• The CE was actually insufficient when the doctor renewed his or her license .
• The CE required for the level of anesthesia permit held is missing .
• The treatment plan is missing .
• Perio probing is not documented .
• The diagnosis of perio condition is not documented .
• There is no evidence of a discussion with the patient .
• The chart does not contain justification for nitrous (e .g ., patient anxious) .
Do you really want to be a plaintiff’s expert?
Many doctors don’t realize that if they give their opinion about care rendered by a previous provider, it can inadvertently place them in a position as a plaintiff’s expert witness . Here are a few scenarios that can put you in that situation:
• You report something to your state’s licensing board .
• You tell a patient that his or her prior dentist made a mistake .
• You tell a patient that he or she needs retreatment, and you aren’t extremely clear that you are not being critical of the prior dentist who did the work .
• You agree to talk to a patient’s attorney and don’t make it very clear, in writing, that you have no intention, EVER, of testifying .
• You prepare a letter for your patient explaining the problem and are not clear that you are not being critical of the prior dentist’s work .
• You put something in your chart that is negative about past treatment done by others .
Why do the above situations place you in a vulnerable position as a potential plaintiff’s expert witness? Because each of these situations is discoverable by a plaintiff’s attorney, and if he or she becomes aware of any or all of the above, he or she can solicit you as an expert witness .
If you do want to be a plaintiff’s expert, consider the following:
• Do you really know all the facts?
• Have you talked to the prior dentist to find out if you understand the decisions he or she made and the reasons for those decisions?
• Do you know what warnings were given to the patient?
• Do you know whether the patient tried to dictate poor treatment choices?
• Have you seen the prior dentist’s chart notes?
• Do you know whether the prior dentist has been provided the opportunity to fix the problem?
• Your way is not the only way .
• Perfection is not required to meet the standard of care .
• You may be asked if this has ever happened to you:
› Have you ever perforated a root while doing a root canal?
› Have you ever had a short fill on a root canal?
› Have you ever unknowingly left an open margin?
› Have you ever missed an infection?
› Have you ever missed a root fracture?
› Have you ever left a bone fragment in an extraction site?
› Have you ever done treatment you thought might not last on a patient?
› Have you ever failed to chart something significant?
› Have you ever had a patient who you told to return, fail to follow up?
• If it is something that could happen to you sometime in your career, even if it is not perfect, it is not negligence or a breach of the standard of care .
If you are sued DO:
• As soon as you receive the Summons and Complaint, report it to your malpractice carrier by phone .
• Make copies of the papers and send the originals to your carrier .
• Write a summary of the treatment of the patient using the treatment record to refresh your memory . Include everything you can remember, even if it is not in the treatment notes .
• Make a copy of the records, including
radiographs, chart pocket documents and the narrative that you wrote to your carrier . Lock the originals in a safe place . The originals will be provided to your defense attorney at a later date .
• Tell your staff about the suit and instruct them not to talk to anyone asking questions about the case without obtaining your permission . DON’T:
• Tell the patient or his or her representative that you are insured .
• Agree to or offer a settlement .
• Agree to or offer to pay for a specialist’s services .
• Alter your records .
• Lose your records .
• Discuss the case with anyone .
• Admit guilt or fault to anyone .
• Try and contact the patient’s attorney .
• Continue to treat the patient . Demands for payment
• Deal with patient complaints immediately and reduce the likelihood of any written demand .
• If you do receive a demand for payment, call your carrier immediately .
Statements of apology
In the ideal world, nothing would ever go wrong;
there would be no bad outcomes . But despite our best efforts and delivering treatment within the standard of care, still sometimes the results are not what we expected or would have wished for
our patient .
As previously discussed, if an adverse outcome has occurred, the best practice is to inform the patient as soon as possible of the complication and then create a plan to move forward . But what about apologizing or expressing regret?
If a statement of apology is made within 30 days of an incident, it is not admissible in a civil action . A statement of apology includes:
• A statement
• Affirmation
• Gesture or conduct expressing fault
• Apology, sympathy, commiseration,
condolence, etc ., that relates to pain, suffering, injury or death
Expressing your empathy and concern can actually strengthen the rapport and relationship you have with your patient and statistics repeatedly show that people are less likely to sue people they like or trust .
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