Dental Liabilities FAQs

FREQUENTLY ASKED QUESTIONS
For Practicing Dentists

During the course of the years,  Medical Liability practice handle many questions concerning professional liability, risk management, and
health care law. Below are some of those most frequently
asked by these health care professionals, as well as the
Braxton lawyers’ responses.

INFORMED CONSENT
Q. What is informed consent and who is responsible
for procuring it?
A. Informed consent is the legal doctrine affirming a
patient’s right to determine and control his/her own
dental treatment. In essence, it is the discussion that
takes place between the dentist who is rendering care
and the patient. It may not be delegated to any staff
member. It is the responsibility of the treating dentist
to provide information and explanations that will
assist patients in their decision-making process. In
other words, the patient must be afforded the
opportunity to evaluate adequate information before
making a decision. The treating dentist must advise
the patient of the usual risks, benefits, and alternatives
of the proposed treatment or procedure, including
the option of no treatment and, specifically, the
most severe and most frequent risks. Failure to
procure an adequate informed consent from the
patient can lead both to malpractice and to
professional misconduct charges and may also
be an indication of inadequate communication.
The patient’s consent must be voluntary,
competent, and informed. The patient must have
capacity, i.e. the ability to understand the nature and
consequences of the treatment. Although a signed
consent form is helpful in defense, a patient’s signature
is not conclusive evidence of an informed consent
discussion. The signed consent document merely
confirms that such a discussion took place. If there
is a witness to the consent document, he/she only
confirms that the patient has read and understood
the document, appeared to be competent for the
purpose of consent, and has signed the form.
Q. For what procedures should an informed consent
be obtained?
A. Although it is always good practice and important for
a dentist to explain to a patient the treatment he/she
is rendering, obtaining an informed consent in New
York State is only statutorily necessary if there is nonemergency
treatment, procedure, or surgery, or, if the
diagnostic procedure involves an invasion or disruption
of the integrity of the body. A dentist is not required
to procure an informed consent if the procedure is an
emergency. If a dentist is in doubt as to whether a
diagnostic procedure falls into the second category, it
is a good idea to err on the side of obtaining an
informed consent.
3
Q. What is the legal definition of a minor, and can
minors give informed consent?
A. Generally, the New York statute states that children
under the age of eighteen are minors. And, when
the patient is a minor, consent for his/her dental
treatment must be obtained from the parent or legal
guardian. There are some exceptions: (1) if there is
an emergency and the person is in need of dental
attention, and an attempt to secure consent would
result in delay of treatment which would increase the
risk to a person’s life or health, parental consent is not
necessary; (2) if a person is married or has borne a
child, he/she can give consent for his/her self as well
as for the child; and (3) any dental provider who acts
in good faith, based on the representation by a person
that he/she is eligible to consent, shall be deemed to
have received effective consent.
Q. In addition to having the consent formed signed,
should I write a note in the chart after I have an
informed consent discussion with a patient?
A. Absolutely, yes. The note should be dated and should
state the following: “The risks, benefits, and alternatives,
including no treatment, were discussed with the
patient. The risks discussed included, but were not
limited to . . .” and you list a few of the most severe
and a few of the most frequent risks or complications.
“The patient understood, had all his/her questions
answered, and consented to the treatment or procedure.”
This type of documentation will confirm and
be evidence that a discussion actually took place with
the patient.
THE DENTIST/PATIENT RELATIONSHIP
Q. When does the dentist/patient relationship
officially begin?
A. Today, it is often unclear when the dentist/patient
relationship begins, and with the advent of managed
care, this issue has become even more complex.
Managed Care Organizations (MCOs) may deem
the dentist/patient relationship to begin when the
dentist receives a list of patients who have chosen
him/her as their primary attending. Thus, dentists
must carefully review the lists received and protest
to the MCO those patients they do not wish to
accept. The relationship may otherwise be determined
to begin when an appointment has been made, or
when some other mechanism occurs which creates
the patient’s expectation of care.
Q. How do I discharge a patient from care?
A. To discharge a patient from care, you must notify
the patient in writing. You have the option of giving
the patient a defined reason. If the patient has been
non-compliant with treatment or appointments, or
if the dentist/patient relationship has been disturbed
by litigation, non-payment, or threats and abusive
behavior by the patient or a family member you
may state a reason for discharge, i.e. there has been
a disruption in the dentist/patient relationship. You
should document if the patient is being discharged
for non-compliance, i.e. “you have been non-compliant
with my recommendations for care and treatment.”
If you have received a request for records from an
attorney, have been sued by the patient, or are merely
uncomfortable in continuing to treat the patient, a
reason does not have to be stated or you may use the
relationship disruption as the reason. Do give the
patient a reasonable amount of time to seek a new
Q. Why is the appearance of the dental record so
important in a malpractice dispute?
A. The dental record is the actual record of treatment
provided to the patient, and its appearance is
extremely important to your defense. It specifically
describes the complete history, evaluation, diagnosis,
treatment, and care of a patient; and, therefore, it
is of maximum value in terms of its accuracy and
credibility, especially when used in legal proceedings.
Remember, if you didn’t chart it, you didn’t do it.
The dental record should be precise, neat, complete,
and legible, and it should be written so that any other
dentist who has a reason to pick up the record knows
exactly what has been done for the patient, when it
has been done, and why.
Q. How do I appropriately document the dental record?
A. Entries in the dental record must be contemporaneous
with treatment and should be written legibly in
ink or transcribed. Be sure to use a consistent style
for your entries. If your records are ever challenged
in court, consistency will impart credibility to your
records and will demonstrate your professionalism in
maintaining them. You must accurately record both
positive and negative findings, and enter the time
and date of all entries, signing each one. All entries
should follow sequentially; do not leave any spaces
between them.
If you make an incorrect entry, cross it out by
drawing a single line through it, writing the word
error, and initialing and dating the correction. Do
not, under any circumstances, use white-out or erase
an entry. Both techniques suggest you have something
to hide. Each correction should be made as it happens
with an explanation for the correction to preserve the
record’s integrity. Be sure to record missed appointments
and any failure by the patient to accept or follow
4
dentist, e.g. 30 days from the date of the letter, during
which time you will be available for emergencies only.
The letter should provide resources which will assist
the patient in obtaining a new dentist, such as the
names and phone numbers of the county dental
society. We do not recommend that you list the
names of specific dentists.
If the patient belongs to an HMO, review their
rules regarding initiation and discontinuance of the
dentist/patient relationship. Fager & Amsler, L.L.P.
has sample form letters which can be modified for
your use for discharging patients from your care.
Remember, patients with urgent or serious dental
conditions should not be discharged without
immediate access to alternative care.
Q. Must I continue to see a patient whose insurance
I do not accept merely because I have seen the
patient once in the Emergency Department as the
on-call dentist?
A. The answer to this depends both on the patient’s condition
and the requirements set forth in the hospital’s
by-laws. If the patient’s immediate problem has been
resolved, unless the by-laws require you to provide a
follow up visit, you are not obligated to see that
patient in your office. However, if the patient is in
need of further care and the problem can be resolved
in one or two office visits, you should probably see
the patient and discharge him/her from care by letter.
If the patient continues to have an urgent or serious
dental problem which requires continued care, you
must be sure he/she has alternative and uninterrupted
treatment prior to discharging him/her. If you are
unable to do so, then you must complete the course
of treatment for that dental problem before discharging
the patient from care.
5
instructions. This type of information will be helpful
in defending a future court action.
Always be sure to record your observations in an
objective and dispassionate manner. The dental record
is not the place to settle disputes, assign blame, or
write derogatory remarks. Such superfluous entries
seem to communicate a lack of professionalism and
may raise doubts about the record’s overall credibility.
Q. How long must I retain dental records?
A. Dental records of adult patients should be retained for
10 years from the date of submission of the last claim
for payment. Records of minors, that is persons under
the age of 18, must be retained for at least 10 years
from the date of submission of the last claim for
payment, or when the minor reaches the age of 20 1/2,
whichever is longer. These time periods are recommended
in view of state and federal statutes and regulations,
pertaining to malpractice and health care offenses.
Q. What documents do I need to release dental records
to someone other than a patient?
A. You must have a HIPAA compliant authorization or
release form signed by the patient or by an individual
legally authorized to request health care information,
if you submit bills to insurers electronically. The
authorization must be dated and must designate the
name of the party who is releasing the record and to
whom the records are to be released. A release that
states “to bearer” is not acceptable. The authorization
or release form must state the reason for the authorization
(“at my request” is sufficient) and must specify
the dental information to be released (e.g., “all my
records”). Each authorization form must contain an
expiration date or event. In addition, the Health
Insurance Portability and Accountability Act (HIPAA)
requires that certain statements be included in each
authorization form. Thus, you must insure that the
authorization form is HIPAA compliant and that it
contains all of the required elements.
Although notarization is not mandated by law,
you may as a policy decision require that the signature
on the authorization be notarized. We recommend
comparing the patient’s signature on the release form
to his/her signature in the chart. If the patient is not
the person who signed the authorization, then a copy
of a legal document permitting the designee to sign
the authorization must be also obtained. These may
include, for example, healthcare proxy documents
or court papers appointing the person as the
administrator or executor of a deceased patient’s
estate. In unusual circumstances, such as those
concerning custody or divorce, patient incompetence,
or death, you should contact your attorney to discuss
how to proceed.
Q. What type of information requires specific or special
authorizations to release the dental record?
A. Any dental records containing HIV-related
information require a specific and special
authorization. The New York State Department
of Health HIPAA compliant HIV authorization
is available on the DOH website.
6
HIV CONFIDENTIALITY
Q. If a patient advises me that he/she has risk factors
and/or has been tested for HIV, may I include that
in my progress notes or the patient history?
A. Yes, if the patient relays this information as part of
his/her history, or it is medically relevant to his/her
present care and treatment, it may and, in fact,
should be documented. However, that chart then
becomes a protected chart under Article 27F of the
Public Health Law, which governs the confidentiality
of HIV-related information.
Q. May I release records containing HIV information
when I receive a subpoena, particularly if it is a
judicial subpoena?
A. The HIV law clearly requires the release of records
only with a special HIV consent form or a court
order, issued only after a hearing, at which time the
patient has had an opportunity to contest the release.
A subpoena is NOT sufficient.
Q. Does even a negative HIV test result require specific
protection of the chart?
A. Yes, the fact that an HIV test has been done, regardless
of the result, raises the possibility that the patient has
risk factors for HIV. The patient may sustain harm if
this information is released inappropriately.
Q. If a patient tells me prior to surgery that he/she is
HIV positive, may I inform the operating room staff
who will be involved in the patient’s care?
A. You may not tell the staff if the sole purpose of informing
them is infection control or having them take extra
precautions. You may only tell the staff if the disclosure
is necessary for the patient’s care and treatment.
7
THE NATIONAL PRACTITIONER
DATA BANK
Q. I am a co-defendant in a malpractice lawsuit. If
my insurer pays money to satisfy a settlement or
judgment on behalf of my co-defendants, but does
not make a payment on my behalf, will I still be
reported to the Data Bank?
A. No, the National Practitioner Data Bank only
requires your insurer to report indemnity payments
made on your behalf as a result of a written claim.
Q. Is an incorporated solo practitioner considered to be
an entity for purposes of reporting to the Data Bank
a payment he/she made?
A. No, regardless of the form under which you practice
as a solo practitioner (for example, you may be operating
as a P.C.), individual practitioners are no longer
required to report to the Data Bank payments they
make on their own behalf personally out of pocket.
Q. Must I permit HMOs, other insurers, and hospitals
to query the National Practitioner Data Bank?
A. HMOs and group dental practices qualifying as entities
under the Data Bank plan because of their professional
and formal peer review activity may query the Data
Bank. Hospitals must query the Data Bank when a
dentist applies for a position on the dental staff or
applies for a change in clinical privileges. Hospitals
must also query the Data Bank when re-credentialing
members of its dental staff. The initial inquiry must
be done no later than two years after the opening of
the Data Bank and every two years thereafter. An
insurance carrier cannot request information from
the Data Bank.
Q. Will I be notified by the Data Bank if an inquiry
about me is made?
A. Practitioners can receive copies of their complete file
at any time, free of charge, by submitting a Request
for Information Form to the Data Bank. Health care
practitioners are not automatically notified when a
report is released on them in response to an inquiry,
but may periodically obtain this information
by requesting a copy of their Data Bank file.
Practitioners are only notified when they are the
subject of a report received by the Data Bank.
Q. Is there a minimum threshold of loss payment
that does not require a report by my carrier for a
settlement made in my behalf?
A. No. All payments made after September 1990
on behalf of a practitioner are reportable to the
Data Bank.
8
HANDLING REQUESTS FROM ATTORNEYS
Q. If a patient signs an authorization solely for release
of his/her records, am I at liberty to speak to his/her
attorney or to the defense counsel?
A. One area of concern for dentists and their attorneys
involves requests from patients’ attorneys for records,
especially when the reason for the request is not made
clear. On occasion you may receive a call from an
attorney requesting an appointment to discuss your
care of a patient, or to have you interpret your notes
in the patient’s dental record, which the attorney
already has in his possession. Even if the attorney
assures you that you will not be sued, or that your
conversation is off the record, exercise caution and
immediately contact your own attorney before agreeing
to speak with him/her. Frequently these statements
are simply not true. Further, it should be noted that
an authorization to release records requires only that
you release the patient’s records. It does not sanction
discussion with any attorney. If an attorney wishes to
question you about a patient’s care, the appropriate
place to do so is at an Examination Before Trial
(EBT) or deposition, where you may have counsel
present for your protection. If you have been retained
to be an expert witness for a plaintiff ’s attorney, you
should request a specific and HIPAA compliant
release from the patient, which will permit you to
discuss all aspects of his/her care, treatment,
diagnosis, and prognosis with that attorney.
Q. If a patient’s attorney asks me to provide a narrative
summary of my care or sends me written questions
for my response, must I agree to do so?
A. No. The best way to handle such a request is to
obtain from the patient a properly signed and dated
authorization allowing the attorney making the
DIAGNOSTIC TEST FOLLOW-UP
One of the most frequent causes of dental malpractice
litigation is the failure to diagnose several dental diseases.
To avoid malpractice litigation, it is essential that you
implement a procedure in your office to monitor the
performance of requisite laboratory tests, insure patients’
appointments with consultants are kept, and record that
patients’ test results have been received and reviewed by
you. Unless such a procedure is implemented, you risk
liability because the patient did not receive appropriate
and necessary follow-up care and treatment.
Q. What is my responsibility or liability if a patient fails
to have a laboratory or radiological test performed or
to keep an appointment with a specialist?
A. There is a duty imposed upon the attending dentist
to follow up on all tests and consultations he/she has
ordered. The failure to do so could lead to a delay in
diagnosis or misdiagnosis of a serious disease. The
dentist should follow-up first by telephoning the
patient or the consultant’s office, and then by writing
a letter to the patient. These efforts should be
documented in the chart.
9
request to obtain access to the patient’s dental
information. You should advise the attorney that
your records speak for themselves. In addition,
you are not obligated to be an expert witness for
a patient you have not treated.
Q. Should I write an addendum to hospital or office
dental records many days, weeks, or months after
patient has been injured? Sometimes I have been
requested to do so by hospital personnel, or I have
forgotten to document certain important information
prior to a patient’s injury.
A. The general rule is that an addendum should be
timely and should contain information relevant and
necessary to the patient’s present and/or future care
and treatment. Never write an addendum weeks or
months after a patient has died or after an attorney
has requested records. Any addendum that does not
meet these criteria may be considered self-serving or
even deemed an alteration of the record. If it is
necessary to write an addendum to a patient’s record,
be sure to indicate the date of and reason for the
supplementary information. Remember that accurate
recordkeeping is vital, not only in the course of
providing good patient care, but also because carefully
maintained records offer a credible and accurate
defense in court. Any record that appears to have
been altered for the purpose of covering up an error,
or to improve the record for litigation, completely
lacks credibility.
Q. If a dental hygienist or dental assistant employed
by me injures a patient, can I be held liable for
his/her acts?
A. There is a duty imposed upon you by law to provide
supervision to your employees. You may also be
found vicariously liable for the acts of an individual,
merely because of your employee/employer and/or
supervisory relationship. Consult with your attorney
regarding the legal requirements for supervision.
The information contained herein is provided to educate
the reader. It is intended for general information and risk
management purposes only and is not, nor is it intended
to be, legal advice.