While speaking to coaching clients and attendees at speaking engagements, I am finding an alarming lack of knowledge about malpractice and state board complaints. You are likely to be threatened with a lawsuit at least once every 9 years of practice. The state board examiners are required to investigate any complaint against any licensed individual under the Dental Practice Act in every state. The bummer is that the investigation or lawsuit will progress regardless of merit. Two things happen: You are convicted or you are acquitted. If convicted, you are limited in your appeal, and it is almost guaranteed to fail. Less than 10 % of cases that are appealed are actually overturned. The bad news, even if you win, the cost to defend yourself in court will be around $100,000. In addition to the cost, the litigation and review of the complaint can take years to reach a resolution. These months and years translate into sleepless nights, anxiety, and a change in your perception of dentistry and patients.
When the state board “comes calling” or the registered letter from the lawyer representing the patient that you thought loved you arrives, they will be requesting your records. You contact your malpractice people and they will want to see the records. The sad fact is no one is looking at your records in a positive light. The board is not just looking at the stated complaint but also the entire requirements to meet your Dental Practice Act. Dismissal of the original complaint may still carry hefty fines and sanctions from your board when they discover a lack of detail in your records, failure to take BP or any other requirement of your state. The malpractice people look at the chart to determine if you committed gross negligence. They do NOT cover gross negligence. You can only be a little negligent to be able to take advantage of your policy. They consider gross negligence to include any procedure not performed to the requirementsand standards of a specialist. For example: Not using a rubber dam during an endodontic procedure. Use a rubber dam and fail to note in the records of its use means you did not use it. Read any record and assume a hungry, under paid lawyer will use it to make you look stupid and you will get the idea. Every thing must be written as if it was for a court case read by an adversarial jury, state board, and predatory lawyer. They will attempt to present you as a rich, uncaring, incompetent, money hungry parasite on the wallet of society. You think you’ve had a bad day up until then, think again.
Let me give you five areas of advice as far as entries that should always be in your records. If you are chartless then these entries should be standard operating procedure for every entry.
1. Every procedure should be pre-written in your computers as if they are a text book for that particular procedure. Click and drag into the appropriate field and then modify it by adding even more detail. They are written as if you could alter a bad result prior to a litigation to make yourself look great. You must anticipate what the perfect entries for an Endodontic, Crown and Bridge, Operative, Emergency visit would look like if you actually had the time to perform and record it perfectly every time.
2. Every entry should begin with NCMH. This translates to “No Change in Medical History”. I once asked a patient if his medical history had changed. His answer was no. It was not until after I removed his infected tooth that he told me that he had a small heart attack last week and the reason he was here was to make sure the tooth did not hurt during his pending recovery from bypass surgery on Tuesday. You could not have driven a pin with a sledge hammer up my bottom when I heard that.
3. Next entry needs to be: ADRA: Which stands for Advantages, Disadvantages, Risks and Alternatives. This should also be accompanied with a signed informed consent. Failure to do this is “gross negligence”. In case you don’t remember, this means no protection and adios to your retirement account.
4. After importing the #1 into the body of the notes follow it with TPW. This stands for “tolerated the procedure well”. This eliminates the possibility of a patient telling the board or a court of law that “from the very start everything went bad and you did not even care”. It should be your protocol to call or have your staff call and record this in the patient record along with any response the patient might offer at the end of the day as even further protection.
5. Both DDS and Assistant must initial the record at each appointment. Claiming the assistant wrote the wrong thing or ignorance of what was recorded or left out is not a defense for the state board or courts (the lower case use for state board and courts reflects my lack of respect for both).
Let me close with four further axioms you should incorporate in you practice.
Inform before you perform.
Get the money up front. The majority of lawsuits are filed by women over fortywho owe you money, could not find you on Friday-Sunday for a problem and will always involve another dentist who criticizes your work.
Always work on friends. Friends don’t sue friends
Always guarantee your work in writing. You cannot guarantee a result but you can guarantee the patients satisfaction. We had a warranty for 5 years in which we would replace or refund their money as long as they kept up with their 6 month checks.
Good luck and CYA. It is a jungle out there.
Michael Abernathy, DDS