nola conference 2018 16 9 format€¦ · •extraction of #32 started •patient referred to an oms...

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Improving Patient Safety:An Analysis of Dental Risks and Liability

New Orleans Dental Conference & Louisiana Dental Association Annual Session

May 2018

Disclosure Statement

Julie Goldberg, DDS

Dental Education Coordinator

Fortress Insurance Company

Today’s presenter and Fortress do not have any financial relationships to disclose. Fortress does not endorse any products depicted in the presentation.

The Course DisclaimerThe following live presentation is dedicated to the education and scholarship of the dental community. It is intended to provide you with information regarding risk management. Fortress makes no representations or warranties, express or implied, as to the quality, accuracy, or completeness of information provided herein. Because federal , state and local regulations vary by location and situation, and change over time, none of the information in this course is intended to serve as legal advice or to establish standard(s) of care. Legal advice should be sought from knowledgeable counsel in your state. This course does not modify the terms and conditions of your Fortress Professional Liability Insurance Policy. Please refer to your Fortress Professional Liability Insurance Policy for the aforementioned terms and conditions.

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The Fortress Brand

• Nationwide professional liability insurance company Owned and operated by dentistsEXCLUSIVELY for dentists Complimentary Risk Management resourcesPhone consultation with Risk Managers (800‐522‐6675)Courses: Live and Web‐basedInformed consent forms and clinical/office documents online

• Online Risk Management Courses –2 Part HIPAA Series

–Electronic Medical Records

–Managing Social Media Risks

–Anatomy of a Malpractice Suit

–Resident courses

–Staff Courses

Course Objectives

• Understand how to implement key clinical risk management strategies to help mitigate associated risk factors, improve patient safety, and reduce untoward outcomes and malpractice claims

• Identify common risk factors in implant, extraction, and failure to diagnose cases

• Learn effective policies and procedures to help improve HIPAA/HITECH compliance in the dental practice.

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Patient Safety and Risk Management

Reasons Patients SueOther Than Malpractice

•Unreasonable expectations

• Financial incentive

• Criticism from a professional colleague

• Communication issues

• Personality conflicts

Expectations

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Incentive

Criticism

Communication Issues

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Patient Safety & Risk Management Goals

• Increase patient safety –Improve quality of care; Avoid patient injury

• Reduce claims exposure–Mitigate damages

• Create valuable defense tools–Make a claim more defensible

•Minimize financial loss –Reduce monetary impact; Time out of office

Core Risk Management Principles

INFORMED CONSENT

Communication in the 21st Century

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Office Website

Online Reviews

Social Media Sites

Texting

• Pros –Preferred method of communication

–Convenient and decrease“No Shows”

• Cons –HIPAA

–Chart entry?

–Too Much Information

From Snail Mail to E‐Mail

• General Recommendations–Encrypted email server

–Documentation

–Disable Reply All and Auto Populate

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After Hours AccessSection 4.B. EMERGENCY SERVICE. Dentists shall be obliged to make reasonable arrangements for the emergency care of their patients of record. Dentists shall be obliged when consulted in an emergency by patients not of record to make reasonable arrangements for emergency care. If treatment is provided, the dentist, upon completion of treatment, is obliged to return the patient to his or her regular dentist unless the patient expressly reveals a different preference.

ADA Principles of Ethics and Code of Professional Conduct

After Hours Accessibility Options

On call

Answering service

Colleague

The Emergency Room

After Hours Accessibility Options

Office Voice Mail

Email

Social Media Accounts

Text Messaging

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Office Websites

• Promises and Guarantees• Office & Staff Photos• Patient Photos• Communication options• Compliance

Social Media • Communication• Privacy settings• Relevant Posts and Shares• Professional vs. Personal

Online Reviews• Recommendation: No response • HIPAA considerations• Contact patient by alternate means• Contact review site and/or local attorney• Encourage positive reviews

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“Awful experience. Was “in‐network” for wisdom teeth extraction, yet was billed over $1500 for the procedures after the

fact. Just inexcusable treatment”

We appreciate your feedback. Our office strives to provide an excellent experience, and we work hard to constantly improve our practice. In order to protect the privacy of our patients or potential patients, we do not address specific comments made online. Please contact our office to discuss any concerns that you may have.

Recordings in Office

You Could Be Recorded

Office Policy • Post signs in office and provide patient/escort education

SAMPLE NOTICE

Due to federal HIPAA Confidentiality Regulations, there will be no cell phone use allowed in patient care areas. This includes phone calls, photos, videotaping and

recording. Thank you for your cooperation and respect for our patients’ and employees’ privacy.

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Communication: Back to the Basics

Patient Education

• Pre‐Operative–Website

–Video–Handout–Verbal

• Post‐Operative–Handout–Verbal

Patient Education Considerations

• No ambiguity

• No “one size fits all” modelClear message

• Acknowledgement of receipt Documentation

• Who delivers the message

• Training staff

Communication of message

• Is patient lucid?

• “Does this make sense?”Comprehension

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ADA Compliance

LEP Frequently Asked Questions

Who decides interpretation is needed?

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Can an appointment be rescheduled if interpreter is not available?


Can the patient be asked to bring in a family member?


Do you have to use an interpreter selected by the patient?

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Who pays for the interpreter?

Health Literacy Challenges

•> 44 million adults are “functionally illiterate”

•Approximately 50 million possess “marginal” literacy skills

•16 – 20% of high school grads lack sufficient reading skills

Health Literacy: Recommendations

• Simple language

–No “dental jargon”• Visual aids–Models, imaging

• Ask follow up questions–“Was that explanation clear?”

–“Is there anything that you need me to explain?”

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• Clinical judgment–Does the patient have capacity to make informed decisions?

• Contact their PCP–How are they managing the patient?

• Communicate with the Power of Attorney–What if they do not have one?

Patients with Decisional Limitations

Minor Patients

Absent Parent/Guardian

‐Postpone treatment

‐Advanced Consent

‐Emergency?

Children of divorce or Wards of the

State

Identify who has legal authority to consent

Emancipated MinorsAsk for Declaration

Set Your Staff up for Success

•Customer Service oriented

•Administrative vs. Clinical

Hire SMART

•Adverse event notifications

•Sending patients to collection

•Managing patients with post‐op complications

Open lines of communication

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Educate Your Staff

•Morning huddles

• Lunch and Learn• Team building activities

• Continuing Education –BLS or ACLS–Courses on omsnic.com•HIPAA compliance (HIP Introduction, HIP 103)

• STF 101 ‐ Protecting Your Patients Through Team Risk Management

The Policy Manual

Include Communication

Cell Phone Use

Office Phone Use

Extractions & Implants

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Dental Extractions: Steps to Success• Examine & develop a diagnosis and treatment plan

–Referral necessary?

•Manage patient expectations early

–Informed Consent

•Use written or electronic referrals–Tracking referrals

Extraction Documentation:What is commonly left out

Case Analysis: Extraction

• 40 year old male

• History of pericoronitis surrounding tooth #32

• Presented to the dental office requesting extraction–Deep vertical impaction with part of the crown exposed

–X‐ray did not show the apex of the root

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The Procedure• Extraction of #32 started• Patient referred to an OMS and seen immediately–Panorex: Apex of the root millimeters from the inferior border, involving the inferior alveolar canal, possible fracture

–Pain medication and antibiotics given

–Further treatment delayed to assess potential nerve damage

POST PROCEDURE

Litigation

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What Can We Learn From This?

• Consider your comfort level and experience

–Assessment of case•Obtain adequate radiographs before treatment

•When to refer to specialist–Complexity

–When complications develop

Implants: Steps to Success• Assess difficulty of the ENTIRE procedure• Develop an appropriate treatment plan

• Communicate the treatment plan

– Patient & Team

• Execute “the plan” Discuss any “change in plan”

• Document the treatment plan, consent, complications, compliance, patient satisfaction

Implant Documentation:What is commonly left out

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Case Analysis: Extraction & Implant• 45 year old female

• Extensive medical & surgical history

• Presented for extraction of “broken” tooth #31• Treatment plan:–Extract #31, place implant post healing phase

• Tooth #31 extracted without incident• 18 months later: implants placed at #30 and 31

Pre – Operative Panorex

1 Week Post – Implant Placement

• Patient disputed consent for implant at #30

• Post‐op pain and swelling–Antibiotics are changed

• Referred to an OMS–Patient has submandibular swelling

• Admitted to the hospital for IV antibiotics

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2 Weeks Post ‐ Procedure

• Readmitted to the hospital for submandibular swelling

–I&D performed

–IV antibiotics administered

–Implants were removed

2 Months Post ‐ Procedure

• Third hospital admission for non‐healing implant site –I&D performed (again)

–IV antibiotics administered (again)

• Patient now has a perforation of the lingual plate near the implant site–Teeth #28 and 29 extracted

Subsequent Treatment

•Mandible resection performed: 5 cm bone removed

–After 4 unsuccessful I&Ds

–IV antibiotic treatment continued

• Bone graft from tibia used for mandibular reconstruction

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Litigation

• Suit was filed against the dentist

• Allegations: –Lack of Informed consent for #30 implant

•Alleged battery

–Perforation of the lingual plate led to the prolonged infection and need for subsequent surgeries

Expert Review & Resolution

•Defense expert review:–Liability problem re: informed consent

–Causation regarding the infection questionable

–Were prior medical complications relevant?

–Was clearance or a consult needed?

• Case settled before trial


• Document–Why implant needed at #30

–Patient’s consent : #30 implant

–Risks associated with complex medical history

• Prior medical conditions –Establish DDS aware of and considered medical history

–Medical consult or more information needed?

• Consider referral in complex or difficult cases

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Informed Consent

Example of Jury Instruction“Negligence may consist of… failure on the part of the dentist to reasonably inform Plaintiff of risks or hazards which may follow treatment contemplated by the dentist. “Reasonably inform”… means information must have been given timely and in compliance with accepted standards of practice among members of the profession with similar training and experience….”

“There are risks inherent in medical treatment that are not within a doctor’s control. A doctor is not liablemerely because of an adverse result. However, a doctor is liable if the doctor is negligent and that negligence is a proximate cause of an adverse result.”

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More than a piece of paper

The PROCESS of communication between a patient and doctor that results in the patient’s authorization or agreement to undergo a specific treatment or procedure

American Medical Association, 2013

FormForm

DiscussionDiscussion

DocumentationDocumentation

Informed Refusal FormRisks of Not Having the Recommended Treatment: Fortress has an “Informed Refusal of Treatment” form online. Wording includes:I understand that complications with my teeth, mouth and/or general health may occur if I do not proceed with the recommended treatment. My condition may also worsen as a result and/or require additional therapy, hospitalization or, in rare circumstances, my condition may be life threatening if left untreated. Additional complications include, but are not limited to…

This form is for your records only and the patient does not have to receive a copy.

Informed Consent FAQs

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When should you re‐consent?

Should an informed consent form be signed at consult or on the day of surgery?

Can a doctor perform a biopsy on a patient under general anesthesia if they only signed a consent form for tooth

extraction?

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Should the Informed Consent process be patient specific?

HIPAA & HITECH

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What is HIPAA & HITECH?• 1996‐Congress passed the Health Insurance Portability and Accountability Act (“HIPAA”)• Privacy Regulations give individuals rights with respect to their protected health information (“PHI”)• Security Regulations set standards for safeguarding Electronic Protected Health Information (“ePHI”)• HIPAA HITECH enacted in 2009 promotes adoption and meaningful use of health information technology and sets penalties for failure of compliance

PHI in the Dental Office

• Ensure all PHI is kept confidential within the clinical office

Electronic PHI

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Examples of Fines (HHS site)

• $1.5 million for stolen unencrypted laptop

• $150,000 stolen unencrypted thumb drive

• $1.7 million for allowing unauthorized access to network during software upgrades

• $1.2 million for returning copiers without wiping clean

HIPAA/HITECH “Compliance”

Case Analysis: Implant Placement

• 72 year old female

• History of thyroid problems

• Presents for implant consultation

• Treatment plan: –CT scan

–Implant placement at site #13, 14 and 20

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Pre – Operative Imaging

The Procedure

• Implants placed

• Vicodin prescribed

• Four months later restorative work completed–3 unit bridge (12‐14) seated

–Crown placed on #20

Post – Procedure

• Complaints of food getting stuck under 12‐14 and difficulty flossing around 20

1st missed opportunity

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Post ‐ Procedure

• 1½ months later bridge was redone –Patient did not like the way it looked

–Looked “fake”

Post – Procedure

• 4 months later, the patient still had complaints: –Can’t clean the bridge

–Food gets stuck

• Request for a FULL refund–A partial refund was offered

–The patient left to seek a second opinion

2nd missed opportunity

The Second Opinion

• Second DDS opinions: –“Bridge fabricated incorrectly”– Informed pt #20 implant in the root of #21

• New treatment plan:–Extract tooth #21–Remove implant #20

–Place new implants #20 and #21

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Post – Procedure CT Scan

The Third Opinion

• The patient saw a periodontist –Agreed with the second opinion

–DDS denied second request for compensation

• Subsequent treaters wrote reports critical of the original DDS–Given to the original dentist

–The dentist followed up with 2 letters to the patient

3rd missed opportunity

The Dentist’s 1st Response to the Patient

“I am sorry you feel my bridge is inferior. I feel it is just fine…”

“I want a 2nd opinion if indeed my bridge is inferior – have the new doctor call me and I will pay for it.”

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The Second Letter

“Your lawyer broke protocol by calling my office – twice. Therefore I don’t feel bad about writing you this letter…”

“…I want you to go to another implant Dentist. If you choose not to – then it’s courts, lawyers, motions being filed… I have malpractice. My lawyer is paid for. Please consider going to a

Dentist I met a week ago [I already shared your treatment plan with him].”

The Outcome• Patient’s attorney wrote the DDS–Substandard care with upper bridge and lower implant

–DDS violated HIPAA by discussing PHI with another provider , without permission

–Damages will include: Costs of secondary dental work, pain and suffering, punitive damages, legal fees, and will pursue HIPAA violation

• The case was settled before litigation


• Listen to patient complaints, review the entire case and try to resolve problems before your patient seeks other treaters or lawyers• Consider how this case will look to peer review, a dental board or jury• Avoid escalating arguments with your patient, especially in writing• Don’t have other providers review your patient‘s case without your patient’s permission

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Documentation

Health Record• History• Exam• Diagnosis• Treatment • Consent• Follow Up & Progress (including the result)

Good records tell a story of the care provided

Charting Basics: History

• Health history form

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Sample Health History



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Charting Basics: Exam & Diagnosis

Charting Basics: Treatment

Charting Basics: Follow Up & Progress

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Supervised Neglect

How to Document Patient Compliance Related Issues

General Guidelines

• Communication with the patient before sending letter

• Patient specific–Identify the specific non‐compliant issue and recommendations

• Make 3 copies of the letter–Patient’s record

–Mail (regular and certified)

• Document supportive information in record

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Compliance Related Letters

• Missed appointment–Used as an alert and reinforcement

–Document all attempts

• Patient Non‐Compliance–Emphasizes the importance of following the treatment recommendations

–Lays the groundwork for future action • Include a time frame for response

• Informs patient of potential impact on doctor‐patient relationship

Dismissal Letter• Used to end the doctor‐patient relationship• Generally NOT the first letter sent to the patient who has exhibited non‐compliant behavior• Sent at a safe stopping point in course of treatment• General Components: –30 days of Emergency Care –Includes a release for records–Objectively explains reason for termination–Provides resources to find a new Dentist

Electronic Health Records

Risks

Templates

Copy and Paste

Cyber Issues

Templates

Copy and Paste

Cyber Issues

Considerations “Lock” system

Backup system

Conduct audits

“Lock” system

Backup system

Conduct audits

General Principles Log in and signature

for all staff

Time Stamp present in all systems

Meta‐Data evaluation

Do not alter notes

Log in and signature for all staff

Time Stamp present in all systems

Meta‐Data evaluation

Do not alter notes

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REMEMBER:Your best defense in a claim = your

chart notes

Failure To Diagnose

Case Analysis• 67 year old female referred by the DDS to an OMS for “small

yellow lesion on posterior, top of tongue”

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The OMS Visit• Exam findings: –4 mm triangular white striae on left tongue, ulcerated pseudo‐membrane, present for 1 year, improving, no nodal involvement

• Diagnosis: Erosive lichen planus of the posterior tongue• Plan: –No biopsy, benign–Kenalog orabase –Refer back to DDS to follow up during 6 month prophys

Follow Up Visits

Over the next 14 months:

• The patient had 8 visits with the DDS

• Patient returns to OMS on her own –Complaint: Lesion increasingly painful for months

–Exam findings: 10 mm ulcer at left tongue base; Tender enlarged submandibular node

– Plan: Refer to ENT for suspected SCC

ENT Visit

• Patient sees ENT 1 week after OMS referral:

–Biopsy performed

•Diagnosis: Infiltrating keratinizing SCC

•Classification: Stage 3

•Treatment Plan: Glossectomy & Radiation

•One malignant node

–Prognosis: 85% chance of recurrence

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The Outcome

• Patient filed suit against the DDS & OMS

• DDS : –Didn’t follow up because of benign diagnosis by OMS

• OMS : –Thought DDS would monitor and refer back if no improvement


Lesions: Details to Document

• Details about onset and possible causes

• Specific symptoms and complaints

• Chart specific exam findings & any changes

• Differential Diagnosis

• Instructions to patient:

•When a suspicious lesion is gone: document it

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Early detection saves lives

National Oral Cancer Foundation

49,750

Imaging Considerations

Case Analysis

• 33 year old male

•Dental history includes extraction of 4 wisdom teeth, 4 bicuspids and tooth #18

• Patient presented for routine exams and cleanings–Moderate to severe recession observed on the lingual maxillary arch

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The Visits• Two years after initial presentation–Patient was referred to a periodontist for “implant consult”

•The patient did not go

• Over the next 3 years the patient kept regular prophy visits –“great OH”; “flosses daily and wears NG faithfully”–No chart references to earlier recession or perio

The “Problem”

• Patient presented for a limited evaluation of a loose mandibular anterior tooth after biting a carrot

–An x‐ray showed bone loss on teeth #22‐26

–The second referral to a periodontist was made

The Periodontist’sTreatment Plan

Thank you for referring [name] to our practice to evaluate his overall periodontal condition. With your permission, I have recommended the following treatment:

Phase 1: -Osseous Surgery UR and LRPhase 2:-Osseous Surgery UL and LL

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The Next Visit• The patient returned to the dentist for a prophy and perio charting–This first perio charting was performed after the periodontist’s diagnosis, 5 years after recession–Probe depths: 2‐6mm–This was the last visit to this dentist

• The patient sought a second periodontist opinion –He discontinued treatment with the 1st

periodontist

The Second Periodontist

• The findings: Periodontal disease–Some pockets 7mm, some exceeded 9mm in the lower anterior

–Recession at #3 (2mm), 4 (3mm), 14 (3mm), 15 (3mm), 20 (3mm), 28 (3mm), 30 (2mm) & 31 (2mm)

–Bone loss in all four quadrants

• Recommended osseous surgery in all 4 quads

Litigation• Allegations: –Despite routine dental care over a number of years…•Progressive periodontal disease for 5 years; patient never informed

•Lack of periodontal screening and no baseline documented prior to referral to periodontist

•Surgery on all four quadrants required to treat disease; was preventable

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What Can We Learn From This?• Perform routine periodontal evaluations, document

• If a potential problem (focal or systemic) is identified, chart it; advise patient and follow progress

• Treat within your training & comfort level

• Refer early and when appropriate •Make specific referrals and ensure follow up

• Note non‐compliance

• Document all findings, progress and conversations

THANK YOU

nola conference 2018 16 9 format€¦ · •extraction of #32 started •patient referred to an oms...

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