Dont get burned in a lawsuits firestorm

March 1, 1996
Managed care introduces potential new areas of professional liability. Protect yourself from the long reach of litigation.

Managed care introduces potential new areas of professional liability. Protect yourself from the long reach of litigation.

Linda M. Harvey, RDH

Dental hygienists are not immune to the threat of malpractice. Surprisingly, dental hygienists have been named in lawsuits for decades. Naturally, it concerns us to know what the risks are that could lead to malpractice and what can be done to minimize or eliminate these risks.

By reviewing current trends in malpractice and health care, we begin to discover areas where the possibility of risk for malpractice may occur.

Dental hygiene is an integral part of the whole health care picture - a picture which is constantly changing. We`re not isolated in our hygiene operatories anymore. So it is important for us to stay abreast of trends in health care, malpractice, technology, and government rules and regulations. Changes often take us down new roads where the risks or unsafe conditions are not yet known. If you don`t know what or where the risks will be, then it is difficult to implement preventive or risk management strategies.

Costs for insurance and health care services continue to rise. There are millions of uninsured people and, for those insured, a heavier emphasis for managed care on all fronts. Trends in malpractice litigation include increased numbers of liability claims filed against health care providers and increased costs for malpractice insurance. Technology is also rapidly changing. There are new diagnostic equipment and tests and advanced treatments, such as video imaging, digital radiography, and lasers.

The prime example of how governmental rules have affected dentistry is OSHA. Major changes have swept dentistry and dental hygiene due to governmental regulations.

Managed care`s role in malpractice trends

All of these trends impact the profession to varying degrees. One specific trend influencing dentistry is managed care. Across the nation, it is estimated that dental managed care is about 10 years behind managed medical care.

The number of dental practices and patients joining plans continues to grow. In 1990, there were over 7.8 million dental enrollees. That number grew to 18 million in 1994. In 1984 and 1985, the number of individuals enrolled in medical managed care was 15 and 18 million, respectively.

The National Association of Prepaid Dental Plans lists 69 separate capitation providers in its membership directory. That represents a 21 percent increase from 1993 to 1994. This trend impacts dental hygiene clinically because it represents an increased possibility for employment in an office that participates in one or more dental managed care plans.

This trend also has led to new nonclinical career opportunities. The opportunities are more corporate and managerial in nature, reaching into the areas of quality assurance, provider relations, and risk management.

New areas of risk and liability, though, appear with these opportunities. Possible clinical risks may relate to contract requirements imposed by a managed care organization. At this point, a dental hygienist practicing under the supervision of a dentist does not separately enter into the contract. She must abide by the requirements set forth in the contract.

Risks that may become evident in nonclinical employment will center on confidentiality issues, which include:

- Conducting chart reviews for quality assurance.

- The peer review process involving review of care rendered by a practitioner, possibly leading to disciplinary action against that individual.

- In-house investigations of claims and or complaints made by patients against providers.

While the author is not aware of cases where hygienists are named as defendants in cases involving the reasons above, it is prudent to be knowledgeable of potential risks.

How real is the threat?

Malpractice trends may be followed in three areas: settlements, reform, and lawsuits. Volumes of information are published on those three categories. Depending on the source you read, opinions vary about what is happening or should be happening, particularly in the areas of settlements and reform.

Some sources say awards greater than $1 million are still skyrocketing, while others say large awards are declining. These opinions vary because certain groups like the American Medical Association and the American Hospital Association favor reform at the national level that would limit the maximum settlements in a lawsuit. Other groups, such as plaintiff`s attorneys and victim`s rights activists, do not wish to see settlements limited. The National Health Lawyers Association reports that payments made by dentists in settlement of a claim were down 2.9 percent in 1994. Although settlements paid by dentists were down, the threat of liability still exists.

Again, it is nothing new for a hygienist to be named in a lawsuit. The plaintiff`s lawyer often will name more than one defendant in an effort to show greater negligence, perhaps in hopes of gaining a larger settlement. Unfortunately, there is no one source or reference that neatly lists all cases involving hygienists. The reason is that some cases are settled out of court while others result in disciplinary action only.

Research does reveal key areas of risk for dental hygienists. The areas of concern listed below are based on actual cases where the dental hygienist was named in the lawsuit. They are:

- Failure to observe (as in not using a periodontal probe or conducting proper assessments).

- Failure to notify the doctor and patient of findings.

- Use of defective equipment or incidents where the patient is hit with equipment.

- Failure to identify or take precautions with a medically compromised patient.

- Failure to follow proper infection control techniques.

- Failure to document.

Numerous risk management techniques may be used by a dental hygienist to reduce the risk of malpractice. This article will focus upon three techniques - risk communication, proper documentation, and selecting malpractice insurance.

Talking about fear

Risk communication is the "process of discussing with your patients their `perceived` physical hazards, uncertainties, or risks." Although much has been written about the art of communication, remember two key points when discussing patients` concerns.

First, what fears do patients express or imply to you? Dr. Barbara Gerbert and others have conducted research regarding patient fears in the dental office. Researchers have found the three major dental fears to be fluoride, amalgam, and HIV. These fears may seem silly or unfounded to the knowledgeable dental professional. But media hype in recent years have caused dental phobias to expand beyond the proverbial "sound of the drill."

Secondly, consider a patient`s background and level of education in selecting the terminology and approach you will use in a discussion of fears. One very simple, straightforward technique is the "feel, felt, and found" technique. For example, if a patient expresses concern about a fluoride treatment, respond by saying, "I know how you feel about fluoride, Mrs. Jones. As a matter of fact, I felt some concern when I read that article in the paper (or watched a TV show). So what I did was refer to several reputable sources on the topic and here is what I found ... As a matter of fact, here is a copy of the most recent research, if you`d like to read it."

This technique gives you common ground with which to identify with the patient, and then you calmly present the correct, factual data.

In addition, as you talk to patients, do not compare dental fears with something sensational or unrelated to dentistry. In other words, don`t compare mercury and amalgam to skydiving. The objective is to develop trust. Always display sincerity and respect for your patients.

Buying protection for yourself

A second risk management technique is selecting malpractice insurance. While malpractice insurance does not prevent a lawsuit, it does serve as an important reminder to "keep on your professional toes." In general, it is in your best interest to have your own insurance policy if you substitute in various offices, move or change jobs periodically, or have ever accepted employment in an office that was less than ideal.

As an employee (or former employee), you are covered by your employer`s malpractice insurance. Protection is important because it may take several years for a lawsuit to come to light, and memories fade. So having your own malpractice insurance may prove to be your best protection.

Consider a scenario in which a dentist and hygienist are both named in a lawsuit. If a conflict of interest develops, can you feel confident that the insurance carrier will best represent you, or will it represent your boss who pays the insurance premiums? Having your own malpractice policy is a very affordable means to give yourself peace of mind. Here are a few key points to ask when selecting malpractice coverage:

- Is there any deductible?

- Does it pay for all legal defense costs?

- Does it pay for any lost earnings due to a lawsuit?

- How much will it pay for settlements, court judgments, or out-of-court settlements?

- What is the extent of coverage offered? Will it cover expanded functions such as administration of local anesthesia? What exclusions are there?

- Is the coverage occurrence or claims-made? Occurrence coverage is more comprehensive, while claims-made policies limit when a claim made be filed and paid.

- Investigate if your premiums may be deducted as a normal business expense.

The first and final draft of your notes

A third risk management technique is proper documentation. Not enough can be said to stress the importance of proper record keeping. The patient record is now considered a legal document and what you record or fail to record may be used against you in a court of law. The two lists below reflect what to do, and what not to do, in your efforts to achieve proper documentation.

What to do:

- Include regular updates. These include patient medical histories, periodontal chartings, etc. Having an office policy about updates ensures cooperation from all staff members.

- Informed consent. This is actually a separate risk management technique in itself. The informed consent actually should be conducted by the dentist. However, you should be aware of having the informed consent in the chart for reference should the patient have any additional questions or comments as you begin the dental hygiene appointment.

- Achieve completeness. Try not to write a book, yet be as thorough as possible in writing progress notes. Having properly designed forms with ample spacing for note writing is a must. Also, document telephone calls and weekend emergencies or calls to the pharmacy.

- Format. Following an established sequence will not only assist in achieving completeness but will ensure uniformity throughout the office. Use the same format of recordkeeping with all patients. Do not let your professionalism slip because of familiarity with an established patient of record.

What not to do:

- Alter a record. This is construed as trying to hide or change the facts. In a court of law, it will most likely be equated as admission of guilt.

- Omissions. If you find you omitted an entry or part of an entry you may go back on a later date and make an entry. However, you must use the actual date on which you are making the entry.

- Refrain from subjectivity. This decreases your credibility as the progress notes will reflect more opinion than actual facts. Use phrases such as "patient states," not "patient is," "patient appears," or "I think." You may be in the habit of using subjective terms and not be aware of it. For example, writing "patient swallowed fluoride" may not be correct if you didn`t witness it. It may be more correct to write, "Patient said she swallowed fluoride."

- Do not include non-treatment information. If an incident, adverse outcome, or accident occurs - whether treatment related or not - you naturally would make an entry in the patient record. Make sure the entry in the patient record is a concise, objective entry. However, certain circumstances may warrant the need for an additional written, subjective account to be recorded. Such circumstances may include patient accidents and complaints, adverse treatment outcomes, billing problems, or personality conflicts between staff and patient. Remember a patient record may be subpoenaed and used as evidence in a courtroom and having subjective non-treatment related documentation may be used against you.

One remedy to the above is to keep a separate file for non-treatment documentation. This file can be labeled, "Quality Assurance," or "Prepared in Anticipation of Litigation." Notes in this file are protected information and cannot be subpoenaed. One file will probably suffice for the entire office without having to set up a second file for each patient. Be sure not to document in the patient`s treatment record that you`ve made any entries elsewhere. This file should be kept in a separate, confidential, and secure location.

If you have ever wished an entry was more complete or that you recorded something that you hadn`t, now is the time to correct any bad habits. In record keeping, your first draft is the final product. Do a good job the first time.

In summary, minimize your liability by following health care trends on a national and state level, practicing preventive risk management techniques, and staying abreast of changes that impact the profession.

Linda M. Harvey, RDH, MS, has a administrative consulting service in Jacksonville, Fla., for medical and dental practices.