Medico Legal Aspects of Dental and Periodontal Practice. Philip R. Greene, BDS, FDSRCPS, CUEW, JP. Specialist in Periodontics, Dental Expert Witness

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1 Medico Legal Aspects of Dental and Periodontal Practice Philip R. Greene, BDS, FDSRCPS, CUEW, JP. Specialist in Periodontics, Dental Expert Witness

2 Treatment of Patients involves several stages: 1. Diagnosis 2. Treatment Plan 3. Treatment execution 4. Follow Up 5. Management of Problems 6. Complaints

3 It isn t necessary to know much about how a surgeon operates in order to know his likelihood of being sued. What you need to understand is the relationship between that doctor and his patients. Malcolm Gladwell Blink - the power of thinking without thinking

4 Analysing complaints...half of all physicians were associated with no complaints... 8% of the study group physicians...were responsible for over 50% of all malpractice costs Gerald Hickson Director, Center for Patient and Professional Advocacy

5 We all have a Duty of Care It applies to any conversation with any person in which Information & Advice enabling understanding and contribution to care is given. The Standard of Care required is that of a reasonably competent practitioner working in similar circumstances, ie that of a respectable body of medical opinion(bolam Principle). That opinion must be capable of logical justification (Bolitho Principle) Breach of this duty is negligent in law if it results in damage or harm to your patient. If you are negligent and the patient suffers harm, you are LIABLE for making good the damage or compensating the patient for it. Breach of Duty Causation Damage Negligence Compensation (Damages)

6 This is Lisa, Age 26 Gingiva looks healthy......but there are deep pockets what is your duty of care?

7 Key Principles for Ethical Dental Practice (GDC 2005) Putting patients interests first and acting to protect them Respecting patients dignity and choices Protecting the confidentiality of patient s information Cooperating with other members of the dental team and other healthcare colleagues in the interest of patients Maintaining your professional knowledge and competence Being trustworthy

8 The two legal tests for negligence The Bolam Test A professional has not been negligent if his actions are accepted as proper by a responsible body of his profession. The Bolitho Test The actions being accepted in the Bolam test must be capable of logical analysis. Even if a responsible body of fellow professionals would see the actions as proper, the court can still rule they they amount to negligence.

9 The Dentist s Duty of Care 1.Examine Lisa thoroughly using clinical parameters and Xrays. Decide on the diagnosis. Explain your findings to Lisa in language she can understand. Explain the options for treatment. Arrange treatment, either in your practice/hospital or by referring her to someone who is competent to provide treatment.

10 This is Lisa s periodontal graphic chart The blue bars represent pockets deeper than 3mm The red blocks represent bleeding points

11 Here are Lisa s Xrays

12 Periodontal Therapy Flowchart Examination Diagnosis Prognosis Non-Surgical therapy Re-evaluation Extraction Options Adjunctive Therapy Systemic Antibiotics Topical antibiotics Sustained release Host modulation Surgery Maintenance enture ridge mplant o replacement Recurrent disease

13 Negligence The legal definition of Negligence requires three conditions A duty of care exists There has been a breach of duty Damage or harm has resulted from the breach.

14 Negligence Litigation can be commenced:? 3 years from date of knowledge? NOT necessarily the date of negligence? This may be many years later? e.g.: failure to diagnose periodontal disease!

15 Risk Assessment Identification of risk Record Keeping crucial for defending claims of negligence Contemporaneous Dated Author identification Includes warnings and options Reduce risk Eliminate risk Transfer the risk Informed Consent Confidentiality

16 Informed Consent? Patient must understand what is wrong? Possible consequences of taking no action? Alternative reasonable treatment options: benefits, downsides and risks? Warn of material risks? Likely duration, outcome and prognosis especially where their own contribution to management is important e.g. periodontal disease!? Costs & funding of treatment Chester v Afshar 2004 House of Lords ruling I have come to the conclusion that, as a result of the surgeon s failure to warn the patient, she cannot be said to have given informed consent to the surgery in the full legal sense. (Lord Steyn)

17 Confidentiality The Caldicott principles Justify the purpose for using confidential information Only use it when absolutely necessary Use the minimum required Access on a need-to-know basis Everyone must understand their responsibilities Understand and comply with the law

18 Covered by: Access to Records Access to Health Records Act 1990 Data Protection Act 1984 Data Protection Act 1998 Personal Data must be: Processed fairly and lawfully Processed for specific purposes Adequate, relevant and not excessive Not kept for longer than necessary Processed in accordance with the rights of data subjects Protected by appropriate security Not transferred outside the EEA without adequate protection

19 Here are some bitewing Xrays taken in a general dental practice: Are there any signs of periodontal diseases on these Xrays?

20 Here is an OPG of the same patient 28 months later No periodontal data, Xrays or periodontal treatment has been done in the time between the two Xrays. Has there been any change?

21 Five years later, the upper anterior teeth were drifting labially. The patient was referred for orthodontic treatment. (There has been no periodontal data collection or intervention in the meantime) Orthodontic treatment was started Was this appropriate?

22 One year later orthodontic treatment completed Notice the advanced bone loss

23 This was the eventual outcome. Provisional bridgework fitted Not surprisingly, this case was the subject of successful clinical negligence litigation against both the dentist and the orthodontist. It could all have been avoided by competent diagnosis and treatment in 1997.

24 Acting as an Expert An Expert Witness is an independent practitioner who can demonstrate experience and expertise in his (or her) field. His first duty is to the Court, even though he is usually instructed by either the Claimant or the Defendant. Occasionally a single expert can be appointed by agreement between both sides. Experts usually advise in cases of: Personal Injury Negligence Accidental damage

25 The Legal Process Treatment Complaint Solicitor

26 Anatomy of a Negligence Claim Letter of Claim informing Defendant of a claim against him Response from protection society acknowledges or refutes the Claim Experts Instructed usually on both sides; reports on causation/liability and condition/prognosis Particulars of Claim formally brings the litigation before the Court Defence defendant states his case Offers to Settle can be made at any stage, referred to expert for opinion Meeting of Experts narrow the issues to areas of disagreement Trial very few cases reach the Court

27 Keeping out of Trouble Never treat a stranger - know your patient Ask the key questions Periodontal Probe EVERY time BPE at first visit and annually Record your data Review your data Keep the patient informed and involved Full chart before NST in BPE code 4 sextants Full chart after NST in BPE Code 3 sextants Re-evaluate blind at every checkup Take initial and periodic regular X-rays Refer complex cases or when results are below expectations

28 JOIN THE BSP! 2 national meetings per year Regional meetings On line access to JCP Web forum Reduced rates for new graduates Updated perio news Nearest periodontal specialist Perio support and advice

29 Medico Legal Aspects of Dental and Periodontal Practice Philip R. Greene, BDS, FDSRCPS, CUEW, JP. Specialist in Periodontics, Dental Expert Witness

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