Professional Responsibility in Dentistry E-Book

Joseph P. Graskemper

• Herausgeber: John Wiley & Sons
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 348

Veröffentlichungsjahr: 2011

Beschreibung

Professional Responsibility in Dentistry: A Practical Guide to Law and Ethics integrates dental law, risk management, professionalism, and ethics, as all are interrelated in everyday practice. Beyond theory, the fact-based approach of this book shows examples of various situations the dentist may face. Dr. Graskemper addresses a range of topics, from legal concepts and regulation of dentistry to professionalism and ethics. He points out specific issues in the practice of dentistry, particularly those that confront new dentists and dentists with new practices. True Cases throughout the book walk readers through real-world examples of complex situations and discuss the proper way to handle them with attention to the legal, ethical, and practice management ramifications. These include patient charting, professional criticisms, child neglect, associateships, patient refunds, and more.

Leseprobe

Table of Contents

Cover

Title page

Copyright page

PREFACE

ACKNOWLEDGMENTS

Part I: LEGAL CONCEPTS

CHAPTER 1 THE LAWSUIT

CHAPTER 2 THE REGULATION OF DENTISTRY

FEDERAL OVERSIGHT

LICENSURE

CONTINUING EDUCATION

PERMITS

PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT

AUXILIARY PERSONNEL

ADVERTISING

CHAPTER 3 DEFINITIONS AND LEGAL CONCEPTS

Part II: THE PRACTICE OF DENTISTRY

CHAPTER 4 THE DOCTOR–PATIENT RELATIONSHIP

CHAPTER 5 MAY YOU REFUSE TO TREAT?

CHAPTER 6 THE MEDICAL-DENTAL HISTORY

CHAPTER 7 CHILD ABUSE

CHAPTER 8 INFORMED CONSENT

CHAPTER 9 RECORDS

CHAPTER 10 STATUTE OF LIMITATIONS

CHAPTER 11 ABANDONMENT

CHAPTER 12 STANDARD OF CARE

CHALLENGES

CHAPTER 13 PEER REVIEW

CHAPTER 14 RISK MANAGEMENT

THE DOS AND DON’TS OF RISK MANAGEMENT

IF YOU ARE SUED

PRACTICE ENHANCEMENT THROUGH RISK MANAGEMENT

CHAPTER 15 EMPLOYEES AND ASSOCIATES

Part III: PROFESSIONALISM AND ETHICS

CHAPTER 16 PROFESSIONALISM

CHAPTER 17 ETHICS

CHAPTER 18 PROFESSIONAL ETHICAL SITUATIONS BASED ON TRUE CASES

Part IV: NEW DENTIST ISSUES

CHAPTER 19 ASSOCIATESHIPS

CHAPTER 20 STARTING OR BUYING A PRACTICE

CHAPTER 21 MARKETING FOR A SUCCESSFUL PRACTICE

CHAPTER 22 CO-DIAGNOSING, OR GAINING THE PATIENT’S TRUST

CHAPTER 23 EMPLOYEE MANAGEMENT

CHAPTER 24 MULTISPECIALTY PRACTICE

CHAPTER 25 FORMS

GENERAL RELEASE FOR DENTAL TREATMENT (MAY BE ADAPTED FOR PATIENT BY ELIMINATING THE FIRST SENTENCE)

CONSENT FOR PULPAL DEBRIDEMENT AND ENDODONTIC TREATMENT (ROOT CANAL TOOTH #______)

CONSENT FOR ORAL SURGERY (EXTRACTION OF TOOTH # _________)

CONSENT FOR PERIODONTAL SURGERY (GUM SURGERY AT TOOTH # OR AREA________)

GENERAL CONSENT FOR SURGICAL AND INVASIVE PROCEDURES

REFUSAL OF TREATMENT / REFERRAL

TERMINATION LETTER (SEND BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED)

WHAT YOU SHOULD KNOW ABOUT FINANCING YOUR DENTAL TREATMENT

AUTHORIZATION FOR RELEASE OF DENTAL RECORDS

Index

This edition first published 2011 © 2011 by John Wiley & Sons, Ltd.

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Designations used by companies to distinguish their products are often claimed as trademarks. All brand names and product names used in this book are trade names, service marks, trademarks or registered trademarks of their respective owners. The publisher is not associated with any product or vendor mentioned in this book. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold on the understanding that the publisher is not engaged in rendering professional services. If professional advice or other expert assistance is required, the services of a competent professional should be sought.

Library of Congress Cataloging-in-Publication Data

Graskemper, Joseph.

 Professional responsibility in dentistry : a practical guide to law and ethics / Joseph Graskemper.

p. cm.

 Includes bibliographical references and index.

 ISBN 978-0-470-95977-0 (pbk. : alk. paper)

 1. Dental laws and legislation–United States. 2. Dental ethics–United States. I. Title.

 [DNLM: 1. Legislation, Dental–United States. 2. Ethics, Dental–United States. 3. Practice Management, Dental–organization & administration–United States. WU 33 AA1]

 KF2910.D32G73 2011

 344.7304'13–dc22

2011002980

A catalogue record for this book is available from the British Library.

This book is published in the following electronic formats: ePDF 9780470960196, ePub 9780470960202, Mobi 9780470960219

Disclaimer

The publisher and the author make no representations or warranties with respect to the accuracy or completeness of the contents of this work and specifically disclaim all warranties, including without limitation warranties of fitness for a particular purpose. No warranty may be created or extended by sales or promotional materials. The advice and strategies contained herein may not be suitable for every situation. This work is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If professional assistance is required, the services of a competent professional person should be sought. Neither the publisher nor the author shall be liable for damages arising herefrom. The fact that an organization or Website is referred to in this work as a citation and/or a potential source of further information does not mean that the author or the publisher endorses the information the organization or Website may provide or recommendations it may make. Further, readers should be aware that Internet Websites listed in this work may have changed or disappeared between when this work was written and when it is read.

PREFACE

This book is a result of a need to bring together the “soft subjects” of dental law, dental ethics, professionalism, risk management, and practice management. Dentists, being science-oriented, tend to enjoy concise, fact-based information as found in many science courses. The “soft subjects” do not always lend themselves to simple, black and white, concise answers requiring as little discussion as is involved with the fit of a crown. Dentists, having a definitive and result-oriented training, rely on factual results. The “soft subjects” do not lend themselves to a discussion ending with exact results.

This book presents a fact-based presentation in a guidebook format that science-oriented dentists are used to. The “true cases” are from over 30 years of practice on both East and West Coasts, legal and practice management consultations, and expert witnessing experiences. The true cases make the “soft subjects” of dentistry, which are often boring and of little interest to dentists, more practical and interesting. It is a little touch of reality by which the material presented may be applied to discussion and make an impact on the practicality of the “soft subjects” to the actual practice of dentistry.

These subjects are normally taught individually and in a vacuum, while they are in reality very much integrated into each other. When I was asked by Dean Burton Pollack at the Stony Brook School of Dental Medicine to take over his Dental Law classes, I found it to be a true challenge to teach law to science-oriented students. The following year Dean Barry Rifkin asked if I could also take over the Dental Ethics and Professionalism class and combine it with the Dental Law class. While developing the combined courses, many crossover issues became more apparent than I had originally anticipated. The course material also started to intersect with practice management issues. I then renamed the courses to be Professional Responsibility I and II to better identify the actual subject matter discussed: Dental Law, Ethics, Professionalism, Risk Management, and Practice Management. Normally these subjects are taught separately, but must be utilized together in dental practice. The dental student, given the different pieces of professional responsibility separately in a vacuum, is then left to put the pieces together after graduation. This book brings the various “soft subject” concepts, ideas, rules, and regulations together in a practical guidebook format.

With the application of issues, rules, analysis, and conclusion (IRAC) to the many dental legal, ethical, professional, risk management, and practice management issues confronting a dentist as practitioner, employer/employee, educator, and/or business owner, or to any of the true cases, a discussion may be had regarding the intermingling of these “soft subjects” as they relate to the actual practice of dentistry and not as separate entities with their separate concepts and patterns of thought.

It should be pointed out that many of the rules, regulations, and laws may be different in the jurisdiction in which you practice; as such, you should always retain proper legal, tax, or practice management advice.

Joseph Graskemper, DDS, JD

ACKNOWLEDGMENTS

I dedicate this endeavor to Tara, the love of my life, my ever-caring wife. Thank you for being my companion while I pursued my dreams of obtaining a law degree and working side-by-side with me developing our successful multispecialty dental practice; all while raising a family and then relocating across the country from California to New York. I highly value and appreciate your outstanding encouragement and support during the writing of this book. Throughout my “not listening” or “I’ll be right there” conversations, you always allowed me the time to properly construct my thoughts.

I would also like to admire our children Joe, Gena, and Paige, who have given me much needed encouragement, patience, and understanding while they, themselves, have continued down their individual roads to success.

And to my office staff, Tiffany Grandi, Christine LeRoux, Lu Mitchell, Mitzi Pacheco, RDH, and Michele Yalamas, RDH, for constantly hearing “I’ll be there in a minute” while I continued to type and they explained to the waiting patient I’ll just be a moment longer.

I would also like to acknowledge those whom I may not have identified sooner and from whom I have drawn my conclusions and opinions, and apologize in advance of any inadvertent omission.

Part I: LEGAL CONCEPTS

The legalities of dentistry must be adhered to and respected with the understanding that we are liable for the manner in which we practice dentistry. A basic understanding of legal concepts allows dentists to interact professionally with legal consultants when necessary.

CHAPTER 1

THE LAWSUIT

A lawsuit starts when you receive a complaint letter from the patient or the attorney that states that you are being sued. But before discussing this we must examine why patients sue. I have found that there are basically two reasons: (1) the patient has allegedly been harmed in some manner as a result of your treatment or nontreatment, and (2) the patient wants money. The problem the patient may have may not even pertain to dentistry.

TRUE CASE 1: Miscarriage due to endodontics

The patient came into the dental office with pain. The patient, a healthy, pregnant woman in her 30s, was in the beginning of her second trimester with no complications. She was referred to a board-certified endodontist who practiced part-time in the dental practice. A therapeutic pulpotomy was preformed. The patient was still having pain and went to another dentist, who reopened the tooth, relieving the pain. The patient then had a miscarriage. The owner of the original dental office and the endodontist were sued for malpractice, causing the miscarriage and emotional stress. The case was settled out of court at an arbitration hearing in favor of the defendant dentists.

The complaint letter will state many things that you have allegedly done to harm the patient. As seen from the case above, the patient and her attorney, who happened to be her uncle, blamed the dentists for the miscarriage. An attorney’s letter will not only state your failure to follow a procedure’s protocol and the standard of care but can also include complaints about a failure to refer, a failure to diagnose, or emotional distress. Remember, anyone can sue anybody at any time for anything for any amount. It does not mean the defendant did anything wrong or that the plaintiff will automatically win.

Once the complaint letter has been received, what should you do? You should notify your malpractice carrier. However, before you notify them, be sure to recognize the difference between an incident and a claim. An “incident” is often called a “near miss”; for example, two airplanes passing each other closely. A “claim” is a hit: a collision. If the letter is from a disgruntled patient, try to decide if it is a manageable situation (see Chapter 14). If not, you should contact your insurance company. The insurance company would prefer that you always contact them so they may assist you and keep track of your troubled patient relations. Every time you contact your insurance company it is placed in your record. If you contact them too many times, it indicates to the insurance company that you have problems within the office with patient communications, patient finances, and/or treatment protocols. Depending on the number and severity of your “incidents,” the insurance company may either increase your premium or drop you because you have troubled patient relations or questionable treatment outcomes. If the letter is from an attorney’s office, you must call your insurance company.

Once you receive the complaint letter, retrieve the record from the main office filing system. As soon as possible, write down in your own words what happened on a separate piece of paper and keep it separate from the patient file. This is your work product and is not part of the patient’s treatment record. Do not change anything in the record.

TRUE CASE 2: Changing the chart

Having been an expert witness many times, I must not fail to share the following experience. During the trial of a dentist in which I was the expert witness for the defendant dentist, the patient’s attorney asked me if I would read what was on the top of page 3. The dentist’s attorney had just gone through the record with me while I was on the witness stand to show how complete the patient’s dental record was and how the dentist had followed the standard of care and all treatment protocols, thus the patient really did not have much of a case. The jury, I believe, was in full understanding that the dentist treated the patient properly. Now looking on the top of page 3, I read to the patient’s attorney what I saw. He replied, “No, above that.” There was nothing above that on my copy. He proceeded to show me and the jury his copy on which the dentist had made changes, after many copies had been made by both parties in preparation for the trial. He lost the case significantly due to altering the patient’s record.

Do not talk to anyone outside of your spouse and your staff. This will be a very emotional time that will lead to some self-doubt and second-guessing. Reassure yourself by reviewing your records to confirm you have followed all treatment protocols and the standard of care. Do not discuss the pending lawsuit with your colleagues or study club. Do not try to contact the patient or the patient’s attorney.

After you contact the insurance company, they will assign you a claims administrator and an attorney, if needed. The sooner you contact the insurance company regarding a claim, the better the chance of success. The attorney assigned to you should be familiar with dental terminology and dental malpractice lawsuits. This attorney is usually on retainer to the insurance company. If the case is beyond the limits of your policy, be sure to also have your own personal attorney. Most times this is not necessary.

TRUE CASE 3: Saving the case for trial

At an arbitration hearing, which may occur before a trial, where I was the expert witness for the dentist, a question of comparative negligence (to be covered later—the patient is partly responsible for the damages) was not asked. While walking back to the dentist’s attorney’s office, I asked him why he did not ask several questions that would have easily, in my opinion, settled the case in the dentist’s favor. His reply was that he was going to save those questions for the trial!

Hence it is important for dentists to have a basic understanding of the legalities that apply to the practice of dentistry.

Some states have a claims committee within their state dental association [1]. These claims committees may be asked by the insurance company to review the evidence of the case and to render an opinion as to whether to settle or to defend a case. This type of review may be available only to dental association members. You may still decide to defend the case even if the committee recommends settlement. That decision depends on you, your case, and the type of malpractice insurance you have (to be discussed in Chapter 20).

The next thing to happen is the examination before trial (EBT), also described as the discovery phase. The EBT may include interrogatories and depositions. Arbitration and settlement hearings may also occur prior to an actual trial. Interrogatories are long, written questionnaires about you and the dental care you provided for the plaintiff/patient. This is then followed by depositions. These are fact-finding, direct questionings of each party to the lawsuit by the opposing attorney. These are taken under oath and with a court reporter. Both attorneys are usually present, but only one party, the dentist/defendant or the patient/plaintiff, is deposed at a time. You will be given a copy of the deposition and asked to make any corrections and sign it. Be sure to check it closely for errors because they do occur, and once it is signed you cannot change it. Those errors, if of significant importance, may be held against you if you go to trial. Both parties, depending on the jurisdiction, may then agree to an arbitration. There are binding and nonbinding arbitrations. A binding arbitration is where both parties agree that the result will be the end of the lawsuit. The nonbinding arbitration still leaves the avenue open to further litigate the case if either party feels the result of the arbitration was not fair. Both types of arbitration are usually held with both parties and their attorneys, with a retired judge or highly experienced attorney who is familiar with malpractice acting as the arbitrator. Settlement conferences are sometimes held when the amount of damages has not been agreed upon but both parties have resolved the liability question of the case. At these various fact-finding discovery proceedings, the attorneys will try to:

1. Find out the facts that you know and explain your patient records.

2. Evaluate your credibility and whether or not you would make a good, impressionable witness.

3. Use leading questions to catch you at some discrepancy between your interrogatory and deposition (see Chapter 14).

Almost all dental malpractice cases take place within the state court system. There are basically three levels of courts within each state: trial court, appellate court, and state supreme court. Most dental malpractice cases are resolved at the trial court level, but sometimes they make it to the court of appeals. It should be noted that many dental lawsuits are settled before an actual trial starts due to the time and cost of a trial. At the trial level, there is usually a judge and jury, with some jurisdictions allowing a jury only by request.

Please keep in mind that judges and juries are humans who have biases and ideas of justice and fairness with which you may not agree. No matter how solid a case may seem, no one can predict how a trial will be resolved. In addition to the talents of each attorney and the credibility of the dentist and the patient/plaintiff, the expert witness for each side also affects the outcome of a trial. If the attorney does not ask the right questions for the expert to properly answer, the most solid of cases may be lost.

You should also be aware of the small claims court in your jurisdiction. The limits on damages are much lower but have often been used by the patient to get a refund of money or by the dentist to collect past due balances for treatment rendered. This will be discussed more under patient finances (see Chapter 21).

REFERENCE

1. www.NYSDental.org/img/document_files/risking2006webhandout.pdf, accessed December 8, 2010.

CHAPTER 2

THE REGULATION OF DENTISTRY

The regulation of dentistry is provided by federal as well as state laws. Federal laws and regulations are applied to all dentists. However, state laws, while many are identical to each other in some aspects, apply only in the state in which they have been enacted. So throughout this discussion of the regulation of dentistry, be sure to always know the state version of the regulation in question. What may be legal in one state may be illegal in another state. For example, in Illinois, all removable appliances “shall be marked with the name or social security number, or both, of the patient for whom the prosthesis is intended. The markings shall be done during fabrication and shall be permanent, legible, and cosmetically acceptable” [1]. In California, “Every complete upper and lower denture fabricated by a licensed dentist, or pursuant to the dentist’s work order, shall be marked with the patient’s name or social security number, unless the patient objects” [2]. Then, in New York, it is stated a little differently: “Every dentist licensed in this state … shall offer to the patient for whom the prosthesis is intended the opportunity to have such prosthesis marked with the patient’s name or initials” [3]. As you can see, every state in regulating dentists has similar intentions of safeguarding the public, as seen here by attempting to prevent the loss of dental prostheses. However, each state will implement those safeguards in a slightly different manner.