malpractice and You Wo r k i n g t o p r o t e c t y o u r s e l f
M A L P R A C T I C E & Y O U : W O R K I N G T O P R O T E C T Y O U R S E L F Facing a malpractice suit is a risk that comes with being a dentist. Even if such a suit is without merit, it can have major financial consequences, damage your reputation in the dental community, and affect the public s perception of your competence. It can also cause you substantial stress and distract you from your practice. This brochure was prepared by CDSPI s Claim Support Centre for you. Although it s not a comprehensive guide to malpractice loss prevention, the brochure provides suggestions to help you avoid malpractice suits and prepare you to present opposing evidence should you ever face allegations in court. If you have specific questions about your profe s s i o n a l responsibilities and standards of care, contact your regulatory body.
T A B L E O F C O N T E N T S What is My Professional Responsibility? 2 What is Malpractice? 2 How is Malpractice Legally Demonstrated? 3 What Can I Do to Protect Myself? 4 A Keep on Top of Your Profession 4 B Work Closely With Your Staff 5 C Maintain Your Dental Equipment 6 D Keep Complete Records 6 E Obtain Informed Consent 7 F Explain the Risks of Refusing Treatment 9 G Maintain Health Histories 10 What Should I Do if a Lawsuit is Brought Against Me? 11 How Can CDSPI s Claim Support Centre Assist Me? 12 How Do I Obtain Malpractice Insurance? 13
W H A T I S M Y P R O F E S S I O N A L R E S P O N S I B I L I T Y? Understanding and fulfilling your professional r e s p o n s i b i l i t i e s are integral to preventing malpra c t i c e. With all cases of professional care, as a licensed dentist you must conduct a thorough examination; m a ke a d i a g n o s i s ; present all appropriate treatment options including pros, c o n s, c o s t s, e t c. to the patient; discuss appropriate options with the patient and determine the patient s prefe rred course of treatment; gain info rm e d consent and carry out the patient s prefe rred treatment to a reasonabl e standard of care. Patients who are fully info rmed and determine their own course of treatment are not like ly to bring malpractice claims against their dentist. F u r t h e r, a patient may be less like ly to initiate a claim against you if that p e rson feels they have listened to and treated with respect. W H A T I S M A L P R A C T I C E? Simply put, patients launch malpractice suits because they don t believe they were given the standard of dental care they should have been, and that they have suffered as a result. Malpractice is described as a professional breach of duty resulting in a forseeable cause of injury to a patient. The breach of duty may occur when you render or fail to render professional services, or fail to act in a manner consistent with the established standard of care. The more you understand about the concept of malpractice and how it is prove n, the better equipped you will be to avoid malpra c t i c e problems. 2
H O W I S M A L P R A C T I C E L E G A L L Y D E M O N S T R A T E D? Should you ever face a malpractice suit, the onus will be on the plaintiff to demonstrate you did something wrong and that he or she suffered injury or loss as a result. To do so, the plaintiff must prove four things: 1 You had a duty to provide a certain type of treatment. This includes p r oving that the person was your patient and you had an obl i g a t i o n to p r ovide what a court would consider a r e a s o n a ble standard of treatm e n t. 2 T h e re was a breach of duty.to prove this, it must be demonstra t e d that the quality of treatment you provided to the patient was below the reasonable standard expected by the court. 3 Your action was a foreseeable cause of the damage. The plaintiff will have to prove that your acts or omissions started a chain of events that led to the injury and that the injury or loss was a reasonably foreseeable result of your conduct. 4 There was an injury. Proof will have to be given that actual damage or injury took place. If any of the above points is not demonstrated fully, a malpractice case will be weakened considerably. 3
A W H A T C A N I D O T O P R O T E C T M Y S E L F? When it comes to malpractice, the old saying applies: It s not enough to do good, you must be seen to be doing good. It is possible, for example, to be found liable for malpractice even if you made no errors other than not carefully documenting what you did. As a practical m a t t e r, without documentation you may not be able to refute s u c c e s s f u l ly the plaintiff s allegations. The next few pages present suggestions to both avoid potential malpra c t i c e situations and deal more effe c t i ve ly with any that should ari s e. Some real life examples of malpractice cases are included to highlight potential probl e m s. Keep on Top of Your Profession Your skills, knowledge and ethics as a dentist are naturally your first line o f d e fence against malpractice suits. In determining whether appropri a t e treatment was provided, the court will consider all the circumstances, including whether you complied with practice standards established or recommended by your dental associations and regulatory bodies. Those o rganizations can provide you with resources to help you keep up-to-date. However, it is your responsibility to keep abreast of the latest developments in the profession and to be info rmed about technical deve l o p m e n t s through continuing education or other competency programs. Outdated Practice Standards One year after receiving five dental implants, a patient began experiencing recurring infections. It was determined that three of the implants had failed, and needed to be removed. An investigation revealed that, after surgery, the patient requested and was permitted to wear a denture part of the time, contrary to the manufacturer s general direction that no pressure was to be placed on the implant for the first 10 to 14 days after surgery. The manufacturer s general direction was the preferred practice of recognized experts in the field. The total cost of the resulting malpractice claim was $70,500, which included an out-of-court settlement of $60,000 to the patient, adjuster s fees, legal fees and other costs. Recognizing the need to keep abreast of developments in newer technologies, the dentist arranged to continually update his knowledge and skills. 4 c a s e h i s t o r y
B Work Closely With Your Staff Your office staff can provide valuable insight into your patients s i t u a t i o n s. For instance, a patient might talk to your receptionist about a medical condition they have which could affect your treatment choices. T h e r e fo r e, it is imperative all your staff are aware that they must communicate patient information directly to you and among each other. It is also your responsibility to ensure that your staff correctly perform their clinical duties, and only duties they are licensed to perform. c a s e h i s t o r y Poorly Managed Treatment A patient, treated for a misaligned jaw and teeth, r e c e i ved poorly managed treatment by his ort h o d o n t i c specialist and staff. Pre-treatment X-rays showed that the patient had a tendency for root resorption, but these warnings went unnoticed by the dentist. The patient also received contradictory treatments from a number of the dentist s staff regarding the placement of elastics on his braces, aggravating the condition of the root resorption. C o n s e q u e n t ly, the patient suffered serious root resorption and faced the possibility of losing the majority of his teeth in the future. Lack of communication in the office led to poor treatment continuity. The total cost of resolving the resulting malpractice suit was $28,000, which included a payment to the patient. 5
C D Maintain Your Dental Equipment Even though you and your staff may be following correct dental procedures, equipment failures can result in malpractice situations. You should make sure you understand how to keep your equipment functioning at its peak, including using regular inspections and maintenance as recommended by the manufacturer. c a s e h istor y Curing Light Malfunction A faulty curing light was used to cure composite restorations. As a result, within months some of the new restorations wore through and required replacement. According to distributors of the equipment, the curing light needed to operate in a very specific frequency range to provide optimal curing of composite restoration material. In this case, the curing light did not emit sufficient energy to make the material set satisfactorily. The problem could have been avoided if the light had been tested with a manufacturer-approved instrument with the assistance of the practitioner s dental supply company. The total cost of the resulting malpractice claim was $12,500 including an award of $11,000 to the patient. Keep Complete Records In court, if a patient claims you did (or did not) do something, your records are your chief way to dispute their testimony. You should keep a separate file for each patient. To avoid confusion, don t keep information on multiple patients in a family file. The patient should be clearly identified on the file (some dentists attach patient photos). In the file, you should include complete remarks on treatment in a legible and clearly understood manner. Include observations about the patient s behaviour, but it is imperative that you keep these statements objective. Your records should describe all your treatment recommendations and the patient s responses to them. Include information about any drugs you provide or prescribe, the dosages, and the conditions justifying the prescriptions. Make a note about any discussions you had with your patient regarding potential risks and side effects of the treatment. 6
As well, note other discussions you had with the patient before and/or after treatment including any telephone conversations. You should always retain X-rays in the patient s file. You may provide copies to patients on request, but never let the originals leave the file. c a s e h istor y Inadequate Records A new patient arrived with red, inflamed gums.the dentist performed periodontal screening, involving bitewing X-rays and perio probing. Unfortunately, during this and later visits, the dentist did not record the depths of the patient s periodontal pockets. According to experts, the initial and subsequent X-rays taken by the dentist depicted evidence of p e riodontal disease and progressive bone loss, w h i c h should have been treated by the dentist, or through a specialist referral. Due to inadequate charting, the dentist s claim that the bone loss was genetic could not be substantiated.the total cost of resolving the resulting malpractice claim was $11,000 including an $8,500 payment to the patient to settle his claim that the bone loss was preventable, had the dentist acted. E Obtain Informed Consent Informed consent must be obtained for any treatment plan which you develop for a patient. The form of consent may vary according to the nature or extent of the treatment. Treatment of children is a special case. Contact your regulatory body for details. To get informed consent you must: 1. Explain the diagnosis, prognosis, and reason for treatment. 2. Explain the procedure in language that the patient can understand. 3. Explain possible adverse effects. 4. Describe alternative procedures, if any, and explain their strengths and weaknesses. 5. Advise the patient that the procedure can be stopped at his or her direction. 6. Obtain the patient s consent to proceed with the recommended treatment. 7
If the patient is to be rendered unconscious or semi-conscious during treatment, or if there will be major treatment or if a procedure is new to the patient, make sure you have obtained the patient s consent in writing. Explain what the consent form is for, and then have the patient sign it. The patient must be able to understand the form, so it should avoid the use of technical terms used by the dental profession wherever possible. (If you haven t explained the information completely, the form may not be considered valid in court.) Ask a lawyer to assist you with the wording and format of the consent form since the format is not the same for all provinces. c a s e h istor y No Informed Consent A patient was advised of cavities that needed filling, and returned to the dentist s office to have them filled. Instead, the dentist extracted the teeth without discussing this action with the patient, because the dentist decided the patient would be better off with the teeth removed. The dentist failed to advise the patient of the extractions even after they were completed, and the patient only discovered the situation later that day. The dentist clearly breached the dentist/patient relationship with respect to informed consent. Regardless of the dentist s opinion that the patient would benefit from the extractions, the practitioner s duty to inform the patient was paramount.the responsibility for making the final decision about whether to proceed with the recommended treatment was the patient s, not the dentist s. In this case the loss was mediated resulting in total claim costs of $11,500 of which the patient received $10,000. 8
F Explain the Risks of Refusing Treatment If confronted with a patient who refuses to undergo non-elective treatment, there are a few steps you can take to reduce the likelihood of facing (or increase your chances of successfully defending) a malpractice lawsuit. Most importantly, explain to a patient the risks involved in refusing treatment and ensure he or she clearly understands these ri s k s. I t s equally important to write precisely detailed notes in the patient s records about the advice you gave. Also consider giving or sending the patient a letter r e i t e rating the risks of refusing treatment that you ve r b a l ly explained. The refused schedule of treatment provided in writing to the patient should indicate that the patient s refusal of treatment releases you from any future dental health care consequences that might occur.this documentation may provide valuable evidence if the patient alleges you did not give him or her sufficient information on which to base a decision about undergoing or refusing treatment. c a s e h i s t o r y Disregarded Advice A dentist recommended the extraction of several decayed teeth as the best course of treatment for a patient. The patient disregarded the dentist s preferred plan and chose to have root canal therapy followed by the placement of posts and crowns. Eventually the teeth had to be extracted and the patient sued the dentist for the cost of the work done prior to the extractions. The dentist, however, kept accurate and detailed records which indicated the patient had disregarded the dentist s advice. As well, a staff member was present when the dentist verbally outlined the preferred procedure and obtained info rmed consent from the patient. The insurer paid $14,000 to cove r legal fees and other costs invo l ved in clearing the dentist of any negligence. 9
G Maintain Health Histories Even the most routine dental procedures can lead to problems in patients with special health conditions. Therefore, it is extremely important to keep complete and current medical histories of your patients. Do not rely on hears ay or casual communication for medical facts. Request documentation. Review medical records before any treatment to consider how health conditions could affect the procedure. c a s e h i s t o r y Lack of Precautions Although a dentist had knowledge that a hole existed in a patient s sinus, he inadvertently allowed a fragment of impression material to lodge in the patient s sinus cavity. Had the dentist placed more weight on this medical information and taken greater care in establishing the condition of the a r e a s u rrounding the site of opera t i o n, the problem might have been avo i d e d. The fragment was not detected with X-rays and an infection developed for which the patient required surgery. The total cost of the claim was $22,000, which included a payout to the patient. 10
W H A T S H O U L D I D O I F A L A W S U I T I S B R O U G H T A G A I N S T M E? If you are aware of the potential for litigation arising from treatment of a patient, you should immediately contact your malpractice insurance provider, who will advise you of further steps you need to take. For example, you will need to info rm the adjuster appointed by the insurer about the impending claim. Do not discuss the claim or complaint with the patient or make any further comments, alterations or written summaries in the patient s chart. Retain and secure all existing patient records, correspondence and, in particular, X-rays related to the claim. Your adjuster will need to review them and you will have to produce them as evidence if the claim is litigated. Never alter or destroy documents, since this will reflect unfavourably on your credibility and could expose you to liability for additional damages should the case go to trial. Do not admit liability or offer money or other forms of restitution directly to the patient. While it may be tempting to try to smooth things over with the affected party, by admitting liability directly to the patient you can seriously jeopardize your insurance claim and coverage. Most province s regulatory bodies have mechanisms for handling patient complaints. Contact your regulatory body for details. For information about h ow mediation of a complaint would affect your malpractice cove ra g e, consult your malpractice insurance prov i d e r. 11
H O W C A N C D S P I S C L A I M S U P P O R T C E N T R E A S S I S T M E? If you have malpractice insurance through the Canadian Dentists Insurance Program, CDSPI s Claim Support Centre is your first contact during a claim situation. We re here to assist you in every way we can to help the claim process go as smoothly as possible. In addition to providing answers to your questions about the claim process, we can act as a liaison between you and the insurer Aviva Insurance Company of Canada and follow up with the insurer on your behalf if you ask us to do so. It s important to note, however, that the insurer is the adjudicator of your claim and, as such, makes the final decisions regarding the approval and payment of your claim. An important reminder for dentists with Malpractice Insurance from the Canadian Dentists' Insurance Program: It is a condition of your malpractice coverage to report any claim or potential claim (i.e. circumstances which may reasonably be expected to give rise to a claim) on a timely basis to CDSPI s Claim Support Centre. To contact CDSPI s Claim Support Centre, phone: Toll-free 1-800-561-9401 Toronto (416) 296-9401 Extension 5015 12
H O W D O I O B T A I N M A L P R A C T I C E I N S U R A N C E? All dentists licensed in Canada are eligible to purchase the Canadian Dentists' Insurance Program s Malpractice Insurance plan through CDSPI. Hygienists, certified dental assistants and dental therapists in all provinces (who work for a licensed dentist in Canada) can also obtain malpractice insurance through CDSPI. (Dental therapists must be employed by and working at all times under the supervision of a licensed member dentist.) Your staff should have separate coverage so that at time of claim your coverage maximum will not be reduced by payments made on their behalf. For details about Malpractice Insura n c e, contact CDSPI Advisory Services I n c. for no-cost insurance planning advice* from a licensed, non-commissioned advisor. Phone: 1-877-293-9455 (toll-free) or (416) 296-9455, extension 5002. * Restrictions may apply in certain jurisdictions. Malpractice Insurance is a part of the Canadian Dentists' Insurance Program and is underwritten by Aviva Insurance Company of Canada.The Program is a member benefit of the CDA and participating provincial and territorial dental associations, and is provided by CDSPI. 13
155 Lesmill Road,Toronto, Ontario M3B 2T8 Phone: 1-800-561-9401 (toll-free) or (416) 296-9401 Fax: 1-866-337-3382 (toll-free) or (416) 296-8920 Internet: www.cdspi.com E-mail: cdspi@cdspi.com For assistance with a claim involving your malpractice insurance with the Canadian Dentists Insurance Program, contact CDSPI s Claim Support Centre. Phone: 1-800-561-9401 (toll-free) or (416) 296-9401 Extension 5015 E-mail: claims@cdspi.com 10-437 12/10