her injury.
• Some states use a comparative negligence
• between parties/evaluates degree of fault for
  each party.
• A pure comparative negligence system allows a
  of recovery above equal damages.

20
Intentional Misconduct

• More serious, and harder to prove. The action
  need not be hostile, but intentional.
• Disadvantages exist for the defendant dentist.
• 1. No expert witness is necessary to establish
  the
• standard of care.
• 2. A plaintiff may recover damages even though
• there has been no physical harm.
• 3. These torts are not always covered by
  liability
• insurance.
• 4. Punitive and actual damages can be awarded.

21
Intentional Misconduct

• Assault (apprehension or fear of bodily harm)
  
• Battery (intentional infliction of
  harmful/offensive
• body contact.
• Defamation (written is libel, oral is slander)
• Invasion of Privacy
• 1. Intrusion upon seclusion
• 2. Appropriation
• 3. Publicity of Private Life
• 4. False Light

22
Intentional Misconduct

• Infliction of Mental Distress
• Fraud or Intentional Misrepresentation
• Interference with Advantageous Relations
  (Injurious falsehood, interference with contract
  and prospective advantage. Protects against
  false statements made against ones business,
  product and property.
• Wrongful Discharge (illegal discharge of an
  employee)

23
Informed Consent

• The patient's right to information and
• self-determination (freedom to choose).
• Critical Questions ????
• 1. Did the patient consent to a dental
  procedure?
• 2. Was the patients consent actually
  informed?
• 3. Whether misrepresentation or
  nondisclosure
• negated informed consent.
• Patients must sign a consent prior to dental
  treatment.it indicates understanding.

24
Requirements of Consent

• 1. Implied Consent
• 2. Express Consent
• A health care provider may not act beyond the
  patients authorization, except when the
  patients life or health is seriously threatened.
• 3. Competency of Consent (comprehension)
• 4. Invalid Consent (the consent is invalid of
  gained by fraud, under duress, or by
  misrepresentation.

25
Content of the Informed Consent

• Diagnosis
• Nature and purpose of the treatment
• Risks and outcomes
• Alternatives
• Prognosis if treatment is refused
• Prognosis with treatment
• Patient must prove injury through causation or
  misrepresentation.

26
When is Informed Consent Incomplete?

• The patient does not sign the consent.
• The consenting person has no legal
• right to do so.
• The patient is drug/alcohol influenced.
• Consent is fraudulent/misrepresented.
• Consent is obtained under duress.
• Consent obtained after incomplete
• disclosure.

27
Legal Issues and the Dental Patient

• What should the patient be told about
• x-rays ?
• Purpose and benefits who will take them
• Number and type of x-rays.
• Harm/risk in taking or not taking x-rays.
• Alternative diagnostic aids to x-rays.

28
Confidentiality and Disclosure

• Right to Privacy
• Liability for Breach ( Invasion of Privacy)
• 1. Appropriation of plaintiffs name or
  likeness
• 2. Unreasonable/offensive intrusion of
  seclusion
• 3. Public Disclosure of private facts.
• 4. Publicity that puts the patient in a public
  false
• light.
• Duty to Disclose

29
Confidentiality and Disclosure(HIPAA Maine
Laws)

• Disclosure
• Individual Rights Individual Rights
• Administrative Disclosure Administrative

30
Protected Health Information IS Individually
Identified Health Information

• Name
• Address - (Street address, city, county, zip code
  (more than 3 digits) or other geographic code.
• Names of Relatives
• Names of Employers
• Birth Date
• Telephone , Fax
• Social Security
• Medical Record
• Health Plan Beneficiary

• Account
• Certificate/License
• Any vehicle or device serial
• Web URL
• Internet Protocol (IP) address
• Finger and Voice Prints
• Photographic Images
• Any other unique ID

31
PHI Disclosure Outside the CE Requires
Authorization

• Transferring
• Releasing
• Sharing
• Forms of Covered Information
• Electronic, Non-Electronic - Oral and
  Written(includes telephone, Faxes, emails,
  letters, message machines, post cards etc.,
  outside envelop information etc.)

32
Disclosure StandardMinimum Necessary

• CE must make reasonable efforts to disclose only
  the minimum necessary
• PHI that will fulfill the request.
• (REASONABLE PROFESSIONAL JUDGEMENT)
• Minimum necessary does not apply to uses or
  disclosures for treatment or when giving
  information to the patient.

33
Disclosure Standard

• Incidental Disclosures (ID) The privacy rule
  is not intended to impede customary and necessary
  health care communications.
• IDs are not generally violations, assuming that
  reasonable safeguards are in place to minimize
  such disclosures
• IDs are defined as secondary uses or disclosures
  that cannot be reasonably prevented, are limited
  in nature and occur as a byproduct of an
  otherwise permissible use of disclosure.

34
Contractural Relationships

• A contract is a promise or set of promises, for
  a breach of which, the law gives remedy, or the
  performance of, which the law in some way
  recognizes as a duty.
• It requires mutual consent (offer/acceptance)
  consideration (fee for service agreement), and 2
  or more parties with legal capacity (age 18 and
  mentally competent).

35
Contracts cont.

• Express Contracts
• Implied Contracts
• Abandonmentunjustifiable renunciation by the
  dentist of his professional relationship with his
  patient and a repudiation of responsibility for
  the patients condition.
• The dentist should complete all services, if an
  on-going relationship exists.
• Duty ceases if the dentist can do nothing more
  for the patient.

36
Contracts cont...

• Patient Duty to pay and follow Drs. RXs
• Termination of a Patient - Documentation
• 1. Verbally notify the patient.
• 2. Follow-up with a written letter sent by
  certified
• mail with return receipt requested.
  (Reasons for
• termination should be stated in the
  letter).
• 3. 30-60 day emergency period available while
• securing another dentist.
• 4. Offer to send copies of records/x-rays to
  new
• DDS.

37
Contracts cont...

• Breach of Contract
• Material failure of performance of duty arising
  under or imposed by an agreement or promise.
  (also covers time)
• Remedies
• Expectancy Damages -injury compensation
• Restitution Damages - value in money
• Reliance Damages - value of contract

38
DiscriminationTo act on the basis of prejudice

• HARASSMENT
• Maine Human Rights Act
• Maine has the toughest enforceable law in the
  nation.

39
HARASSMENT Prevention Does Everyone

• Understand the laws that protect employees from
  personal/gender harassment in the workplace
• Understand, recognize and prevent personal/sexual
  harassment in the workplace
• Understand your role in promoting, supporting,
  and providing a safe, inclusive work environment.
• Understand how to perrsonally help to maintain an
  organizational cultural/climate of mutual respect
  and common courtesy for all.
• Know how to report personal/gender harassment

40
Formal Definition

• The formal definition of Speech as Harassment
• Speech can be punished as a Workplace Harassment
  if it is
• severe and pervasive enough to create a
  hostile or abusive
• work environment based on
• -Race -Military membership or Veterans
  status
• -Religion -Sexual Orientation,
  Transexualism-cross dressing
• -Sex -Age -Political Affiliation
  -Occupation
• -National Origin -Criminal Record
  -Appalachian Origin
• -Citizenship Status
• -Disability (including obesity)

41
Formal Definition

• The formal definition of Speech as Harassment
• Speech can be punished as a workplace harassment
  if it is
• severe and pervasive enough to create a
  hostile or abusive
• work environment based on
• -Prior psychiatric treatment
• -Tobacco use outside of work
• -Receipt of public assistance
• -Dishonorable discharge
• -Personal Appearnace

42
Formal Definition

• The formal definition of Speech as Harassment
• Harassment draws no distinction among slurs,
  pornography, political, religious or social
  commentary, jokes, art, and other forms of
  speech.
• All can be punished, so long as they are severe
  or pervasive enough to create a hostile
  environment.
• Because the boundaries are so poorly marked, the
  best course of action is to avoid all sexually
  offensive conduct in the workplace.
• WATCH WHAT YOU SAY OR BE READY TO PAY

43
Influence Perception
44
Influence Perception
45
What is an Effective Sexual Harassment Policy in
the Wake of the Supreme Court Cases?

• What will a JURY Look For?
• 1. Have a clear Anti-Harassment Policy that is
• simply written and understood by all.
• 2. Distribute your policy as a separate document
• to all employees and post it.
• 3. Offer Interactive training with examples and
• videos, discussing the policy and violation
  issues.
• 4. Promptly, effectively investigate complaints
• -Employers were faulted on failure to
  investigate
• quick enough, thorough enough and not
  communicating
• progress/results to the complaintant all
  employees.

46
Other Current Employer Related Issues Concerning
Harassment

• Email - New Concerns for employers
• Hate Crime Sentencing Standard
• Tightened.
• Rights for Gays
• Harassment Complaints by men are on the
  risesexual harassment on the job is not about
  sex, its about unacceptable behavior in search of
  power, to intimidate, humiliate, and drive
  individuals out of the workplace.

47
Prevention for Professionals

• Be fair, objective and clear about your
  expectations with co-workers.
• Avoid the perception of favoritism.
• Be consistent with praise and correction, use the
  same standards for everyone.
• Make regular use of job descriptions, performance
  reviews, learning contracts, and ongoing feedback
  to insure objectivity.

48
Quality Assurance

• Accreditation and Credentialing for the
  protection of the public
• Professional School Accreditation
• Licensure (Third party, independent)
• Unauthorized Practice (Dentists, Dental
  Hygienists and Assistants)
• Violations of the ME Practice Act
• (Procedure, Actions, judicial review)

49
Office Procedures

• Emergency Medical Treatment - Policy,
• procedure, practice, CPR certification.
• Asepsis and Sterilization - OSHA and
• Maine DEP. Radiation State Rules
• Office Equipment- Unsafe, unauthorized use.
• Housekeeping - Premises safety
• Radiographic Techniques - Licensed
  Radiographers, safe equipment and shielding.
• Child Abuse - Case Reporting

50
Charts Legal Issues

• Chart - a continuing record of all treatment
  provided to a patient and observable conditions
  pertaining to his or her health
• Controlled Substance Recording
• Maintenance of Patient Records-
• keep 7 to 10 years, dry, secure area.

51
Quality Documentation

• Consistent all charts the same
• Legible, concise, factual notes
• Black or blue ink
• Abbreviations standard for office
• Make notes during/ promptly after appointment
• All notes initialed, signed, cosigned

52
Amnesia Test

• How much do I really need to write down? Enough
  so that
• If you remembered everything you know about
  dentistry, but forgot everything you know about
  your patients, you could
• Identify treatment completed and why
• Identify next treatment and why needed

53
Who says?

• Insurers
• American Dental Association
• Federal/State Agency Laws
• DEA, HIPPA
• Maine Board of Dental Examiners
• Rules, Statutes, and Policies

54
Why?

• Patient safety
• Continuity of care
• Legal protection
• Forensics

55
Forensic Dentistry

• May be used for identification when nothing else
  of the patient remains
• No two sets of teeth identical
• Enamel hardest body tissue
• 400 degrees brittle, 900 degrees to ash
• Up to 32 teeth, 5 surfaces each
• 28 teeth 140 surfaces/ opportunities
• Each surface is an opportunity to identify a
  patient

56
DMORT

• Disaster Mortuary Operational Response Team
• Region 1 ME, NH, VT, MA, CT, RI
• Uses digital images (film is scanned)
• Dexis Digital Radiography
• WINID Dental ID Software
• Dr. Jim McGivney/ WTC

57
Forensics 9/11

• 2850 victims
• 1700 positively identified
• Half of IDs made dentally
• Positive ID required four unique features
• Written records used to corroborate
• x-ray findings

58
Forensics 9/11 Challenges

• Out of date x-rays (more than 4 years)
• Poor quality technique
• Poor quality processing
• Only bitewings available
• They repeated poor quality technique to see if a
  match

59
AA Flight 587

• November 12, 2001
• Airline crash and fire
• 265 total victims
• Same forensic team as 9/11
• FMX with films taken
• Scanned with WINID software
• All victims identified

60
Charts Legal Issues

• Chart A continuing record of all treatment
  provided to a patient and observable conditions
  pertaining to his or her health

61
Maintenance of Records

• Keep 7 to 10 years in a cool, dry place
• Malpractice insurer carrier may recommend to keep
  indefinitely
• Maine Rules do not specify at this time, however
  7 years is expected as with standard medical
  records. This item is on the Rule Making List for
  the next round of changes.

62
Quality Documentation

• Consistent all charts the same
• Legible, concise, factual notes
• Black or blue ink
• Abbreviations standard for office
• Make notes during/ promptly after appointment
• All notes initialed, signed, cosigned

63
Amnesia test

• How much do I really need to write down? Enough
  so that
• If you remembered everything you know about
  dentistry, but forgot everything you know about
  your patients, you could
• Identify treatment completed and why
• Identify next treatment and why needed

64
Patient Records Include

• Patient identification data
• Consent Forms
• Medical/ Dental History
• Clinical Observations/ Diagnosis
• Progress Notes/ Treatment
• Diagnostic records (x-rays, models)
• Reports of tests and consultations

65
Patient Records

• Patient identification
• Name on each page
• Address
• Telephone patients emergency
• Date of Birth
• Parent or legal guardian of minors
• Social Security if required for insurance

66
Patient Records

• Consent Form (sample)
• Medical History
• Written Updates signed annually by pt.
• Verbal Updates every visit
• Medications/ Allergies/ Surgery/ Premed
• Dental History
• Initial (CC, Fears, Orthodontics, Injuries)
• Chief Complaint every visit

67
Clinical Observations

• Extraoral Exam TMJ
• Intraoral Soft tissue
• Oral Cancer Screening
• Periodontal Charting (see next 2 slides)
• Restorative Charting
• Treatment needed and options
• Referrals recommended

68
Periodontal Charting

• Annually
• Pocket depths
• Bleeding points, pus
• Recession
• Mobility

69
Periodontal Charting (cont.)

• Furcation Involvement
• Bone loss (horizontal, vertical, angular)
• From current BWs or FMX
• Film holder may limit useful information
• Gingival defects
• Loss of attachment

70
PSR

• Periodontal Screening Recording
• For healthy patients lt 3mm no BOP
• Each sextant receives a score of 0-4
• If there are two or more 3s or one 4
• Complete periodontal charting is indicated
• Do not risk Failure to Diagnose

71
Patient Education

• Current homecare practices
• Explanation of findings to patient
• Decay, Infection, Soft tissue changes
• Recommended changes in diet or homecare
  medical factors
• Patient compliance/ motivation
• Hygiene instruction, pamphlets, samples provided

72
Diagnostic Records

• Radiographs
• Current
• Properly exposed, mounted, labeled
• Include teeth and 3mm surrounding bone
• This may require vertical bitewings
• Models (patient name date)
• Photographs (patient name date)

73
Progress Notes

• Date of treatment (chronological order)
• Anesthesia type amount
• BP pulse
• Tooth number(s) procedure(s)
• Methods and materials used
• Unexpected events (if any)
• Patient instructions
• Response to treatment childs behavior

74
Note Templates

• Big time saver, prevents omissions
• Recall exam hygiene visits
• Preprinted with options for circling findings and
  recommendations
• Paper sheet, stickers, rubber stamp
• Computerized and edit
• See samples

75
Records

• Referrals and consults
• Test Results (vitality, bacterial samples)
• Pathology reports
• Correspondence with specialists
• Laboratory slips
• Prescriptions

76
Treatment Plan

• Diagnosis
• Treatment needed/ Options
• Future treatment (watch areas)
• Signed by patient
• Indicating understanding, not a contract to
  complete
• See sample treatment sheet highlighting

77
Alteration of Records

• Error correction
• Never use correction fluid
• Single line through error, and initial it
• Add information in next available space
• Do not crowd in or write in margins
• Adulterated records raise the issue of fraud

78
Also include

• Refusal of treatment
• Failed appointments
• Cancellations
• Unsuccessful attempts to contact patient
• After hours calls (dictate information on office
  answering machine if necessary especially if
  prescriptions are involved.)

79
Do Not Include

• Disparaging comments about patient
• Disparaging comments about prior dentist
• Daily fees
• Conversations with insurance carrier

80
Computerized Records

• Password protected
• Back up daily off site tape storage
• Protect from excessive heat magnets
• Sign (typed) all notes, dentist reviews and
  cosigns
• Cannot capture patient signatures
• Keep original signed medical history consent
• Do not surf Internet with office computer

81
Transferring Records

• Maine Law Must surrender a copy of the records
  and radiographs, may charge reasonable
  duplication costs.
• May not withhold for unpaid balance.
• Maine Five business days
• New Hampshire Within 21 days
• Massachusetts Requires retention of original
  records including radiographs.

82
X-ray Duplication

• Use double films
• Recommended for FMX emergency
• Recommended for shared perio patients
• OR
• Duplication machine special film
• Digital images to disk or e-mail encrypted (DICOM
  software)

83
Chart Review Checklist

• Quality Assurance
• Chart Review Checklist
• What are your office standards?
• Compare to checklist, make additions.
• Randomly select 8 charts from the past months
  schedule include all providers
• Ask each staff member to review a chart

84
Chart Checklist (cont.)

• Compare chart entries/ contents to checklist
• Review and discuss areas of concern as an office
• After one month repeat the process
• This exercise can help all staff members become
  more aware of and improve office documentation

85
Thank you to

• Wisconsin Dental Association
• Colwell
• Dr. Scott Bernardy
• Dr. Onaiza McKnight
• Dr. Charles Zois

86
Questions????

• Thank You for attending!!!
• Remember your CEU Form!!!
• Have a Great Weekend!!!
• Cathy Karen