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					Legal Risk Management for
the General Dental Practice

 Cathy Turbyne, RDH, MS, Ed.D.
    Karen Packard RDH, MS
   Turbyne & Associates, Auburn, ME
            June 17, 2006
Objectives:
 To recognize and understand the legal risks
     that face dental care providers.
   To personally evaluate your practice’s
    management of patients, records,
    treatment, and dental procedures for
    legal vulnerability
   To plan and implement corrective measures
    for the identified areas of risk with a
    timeline.
What is Law?
   It “is a composite of federal and state statutes,
    procedures, and regulations, court decisions, rulings
    of governmental agencies, and presidential edicts or
    executive orders”. J. Davison, RDH, JD
    (Rules made by humans regarding social conduct in
    a legally binding and formal manner).
   Statutory Law:   Legislative Enactments
       includes Federal/State Agency Regulations
   Common Law:      Judicial Decisions
What Laws Govern Dentistry
 Federal/State Constitutions
 Civil and Criminal Statutes/Case Law
 Federal/State Agency Laws (FDA,
    OSHA, DEP, HIPAA, MBL, DHHS).
 MBDE Rules and Regulations
 Federal/State Public Health Laws
 Local Ordinances
What Laws Govern Dentistry
   Federal Statutes Relating to Employment:
   Civil Rights Act
   Pregnancy Discrimination Act
   Age Discrimination Act
   Immigration Control and Reform Act
   Equal Pay Act
   Americans with Disabilities Act
   Consolidated Omnibus Reconciliation Act (COBRA)
   Family Medical Leave Act
Maine Statutes Relating to
Employment

   MRSA Title 5, 4572: Human Rights Act/Sexual Harassment
   MRSA Title 26, 626: Pay
   MRSA Title 26, 884: State Medical Leave Law
   MRSA Title 24-A, 2809: Health Insurance
   MRSA 24-A, 2215 - Disclosure Limitation & Conditions
   MRSA Title 26, 601, 602: Meal and Rest Break Law
   MRSA Title 26, 631: Personnel Files
   MRSA Title 26, 681-690: Drug Testing
   MRSA Title 26, 1709: Right to Know Law
Maine Statutes Relating to
Employee/Patient Safety

   MRSA 5, Chapter 501, Public Health AIDS
   MRSA 22, Chapter 258, Rules for Control of Notifiable Diseases
   MRSA 22, 19201-19206, Medical Conditions, Informed Consent,
    Confidentiality of AIDS Testing, Anonymous Sites, Source
    Testing, Records Release, Restrictions on Revealing Test
    Results, Coordination of Services.
   MRSA 22, 1542, Smoking in Public Places
   MRSA, 22, Radiation Safety Act
   MRSA 24, Medical Record Confidentiality.

   MRSA 26, 251, Video Display Terminal Operators
Ethics
   A study or realm “of moral action,
    conduct, motive, or character”,
    concerned with conforming to a
    professional standard of conduct
    and care. (The circle of obligation includes other
    professionals, employees, patients, and society).
   Common principles, values, conduct, and
    obligations involve personal and professional
    accountability for your actions and the actions of
    those working for you.
Conduct:
Civil:   Negligence/Medical Malpractice
 Tort Remedies (Victim Initiated/compensation)
 1. Special Damages: Medical bills/lost income).
 2. General Damages: Suffering
 3. Contract Damages: Breach of agreement
 4. Punitive: to punish deliberate wrongful conduct
 Criminal   Negligence or Practice
 (State Initiated/punishment)
  Assault, rape, burglary, murder.
Maine Board of Dental Examiners
Established 1891, to protect the lives and health of Maine citizens
through regulation of the practice of dentistry.



Dental Law: Legislature delegates authority
  through the licensing statute to the MBDE.
  Interpretation of the statute is based on rules and
  regulations established for the dental profession.
  (They must follow the procedures required by any
  other applicable statutes).
 Primary Goal is to maintain high quality health care
  by disciplining incompetent health care providers
  before and after patients are injured.
Summary of the Law and Ethics

A single act or omission by a dental health
 professional may be:
 1. A breach of ethics.
 2. A cause for revocation of membership in a
    professional association or other action.
 3. A cause for disciplinary action by a licensing
    board, including loss of a license.
 4. A cause for civil action in a court of law.
 5. A cause for criminal action resulting in
    incarceration.
 6. A combination of any of the above.
Court System - Maine
 Maine     State Supreme Court:
  (Appellate jurisdiction only)
 Maine Superior Court:
  (Trial, appellate, civil, and criminal jurisdiction)
 Maine     District Court:
  (Trial jurisdiction, traffic matters, probate, family
  matters (divorce), arraignments for felonies, small
  claims, juvenile cases and criminal misdemeanors
Legal Rights that Define
RELATIONSHIPS Between Individuals

A Tort is a legal or civil wrong committed by one
 person to the person or property of another. A civil
 action is brought seeking economic compensation for
  the wrong doing.
Torts  are classified into 3 categories:
    a. Unintentional Acts: “Negligence”
    b. Intentional Acts: “Intent to cause harm”
    c. Strict Liability: “Based on the nature of
        the activity”
Unintentional Acts
LIABILITY: One person is liable to another when
 he or she is legally obligated to pay for the injury or
 injuries that he or she causes another individual.


   “A health care provider’s failure to adequately
    perform a legal duty owed to the patient or by
    a violation of the patient’s rights”.

   Patients can seek remedy through tort or contract
    law. Time limitations/measure of damages apply.
Definition of Duty:

Duty:   An obligation in law, that one
  owes to another person or a business.
 “Duty of Care”
  “When one affirmatively acts in a way that
  creates a relationship with another
  individual”. -When a dental provider begins
  treatment with the patient’s consent. -Making an
  appointment with a new patient to treat a specific
  condition may create a professional relationship.
Standard of Care
   The degree of care that a reasonably prudent
    professional should exercise.

   Conforming to reasonable professional
    practice, confirmed by comparative practice,
    research, and expert witnesses (qualified in
    knowledge, skill, experience, training, and
    education).
RES IPSA LOQUITUR
 “The    thing speaks for itself” The
    instrument that caused the damage was
    under the defendant’s exclusive control.

 In   Dentistry:
   A foreign body is left in the mouth.
   Treatment has been performed on the wrong tooth
   A patient is injured while unconscious.
Resondeat Superior
   “Let the master answer”
    The principle that, generally, an
    employer is liable for the wrongful acts
    of an employee, if the employee was
    acting within the scope of his or her
    employment.
Contributory Negligence
 An  affirmative defense that may be used by
  the dentist, which can be a complete bar to a
  patient’s recovery of damages….i.e. the
  patient “contributed” to his or her injury.
 Some states use a “comparative negligence”
  between parties/evaluates degree of fault for
  each party.
 A “pure comparative negligence system”
  allows a % of recovery above equal
  damages.
Intentional Misconduct
   More serious, and harder to prove. The
  action need not be hostile, but intentional.
 Disadvantages exist for the defendant dentist.
    1. No expert witness is necessary to establish the
       standard of care.
    2. A plaintiff may recover damages even though
       there has been no physical harm.
    3. These torts are not always covered by liability
       insurance.
    4. Punitive and actual damages can be awarded.
Intentional Misconduct
 Assault (apprehension or fear of bodily harm) &
   Battery (intentional infliction of harmful/offensive
    body contact.
   Defamation (written is libel, oral is slander)
   Invasion of Privacy
    1.   Intrusion upon seclusion
    2.   Appropriation
    3.   Publicity of Private Life
    4.   False Light
Intentional Misconduct
   Infliction of Mental Distress
   Fraud or Intentional Misrepresentation
   Interference with Advantageous Relations
    (Injurious falsehood, interference with contract and
    prospective advantage. Protects against false
    statements made against one’s business, product
    and property.
   Wrongful Discharge (illegal discharge of an
    employee)
 Informed Consent
 The patient's right to information and
  self-determination (freedom to choose).
 Critical Questions ????
     1. Did the patient consent to a dental procedure?
     2. Was the patient’s consent actually informed?
     3. Whether misrepresentation or nondisclosure
         negated informed consent.
    Patients must sign a consent prior to dental
    treatment….it indicates understanding.
Requirements of Consent
 1. Implied Consent
 2. Express Consent
 **A health care provider may not act beyond the
 patient’s authorization, except when the patient’s life
 or health is seriously threatened.
 3. Competency of Consent (comprehension)
 4. Invalid Consent (the consent is invalid of
 gained by fraud, under duress, or by
 misrepresentation.
Content of the Informed Consent

 Diagnosis
 Nature and purpose of the treatment
 Risks and outcomes
 Alternatives
 Prognosis if treatment is refused
 Prognosis with treatment
 Patient must prove injury through
 causation or misrepresentation.
When is Informed Consent Incomplete?

 The patient does not sign the consent.
   The consenting person has no legal
       right to do so.
   The patient is drug/alcohol influenced.
   Consent is fraudulent/misrepresented.
   Consent is obtained under duress.
   Consent obtained after incomplete
    disclosure.
Legal Issues and the Dental Patient

What should the patient be told about
x-rays ?
Purpose and benefits; who will take
  them
Number and type of x-rays.
Harm/risk in taking or not taking x-rays.
Alternative diagnostic aids to x-rays.
Confidentiality and Disclosure
 Right to Privacy
 Liability for Breach           ( Invasion of Privacy)
    1.   Appropriation of plaintiff’s name or likeness
    2.   Unreasonable/offensive intrusion of seclusion
    3.   Public Disclosure of private facts.
    4.   Publicity that puts the patient in a public false
         light.
   Duty to Disclose
Confidentiality and Disclosure:
(HIPAA & Maine Laws)

 Disclosure
           Rights Individual Rights
 Individual
 Administrative Disclosure Administrative
Protected Health Information IS
Individually Identified Health Information

   Name                            Account #
   Address - (Street address,      Certificate/License #
    city, county, zip code          Any vehicle or device
    (more than 3 digits) or          serial #
    other geographic code.          Web URL
   Names of Relatives              Internet Protocol (IP)
   Names of Employers               address
   Birth Date                      Finger and Voice Prints
   Telephone #, Fax #              Photographic Images
   Social Security #               Any other unique ID #
   Medical Record #
   Health Plan Beneficiary#
PHI Disclosure Outside the CE:
Requires Authorization

 Transferring
 Releasing
 Sharing
   Forms of Covered Information:
    Electronic, Non-Electronic - Oral and
    Written…(includes telephone, Faxes, emails,
    letters, message machines, post cards etc.,

    outside envelop information etc.)
Disclosure Standard
“Minimum Necessary”


    CE must make reasonable efforts to
    disclose only the “minimum necessary”
    PHI that will fulfill the request.
    (REASONABLE PROFESSIONAL JUDGEMENT)
   Minimum necessary does not apply to uses or
    disclosures for treatment or when giving information
    to the patient.
    Disclosure Standard…
   Incidental Disclosures (ID): The privacy rule is
    not intended to impede customary and necessary
    health care communications.
   IDs are not generally violations, assuming that
    reasonable safeguards are in place to minimize
    such disclosures
   IDs are defined as secondary uses or disclosures
    that cannot be reasonably prevented, are limited
    in nature and occur as a byproduct of an
    otherwise permissible use of disclosure.
Contractural Relationships
  A contract is a promise or set of
  promises, for a breach of which, the law
  gives remedy, or the performance of,
  which the law in some way recognizes
  as a duty.
 It requires mutual consent (offer/acceptance)
  consideration (fee for service agreement), and
  2 or more parties with legal capacity (age
    18 and mentally competent).
Contracts cont.
   Express Contracts
   Implied Contracts
   Abandonment…”unjustifiable renunciation by
    the dentist of his professional relationship with his
    patient and a repudiation of responsibility for the
    patient’s condition”.
   The dentist should complete all services, if an on-
    going relationship exists.
   Duty ceases if the dentist can do nothing more for the
    patient.
Contracts cont...
 Patient Duty to pay and follow Drs. RXs
   Termination of a Patient - Documentation
    1. Verbally notify the patient.
    2. Follow-up with a written letter sent by certified
       mail with return receipt requested. (Reasons for
       termination should be stated in the letter).
    3. 30-60 day emergency period available while
       securing another dentist.
    4. Offer to send copies of records/x-rays to new
       DDS.
Contracts cont...
 Breach of Contract
 Material failure of performance of
 duty arising under or imposed by an
 agreement or promise. (also covers time)
   Remedies:
   Expectancy Damages -injury compensation
   Restitution Damages - value in money
   Reliance Damages - value of contract
Discrimination
“To act on the basis of prejudice”

HARASSMENT:
Maine Human Rights Act:
Maine has the toughest
enforceable law in the nation.
HARASSMENT Prevention
Does Everyone:
   Understand the laws that protect employees from
    personal/gender harassment in the workplace

   Understand, recognize and prevent personal/sexual
    harassment in the workplace

   Understand your role in promoting, supporting, and providing
    a safe, inclusive work environment.

   Understand how to perrsonally help to maintain an
    organizational cultural/climate of mutual respect and
    common courtesy for all.

   Know how to report personal/gender harassment
Formal Definition

 The formal definition of Speech as Harassment:
 Speech can be punished as a Workplace Harassment if it is:
    “severe and pervasive enough to create a “hostile or abusive
     work environment based on”:
    -Race        -Military membership or Veterans status
    -Religion -Sexual Orientation, Transexualism-cross dressing
    -Sex -Age            -Political Affiliation -Occupation
    -National Origin -Criminal Record            -Appalachian Origin
    -Citizenship Status
    -Disability (including obesity)
Formal Definition
   The formal definition of Speech as Harassment:
 Speech can be punished as a workplace harassment if it is:
    “severe and pervasive enough to create a “hostile or abusive
     work environment based on”:

    -Prior psychiatric treatment
    -Tobacco use outside of work
    -Receipt of public assistance
    -Dishonorable discharge
    -Personal Appearnace
Formal Definition
   The formal definition of Speech as Harassment:
   Harassment draws no distinction among slurs,
    pornography, political, religious or social
    commentary, jokes, art, and other forms of speech.

   All can be punished, so long as they are severe or
    pervasive enough to create a “hostile environment”.

   Because the boundaries are so poorly marked, the
    best course of action is to avoid all sexually
    offensive conduct in the workplace.
   “WATCH WHAT YOU SAY OR BE READY TO PAY”
 Influence & Perception
     Male System               Female System
Comfortable with           Uncomfortable with sexual
discussions that have      discussions/overtones, unless
                           initiated first by the female.
sexual overtones.
Easier to relate to women Socialize to silence or
flirtatiously.            start verbal escalation.

Opinion: comments          Opinion: degraded by
harmless.                  comments, angry, feeling
                           of powerlessness.
Influence & Perception
     Male System            Female System

 Living up to the        Living/coping with the
 assignment.             assignment.

 Usually more aggressive More reactive to the
 in most environments. environment.

 Grow up with public     Do not experience much
 male gender-bashing.    same-sex genderbashing
What is an Effective Sexual Harassment Policy
in the Wake of the Supreme Court Cases?

 What    will a JURY Look For?
 1. Have a clear Anti-Harassment Policy that is
    simply written and understood by all.
 2. Distribute your policy as a separate document
    to all employees and post it.
 3. Offer Interactive training with examples and
   videos, discussing the policy and violation issues.
 4. Promptly, effectively investigate complaints
    -Employers were faulted on failure to investigate
    quick enough, thorough enough and not communicating
    progress/results to the complaintant & all employees.
Other Current Employer Related
Issues Concerning Harassment

 Email - New Concerns for employers
 Hate Crime Sentencing Standard
     Tightened.
 Rights for Gays
 Harassment Complaints by men are
  on the rise…sexual harassment on the job is
  not about sex, its about unacceptable behavior in
  search of power, to intimidate, humiliate, and drive
  individuals out of the workplace.
Prevention for Professionals

   Be fair, objective and clear about your
    expectations with co-workers.
   Avoid the perception of favoritism.
   Be consistent with praise and correction,
    use the same standards for everyone.
   Make regular use of job descriptions,
    performance reviews, learning contracts,
    and ongoing feedback to insure objectivity.
Quality Assurance
  Accreditation and Credentialing for the
  protection of the public
 Professional School Accreditation
 Licensure (Third party, independent)
 Unauthorized Practice: (Dentists,
    Dental Hygienists and Assistants)
   Violations of the ME Practice Act:
    (Procedure, Actions, judicial review)
Office Procedures
 Emergency         Medical Treatment - Policy,
    procedure, practice, CPR certification.
   Asepsis and Sterilization - OSHA and
    Maine DEP. Radiation State Rules
 Office Equipment- Unsafe, unauthorized use.
 Housekeeping - Premises safety
 Radiographic Techniques - Licensed
    Radiographers, safe equipment and shielding.
   Child Abuse - Case Reporting
Charts & Legal Issues
 Chart - a continuing record of all
 treatment provided to a patient and
 observable conditions pertaining to his
 or her health
 Controlled Substance Recording
 Maintenance of Patient Records-
   keep 7 to 10 years, dry, secure area.
Quality Documentation
 Consistent  – all charts the same
 Legible, concise, factual notes
 Black or blue ink
 Abbreviations standard for office
 Make notes during/ promptly after
  appointment
 All notes initialed, signed, cosigned
Amnesia Test
 How   much do I really need to write
  down? Enough so that:
 If you remembered everything you know
  about dentistry, but forgot everything
  you know about your patients, you could
 Identify treatment completed and why
 Identify next treatment and why needed
Who says?

 Insurers
 American Dental Association
 Federal/State Agency Laws
   DEA, HIPPA
 Maine Board of Dental Examiners
   Rules, Statutes, and Policies
Why?


 Patient safety
 Continuity of care
 Legal protection
 Forensics
Forensic Dentistry
 May be used for identification when
  nothing else of the patient remains
 No two sets of teeth identical
 Enamel hardest body tissue
     400 degrees brittle, 900 degrees to ash
     Up to 32 teeth, 5 surfaces each
     28 teeth = 140 surfaces/ opportunities
   Each surface is an opportunity to
    identify a patient
DMORT
 Disaster Mortuary Operational
  Response Team
 Region 1: ME, NH, VT, MA, CT, & RI
 Uses digital images (film is scanned)
 Dexis Digital Radiography
 WINID Dental ID Software
     Dr. Jim McGivney/ WTC
Forensics 9/11
 2850 victims
 +1700 positively identified
 Half of IDs made dentally
 Positive ID required four unique
  features
 Written records used to corroborate
  x-ray findings
Forensics 9/11 Challenges

 Out of date x-rays (more than 4 years)
 Poor quality technique
 Poor quality processing
 Only bitewings available
 They repeated poor quality technique to
  see if a match
AA Flight #587
 November 12, 2001
 Airline crash and fire
 265 total victims
 Same forensic team as 9/11
 FMX with films taken
 Scanned with WINID software
 All victims identified
Charts & Legal Issues


   Chart: “A continuing record of all
    treatment provided to a patient and
    observable conditions pertaining to his
    or her health”
Maintenance of Records
 Keep 7 to 10 years; in a cool, dry place
 Malpractice insurer carrier may
  recommend to keep indefinitely
 Maine Rules do not specify at this time,
  however 7 years is expected as with
  standard medical records. This item is
  on the Rule Making List for the next
  round of changes.
Quality Documentation
 Consistent – all charts the same
 Legible, concise, factual notes
 Black or blue ink
 Abbreviations standard for office **
 Make notes during/ promptly after
  appointment
 All notes initialed, signed, cosigned
Amnesia test

 How much do I really need to write
  down? Enough so that:
 If you remembered everything you know
  about dentistry, but forgot everything
  you know about your patients, you could
 Identify treatment completed and why
 Identify next treatment and why needed
Patient Records Include
 Patient identification data
 Consent Forms
 Medical/ Dental History
 Clinical Observations/ Diagnosis
 Progress Notes/ Treatment
 Diagnostic records (x-rays, models)
 Reports of tests and consultations
Patient Records
 Patient identification
 Name – on each page
 Address
 Telephone patient’s & emergency
 Date of Birth
 Parent or legal guardian of minors
 Social Security if required for insurance
Patient Records
 Consent Form (sample)
 Medical History
     Written Updates signed annually by pt.
     Verbal Updates every visit
     Medications/ Allergies/ Surgery/ Premed
   Dental History
     Initial (CC, Fears, Orthodontics, Injuries)
     Chief Complaint every visit
Clinical Observations

 Extraoral Exam & TMJ
 Intraoral Soft tissue
 Oral Cancer Screening
 Periodontal Charting (see next 2 slides)
 Restorative Charting
 Treatment needed and options
 Referrals recommended
Periodontal Charting

 Annually
 Pocket depths
 Bleeding points, pus
 Recession
 Mobility
Periodontal Charting (con’t.)

 Furcation Involvement
 Bone loss (horizontal, vertical, angular)
     From current BWs or FMX
     Film holder may limit useful information
 Gingival defects
 Loss of attachment
PSR

 Periodontal Screening & Recording
 For healthy patients < 3mm no BOP
 Each sextant receives a score of 0-4
 If there are two or more 3’s or one 4:
Complete periodontal charting is indicated
 Do not risk “Failure to Diagnose”
Patient Education
 Current homecare practices
 Explanation of findings to patient
     Decay, Infection, Soft tissue changes
  Recommended changes in diet or
  homecare; medical factors
 Patient compliance/ motivation
 Hygiene instruction, pamphlets, &
  samples provided
Diagnostic Records

   Radiographs
       Current
       Properly exposed, mounted, & labeled
       Include teeth and 3mm surrounding bone
       This may require vertical bitewings
 Models (patient name & date)
 Photographs (patient name & date)
Progress Notes
   Date of treatment (chronological order)
   Anesthesia type & amount
   BP & pulse
   Tooth number(s) & procedure(s)
   Methods and materials used
   Unexpected events (if any)
   Patient instructions
   Response to treatment – child’s behavior
Note Templates
 Big time saver, prevents omissions
 Recall exam & hygiene visits
 Preprinted with options for circling
  findings and recommendations
 Paper sheet, stickers, rubber stamp
 Computerized and edit
 See samples
Records

 Referrals and consults
 Test Results (vitality, bacterial samples)
 Pathology reports
 Correspondence with specialists
 Laboratory slips
 Prescriptions
Treatment Plan
 Diagnosis
 Treatment needed/ Options
 Future treatment (watch areas)
 Signed by patient
     Indicating understanding, not a contract to
      complete
   See sample treatment sheet highlighting
Alteration of Records
 Error correction
 Never use correction fluid
 Single line through error, and initial it
 Add information in next available space
 Do not crowd in or write in margins
 Adulterated records raise the issue of
  fraud
Also include:
 Refusal of treatment
 Failed appointments
 Cancellations
 Unsuccessful attempts to contact
  patient
 After hours calls (dictate information on
  office answering machine if necessary;
  especially if prescriptions are involved.)
Do Not Include


 Disparaging comments about patient
 Disparaging comments about prior
  dentist
 Daily fees
 Conversations with insurance carrier
Computerized Records
   Password protected
   Back up daily; off site tape storage
   Protect from excessive heat & magnets
   Sign (typed) all notes, dentist reviews and
    cosigns
   Cannot capture patient signatures
   Keep original signed medical history &
    consent
   Do not surf Internet with office computer**
Transferring Records
 Maine Law: Must surrender a copy of
  the records and radiographs, may
  charge reasonable duplication costs.
 May not withhold for unpaid balance.
 Maine: Five business days
 New Hampshire: Within 21 days
 Massachusetts: Requires retention of
  original records including radiographs.
X-ray Duplication
   Use double films
     Recommended for FMX & emergency
     Recommended for shared perio patients
OR
 Duplication machine & special film
 Digital images to disk or e-mail
  encrypted (DICOM software)
Chart Review Checklist**
 Quality Assurance
 Chart Review Checklist
 What are your office standards?
 Compare to checklist, make additions.
 Randomly select 8 charts from the past
  month’s schedule; include all providers
 Ask each staff member to review a chart
Chart Checklist (cont.)
 Compare chart entries/ contents to
  checklist
 Review and discuss areas of concern
  as an office
 After one month repeat the process
 This exercise can help all staff members
  become more aware of and improve
  office documentation
Thank you to:

 Wisconsin Dental Association
 Colwell
 Dr. Scott Bernardy
 Dr. Onaiza McKnight
 Dr. Charles Zois
Questions????

   Thank You for attending!!!
   Remember your CEU Form!!!
   Have a Great Weekend!!!

        Cathy & Karen