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top reason of being sued
negligence is the TOP, lack of informed consent, & failure to treat periodontal disease
Respondeat Superior (latin term)
DDS as an employer/supervisor may be responsible for actions of the RDH
does Respondeat Superior relieve RDH of guilt?
No, if wrong/neglect has occurred
RDH may be named as a codefendant
Liability insurance for the RDH is important
Liability Insurance Options for DH
MERCER - ADHA members, up to $2,000,000 of protection
About $70 a year
Criminal Law as legal action
Crime against society or the public
Protects the publics interest
Seeks justice, punishing the offender
Jury must be unanimous in its verdict
Proof is beyond a reasonable doubt
Type of Payments: Fines, loss of liberty and life
Civil Law as legal action
Crime against an individual
Concern with offenses or wrongful acts against individuals including property and reputation
Seeks to compensate the victim
Proof is at 51%
types of payment for civil law as legal action
compensatory - Lost wages, salary, pain and suffering
punitive damages - Goes beyond compensation to punish the individual who is responsible
tort
civil wrong where one party has acted, or in some cases failed to act, and that action or inaction causes a loss to be suffered by another party
Intentional tort
Assault = threating bodily harm an individual
Battery = touching an individual with intent to harm
Misrepresentation
Defamation
Breach of confidentiality
Unintentional tort
Professional negligence - failure to perform standard of care
Can be an act of commission or omission
commission & omission (unintentional tort)
Acts of commission occur when individuals actively initiate some course of action.
Acts of omission happen when individuals decide not to take proactive steps to resolve an ethical dilemma
Malpractice is & conditions
Professional Negligence
Act of omission or commission, Failure to satisfy standard of care, Harm or injury to the patient
Malpractice is care below the standard of care& includes
Failure to obtain informed consent
Failure to inform the patient of periodontal disease
Not following standard precautions for infection control
Expert witness substantiates the claim in a court of law
Defamation
Making false statements that harm individuals
Criminal Offence
Performing dental hygiene without a license
Insurance fraud - white collar crime
Inaccurate dates of treatment
Statutes of Limitations for Civil Cases
Strictly enforced time limit on a potential plaintiff's right to have a court consider any kind of civil lawsuit
In Kansas, it is 2 years from the day of the act OR 2 years from the fact of the injury (if symptoms develop later)
areas of litigation against DH - 14
Not protecting patient privacy/divulging protected patient information
Practicing outside the scope of legal duties
Not adhering to standards of care
Failure to ask if the patient has premedicated
Failure to record thorough documentation
Failure to identify or take precautions with a medically compromised patient
Upcoding or incorrectly coding procedures
Soliciting patients upon change of employment venue
Failure to observe (as in not using a periodontal probe or conducting proper assessments)
Failure to notify the doctor and patient of findings
Use of defective equipment or incidents where the patient is hit with equipment
Failure to detect oral pathology
Failure to follow proper infection control techniques
Failure to document
Risk Management
comprehensive evaluation to determine areas of high risk within the dental practice setting
philosophy of risk identification and system of injury prevention or financial loss prevention
It overall improves quality of patient care
RISK MANAGEMENT PROGRAM measures
Potential risks - Once identified then, prevention measures
Risk measurements - For seriousness and outcome
Risk handling and treatment - What to do once it occurs
2 Basic Areas of Risk Management
1. The dental record —> Documentation
2. Informed consent —> Communication with your patient
It is considered well-intended discussion between a provider and patient
The most important element in Risk Management
is the Patient Record
for patient record to Achieve completeness
Try not to write a book yet be as thorough as possible in writing progress notes.
Having properly designed forms with ample spacing for note writing is a must.
document telephone calls and weekend emergencies or calls to the pharmacy
In record keeping, your first draft is the final product
Format of patient record
Following an established sequence will not only assist in achieving completeness but will ensure uniformity throughout the office.
Use the same format of recordkeeping with all patients.
Do not let your professionalism slip because of familiarity with an established patient of record
for patient record Include regular updates
These include patient medical histories, periodontal chartings, etc.
Having an office policy about updates ensures cooperation from all team members
DO NOT alter patient record
Construed as trying to hide or change the facts. In a court of law, it will most likely be equated as admission of guilt
DO NOT do Omissions on patient record
If you find you omitted an entry or part of an entry, you may go back on a later date and make an entry.
However, you must use the actual date on which you are making the entry
DO NOT be subjective (JUST THE FACTS)
Decreases your credibility as the progress notes will reflect more opinion than actual facts.
Use phrases such as "patient states," not "patient is," "patient appears," or "I think."
You may be in the habit of using subjective terms and not be aware of it.
Example: Writing "patient swallowed fluoride" may not be correct if you didn`t witness it. It may be more correct to write, "Patient said she swallowed fluoride."
Do not include non-treatment information in patient record
If an incident, adverse outcome, or accident occurs - whether treatment related or not - you naturally would make an entry in the patient record.
Make sure the entry in the patient record is a concise, objective entry. However, certain circumstances may warrant the need for an additional written, subjective account to be recorded.
May include patient accidents and complaints, adverse treatment outcomes, billing problems, or personality conflicts between staff and patient.
A patient record may be subpoenaed and used as evidence in a courtroom and having subjective non-treatment related documentation may be used against you
Keep a separate file for non-treatment documentation from patient record
This file can be labeled, "Quality Assurance," or "Prepared in Anticipation of Litigation."
Notes in this file are protected information and cannot be subpoenaed. One file will probably suffice for the entire office without having to set up a second file for each patient.
Be sure not to document in the patiens treatment record that youve made any entries elsewhere. This file should be kept in a separate, confidential, and secure location.
KANSAS PRACTICE ACT: DENTAL RECORD LAW #71-1-15
1. The record should be maintained for ten years
2. It is legible
3. It contains only those terms and abbreviations which are comprehensible to similar licensees
4. It contains adequate information of the patient
5. It contains pertinent and significant information concerning the patient’s condition
6. It reflects what examinations, vital signs and tests were obtained, performed or ordered
7. It indicates the initial diagnosis and the patient’s initial reason for seeking the licensee’s services
Who owns the dental records?
owned by the dental practice with the dentist of the practice considered to be the legal guardian
patient can have access to, and request copies of, this information at any time, even if they have a monetary balance with the practice
can be charged a fee if mailing is required
A patient’s voluntary authorization of a dental procedure based on the patient’s understanding of the relevant information provided by the practitioner
Informed Consent historically & today
Principle of beneficence was viewed by dentists, the dentist was the ultimate decision maker for the patient (paternalistic)
Principle of respect for patient autonomy is used, the decision-making process actively involves the patient
Informed Consent from Minors
Usually minors 17 and younger can not give consent
Exceptions are:
When the minor themselves are parents or married
When the minor is legally emancipated (who is free from parental control)
Treatment in an emergency situation
Autonomy Benefits of Informed Consent - 6
Hygienists can be assured they are acting to high standards of ethical conduct
The profession has an enhanced image based on respect for patients
Personal satisfaction through engaging in more meaningful relationships with patients
Patients appreciate the opportunity to make decisions on their own
Fosters patient loyalty to hygienist and reduces the likeliness of litigation
Hygienists/dentists are relieved of the burdensome responsibility of making difficult treatment choices for patients
Informed Consent can only legally happen
I. Decision-making capacity
II. Disclosure
III. Understanding
IV. Comprehension
V. Voluntariness and consent
I. DECISION MAKING CAPACITY of Informed Consent
The patient must have the capacity to make health decisions for themselves
The patients must have a possession of a set of values and goals
The patient must have the ability to communicate and understand information
The patient must have the ability to reason and to deliberate about their choices
Proxy Consent
When a patient is judged unable to make treatment decisions for themself, the introduction of third-parties into the informed consent procedure become necessary
Proxy Consent Handled by Substituted judgment
surrogate person attempts to duplicate the decision the patient would have made had he or she been capable
Proxy Consent Handled by Best-interests standard
surrogate who is to consider what would be best in the patient’s best interest
patient who makes arrangements before losing decision making capacity:
Living Will as an Advanced Directive
written document specifying what kinds of treatment the patient would prefer when he/she is terminally ill
Medical Power of Attorney as an Advanced Directive
patient appoints a representative to make health care decisions when they lose capacity to do it themselves
II. DISCLOSURE of Informed Consent(ADA Code)
dentist should inform the patient of the proposed treatment, and any reasonable alternative, in a manner that allows the patient to become involved in treatment decisions
Disclosure includes
The nature of the proposed treatment
The benefits and risks of such treatment
The benefits and risks to the alternatives to treatment, including non-treatment
Effective Communication in Disclosure includes - 7
Appropriate vocabulary and remove the use of jargon or words that are unfamiliar to the patient
Clarity and a well-organized progression of ideas to be presented can decrease confusion —> Diagnosis, Prognosis, Alternative treatments, Disadvantages/ side effects, Costs, Length of treatment, Provider specified
The attitude and tone used can have an impact negatively or positively
Concentrate on central themes rather than isolated statements
Listen with an open mind rather than focusing on emotionally charged words
Summarize in your own mind what you have heard before speaking again
Clarify positions and statements before proceeding
III/IV. COMPREHENSION/UNDERSTANDING of informed consent
It is not enough the patient have the ability to understand the relevant information presented, but they must actually understand it
Questions —> “Can you explain back to me what non-surgical periodontal therapy involves?” OR “Can you explain what you understand concerning this therapy that we have talked about?”
Provide written instruction along with verbal instructions
V. VOLUNTARY/PERSUASION of informed consent
The patient must agree with treatment voluntarily —>
This does not mean the hygienist can state their own treatment preferences or use persuasive techniques
Persuasion can be defined as influencing using an appeal to reason
Persuasion does not deprive a person of autonomous action
Voluntary-Coercion
Coercion is unethical because it introduces a threat of harm or perhaps a bribe that makes decision making non-autonomous
It is omitting, exaggerating, or changing relevant facts such as the number of alternative treatments. The hygienist is altering the choices to the patient
It is a form of manipulating the patient
If results in physical harm can be considered a battery and a civil offense
Authorization and Consent of the patient to their treatment
Implied – Opening their mouth for examination
Expressed – Verbally agreeing to recommended treatment
Written – Patient signing treatment authorizing provider to perform treatment
You are establishing a contract with the patient-- contracts are agreements and obligations
IMPLIED / ASSUMED contract
Parties did not discuss in detail but have shown interest
Nonverbal communication by behavior
EXPRESSED contract
Orally stated or written agreements
Phone conversation
Treatment plans
for contract patient must be
Competent
Specific act must be agreed on
There is a promise of something for something in return
breeches of contract
Rights have been violated
Services not performed
Services are delayed
Neglect/Abandonment
Contract Law are Agreements & obligations & binding when
Parties are competent
Specific acts must be mutually agreed on
There is a promise of something in return for something else
Conditions of Breach of Contract
When financial right or privacy have been violated
Services agreed on are not performed
Services are delayed for an extended period of time —> Harm does NOT have to occur, These are honoring duties to our patients under a contract
Termination of Treatment by Health care provider under - 7
Care is no longer needed
Patient withdrawals from treatment
Care of treatment is transferred to another HCP
Ample notice is given
The provider is unable to provide care
Provider unilaterally decides to terminate care (repeated no shows, non-payment, non-compliance with home care)
Both parties agree to end care
Prevention of Abandonment - 7
Terminate the patient in writing and explain why and sent by certified mail
Clarify the records will be sent to another DDS on a written request
Give them a list of other providers
Patient must be told of further treatment needed
Give patient sufficient time to locate another DDS (30 days)
Provide emergency treatment within this period if needed
A dentist must provide coverage during absence i.e. vacation —> A phone message that directs the patients to go to another dentist when the office is closed
informed refusal criteria - 6
It is not a personal attack of lack of respect or trust
The refusal must be honored no matter what the reason the patient has assumed
This is practicing patient autonomy
The refusal must be properly documented in that the patient did refuse treatment and why, with the patient signing the record
The practitioner is never obligated to provide treatment they believe substandard. But they must respect the patient’s decision-making skills for themselves
The practitioner must also evaluate the reasons the patient is denying treatment and clarify any misunderstandings there may be
Allowing a patient to refuse to have procedures performed, even if the hygienist believes that the procedure would be in the patient’s best interest
