“We’re being sued!”

June 1, 2010
The doctor I work with just found out he is being sued by a former patient for failure to diagnose periodontal disease. I have been named as a codefendant.

by Dianne Glasscoe Watterson, RDH, BS, MBA
[email protected]

Dear Dianne,

The doctor I work with just found out he is being sued by a former patient for failure to diagnose periodontal disease. I have been named as a codefendant.

The patient is a woman who was told that she needed periodontal treatment two years ago. According to her record, she made an appointment for root planing and scaling in our office, but cancelled her appointment and never returned. I don’t know why she left our practice.

The doctor and I are understandably nervous about this, as neither of us has ever been sued before. We believe our chart notes are adequate, but in hindsight, I wish there was more detail. The periodontal charting shows several pockets in the 6-7 mm range, but there is no mention of general tissue condition, recession, or her level of home care. Honestly, I can’t even remember the patient.

I don’t see how we could be held responsible for her inattention to recommended care. Is there anything we can do to prevent this situation in the future?

Nervous in Naples

Dear Nervous,

Hindsight is always 20/20. Looking back, how many of us wish we had been more thorough with our chart notes? How many of us really believe we could be sued? How many lawsuits are successful because clinicians have not recorded thorough documentation? Or how many lawsuits result in liability because the clinician alters the patient record after being notified of pending litigation?

Let’s talk about defensive charting. Defensive charting involves documenting any and all pertinent information that explains what you did and why you did it. Two criteria should dictate how much to write. 1) Write sufficient information that would allow you or any other clinician to determine exactly what treatment was performed at each appointment, why that treatment was necessary, and what treatment is next, based solely on your documentation; and 2) meet all the record-keeping requirements of your state board. I heard an attorney recommend what he called the “Amnesia Test” in deciding how much to record. He said,

“If you were to forget everything you ever knew about each and every one of your patients, but you remembered everything you know about how to practice dentistry/dental hygiene, you would be able to read any one of your patient charts and quickly be able to:

  • Know what treatment the patient has had and why
  • Perform whatever treatment is next for that individual and know why it is necessary.”

One thing I have observed when offices move from paper to electronic charts is that the chart notes tend to become abbreviated in the electronic form. Quite possibly, some clinicians may lack good typing skills, making documentation difficult. My friend and technology guru Dr. Lorne Lavine (thedigitaldentist.com) recommends a software program called EasyNotesPro, which was developed by Dr. David Burton, a dentist in North Carolina. What this software does is eliminate the need for a keyboard and reduce the entire note down to mouse clicks. These are full notes with no abbreviations which go directly into the progress notes section of the practice-management software. The point is to make sure with either type of patient record — handwritten or electronic — that chart notes are thorough.

Dental hygienists are often the “frontline” clinicians for performing periodontal assessments on patients. Periodontal assessments include periodontal charting and recording. The general consensus for the standard of care is a full-mouth, six-point periodontal probing with ALL numbers recorded once per year for every adult patient. The reason all numbers should be recorded is this: In the eyes of the law, if it’s not written in the chart, it never happened. Think about how a jury of nondental people might view a periodontal charting containing just a few scattered numbers. Such a charting would look incomplete.

Some offices use the “Periodontal Screening and Recording” (PSR) method of charting to save time. Please understand, this protocol is a screening method and does not take the place of a full-mouth charting. As such, it would not stand up under scrutiny in a court of law.

Periodontal assessments also include recording recession, furcations, mobility, tissue tone and texture, presence of bleeding, and presence of debris (soft and hard). It can also include identification of abnormalities in occlusion.

Discussions with the patient concerning a diagnosis of periodontal disease should contain information about necessary treatment and risks associated with nontreatment. The acronym ADRA may help you remember advantages, disadvantages, risks, and alternatives. The patient should indicate that he or she understands and provide informed consent to proceed with treatment.

If your chart notes are thorough with up-to-date radiographs and a full-mouth six-point periodontal charting/recording, it is unlikely a lawsuit will proceed past the discovery phase. People can sue for any number of things, but the success of a potential lawsuit moving forward is greatly diminished when clinicians have documented well.

However, inadequate documentation leaves clinicians vulnerable to liability in the event a patient decides to file a lawsuit. In fact, one of the worst things a clinician can do is attempt to add more documentation to the patient chart after being notified of a lawsuit. This is called “record adulteration” and is patently illegal. Such acts destroy the clinician’s credibility. Courts have been known to use ink-dating techniques and can even tell when a different ink pen was used to add additional information after the fact. There are numerous examples of successful lawsuits and even large jury awards that happened as a result of record adulteration. Never, ever alter the patient record.

An attorney shared with me that he lost the largest case of his professional life defending an oral surgeon. When the doctor received notice that he was being sued for malpractice, he discovered his chart notes were inadequate. The doctor attempted to make an exact copy of the patient record and added several lines of additional information pertinent to the patient’s condition. During the investigation, the original patient record was discovered in a garbage can, and the defendant doctor was toast. The defendant was found guilty of malpractice, and a large monetary award that exceeded the limits of the doctor’s malpractice coverage was awarded to the plaintiff.

Your lack of personal recollection of the patient who is bringing the lawsuit is typical. Most doctors and hygienists see many patients over time, and the few that stand out in our memory are those who have something unique. Even remembering who we saw yesterday can be difficult. However, the dental record has an accurate memory. I heard an attorney state that dental records “might be the only witness with an accurate memory.”

Your post is a wake-up call to your colleagues. First, hygienists need to understand that they can be sued and named codefendants in proceedings against their employers. Second, hygienists should exercise diligence with documentation on each patient. Documenting after the fact is too late. Doctors and hygienists can protect themselves against litigation by having complete periodontal chartings/recordings, appropriate and timely radiographs, and thorough documentation.

Best wishes,

Dianne Glasscoe Watterson, RDH, BS, MBA, is a professional speaker, writer, and consultant to dental practices across the United States. She is CEO of Professional Dental Management, based in Frederick, Md. To contact Glasscoe Watterson for speaking or consulting, call (301) 874-5240 or e-mail [email protected]. Visit her Web site at www.professionaldentalmgmt.com.

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