• Notifying Guild Insurance of a claim - your requirements

    Imagine if… you are advised by AHPRA that a patient has complained about the treatment you provided, suggesting it was performed negligently. As you’re sure your treatment was appropriate, you immediately reply to AHPRA informing them of your version of events. Some time after you hear from AHPRA again stating that they still have questions about your treatment and will be investigating further.

    Guild Insurance’s Liabilities policies state that as soon as you, as the policy holder, experience a claim made against you or an incident which could give rise to a claim, you are required to notify Guild. However, Guild has noticed a worrying trend where practitioners are responding to complaints on their own without first notifying Guild. This can have a number of consequences for these practitioners as they’re not receiving the support or guidance their insurance policy may entitle them to. It can also mean the policy holder is not adhering to the conditions of the insurance policy.

    Possible scenarios

    The following scenarios are some examples of when you should notify Guild Insurance:

    • If AHPRA has notified you of a complaint from a patient or other person and AHPRA has asked you to reply with your version of events.
    • If a private health insurer, or other funding provider such as Medicare, has requested access to your clinical records as evidence of billing practices.
    • If a solicitor or law firm representing a patient has requested access to your clinical records.
    • If a patient has complained directly to you or your practice with a formal demand for compensation or suggested they’ll make a notification to a regulatory body such as AHPRA.
    • Any other circumstance where you have an uneasy feeling about an incident or situation; when in doubt, notify!

    When to notify Guild

    Practitioners are sometimes unsure whether a matter is serious enough to warrant notifying their insurance company. There are some occasions where notifying an insurance company is a must, such as when replying to AHPRA following an allegation, when there is a request for patient records from a solicitor or funding provider or when there is an allegation of the patient suffering harm following treatment. However, when a patient complains directly to you, this is when you need to use your judgement. If the patient has simply informed you that they didn’t respond as hoped to treatment following their previous appointment yet doesn’t seem annoyed or demanding, then this may be a matter which can be sorted by you alone. Yet if you’re in doubt or concerned about the complaint or allegation from the patient, then you should notify Guild.

    Will my premium go up if I notify Guild of a matter?

    Guild’s premium pricing is influenced by a number of factors. Notifying Guild of an incident is unlikely to be the cause of a premium increase the following year. However, as detailed below, not notifying Guild may lead to further stress and complications. Therefore, the cost of the premium should not be a factor in deciding whether or not to notify Guild.

    Consequences of not notifying Guild

    Facing an allegation or investigation of any sort can be an extremely stressful situation for a practitioner. When a practitioner handles a matter themselves without the support of Guild, that stress is compounded as the practitioner will be dealing with a process they’re unfamiliar with.

    Guild has seen many cases where a practitioner’s own response has either not provided the required information, or a response has been written in a way which is likely to inflame or escalate the situation. This usually leads to further investigations being conducted and Guild being notified after the investigation has begun, inhibiting Guild’s support and influence.

    When a practitioner doesn’t notify Guild as soon as is reasonably possible of a claim made against them, they may be considered to not be complying with the conditions of the insurance policy. This can lead to cover under the policy being cancelled or the claim not being paid.

    It’s also important to understand that a practitioner may leave themselves with out of pocket expenses by not notifying Guild at the beginning. This may occur if they engage their own legal counsel not approved by Guild and at a rate Guild believes to be exorbitant or if they have offered to settle a matter without Guild’s consent.

    The staff at Guild Insurance have a great deal of experience and expertise in managing allegations and investigations and are well aware of what is required when responding to them. For this reason, it’s of benefit to everyone involved to notify Guild immediately and be sure the necessary support is provided and process is followed from the start.

    How to contact Guild Insurance

    To notify Guild of an incident, and therefore make a claim against your insurance policy, either call Guild on 1800 810 213 or go to guildinsurance.com.au/claims

    Disclaimer

    Guild Insurance Limited ABN 55 004 538 863, AFS Licence No. 233 791. This article contains information of a general nature only, and is not intended to constitute the provision of legal advice. Guild Insurance supports your Association through the payment of referral fees for certain products or services you take out with them. RHQ21092 Notifying Guild Insurance of a claim 01/2019

    accidents
  • How to avoid a claim against you

    Take a look at our short video for some tips that you can use everyday. Give yourself the best chance to avoid a claim being made against you.

    accidents
  • Don't let social media damage your career

    Although social media can open the door to an exciting online community, it has made it harder to separate yourself from your professional life.

    Here’s five tips to help you protect your reputation online.

    advertising
  • Understanding social media risks

    Social media is an ever increasing form of communication for many people in both their personal and professional lives. It presents people with many benefits in allowing them to communicate a variety of messages to many people with great speed and efficiency. However, those benefits need to be balanced with the many risks social media presents.

    Social media is a very broad term which includes any websites and applications which allow users to interact with other people as well as create or share information (text, photos, videos etc.).

    There are endless examples where people appear to have not stopped and thought before they’ve posted on social media. Poorly considered social media posts can and do affect the personal and professional reputation and image of individuals as well as a businesses; even if the post isn’t directly related to a business.

    The following tips will assist individuals and businesses manage their risks when using social media.

    1. Have a business plan for how and why social media is to be used
    When deciding whether or not to create a business social media presence, it’s very easy to think ‘if everyone else is doing it, so should I’.  However there needs to be greater thought put into this decision.  The decision to use social media should be well thought out and based on a company’s needs and business plans; the benefits and risks need to be considered.

    2. Business social media should be based on business requirements, not personal views
    Business owners and managers need to be sure that when they make a decision on whether to use social media for their business, this decision is based on the needs of the organisation, not the owner’s/manager’s personal views of social media.  For example, a person who chooses to not use Twitter for personal use may still decide it’s a great tool for them professionally.  Business decisions and personal decisions regarding social media use should be separated.

    3. Create clear business guidelines and processes regarding who is able to post on social media and how this is to be done
    Due to the risks associated with social media interactions, it’s very important that businesses have a clear process for who is responsible for posting on social media.  The person undertaking this role needs to understand when social media is an appropriate form of communication and what sort of messages are to be shared using social media.  This process should also provide guidance on how often social media is monitored and responded to and how to respond to negative comments.

    4. Consider training for those staff responsible for social media
    It’s often assumed that young people are well versed in social media use however this isn’t always the case.  Also, not all users of social media understand appropriate business use and its associated risks.  Therefore it’s worth considering training in social media communications and its risks for the responsible staff members.

    5. Understand the social media site you’re using
    There’s a wide variety of social media sites available to businesses, all providing similar yet different benefits.  When a business is using any of these sites, it’s very important they understand the various functions within that site.  Not fully understanding how a site works is going to increase the risks of using it.

    6. Consider what messages should be shared using social media
    All businesses have various ways in which they communicate with their customers and clients.  Social media is generally designed for short sharp messages, yet not all information suits this style of communication.  When businesses are communicating with their customers, they need to carefully consider how that particular message should be shared.

    7. Carefully consider the implications of engaging with clients on social media
    Professionals and businesses should consider if social media is an appropriate forum for them to be communicating with clients, both through business or personal accounts.  Engagement through personal accounts can blur professional boundaries.  When using business accounts, some conversations may not suit social media, especially if the conversation appears in a public setting.  It’s important to consider what conversations are best had away from social media and when to take a discussion off line.

    8. Your business social media use must adhere to the AHPRA Advertising Guidelines
    AHPRA regulated professionals need to adhere to AHPRA’s Advertising Guidelines with all of their advertising.  This includes any advertising or promotion done using any social media site.

    9. Understand that you can no longer separate personal and professional use
    Unfortunately many people hold a view that what they write within a personal social media account in their own time will have no bearing or impact on them professionally.  However this is not the case.  Whether fair or not, professionals are always representing their profession and professional self; personal social media posts can be considered to be representing a professional view.  Therefore the professional impact needs to be considered before any personal post is made.

    10. Don’t believe that any post is ever private
    Too often people post information on social media which they intended to remain private and not be seen widely.  However social media can never truly be private.  Many online groups claim to be private and state that members require approval.  However non-approved users don’t need to be particularly savvy to access these groups and then share or copy information being posted.  Professionals need to remember that if they don’t want their colleagues, clients or competitors seeing a social media post, it should never be posted on either personal or business accounts.

    11. Never post in haste, all posts need to be carefully considered
    As mentioned earlier, social media is designed for quick short messages to be shared widely.  This means social media can encourage messages to be shared with little thought or planning which on occasions leads to poorly worded messages which are easily misinterpreted.  It’s important to pause and think through a message before it’s shared.

     

     

    Guild Insurance Limited ABN 55 004 538 863, AFS Licence No. 233 791.  This article contains information of a general nature only, and is not intended to constitute the provision of legal advice. Guild Insurance supports your Association through the payment of referral fees for certain products or services you take out with them.

     
    advertising
  • Things you don't want to hear from your patient

    During a five-month treatment period, the following allegations were made by a female patient via letters of complaint:

    • “I kept pointing to the tooth causing the pain, but he wouldn’t believe me.”
    • “He was impatient with my continuing pain in the area.”
    • “I was administered six courses of antibiotics in five months.”
    • “A wisdom tooth was removed which still wasn’t the cause of the pain.”
    • “I lost six kilograms in weight (because of the pain).”
    • “His experience told him his treatment methods were infallible.”
    • “He was focused on methods, not me.”
    • “He was always in a hurry, and I was always aware of time constraints.”
    • “He was often on holidays.”
    • “His memory was vague on the treatment issues that affected me.”
    • “He didn’t take x-rays when I asked him to.”
    • “His nurse seemed to understand what I was saying, not him.”
    • “He was rude to me on occasions.”
    • “He refused to refer me to an endodontist, until he finally gave in and did so.”
    • “He said after the matter was resolved, he wouldn’t have done anything differently.”

    Simply put, a lower first molar presented with pain. Conservative treatment yielded no improvement. The same quadrant third molar was removed by an oral surgeon. Endondontic treatment was initiated. The pain persisted, and swelling led to courses of antibiotics which were administered by more than one dentist in the practice (due to holiday leave absences) as well as a general medical practitioner. The patient was ultimately referred to an endodontist, who found the crack in the root. She was then referred to another oral surgeon for removal of the tooth. The pain disappeared.

    The dentist has an answer for each of the above points made by the patient. However, the sheer number of complaints should make us pause and reflect on what was really said and heard, and consider that maybe some things were missed.

    The first and foremost lesson to be learned from an experience like this is to ‘listen carefully to the patient’s history and description of their symptoms’. The patient is the only person who can provide the information we need to carry out treatment measures. After that, keep listening, because things can change, and we need to be flexible in our treatment modalities as signs and symptoms alter.

    Secondly, the patient should be completely unaware of the external interests of the members of the practice, or of their holiday and other leave patterns. The major focus of the practice is the patient in the surgery at any given moment. Any other sojourn must be a side issue, and in the patient’s mind, very much subsidiary to their immediate treatment.

    Importantly, not one of us are infallible. With the benefit of 20/20 hindsight, the crack in the root was almost a given and could have been detected if a little more attention had been placed during the initial appointment. We should never be tied-in to one line of treatment which excludes other possibilities of diagnosis or direction.

    In addition, the patient’s perception of activities occurring outside the practice with the consequent disruption to scheduling is something hard to deny. It did happen and the patient was all too aware that their interests were not a top priority. No matter how much time is spent catering to immediate needs, if a patient feels the dentist is in a hurry, it’s the patient’s perception that counts, not the actual physical fact of time.

    The fifth lesson is that the vagueness of memory of events leads us to wonder if the records are accurate. That is, not in the sense of the physical aspects of the day’s treatment, but in the diligent recording of the human side of events. Consider, ‘what were the patient’s symptoms at that particular instance, and were those issues adequately addressed?’

    Furthermore, the nurse’s body language reinforced the patient’s perception that someone wasn’t listening.

    In conclusion, this was not a situation that required much more than some explanation with abject apology on behalf of the dentist; for perceived lapses of concentration as described, and a refund of services towards ineffective endodontic treatment. Personalities come into every business relationship, and under the umbrella of pain, subjective issues have to be given more credence than they may otherwise deserve. As mentioned before, the dentist had a cast-iron objective explanation for all issues raised. However, to finish with the flourish that he wouldn’t have done anything differently raised the bar too high, leading to the patient’s complaint.

    Key learnings:

    1. Listen carefully to the patient, not just when they are initially recounting their history or describing their symptoms but on an ongoing basis.
    2. Keep the external interests of the practice and its members private from patients.
    3. Do not tie yourself into one particular type of treatment and therefore exclude other options of diagnosis or direction.
    4. Do not appear hurried or appear to be in a hurry when attending to a patient – consider how your actions will be perceived by the patient.
    5. Ensure you that you record the human side of events not just the physical aspect ie. consider ‘what were the patient’s symptoms and were those issues addressed?’
    6. Apologise and admit if you have made an error. This may appease the patient and therefore resolve the situation before the patient lodges a complaint. At times, a refund may also be justified.

    Dr Geoff Andrews
    Community Relations Officer/Professional Consultant
    ADAVB Inc.

    communication
  • Repair dentistry – stitch in time or supervised neglect?

    The patient was a 40-something single mother in the country. She had survived the good times and the bad, during which she attended the same family dentist since her teenage years. She had good rapport with her dentist and had received regular treatment. As a result, she felt that she was in good hands and believed him when he said that ‘all was well for the time being’.

    Circumstances change and she moved to the city, soon after which she developed a toothache and contacted a local dentist in her new suburb. Her new dentist diagnosed pain in the same tooth that had been recently restored in the country and on further investigation discovered caries and pulpal involvement. Dressings were placed for sedation on this tooth and other dubious looking lesions. A thorough examination of the whole mouth with radiographs was also recommended.

    At the consultation appointment (after the initial investigations), a treatment plan was outlined. This consisted of several restorations, some extractions of compromised teeth, and a number of endodontic therapies with subsequent full coverage as things progressed. A quotation of up to $20,000 was estimated to bring the dentition up to manageable status. That is, on the proviso that the patient maintains excellent home care, regular maintenance and adherence to a long course of dental therapies in specialist and general dental care.

    The patient was naturally alarmed by the progress of her dental disease. Not surprisingly, she needed some answers as to why things had, in her mind, deteriorated so rapidly after having had regular dental care all her life.

    Investigation of her previous dentist’s records and reports revealed a number of pertinent issues, which became quite confronting for the dentist. This can also serve as quite a lesson in how we treat our patients and what their later perceptions might be.

    The dentist’s recollection differed markedly to the patient’s. He mostly saw her in emergency situations because she was a nervous patient to handle. Therefore there were constraints on how much pain relief treatment he could provide in any one appointment, perhaps looking forward to continuing treatment in the future. There were always time constraints because of the patient’s work commitments. The dentist was well aware that he was never on top of total conservation, he was merely putting out spot fires while the forest continued to smolder.

    The practice was further limited, in that endodontic, crown and bridgework were regularly referred to a small number of specialists in the rural region. Travel to the city was not an option. He felt that he was doing all he could given the restrictions placed on him for many reasons. The region was unfluoridated, and oral hygiene and diet were varied and questionable.

    The dentist in the city now finds that the patient has improved her oral hygiene routine and diet. Plus, since she has been totally compliant with her treatment plan, her dental restoration is now progressing. She has a better appreciation of her dental situation, and has been introduced to treatment modalities which she would not have had access to with her former dentist. She is now well into the total conservative phase of treatment, and beginning to entertain the concepts of ongoing care and prevention.

    The matter was ultimately settled for a sum amounting to several thousand dollars.

    Key learnings:

    1. Patients being treated over a long period of time are not static in their ideas of how the practice of dentistry should continue on their behalf. The presence of the media, the internet, and the experiences of peer group are all powerful influences that we can never underestimate. We need ongoing professional development –the patient already has it.
    2. Repair of a broken tooth may be prudent in the case of a clean cusp fracture when no caries is involved, occlusion is not compromised, and the future full coverage is described and prescribed for its midterm management.
    3. Circumstances and patient requirements can change, and prescription has to change with them. What may have been adequate in the past may not be acceptable now.
    4. Either we elect to do endodontic treatment properly or not at all. A root canal dressing to relieve pain is fine, but needs to be followed up with a definitive conclusion. A patient will have no appreciation of a treatment done hurriedly or to save a referral, if retreatment has to follow – even years later.
    5. Communication is, as ever, the key to the ongoing practice of dentistry. However, it gathers new meaning as the years go by. A recall appointment should perhaps be now looked upon as the ideal opportunity to discuss ongoing goals in a revised interest in the patient’s needs.
    6. Nothing stands still – neither should we.

     

    Dr Geoff Andrews
    Community Relations Officer / Professional Consultant
    ADAVB Inc.

    communication
  • A bridge too far

    ‘A Bridge Too Far’ is the title of Cornelius Ryan’s epic reconstruction of the British Army’s parachute and armoured thrust across Holland to the Rhine and Germany in late 1944. If it had succeeded it would have shortened the war and incidentally but not coincidentally, made it a British rather than an American victory. In making this thrust, Montgomery ignored his lifetime’s instinct and training and launched this campaign with minimal planning, minimal consideration of the risks, minimal consideration of other options and put the plan into action in less than two weeks. To succeed, the plan required faultless military intelligence, every phase to work perfectly with no breakdowns and the weather to remain fine. Early in the piece one of the parachute generals opined that “it was a bridge too far” but was ordered to get on with it. The general was aware that they had ignored the advice of the Free Dutch Forces, and most of the troops were keen and eager but lacked combat experience. It’s a matter of history that the essential elements all broke down despite the heroism of the frontline troops. There was much pain, sacrifice and loss, the war was lengthened and the Americans re-exerted their dominance.

    So, how do the lessons of this military experience relate to Dentistry? Recently, there have been discussions of how on the one hand you should listen to the advice from Guild Insurance warning about the risks of practitioners exceeding their scope and capacity, but on the other hand, if you can’t develop your skills in general practice then you remain professionally underdeveloped. It is accepted that although you can be taught the relevant principles in Dental School, you must be able to enhance your actual skills after registration and indeed, for the rest of your practising life.

    Aspects of this were illustrated in a recent interstate medico-legal case in which I was involved as an expert. (The key facts are accurate but it has been modified to protect those involved). A 40ish successful business woman asked a young dentist as to whether anything could or should be done about a single edentulous first molar space in the mandible. The tooth had been extracted long ago but it was only recently that she had the time and finance to do anything about it. The dentist replied that indeed, things could be done, a bridge was the answer and why not start today, so they did. During the bridge construction the lady asked if ever anything went wrong with bridges and was told that “nothing could go wrong”. Indeed it did and was followed by three years of pain and loss, multiple visits to the dentist, various medical and dental specialists and many treatments without result.

    Eventually, an interstate expert, an Oral and Maxillofacial Surgeon (guess who) said to her that if the pain had started with putting the bridge in let’s take it out. “At last”, said the lady, so the bridge was removed. Soon after the patient’s pain went but the dentist’s pain commenced as lawyers were consulted. The legal pain went on then for a further three years but wisely just before it came to trial, the matter was settled out of Court.

    What are the lessons from this? Although it was quite a nice bridge that the dentist had made he had erred in a number of places. He certainly failed to give the lady the full range of options; namely do nothing as she had been like it for a long time and there would be no problems with doing nothing. This was not an aesthetic issue, minimal (less than 5%) reduction in chewing ability and healthy adult teeth do not drift. A removal or partial denture could be made but is a poor option for a unilateral single tooth loss. A bridge is an option but with some risks and a significant failure rate over time. Alternatively, a single tooth implant could be made but is associated with increased risks. Essentially, the dentist gave her only one choice which is not a choice. Thus legally she could not give informed consent.

    He knew that the lady was a bruxist before he started the bridge and learned much more about her intense personality and bruxing habits when she was in pain and in legal pursuit. He also knew that she had a skeletal class three malocclusion with a cross bite but failed to take this into account and in particular, to understand the extreme lateral loads which could be generated by her bruxing on the bridge and its abutments.

    He failed to give the lady time to consider the options. Indeed, as a savvy business operator she would have had no difficulty in travelling a few hundred kilometres to a metropolitan specialist for an implant. With careful research, she could have found one with the necessary skills and training not to screw the implant into the mandibular nerve and to graft sufficient bone to replace the marked alveolar atrophy. A specialist in prosthodontics should have been involved to ensure that the crown was not overloaded by her malocclusion and bruxing. Alternatively, as a smart lady, she may well have decided that doing nothing really was the way to go.

    Lastly, although the dentist could demonstrate that he had made a number of bridges, he could not demonstrate that he had attended any courses in bridgework, occlusal problems or TMD since he had graduated. He had become comfortably isolated as ‘the expert’ in his solo practice. Interestingly, once the bridge was made and the pain started he, and indeed, all of the dental specialists she variously consulted were keen to keep the bridge in situ. Most looked at it as a bridge with the patient’s mouth wide open, rather than infunctional (dysfunctional) occlusion. It took a non-restorative specialist from interstate to indicate that “if in doubt, out”.

    So what does a military strategy to end World War II and this dental case have in common? Both failed to adequately consider the options, effectively plan and train and to change the plan when things went wrong. Both did go horribly wrong with much pain and suffering to those involved, one on a macro scale and the other on a micro scale.

    So, what should a general dental practitioner do to help their patients with complex problems and to develop their scope? On the one hand, one does need to read and think about the advice given by the dental liability organisations regarding risk. If however a practitioner wants to broaden their scope and knowledge then they should carefully think, plan and improve their skills by attending hands on courses and working with specialist mentors. Indeed, most commonly, the practitioner who gets into trouble doesn’t do any of those things and plunges in with supreme over confidence. If you have reached this spot in the article, congratulations, you probably are already a careful and prudent practitioner. So, you are less likely to attempt a “bridge too far”.

     
     
     
    communication
  • Why do people complain to the ADA about their dentist?

    Unfortunately, with all the very best of intentions and with all the professional training, skill, care and experience the dental team may exhibit, things don’t necessarily turn out as expected. This can result in an adverse treatment outcome and patient expectations not being met. The vast majority of these situations are managed in-house by the treating professional by offering to re do a procedure for the patient or referring the patient for specialist attention. Most patients are accepting of this approach, especially when the professional shows genuine concern for the patient’s well being and the patient is not greatly disadvantaged.

    However, when a patient, their parent or guardian considers they have not been treated in a considered, appropriate nor professional manner, they may make a complaint to an authority such as the Dental Board of SA, the Health and Community Services Complaints Commission or the Australian Dental Association. 

    Such a complaint to the ADA (SA Branch) may then be forwarded to the Review Committee of the Association or a Community Relations Officer to review the circumstances involved, in an attempt to reach resolution to the mutual agreement of the parties involved whilst minimizing the chance of escalation of the dispute to expensive and time consuming litigation.

    Acting as a Community Relations Officer with the Australian Dental Association (SA Branch) my role for 3 or 4 hours a week is to help mediate such incident reports and complaints which arise between members of the Association, their employees and their patients.

    Having practiced Dentistry for some 30 years and then having spent the last 10 years with a nationally Registered Training Organisation which has a focus on Personal Leadership Development and Frontline Management training, as both a facilitator and an assessor, I am in the fortunate position of being able to wear two hats which enables me to conceivably empathise more closely with both sides of a dispute arising from unsatisfactory dental treatment outcomes.

    Frontline Management training and development addresses the soft skills (i.e. the most desirable attitudinal and behavioural skills required by any individual in a leadership or supervisory role to maximize their own and their team’s effectiveness, performance and productivity in any area of industry), as distinct from technical skills. Topics covered in a development program include such things as the importance of clarity of roles and responsibilities, good communication, planning and prioritizing of workloads, decision making and problem solving, handling and preventing problems with people, exercising authority effectively and taking personal responsibility for one’s own actions and many more. Not surprisingly, these are invariably the very same areas involved when disputes between a member of the Dental profession and a patient arise.

    Unfortunately, poor communication is one of the most frequent complaints anywhere in any workplace and certainly lies at the heart of many complaints received by the A.D.A. Many patients complain that they received treatment they weren’t expecting, were not fully informed of the costs involved, and didn’t understand the nature of the treatment, the complexity of the treatment or that things could in fact go wrong. For instance, they may have attended an appointment in pain and expected the treatment provided and paid for would fix their problem, totally unaware that the pulpitis may not resolve with an extensive restoration and could actually progress to root canal therapy. Naturally, one of the first questions asked when reviewing such a complaint with a dentist is “What did you say to the patient and did they understand what was said?”

    Communication is both telling and listening and the very nature of communication is to clarify and understand. It involves words, the tone of voice and body language yet too often it would seem that “telling” is perceived as communicating. Dental patients are invariably at a distinct disadvantage whilst having procedures performed on them, especially under rubber dam, because they can’t ask clarifying questions whilst their mouth is open.

    Tight time constraints are often blamed when communication fails because “we were busy” or “running behind time” and an assumption is made that the patient actually heard and understood what they were told on a single occasion.

    Informed consent is so critical in this day and age. Unfortunately, it is very hard to defend any complaint when the patient says “I wasn’t told”, “I wasn’t aware” or “I didn’t understand” as it then becomes one person’s word against another. A follow up appointment, a written quotation for treatment or an explanatory handout helps people understand what is involved with their treatment and should help to avoid misunderstandings.

    Good records help enormously in defending a dentist’s actions when a dispute arises, as they record facts. Record keeping is fundamental for any clinician and the record must be contemporaneous and accurate. Case notes must be dated, clearly written to define the procedure involved and contain sufficient content for a third party to understand what treatment was actually performed. Whenever a complaint is made against a dental professional one of the fundamental pieces of evidence requested to help defend the person, their actions and what was said, is the clinical record. It is extremely difficult to help and defend a practitioner against an allegation if their own records are inadequate, incomplete or poorly written.

    Naturally, clinical records include charts, radiographs, photographs, study models or any other items associated with the examination or treatment of the patient and provide evidence to help justify any treatment provided by the dental team. Radiographs in particular provide supportive evidence of why decisions are made to undertake treatment and as such should be of good quality and show the area of concern, such as the periapical area when root canal therapy is required or the entire tooth of an impacted wisdom tooth requiring extraction. Surprisingly, many endodontic treatments are still initiated today without a clear pre-operative radiograph as partial evidence for that decision to be made.

    Incidents and complaints made to the ADA vary enormously in nature. On many occasions when an incident or complaint is reviewed it becomes clear that the dentist has not done anything wrong at all and there is very little basis for the complaint. There may be some misunderstandings, however the treatment and services provided, the itemisation of accounts and the fees charged are deemed proper, appropriate and professional. The dentist can be defended by the ADA as having acted in the best interests of the patient, the treatment can be explained to the patient and generally the complaint can be considered as closed.

    However, when treatments fail or fail to meet patient expectations and the dentist involved is not prepared to admit to the failure nor offer to address and correct it, things become more difficult to defend. The ADA must then address and be seen to address the patient’s complaint seriously and appropriately.

    Surprisingly, some dentists refuse to even discuss the situation with the patient or they get their administrative staff to deal with the issue. Naturally patients resent this approach, become indignant, emotional and occasionally hostile. Even so, they are still encouraged by the ADA as a first step to return to the practice and request a discussion of the situation with the dentist involved in an attempt to resolve the issue. Should this approach fail, the ADA becomes more heavily involved and a more formal and time consuming process to mediation is required.

    Complaints can range from a simple mismatched colour of a bonded composite resin, to a broken restoration, post operative discomfort, a failed endodontic treatment, a non retentive full lower denture through to a complex and extensive multiple implant case. A common sense approach is naturally required with all these cases with the facts being gathered and the emotions controlled to understand both sides of the dispute and enable the problem to be solved. Fortunately, the majority of dentists cooperate with the ADA in an attempt to rectify the situation and as a gesture of goodwill with the patient.

    Unfortunately, some dentists are seemingly unaware of their own limitations of competency and often undertake treatments that are beyond their capability to provide. A little bit of knowledge and expertise can be a dangerous thing and knowing one’s own limitation is extremely important for any professional. Specialties exist in dentistry to deal with the more difficult, complex and challenging cases faced and in this age of increasing litigation a practitioner needs to make decisions on a daily basis as to what treatments he or she decides to undertake for a patient and what to refer.

    For instance, a very common complaint arises when a general practitioner undertakes a molar endodontic therapy for a patient, places a crown on the tooth, charges the patient accordingly and the patient pays the fee assuming the problem has been rectified. Within several months however, the tooth becomes painful again, the patient returns to the dentist and is then referred to an endodontic specialist who then charges his appropriate fee to retreat the tooth. The patient is naturally and justifiably unhappy to be charged again and complains to the A.D.A. about the initial unsatisfactory treatment, the extra time and inconvenience involved and the extra costs.

    Similarly, when complex restoration involving veneers, crowns, bridges and implants is undertaken involving considerable costs for the patient, dentists must ensure that patients are fully informed and aware of the expectations and limitations involved with the treatment. So often complaints arise due to a failure some time after the restoration has been placed, such as fracturing or breakage as a result of trauma or occlusal overload, with the patient then seeking and expecting financial compensation for replacing the restoration from the original treating dentist.

    These are just a few of the reasons why people complain to the ADA about their dentist. There are many more which involve unprofessional conduct, excessive fees, clinical incompetence or an arrogant or dismissive attitude of a dentist. All dental personnel must have a constant awareness of what can and does go wrong, as Murphy determined many years ago and naturally prevention is far, far better than cure. For those of you who might say, “I’ve heard that all before but it doesn’t happen to me”, be cautious as your very next patient may contact the ADA or other authorities as a result of what you do or do not do. Make sure you can always defend yourself appropriately against any accusation that may be made against you.

     “To know but not do, is to not yet know”



    Jim Ball (B.D.S. Adel).

    A.D.A. (S.A. Branch) Community Relations Officer.  

    clinical-records
  • Managing patient expectations in dentistry

    Listen or download (mp3) the audio reading of this article, brought to you by Guild Insurance

    Listen via Youtube or Audio Player


    It’s well recognised that patients don’t necessarily complain simply based on their clinical outcome. Most dentists will have heard of or seen situations where a patient has experienced an outcome which wasn’t ideal yet wasn’t particularly poor, however the patient has been quite annoyed with the outcome and has lodged a complaint.  On the other hand, there are many cases of patients who have experienced quite poor outcomes yet have chosen to not complain.

    There are many reasons why the above may occur, some which are easier to identify than others. All patients are different and human behaviour isn’t always predictable.  Good communication and the relationship between the patient and dentist will greatly influence the likelihood of a complaint.  One other very important factor is the expectations of patients.

    Patient expectations

    Many patients will go into dental appointments with some level of expectation regarding their likely outcome. They may have a very clear and detailed outcome in mind or it may be more broad and open.  Most importantly, some of these expectations will be realistic, however others won’t be.

    Unrealistic patient expectations pose very real challenges for dentists. If a patient undergoes treatment which they have unrealistic expectations about, it’s unlikely those expectations are going to be met simply due to them being unrealistic.  If a patient’s expectations haven’t been met, it’s likely the patient is going to be unhappy or dissatisfied with the treatment.  Those unhappy and dissatisfied patients are the ones more likely to complain about the treatment and expect further corrective treatment or compensation.  It’s therefore vital that dentists do all they can to help the patient fully understand treatment and the likely and possible treatment outcomes before treatment begins.

    Creating realistic expectations

    A key step in making sure a patient has realistic outcomes regarding treatment is to have an open and honest conversation with them. This will not only provide the patient with further information about their treatment, but will also give the dentist a clearer understanding of the patient’s expectations.  A dentist’s clinical skills are vital to what they do, however effective communication goes a long way in providing positive outcomes.

    To assist a patient to have realistic expectations, dentists must ensure they explain the treatment and outcomes using simple, clear terms. Technical clinical language should be avoided as many patients won’t understand this.  Dentists should also consider how they tailor their language and the information for each individual patient.  For example, a person with language or literacy challenges may need information presented in a more detailed manner than other patients.  Dentists should also consider using diagrams, pictures or models to assist with understanding where appropriate.

    When discussing treatment with a patient, it’s important that dentists don’t make assumptions about what the patient will or won’t understand. It’s easy for dentists to become so familiar with what they do and know that they sometimes forget how foreign that knowledge can be to other people.  Patients will have varying degrees of knowledge and experience regarding dental treatment.  Therefore, what they understand about their treatment will also vary.

    When a patient attends a dental clinic and requests a particular form of treatment, this is an occasion when a dentist should be especially mindful of the patient’s expected outcome. When a patient has requested a form of treatment, the patient has clearly formed a decision around what treatment they need to get the outcome they desire.  What they’re requesting and expecting may be reasonable and realistic, however in some cases it may not be.  When presented with this situation, dentists need to be sure they don’t rush into providing the patient with the requested treatment.  As with all patients, there needs to be a thorough assessment and diagnosis process.  Then the patient is to be provided with their treatment options, as well as the risks and benefits of those options.  There may be treatment options which are more suitable for that patient which the patient isn’t aware of.  The patient also needs to be made aware of the likely treatment outcomes for each of those treatment options.

    The dentist needs to be sure the patient has all required information before consenting to treatment and this includes understanding the likely outcomes. A patient requesting particular treatment doesn’t alter this required process.  And dentists need to remember that they’re always responsible for the treatment they’ve provided, regardless of whether it was requested by a patient.

    In summary…

    Dentists should be doing all they realistically can to improve the outcomes for their patients and reduce the likelihood of poor outcomes and complaints. An important step in this process is making sure patients have realistic expectations regarding treatment outcomes.  Dentists have a very important role in using their clinical knowledge in conjunction with practical terminology to assist patients to develop realistic expectations.  Dentists need to remember this is of great benefit to both themselves and their patients.

     

    Guild Insurance Limited ABN 55 004 538 863, AFS Licence No. 233 791. Guild Insurance supports your Association through the payment of referral fees for certain products or services you take out with them. This article contains information of a general nature only, and is not intended to constitute the provision of advice.
    communication
  • Acknowledging and dealing with adverse outcomes

    Dentists need to acknowledge that adverse outcomes are an unfortunate, yet very real, aspect of dentistry. Whilst dentists may do all they can to avoid these outcomes, they won’t ever be completely eliminated from dentistry, or any other area of healthcare.  Therefore it’s vital that all dentists have considered how they’ll manage an adverse outcome should the situation arise.

    What to do following an adverse outcome

    One of the first steps a dentist must take when there’s been an adverse outcome is to discuss this with the patient. It’s acknowledged this is a very challenging thing to do, however it isn’t optional.  The Dental Board of Australia’s Code of Conduct states that ‘When adverse events occur, practitioners have a responsibility to be open and honest in communication with a patient’.  It’s well recognised that patients appreciate a healthcare professional being upfront and honest with them in informing them of what has occurred and what this means for the patient.

    Many practitioners are hesitant to say sorry when informing a patient of an adverse outcome. There is often a concern that this may mean they’ve admitted guilt and are then more likely to be held accountable.  However, Australian legislation makes it clear that an apology is not an admission of liability.  It’s best to avoid statements such as “I’m sorry I’ve done this to you” as this may be seen as an admission.  An apology needs to be carefully worded and can be as simple as “I’m sorry this has occurred”.

    When having this conversation with patients, it’s important to give them opportunities to ask questions. It needs to be a balanced two way conversation, not just information given by the dentist.  This will ensure the patient has a greater understanding of what’s occurred and what the implications are for them.  It also assists the patient in feeling part of the treatment process and decision making moving forward.

    It’s common to hear patients state that they want to know what the practitioner and practice is going to do to avoid a similar situation occurring again to either themselves or other patients. This means you need to explain to the patient what you’ll do to understand why the adverse outcome occurred and what measures you’ll put in place to reduce the likelihood of it happening again.

    Why are these conversations difficult?

    It isn’t uncommon for a practitioner to find it difficult to have this open and honest conversation with a patient following an adverse outcome. This isn’t surprising given many people find it challenging to initiate hard conversations.

    In many cases the patient will know there has been a poor outcome as it will be obvious to them. In these cases there is no avoiding the conversation as the patient will probably confront the dentist.  However there will be occasions where the patient isn’t aware, such as when a file has fractured during RCT.  There may sometimes be a temptation for a dentist to not inform patients of these cases, possibly thinking they don’t need to know.  However, this is not an acceptable way to practice.  Patients have a right to be informed about their health outcomes and dentists have an obligation to keep them informed.

    There are a number of reasons why a dentist may find these conversations challenging, such as:

    • Dentists may be concerned that informing patients of what went wrong and why may increase the likelihood of a formal complaint and demand for compensation.
    • The outcome may be a surprise to the dentist, leaving the dentist thinking “I never thought this would happen to me”. If the dentist is struggling to understand what went wrong and why, explaining it to the patient is going to be difficult.
    • A dentist may be concerned they’re admitting to professional incompetence.
    • A dentist may be worried the conversation will lead to professional or financial repercussions for the dentist or practice.

    Benefits of a well handled adverse outcome

    There are obvious benefits for both dentists and patients when a poor outcome is well managed.

    When a patient has lodged a formal complaint about a health experience, it’s quite common for them to state that they’ve done so as a means for obtaining information and or an apology regarding what occurred and why. It seems that when a situation is not well explained to the patient, they may feel the need to take the matter further, such as a formal complaint, to get the information they need.  It also seems that a patient may lodge a complaint when they feel their concerns have been dismissed and they haven’t received an appropriate acknowledgement or apology.

    This is evidence of two things:

    • Patients don’t necessarily complain for financial or malicious means. It’s easy to assume that patients complain because they want to receive financial compensation or because they want there to be repercussions for the practitioner who has harmed them. Whilst these may be influential factors in some cases, they aren’t in all situations. There are situations where a patient complains simply to receive further information.
    • An open and honest conversation may prevent some complaints from occurring.       If the patient feels the dentist has been up front with what’s occurred, has provided a commitment to rectify the situation and has provided information about how the situation will be prevented in future, many patients may not feel a need to formally complain. They may also be more likely to continue treatment with that dentist as the relationship and trust still exists.


    In summary…

    Dentists need to remember that they have an obligation as a registered health professional to provide their patients with honest information following an adverse outcome. However, being obliged to do this shouldn’t be the only reason it’s done.

    It’s well recognised that patients expect and appreciate this honest conversation. And having this conversation can go a long way towards the patient deciding whether or not to lodge a formal complaint and whether to continue being treated by that dentist.

    Guild Insurance Limited ABN 55 004 538 863, AFS Licence No. 233 791. Guild Insurance supports your Association through the payment of referral fees for certain products or services you take out with them. This article contains information of a general nature only, and is not intended to constitute the provision of advice.

     
    Fields marked with an * are required
    communication
  • Case study – nobody’s perfect

    On 23 December 2008 an ADA Branch received an email from a member of the public complaining about the standard of service offered to him by its after-hours emergency service when he was experiencing considerable pain from a tooth that had been filled some 3 months earlier. The key elements of the complaint were:

    • The person who received the call introduced herself as the emergency dentist. She advised that she could pull the tooth for $350 or perform root canal therapy for $2,000. He would need to attend within the next hour as she would be leaving.
    • The complainant declined and subsequently his regular dentist solved the problem for $220.
    • He felt that the emergency dentist was attempting to take advantage of a person in considerable pain by pressuring them to make a hasty decision.

    Although the ADA Branch obtained a verbal comment from the dentist’s dental assistant, it decided to wait for her to return from leave to get written details before responding. However, in the meantime it received two cool telephone calls from the complainant, and, even though full information about the incident was not known, in an attempt to defuse the situation the ADA Branch sent a response to the complainant

    The key elements of the response:

    • Thanked him for his email about the emergency dental service and noted that the ADA was sorry that he felt it necessary to complain.
    • Advised that the service is an unsubsidized voluntary private service and consequently required patients to be scheduled at a given time, generally in the morning. The service had attended to 36 grateful patients over the Christmas period.
    • The dental nurse to whom he had spoken recalled that she had advised that removal of the tooth would cost $370, including the call-out fee, and that if it was possible to save the tooth then root-canal treatment would cost $800 – $1,400 over 3 visits.
    • The complainant had rudely told her that “you’ve got a good scam going” and hung up on her.
    • Advised that under no circumstances would he be pressured into making a hasty decision, but on seeing the dentist he would be presented with the best options for his overall dental care
    • An invitation to contact the ADA if he had any further concerns or queries.

    The complainant responded to the ADA Branch on 25 January as follows:

    “Madam

    I am not in the habit of hanging up on any body I certainly did not in this case.

    I most certainly did not say “you have a good scam going”, as I assumed that this was the necessary action.

    The Lady who answered the phone told me that she was the Emergency Dentist and failed to give a name when asked.

    She quoted $350.00 to pull the tooth and $2000.00 for root canal treatment.

    She told me that she was at the surgery now and if I wanted Treatment to be there in an hour.

    She should have offered emergency root canal therapy that was performed on me by my regular dentist.

    I find it very distressing to be accused of being rude and of lying.

    I am also surprised that a professional person finds it necessary to make these charges.

    I await your response before taking further action on this matter.”

    The ADA Branch decided that this issue was not likely to be readily resolved and thus sought legal advice from Guild Lawyers. The following email was sent to the complainant on 19 February:

    “Thank you for your email transmission dated 25 January 2009.  I apologise for the delay in responding.

    Please rest assured that we have taken most seriously your concerns in relation to your experience of the ADA Emergency Dental Treatment program.  In reporting to you the result of our enquiries with the staff member who assisted you over the telephone, no discourtesy was intended and we apologise for any distress that was caused to you in relaying the Service staff member’s version of the telephone conversation with you.

    Again, thank you for your query and for drawing your concerns to our attention.  It always assists us in improving the quality of the service provided to members of the public.”

    There has not been a subsequent response from the complainant. The ADA Branch sought a written report from the dental assistant which was received on 31 March.

    “For every phone call I receive on the emergency phone I answer in the same way which is “Emergency Dental Service XXXX speaking”. I always quote the patient to the best of my ability without knowing the exact treatment to take place, and tell them that payment needs to be made at the time of the appointment and if they have a health fund to bring their card with them.

    For a simple extraction I would have quoted at the time $370 which includes a consultation, x-ray and tooth extraction. If RCT is needed for a molar, $350 for initial appointment with at least two further appointments in future with their own dentist or specialist. If seeing a specialist for a molar the price is capped at $1400 and an anterior at $850. A crown maybe needed at a later date.

    I do remember in this conversation the man saying “you have a good scam going”. I do not remember him asking my name, however I always answer the phone using my name. I do also remember saying that the fees were set and I did not have any control over them. I do also remember after he started getting quite rude asking him to direct any complaints to the ADA.

    As you can imagine XXXX this phone conversation happened quite a while ago now and I do only remember some specifics to the conversation, but as I repeat myself every weekend, and have done so for the last 18 months I feel that I am consistent and do not vary the information I give to patients.”

    †: Root Canal Therapy

    The emergency dentist involved confirmed that the dental assistant always answers the phone as she had written in her email and had never heard anything but praise for her demeanour. The dentist had certainly never heard her be rude to anybody and was prepared to swear to this effect on a bible or in a court of law.

    It should also be mentioned that before the patient rang the emergency mobile phone number, he received the following recorded message from the ADA Branch emergency line.

    “Hello, this is the ADA Emergency Service.  The Service operates 9 am to 6 pm on weekends and public holidays.  An after-hours surcharge applies and payment is required at the time of treatment.  To contact the dentist on roster please ring XXXX.”

    What can we learn from this case?

    First, a written response should not be sent to a complainant without a solicitor from Guild Lawyers first reviewing it. It is clearly easy for a complaint to get out of hand. The error arose in commenting in the response that:

    • He had rudely told her that “you’ve got a good scam going” and hung up on her.
    • Under no circumstances would he be pressured into making a hasty decision, but on seeing the dentist he would be presented with the best options for his overall dental care.”

    The issue was not if the statement was factual or not, rather that the statement might be seen by the complainant as inflammatory. The complainant’s second email was more aggressive than the first:

    “I am not in the habit of hanging up on any body I certainly did not in this case. I most certainly did not say “you have a good scam going”

    Second, in an ideal world a written record should be kept of all incoming calls. It is not unexpected for a busy dental assistant to forget the details of a call. As the dental assistant wrote:

    “…. this phone conversation happened a while ago now and I do only remember some specifics to the conversation ….”

    The courts are more likely to believe the patient’s recollection of the course of events rather than the dentist’s or the dental assistant’s because the event will be a major one for the patient, whilst it is only one of many such events to the dental people. The fact that a certain response is standard practice will not convince a court of law that the advice was actually given. However, keeping a record of every person who rings into your surgery, even though they decide not to go ahead with treatment or visit the surgery, would be ‘over the top.’

    The ADA Branch is grateful that the dentist in question is willing to provide the after-afters emergency service, particularly over the Christmas break. Let’s hope the dentist doesn’t have to swear to his dental assistant’s demeanour “on the bible or in a court of law.”

    The final message from this case is that no matter how courteous you are complaints can happen. Do not forget the adage of “there but for the grace of God go I.”

    By Claudya Adamczewski and Len Crocombe

    case-study
  • ‘We need to talk’ – your duty to warn and prognosis in endodontics, part 1

    As an endodontist and peer advisor, I am commonly asked what my patients are told prior to commencement of treatment and how to answer the dreaded question – ‘how long will the tooth last me?’ Therefore, in this article, warnings to patient regarding endodontic treatment as well as ‘real-life’ success and failure in endodontics will be explored.

    There is no doubt we as clinicians have a duty to warn patients of possible adverse outcomes as a result of treatment – broken endodontic instruments, failed implants, fractured restorations, paraesthesia post-surgery, to name but a few, are all possibilities and retrospectively the patient will often come back to us with the statement “I was never told….”

    However, how are we expected to accurately predict all possible permutations? Do we sit down with the patient and spend hours outlining ALL possibilities? In all likelihood, by the time we’re done, we would have succeeded in alarming the patient to the extent that every tooth would be removed and they would probably remain edentulous!

    So, what as a profession are we doing to deal with this dilemma? We produce information sheets and consent forms (the length and detail of some which would make the legal profession proud!), give them to the patient to read and sign, file it away and feel safe in the knowledge the patient has that piece of paper.

    But what value do the courts place on such forms? Sorry to say folks, not much… it is a piece of documentary evidence, is only useful if there’s doubt about whether the patient has agreed to go ahead with the procedure and not, in itself, determinative of the issue – to quote a law text:

    ‘Even if the form states that the patient acknowledges that he or she has been fully informed and given the opportunity to ask questions, the patient may still be able to persuade the court that was not the case’.[1]

    …and don’t think this dilemma rests solely with the dental profession. In a High Court case in 1998, Chappel v Hart, Dr Clive Chappel, an ENT specialist, operated on Mrs Beryl Hart in June 1983 following the patient’s complaint of acute dysphagia – an extremely painful condition with difficulty with swallowing. The cause of her symptoms was a ‘pharyngeal pouch’ – ‘an uncommon pathological outpouching of the pharyngeal mucosa through a weak area of the pharyngeal wall (Killian’s dehiscence)’.[2] Surgery was her only treatment option.

    Two surgical treatment options were offered:

    1. surgical excision of the pouch via a cervical incision or
    2. the septum between the pouch and the posterior wall of the oesophagus is divided endoscopically. The cricopharyngeal muscle is then severed, thereby widening the oeophagus (‘the Dohlman operation’).

    Professionally, Mrs Hart was an education officer (teacher) and thus at consultation told Dr Chappel she did not want to ‘end up sounding like’ Neville Wran, the NSW Premier at the time who had developed a severely hoarse voice as a result of throat surgery.[3]

    The Dohlman procedure was carried out on 10 June 1983 and the patient advised there was a 6-18% chance that a perforation of the oesophagus may occur as a result of using an endoscope, but not of the slight risk that her voice may be affected as a result.

    Needless to say, the perforation occurred – on recovery, the patient complained of hoarseness and was diagnosed to have developed vocal chord palsy (VCP) as a result of the oesophageal perforation site becoming infected, thereby damaging the recurrent laryngeal nerve (which anatomically is remote from the surgical site).

    Mrs Hart, as a result of the procedure and subsequent vocal chord palsy, was compelled to take an early retirement as an Education Officer. She commenced legal proceedings in 1989 and went to trial in 1994 at the NSW Supreme Court with Donovan AJ presiding. Justice Donovan found for the plaintiff – that Dr Chappel had indeed breached his duty by failure to warn of the risk of VCP – awarding Mrs Hart $172,500 in damages.

    The defendant was granted special leave to appeal to the High Court of Australia in 1998, the justices dismissing the appeal by a majority of 3:2.

    This case is unique in that the end result was one where the surgeon performed a procedure to a standard without criticism from peers and that the (unfortunate) outcome was one that was extremely rare and, argued by some, that the doctor was in no position to warn of that outcome. In a recent article, Thomas Hugh argued that the complication of VCP following the Dohlman procedure suffered by Mrs Hart had never been reported in the literature. Therefore, ‘the complication about which Dr Chappel was supposed to have warned the plaintiff had never been reported prior to Mrs Hart’s operation…and…remains to this day the only recorded case of Dohlman-related VCP’.[4]

    But did the High Court get it right here? I actually think they did. The key to this case was Mrs Hart’s extreme apprehension as to what impact the procedure may have on her voice. As Justice Kirby described it, the protection of the integrity of the patient and improved health care by warning patients about material risks (especially when they are apprehensive and query outcome and adverse effects) is a ‘rigorous legal obligation’[5] of the health profession.

    As the justices in Rogers v Whitaker stated in 1992:

    ‘The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it’.

    As Professor Skene notes, as a result of the decision in Rogers v Whitaker, ‘patients are entitled to make their own medical decisions and that the information necessary to make that decision varies according to the patient’s own circumstances. It cannot be determined in advance by an objective test or by accepted medical practice’.[6]

    So what is a material risk in dentistry (specifically here in endodontics) and how do we know if the patient will attach significance to it? Giving your patient a 5-page disclaimer and series of bulleted warnings is certainly not the answer.

    The answer of course lies with frank and open discussion with the patient and, as health care professionals, our duty lies in ascertaining where our patient’s concerns lie and what we as clinicians feel may be significant from the patient’s perspective. Some examples are extremely curved canals (file fracture?), calcified canals (perforation?), third molar impactions adjacent to the IAN (paraesthesia?), poor bone density (implant failure?).

    1. We-Need-To-Talk-Pic-A-300x198

    In cases such as this (above), what needs to be discussed with the patient? Note the sharp curvature of the MB root, the receded pulp chamber and fine canals. As a clinician, my duty here is to advise my patient of the complexity of the case. Issues such as potential file fracture, possibly not negotiating all the canals (and its significance) and potential for perforation (although unlikely) should all be discussed.

    On the other hand, in cases such as the one illustrated below, it may not be necessary to discuss the same issues as above. However, if the patient is inherently curious about different aspects of treatment, alerts you to this fact by asking a series of pertinent questions related to failure, possible file fracture etc, then, according to the ‘material risk’ test, it is important to outline and address all the issues raised, even if the outcome (from a clinical perspective) appears remote:

    2. We-Need-To-Talk-Pic-B-300x174

    Indicating in your records ‘patient warned of risks’ therefore is not good enough. From a dental defense perspective, details of the conversation should be recorded. For example, ‘discussed with patient if crown not placed following RCT then great risk of fracture and possible tooth loss’.

    This is far more convincing when presented as evidence rather than stating retrospectively that you ‘recall discussing with the patient’. As a judge in the Victorian Court of Appeal recently stated in reference to an oral surgeon’s tendered evidence of his recollection of his discussion with his patient:

    Even were I to accept his version of what was said — and I do not in its entirety – because it is so very heavily reliant on reconstruction…’[7]

    The duty to warn therefore is paramount to clinical practice. The paternalistic approach of practitioners is long gone (as it should be) and therefore when discussing possible risks of treatment, the practitioner must look beyond the tooth and take into account the patient’s concerns and apprehension.

    Prognosis

    Just as discussing possible risks of treatment is important, the subject of prognosis needs to be discussed with the patient both objectively and subjectively. Endodontic treatment, probably more than any other discipline in dentistry, has been subjected to a number of success and failure studies. In turn, these findings are published in the literature and subsequently quoted by clinicians to their patients.

    Sjogren et al (1990)[8] is one study that is probably quoted most frequently. When asked by a patient what the likelihood of success of treatment is to be, clinicians, regardless of experience and techniques employed, will quote Sjogren’s findings:

    • 96-100% – ‘vital’ cases
    • 82% – presence of periapical pathology
    • 62% – re-treatment with periapical pathology

    Quoting such figures can be fraught with danger. It is imperative to bear in mind how the Sjogren study results were obtained – all the teeth presented and reported on were treated under meticulous bacterial control conditions, including rubber dam, irrigation with appropriate irrigants and canal medication.

    It is unlikely the straightforward case illustrated below will eventually succeed. Lack of rubber dam and inadequate access will likely lead to treatment issues and have a negative impact on long term success…but in all likelihood, prior to commencement of treatment, this patient was told that the success rate of such treatment would be somewhere between 90-95%.

    We Need To Talk Pic C

    Therefore, I would suggest dentists refrain from giving patients even broad success rates – the higher the percentage, the more likely it will NEVER be forgotten by the patient (and the clinician will constantly be reminded post-failure!) Like risk analysis and assessment, prognosis should be discussed on a case-by-case basis.

    Which then brings the clinician back to the importance of the pre-operative assessment. The American Association of Endodontists has available from its web page (www.aae.org) a PDF download of guidelines for assessing the difficulty of endodontic cases.[9] Although it is slightly prescriptive in nature, it assists the clinician to carry out an extremely thorough and systematic analysis of the case prior to embarking on treatment. As such, prognosis and associated risks of treatment can be discussed in detail.

    In summary, consent forms and information sheets do play an important role in day-to-day clinical practice as part of the consultation and treatment planning process. However, they should not be seen as a panacea in protecting the dentist from litigation and consent issues which may eventually arise. Careful pre-operative assessment, open discussion with the patient and, of course, a signed consent form all assist to ensure the patient (and you as the clinician) are in a comfortable position to deal with any issues which may arise during the course of treatment as well as in the future.

    Issues such as consent and patient management (when things go wrong!) can be confusing and, in many instances, distressing for all parties. If at any stage you have a question or wish to discuss a particular case, please feel free to contact David Sweeny, Peter Crozier, Roger Dennett or me at the DDAS – we all enjoy assisting whenever we can and sometimes it just helps to have a third party to lean on!

    Dr Stephen Harlamb BDS, MDSc
    Peer Advisor, ADA NSW

     

    [1] Law and Medical Practice. 3rd Ed, L Skene 2008, p.90

    [2] <http://en.wikipedia.org/wiki/Pharyngeal_pouch> accessed August 30 2009.

    [3] Thomas Addison, ‘Negligent failure to inform: Developments in the Law since Rogers v Whitaker’ (2003) 11 Torts Law Journal 1 at 9.

    [4] Thomas Hugh, ‘Surgical Sense and Legal Non-Sense – Chappel v Hart revisited’ (2009) 79 ANZ Journal of Surgery 554 at 555.

    [5] Chappel v Hart (1998) 195 CLR 232 at 272 (Kirby J).

    [6] Ibid. pg 179.

    [7] Hookey v Pantero VCOA 2009

    [8] Sjogren et al 1990 JOE 16:498-504

    [9] http://www.aae.org/dentalpro/CaseAssmtReferral.htm

    communication
  • ‘We need to talk’ – your duty to warn and prognosis in endodontics, part 2

    In this article, warnings and prognosis as they relate to endodontics will be explored in more detail and will hopefully provide a guide in the decision making process. Additionally, if the clinician can thoroughly assess a case prior to commencement, a treatment plan can be formulated which may indeed mean no treatment at all! As Professor Messer wrote in 1999:

    ‘Clinical judgement tends to be subjective. One dentist may attempt to treat a tooth which another would regard as hopeless…the challenge for us as dentists is to become more objective in our decision-making by developing a systematic approach to the assessment of difficulty of endodontic cases’.[1]

    The ‘objectivity’ Professor Messer mentions is critical and the reason why I have previously stated I have concerns with practitioners citing success rates which may not at all be applicable to how they practice, their experience or applicable to the case at hand and as it presents.

    The American Academy of Endodontists[2] has available on their web site (www.aae.org) guidelines for assessing the difficulty of endodontic cases. The form is divided into three categories which, when formulating a treatment plan, could be applied to any discipline of dentistry and factors which should be carefully considered prior to commencement of treatment. The Academy recommends that a rating be applied to each of these factors and that a ‘risk level’ be assigned as follows:

    1 = Average Risk – ‘average or routine complexity’.

    2 = High Risk – ‘complicated…with one or more treatment/patient impediment factors’.

    3 = Extreme Risk – ‘exceptionally complicated…achieving a predictable treatment outcome will be challenging for even the most highly skilled practitioner’.

    The AAE state that ‘if any one or more factor is rated high (2) or extreme (3) risk, then referral to an endodontist may be appropriate.

    So, in endodontics specifically, it should not be difficult to assign such risks. With time and experience, the assigning of them should become almost ‘second nature’. If a clinician does not feel comfortable taking on a difficult and complex endodontic case or if the tooth has a hopeless prognosis, no amount of pressure from the patient to not be referred (or the removal of the tooth) could be used as a defence to litigation.

    The three categories to be considered are as follows:

    1. Patient Considerations
    2. Objective Clinical Findings
    3. Additional Conditions

    Rather than explore every aspect of each of these considerations, pertinent points will be highlighted as potential ‘barriers’ to treatment. Assigning the risk objectively may not always be easy but will fortunately assist in avoiding litigation and complaints in the future.

    Patient considerations

    ‘limited ability to open mouth’ – what impact on success does limited opening have on treating tooth 11 as opposed to tooth 17? Will the same result be achieved for both teeth?

    ‘gagger’ – will the clinician be able to take an adequate working length film for tooth 36? Should sedation be considered to assist in achieving the best possible outcome?

    Objective clinical findings

    ‘pulpal space’ – calcification, chamber, orifice, canal, number of canals

    ‘root morphology’ – curvature, length

    1. We-Need-To-Talk-Pt-2-scan0007-300x246

    Our concerns here should be obvious – the marked curvature as well as the receded pulp chamber, with risk factors 2 and 3 dominant. These issues need to be discussed prior to commencement.

    2. We-Need-To-Talk-Pt-2-scan0009-239x300

    On the other hand, in the case illustrated above, our concerns here are not with the endodontic treatment – simple and straightforward. However, when a large well-circumscribed periapical radiolucency such as this one presents, I am immediately wary of the possibility of surgery and the consultation appointment is spent discussing both procedures.

    ‘apical morphology’ – open

    3. We-Need-To-Talk-Pt-2-scan0008-266x300

    Although a seemingly innocuous case, the apical inflammatory resorption needs to be considered and the potential impact on treatment outcome. Is there a possible overfill ‘waiting’ here? If so, does a straightforward RCT then become a surgical case? Should MTA be used and if so, do you have the necessary skill and expertise to use and manipulate the material?

    Additional conditions

    restorability’ – isolation, caries, crown lengthening

    4. We-Need-To-Talk-Pt-2-scan0006-300x267

    The depth of the restoration is a concern and our ability to maintain an adequate coronal seal. Will crown lengthening be indicated? There has also been a previous attempt at endodontic access and what appear to be calcified canals.

    resorptions’ – internal, external, apical

    5. We-Need-To-Talk-Pt-2-scan0004-300x244

    The resorptive process here is quite advanced…what impact does this have on treatment and outcome? The approach here should be one of caution – I would be advising the patient that the tooth is compromised and would explain the process of resorption and what the aim of RCT would be.

    endo-perio’ – mobility, pocketing

    6. We-Need-To-Talk-Pt-2-scan0001-300x244

    The mesial bone loss and deep discrete pocketing immediately should set off ‘alarm bells’ in this case and the patient must be informed from the outset of the dubious prognosis. There is nothing wrong here in telling the patient that you are suspicious of a possible fracture which could have a devastating long term impact on prognosis.

    7. We-Need-To-Talk-Pt-2-scan0003-222x300  8. We-Need-To-Talk-Pt-2-scan0005-300x219

    previous RCT’ – Rate 2 or 3 only

    perforations’ – Rate 3 only

    The last two are compelling and reflect the difficulties even endodontists encounter with re-treatments and perforations. So, prior to embarking on these types of cases, the clinician must stress to the patient the complexity and difficulty of the case, referral must be offered each time and if treatment is to proceed, the patient’s (and your) expectation of success should be realistic.

    During the course of treatment, prognosis can change and potentially be out of our control. Additionally, in endodontics, flare ups can occur and I have found it useful to advise patients after every appointment that they may experience pain and/or swelling and briefly explain why. In this way they are forewarned and almost expect discomfort.

    The above examples are by no means exhaustive but hopefully provide an insight into what the clinician needs to consider prior to commencement of endodontic treatment. I have attempted to illustrate different issues which I consider important prior to commencing treatment and share with you what I share with patients. Just as treatment is dynamic so should our ability to objectively assess each case on its own merits. Again, as Professor Messer stated:

    “…it is a serious overstatement to tell patients that endodontic treatment is successful in 90-95% of cases…’ If one is to use statistics such as these, then a number of conditions need to be satisfied: ‘rigorous bacterial control, including the use of rubber dam and medicaments; no procedural difficulties…; a durable coronal seal…; a final restoration that provides adequate protection against crown-root fracture; good periodontal condition. The patient (and the dentist) may seriously consider alternative approaches if the prospect of success is diminished…or if multiple problems are present”.

    It has been the intent of these two articles to provide an alternative perspective at endodontic ‘treatment planning’. It is important that when we use a term such as ‘informed consent’ we do not confuse it with a signed sheet of paper. Informing the patient with discussion, explanation, diagrams, visual aids and of course information pamphlets, all go a long way to not only providing protection from litigation but also, in all likelihood, prevention of such action.

    If at any stage you have a question or wish to discuss a particular case, please feel free to contact David Sweeney, Peter Crozier, Roger Dennett, Colette Dailey or me at the DDAS – we’re happy to assist with any situation which may arise.

    Dr Stephen Harlamb BDS, MDSc

    Peer Advisor, ADA NSW

     

    [1] Clinical Judgement and Decision Making in Endodontics, Professor Harold Messer, Australian Endodontic Journal, Vol 25 (3) 1999, p124-132

    [2] http://www.aae.org/dentalpro/CaseAssmtReferral.htm

    communication
  • Complaint management – handling the dissatisfied dental patient, part two

    In the first part of this article we discussed the philosophy of containment in risk management, reasons why patients complain, the possible avenues of complaint available to patients and some sensible strategies to adopt when managing a complaint. In this second part we provide a rationale behind some of the strategies recommended and look at three common scenarios and the thought processes to apply when considering how to manage the situation.

    General strategies for complaint management

    Acknowledge the complaint

    • When people get a response to their complaint, they often see this as a sign that their concerns are being taken seriously. Ensure that you or another senior person (such as the proprietor of the dental practice) handles the matter to reinforce the message that the issue raised is important to you.
    • Acknowledge their concerns and experiences, and take responsibility for what happened. This can immediately take some of the “heat” out of the matter. Assure them that their grievance concerns you and It’s important to remain calm but firm – there is no point getting involved in a slanging match, but neither should you put up with abuse. Hopefully the patient will feel better for venting their feelings and you’ll have gathered further information.
    • Give the person a clear time frame in which the complaint will be addressed and the contact details of the person involved. This buys you time to obtain professional advice.
    • Outline the plan of action for investigating and responding to the complaint.

    Try to resolve the complaint directly with the complainant

    • It may not be possible in all complaint scenarios but, where it is, invite the person who made the complaint to talk directly. While you may not feel at ease with this approach it presents an opportunity to clarify the issues and the desired outcomes.
    • Not everyone writes beautifully and with clarity. It may be difficult to glean the reason for the patient’s dissatisfaction from their written contact with you. Many people will greatly value the opportunity to talk about what happened and give their point of view and this can be immensely beneficial for you in structuring your response.
    • If you’re fortunate enough to reach a resolution at this stage, confirm the agreed action with the complainant in writing.

    Be aware of differing views of what happened and what was said

    Communication is at the heart of many complaints. The dentist and the patient may have very different perceptions and understandings about what happened and what was said. Reasons for this could include:

    • Patients in the health care environment often feel vulnerable and may not process information properly.
    • The dentist assumes that their information or explanation has been clear when in fact the patient or their family may not have understood it at all. The extra time taken to ensure the information has been understood is time invaluably spent.
    • Confusion may arise as the patient seeks information from other sources which may conflict with that given by you. Such information may come from other practitioners, the opinions of other people, media organisations or even “Dr Google”.

    Who is telling the truth?

    • If the whole issue swings on factors of communication and perception the “truth question” might not be of relevance. In your initial management acknowledge that there are differing accounts or points of view and, in particular, don’t be dismissive of the complainant’s point of view.

    The perception of a cover-up

    • Many patients believe that descriptions of incidents and conversations would be included in their treatment records. If there is no record of an incident or a conversation they may form the opinion that records have in some way been tampered with or that there is an element of cover-up. The recording of conversations should be factually correct and not contain any inflammatory or derogatory comments and it’s important to train your staff to record professionally. It’s also important that you don’t record advice obtained from your professional advisors (including lawyers) in the clinical By all means record the advice you’re provided but this should be done on a separate document and form part of your business or legal record. Remember that everything you record in the clinical record may be revealed to the patient under our National privacy laws.
    • Many complainants also form the view that their point of view won’t be listened to and that staff in a practice will simply stick together and defend each other. Your early responses when a complaint is received need to, where possible, leave the complainant comfortable that due process will be followed.

    Reassure the complainant

    • It’s not easy for many people to complain. Often they’re worried that in doing so there’ll be some kind of negative consequence for them and/or their ongoing care. Reassure them throughout the complaint handling process that this isn’t the case.
    • Ensure the complainant isn’t victimised or discriminated against as a result of making the complaint.
    • Reassure that the complaint will be kept confidential and only broached with those necessary for its investigation.

    Have a complaint handling mechanism already in place

    • Evidence suggests that effective complaint handling and resolution decreases the risk of a directly-made complaint proceeding to legal action.
    • Responding is easier if you already have your system in place. You should institute a mechanism by which complaints are welcomed, received, acknowledged, investigated and resolved.
    • Advise the patient about your intended management of the matter and stick to that plan of action.

    Let’s consider a few common scenarios.

    The patient who refuses to pay

    The rules and laws of society dictate that payment must be made in return for services rendered. Although there are procedures available for the recovery of debts, you should think carefully before instituting proceedings. One of the key questions to ask is: Why has payment not been made? Is the patient:

    • In financial difficulties?
    • Disputing the bill?
    • Dissatisfied with treatment?

    Only pursue payment formally if you’re confident the resources exist and you’re prepared to expend the time in obtaining a judgement against the debtor. If finances are clearly not available then there is little point in commencing formal action. Perhaps you could arrange for payment to be made in instalments or, at worst, write off the debt. All of these options assume, of course, that the debtor accepts that he or she is responsible for the debt in the first place.

    If the bill is in dispute, discuss the person’s concerns and explain your fees and charges in more detail. Sometimes discounting the bill may be the simplest way of resolving the matter, bearing in mind that clients are an important referral source and may choose to complain elsewhere if a satisfactory outcome isn’t achieved. Pre-treatment quotations should avoid this dilemma.

    If the patient is dissatisfied with treatment, pursuing payment of outstanding fees is a recipe for further grief and should be avoided.

    The patient who has made a court claim of negligence

    Before you embark on a defence of a negligence claim you should take account of the following issues:

    • If a claim is filed in court, it’s open to the public and can attract media attention. It is impossible to predict what the media will report and much depends on the facts of the case and whether it’s a “slow news day”. There is no doubt there will be a greater chance of negative publicity in local and regional newspapers. Ordinarily it’s cases involving allegations of sexual assault upon patients or serious injury due to negligence that attract media attention. If scheduled for court your name will appear in the “court list” at the back of the newspaper or on the relevant court webpage with other scheduled actions. No other detail is published. However, anyone can enter a court room and view proceedings. While there is no guarantee against publicity, the risk will be greatly diminished by an out-of-court settlement.
    • Defending a negligence claim can take an enormous amount of time. This includes time to report to your insurer; time to instruct your lawyers; time to comment on the allegations against you; time away from your practice and family; and time in court if the matter proceeds to trial. While the majority of cases are settled before they reach a courtroom, those that aren’t cause considerable anxiety for the participants and their families.
    • Settlement terms. A settlement doesn’t necessarily mean an admission of liability. In order to make clear the balance between principle and the necessity of a settlement for commercial or other purposes, settlement documents can be drafted to protect your position with respect to admissions, future claims and confidentiality. It is not uncommon for cases to settle without any admission of liability on the part of the dentist and with an agreement that the terms of the settlement will remain confidential.
    • Obligations to professional organisations. Make sure that you know what your responsibilities are with respect to your registration, your governing body and your insurer.

    The patient who requests a refund

    The main reason a refund or other payment is offered, or demanded, is usually in circumstances where some unexpected and untoward mishap or misunderstanding has occurred during treatment, and the incident risks escalating into a serious dispute between the parties. This, of course, doesn’t presuppose that the problem can be attributed to either the dentist or the patient, because in most situations the question of fault shouldn’t be a factor, only that the best solution is to resolve the matter as promptly as possible.

    Whether we should or should not refund is a decision that’s usually best made by the involved practitioner. When all issues are considered it is what is best for the practitioner’s peace of mind, and what’s in the best interests of the long-term reputation of the practice, which will prove to be important when making the final decision. As well, there’s the always present concern for the patient’s welfare.

    And again remember: a refund or other assistance is not in any way an admission of liability. It’s purely a goodwill gesture.

    Most untoward incidents fall into one of the following categories, and an agreement to refund needs to be considered in the context of which category applies:

    • Where it’s likely that the incident is negligent. An example would be the extraction of the wrong tooth and the patient is harmed or disadvantaged by the error.
    • Where the untoward outcome is a foreseeable complication of the procedure. Examples include fracture of endodontic files and paraesthesia subsequent to third molar surgery. These are not necessarily negligent provided the patient was warned of the risk before treatment, the treatment was performed competently and the patient was advised immediately after the adverse event occurred.
    • Where the dentist considers that the patient’s dissatisfaction is because of unacceptable patient expectations. In cases where the dentist is not in any way responsible for the patient’s dissatisfaction, the decision to refund fees would be made purely on the basis of expediency and to avoid further complications.

    The decision as to how to act ultimately rests with the practitioner. That does not mean, however, that you should not seek the advice of your ADA advisor and your insurer. If a decision is made to refund it’s important that the appropriate document is drawn up (examples include a Letter of Offer and a Deed of Release) and for this you should seek assistance.

    Certainly, however, there are times when the “commercial decision” is not appropriate. It is not being advocated here that the practitioner should never defend the principle, or always accede to a patient’s demands, or immediately give up on patients at the first hint of dissatisfaction. Each matter needs to be assessed on its merits and seeking advice is a good way to help you reach your decision.

    At the end of the day, dentistry is a “people business.” Personal contact with you and your team, whether positive or negative, is the most memorable aspect of dental care for patients. Any part of the interaction with the patient can become a “moment of truth” during which the patient forms an impression of the quality of care provided. How you handle the human element is at the core of how successful you will be in resolving a complaint. It all comes down to communication.

    Key Points

    • Have strategies in place for dealing with complaints and involve your practice team so the approach is consistent.
    • Consider carefully why an account for treatment is unpaid before pursuing the patient to recover the debt.
    • Be aware of all of the potential issues when deciding whether to defend a negligence claim.
    • A decision to refund must be made on a case-by-case basis. The context of the refund request needs to be carefully evaluated.
    • Many complaints arise from circumstances of nothing more than poor communication.

    Remember that the Peer Advisors at the Dental Defence Advisory Service are here to help you. Whether you need advice, support or just an ear to hear your concerns – we are all dentists and are happy to help in any way we can. We welcome your calls and the opportunity to assist you.

    References

    • Articles prepared by the Dental Defence Advisory Service and published between 2004 and 2012 in the New South Wales Dentist Magazine (details available on request).
    • Articles appearing between 2002 and 2011 in the Australian Dento-Legal Review Magazine published annually by Guild insurance Limited (details available on request).
    • Power Point presentations prepared by Dr Roger Dennett in 2006 and 2008.
    • An audio presentation by Dr David Roessler appearing on the Dental Files Program Six disc of 2011.
    • Resource documents on the Health Care Complaints Commission of New South Wales website.

    Craig Brown, DDAS Peer Advisor

    communication
  • “Wow! My tooth broke your file!”

    At a seminar given by Endodontist Glenn Weston the above words were suggested as what we would like the patient to think when the event of file fracture occurs during endodontic treatment. Needless to say, these are words that are not commonly heard in a dental office when an endodontic file breaks inside a canal! Yet we are all too aware that the performance of such treatment is a delicate operation involving fine and often calcified anatomy using delicate and sometimes fragile instruments. File fracture is a common enough event but it can be said that the event is often not understood by the patient. Patients do not necessarily appreciate the surgery at the same level as the dentist. It can be said that they have a very different perspective!

    Who is in control?

    People feel safer when they perceive that they are in control. Lay people are often inherently talented at weighing benefits and risks. Most patients recognise that different treatment options represent a trade-off in terms of aesthetics, time, comfort and cost. If you try and convince a patient that he or she will not be affected personally by a known dental risk, you might tell him/her that the chances are “one in 200”. Patients would prefer to hear that there is zero risk of an adverse outcome, but as we all know that is not true. How do we impart this important information to patients, so that they can make an informed decision and consent to treatment? On one hand we would like them to accept our treatment recommendations and to put themselves unreservedly in our hands. After all, we have their best interests at heart. Of course such wishes belong in a more paternalistic era of treatment when patients asked fewer questions and (it has to be said) had fewer options for treatment! So what do we need to communicate to patients about the treatment choices we are discussing and recommending?

    An article which reviewing negligence claims and complaints in Australia in regards to consent makes for interesting reading.

    Communication pre-treatment: consent is a process, not a form

    “Malpractice complaints and claims in regards to informed consent are not uncommon events. When they arise they are most likely to centre on mundane factual disagreement over who said what and when, not contests over what should have been disclosed. This underscores that for the informed consent process, like most other areas of clinical dental practice, regular and careful documentation of interactions with patients is a prudent risk-management strategy. Documentation of the details of consent discussions in the lead-up to clinical or surgical procedures is particularly important, as the vast majority of informed consent disputes involve complications following operations.

    Courts do not accept that merely handing a consent form to a patient, however well designed and exhaustive the form may be, is a valid way of obtaining informed consent. Consequently, clinicians must decide which risks to discuss and emphasise. For busy dentists, this necessitates choices, because time is limited and effort devoted to consent discussions has an opportunity cost. Courts regard the possibility of an adverse outcome occurring as an important element in determining what qualifies as a “material risk” that must be disclosed, but it is only one of several elements. The severity of an outcome associated with a risk also matters. Rarity and severity are considerations which operate together. A small risk of a catastrophic outcome usually warrants emphasis, as does a high risk of a relatively minor adverse outcome; but not a low risk of a minor adverse outcome. A common example in the case of oral surgery to remove a lower molar would be the risk of possible jaw fracture, which would require specialist surgical treatment to immobilise the jaw and would involve the patient in significant levels of pain, swelling and incapacity to work as well as a period of hospitalisation and interference in their daily life. Such would be regarded as an example of a small risk with a catastrophic outcome.

    It also has to be recognised that details of risk tend to matter more towards the elective end of the treatment spectrum than the urgent end, which goes some way to explaining the higher incidence of post treatment dissatisfaction associated with cosmetic dental procedures.”[1]

    Communication post treatment: honesty is the best policy…

    Good communication to ensure informed consent principles have been met prior to treatment is but one arm of communication. What about the situation which arises when a mistake has been made, or when there is a treatment event that exposes the dentist to a complaint?

    In these situations of course, honesty is the best policy. If something untoward occurs during treatment, inform the patient and assure him or her that you will work with them to rectify the problem. An honest and apologetic approach, coupled with a genuine wish to assist the patient, can defuse any negative emotions that the patient may initially express and avoid a claim being pursued. If remedial treatment is required, discuss the options of carrying it out yourself if you are suitably competent to do so, or refer the patient elsewhere. Leave it to the patient to decide which path to choose. It is desirable and helpful that, wherever possible, cost not to be a consideration at this point. Offers of financial assistance, when appropriate, often help minimise any friction with the patient and bring about resolution of the matter.

    Case: a perforation during root canal therapy

    A patient presented for emergency treatment of pain on the lower right side of her mouth. The dentist commenced RCT on the deeply filled 46, during which he perforated the lateral wall of the mesial root. This was confirmed radiographically. It was explained to the patient that the perforation had occurred and had reduced the prognosis for long-term retention of the tooth. A specialist Endodontic consultation was recommended should the patient wish to continue with the treatment. The patient, fortunately, was not too concerned and was more interested in having the tooth extracted and a bridge placed. She declined specialist referral. After further discussion, the dentist suggested that she consider what had been discussed before making a final decision on the future of the tooth. The following day the patient experienced severe pain and attended another dentist at the practice who adjusted the temporary filling, provided a script for antibiotics and analgesics, and referred the patient to the Endodontist. One month later, the patient wrote to the practice principal accusing the assistant dentist of being “negligent” in his treatment of her. She stated that she had not been given any antibiotics or painkillers by him, the temporary filling had not been completed properly, and he should not have commenced RCT if he was not capable. She advised that she would now be continuing treatment with the Endodontist.

    The original treating dentist sent a courteous letter of reply to the patient outlining how the perforation had come about and been addressed, and reminding her of their detailed discussion about the problems with, and treatment options available for, tooth 46 at a visit prior to the RCT appointment. As a result of those discussions, it had been agreed that although the tooth may have to be eventually extracted, they would attempt to salvage it with RCT. The patient had been informed that no guarantees could be given and that there was a failure rate of around 10-15%. The dentist ended by saying that he was nevertheless happy to offer the patient a full refund ($200) for the treatment he had provided to 46 because of the unfortunate outcome and his primary concern for the satisfaction and wellbeing of his patients.

    Five months later the dentist had still heard nothing in reply and the patient had failed to take up the offer of refund. The RCT was completed by the Endodontist and the patient was apparently happy with the service that had been provided. A crown was planned to be placed in the near future by another dentist at the practice.

    Comment

    Unexpected complications of a procedure are more easily dealt with when the patient has been warned about them prior to the procedure being commenced.

    Perforations are more common when treatment has been carried out in an emergency appointment when staff can be rushed and unprepared. When a perforation occurs, it can be tempting to hide it by not taking adequate radiographs which would assist in demonstrating the problem. However, by doing so, this may only delay its discovery (often by a future practitioner) when the inconvenient truth inevitably comes out. It was fortunate in this case that the perforation did not render the tooth unsalvageable. The outcome was assisted in part by both the dentist’s prompt admission of the problem and specialist attention at an early stage. It is important to follow up on patients who

    have been referred to ensure that they follow through with care. A patient who was well-informed prior to treatment plus a well-worded letter of explanation and genuine expression of regret were important in preventing this matter from escalating.

    As always, if you are unsure of what to say to the patient or are having difficulty in coming to a prompt resolution with him/her, contact your state Branch for advice.

    Key points

    • Build the patient relationship by encouraging patients to talk.
    • Consent forms alone are not a valid way to obtain consent.
    • Consent is a process and a form is a useful part of that process.
    • A dentist must determine which risks to discuss and emphasise.
    • Consider issuing warnings about small risks with catastrophic outcomes and high risks with minor adverse outcomes.
    • Record details of your discussions in the clinical notes or send a follow up letter.

    Bibliography

    [1] Bismark MM, Gogos AJ, Clark RB, Gruen RL, Gawande AA et al (2012 Legal Disputes over Duties to Disclose Treatment Risks to Patients: A Review of Negligence Claims and Complaints in Australia. PLoS Med 9(8): e1001283

    By Dr Roger Dennett – ADA NSW
    Peer Advisor – ADA NSW Branch

    communication
  • Do your dental patients trust you?

    Recently I was referred by my medical GP to a surgeon for a simple but elective procedure. Whilst I had been told of the surgeon’s prowess, in the consultation with him I didn’t feel confident about trusting him to carry out the procedure. The surgical procedure didn’t go ahead as a result.

    Although clinical skill is essential to practice success, it isn’t enough. A strong practice can only be built by those possessed with good technical skills coupled with great communication skills. If you are like many dentists, your treatment may be better than your talk about the treatment. I once walked past an operatory where a young dentist was asked by the patient: “Are you wearing that mask because you have a cold?” She replied: “I’m not wearing this mask to protect you from me. I’m wearing it to protect me from you!” Sometimes without thought we can sabotage a professional relationship with comments such as this when we could take the opportunity to strengthen the professional relationship by describing how infection control procedures effectively serve to protect patients from the transmission of disease.

    I recently saw an Orthopaedic Surgeon being interviewed once on daytime TV. He was asked “Why are some patients so dissatisfied with their orthopaedic surgeons?” He answered

    “Well, I know of one doctor who was sued for cutting off the wrong leg.” Why would he have chosen that statement, I wondered, when he could have said something better like: “When a patient is dissatisfied, it’s usually not a lack of care, but a lack of understanding between the patient and the doctor. Through good communication, concerns can often be resolved. So if you are not satisfied with any aspect of your treatment, call your doctor first — not your solicitor.”

    Good communication = practice success

    Dentistry is an intangible service, not a product. Patients judge your service on the way it is delivered. Any part of the interaction with the patient can become a “moment of truth”, during which the patient forms an impression of the quality of care being provided. Because patients cannot accurately judge the quality of clinical treatment, they fill this vacuum in judgment by assessing non-clinical aspects of your care. Your reception room furniture may give the patient a view about your treatment as to whether it is up-to-date!

    Research proves that patient satisfaction is created largely by the communication skill of the health care provider.[1] Conversely poor communication is the most common reason for dissatisfaction with care and for a decision to terminate the doctor-patient relationship.[2] Personal contact with you and your team, whether positive or negative, is the most memorable aspect of dental care for patients.

    We all have days where the daybook seems full of patients hell-bent on making ‘mountains out of molehills’. The reports of ADA NSW Community Relations Officer’s indicate that patients actually want more communication with you than they are willing to ask for. Research has shown that patients are reluctant to raise questions, ask for information, or voice their important concerns to their doctors.[3][4] Patients who ask direct questions end up more satisfied with their communication with health care professionals than patients who ask indirect questions.[5]

    Although patients may not voice their complaints, they will still leave your practice if they are dissatisfied. Patients don’t always tell you about the source of their dissatisfaction, but they do tell their family, friends and usually the whole suburb or town! Consider these findings in a 1991 national public opinion study commissioned by the American Dental Association[6]:

    • 60% of patients said they would change dentists if they were dissatisfied or had a problem
    • 23% said they would talk to their dentist to attempt to resolve a problem
    • 90% said they would tell family and friends about their dissatisfaction with the dental practice!

    A classic study in health-care research shows that good communication between doctors and patients can lead to less postoperative pain, less medication and earlier recovery.[7] Furthermore, good communication increases patient utilisation of dental services and inhibits patient anxiety. Patients are more likely to comply with recommended treatment if they have a strong respect for the dentist and staff.[8] Patients who have a good relationship with their dentist are more likely to remember and follow instructions, refer other patients, and pay their bills. And finally, patients who are satisfied with their dentists are not likely to sue.

    Building trust

    Trust is the most important component of your patient relationships. With a mind-set of “I may not know dentistry, but I do know about people”, patients use how they feel about you to determine how they feel about your message — and what they are going to do about it. If patients trust you, they will trust your message. Only after they make an assessment of your character will they decide about treatment. Patients indicate that the honesty of their regular dentist is the most important reason they stay with a dental practice. In fact, patients act on trust far more than dentists think they do. In a recent study[9], 40% of the dentists surveyed said patients accepted treatment because they believe that it is necessary. However, of these patients, only 8% said that they accepted treatment for that reason! The most important reason that these patients accepted treatment (almost 60 percent!) was because they “trusted the dentist”.

    Because you are an accredited licensed professional whose right to practice is granted under national legislation, most patients will trust in your clinical abilities. But we all have had patients who have initially questioned our competence. Four communication techniques will build credibility in your clinical skill and professional judgement. The first two can be used every day to enhance patient confidence. The last two are for use in individual conversations with doubting patients.

    Highlight your professional credentials

    Display your degree and other certificates on the reception room wall, along with the certificates and licenses of your whole dental team. Choose a prominent location and invest in fine frames. List your credentials in your practice brochure. If you produce a practice newsletter, when you or a member of staff attends a CE course, note it in your practice newsletter. Further, when your office is closed for training, make sure that your answering service answers with a positive message that your team is attending a professional education seminar. When you have an opportunity, mention your professional education activities if relevant. You can mention to the patient what you learned by speaking at the university or speaking at the hospital.

    Have staff compliment the practice

    Patients appreciate messages which reinforce that they have received quality treatment. Your hygienist or chairside nurse can say to the patient “She’s an excellent dentist. That’s one reason why I like working here”.The dentist can say to the assistant “Thank you that was perfect” or the dentist can comment to the patient “The hygienist did a superb job on your cleaning”.

    Many dentists and even team members are not used to emphasising their competence; some will minimise their skills in the name of professional modesty. Just as patients believe messages that put your treatment in the best light, they will also believe messages that devalue your service or are negative.

    Compliment the recommended treatment

    Dentists and staff sometimes miss opportunities to talk about the excellence of a particular treatment recommendation for a patient’s unique dental situation. If for example a young patient’s mother questions the value of her son having sealants, rather than give a generic reply (eg “Sealants are important for every child”) you could personalise the message by saying “Sealants will be a great benefit to Johnny. He did have those two cavities last year in spite of his enthusiastic brushing. Sealants will protect his teeth from decay now and in the future.”

    Mention sources that the patient trusts

    When a patient questions your expertise, let them know that you don’t stand alone in your opinions. For example, a patient who seems suspicious of fluoride might be reassured to learn that fluoridation is supported by the ADA, the AMA, the Royal College of Physicians, the American Cancer Society and the World Health Organisation. Or a patient asking you about sterilisation protocols might be reassured to know that you practice universal precautions which are recommended by the National Health and Medical Research Council, the Dental Board of Australia, current Occupational Health and Safety Standards and the American Centers for Disease Control.

    Patients and your commitment

    Patients want to know if you really believe in what you are saying. We have all been asked by a patient sometime or other “Would you have this treatment yourself?” or “Would you provide this treatment to your mother?” In these situations, you have to let the patient know that you are personally committed to your professional recommendations. It has to come from the heart. Many patients have very strong ‘bulldust meters’ and can smell a phony a mile away. To build a patient’s faith in your recommendations for treatment, you can:

    Discuss your own experience: Dentists as technical people with specialised training may prefer scientific facts to personal anecdotes. However most of your patients are the opposite and will respect your personal testimony. An example of using personal experience to build trust would be “I provided a similar fixed bridge for my brother after he had a front tooth knocked out in a car accident. Rather like your situation, really. I only recommend treatment that I would want for myself or my own family”. Or, conversely, if a patient prevails on you to carry out treatment that is not going to be successful, say “Because I wouldn’t want that treatment for myself or any members of my family, I wouldn’t feel right about doing it for you. Frankly, I don’t think it is in your best interests.”

    Explain your recommendations: Let the patient know that you are aware of a range of treatment options and have good reasons for selecting amongst them. Let them know of the benefits to them for proceeding with the treatment, but don’t forget to advise them of the limitations and risks.

    Some patients will think you are telling the truth, but not the whole truth. They might ask you about seeking a second opinion or ask you about the competency of another dentist. When they do this, they are testing your candour.

    1. Present a balanced message: When you are faced with an apparent lack of patient trust, it’s tempting to focus on the benefits of the treatment and downplay the risks. You may be torn between your professional responsibility for full disclosure and your personal desire for persuasiveness. However this is no longer a dilemma as research has shown that two-sided messages (those presenting advantages and disadvantages) are judged as more trustworthy than one-sided messages (those presenting advantages only)[10] By giving a balanced picture of benefits and risks, you build credibility. For example “This treatment has both benefits and risks to you. I want to be as clear as I can in describing them to help you make the decision that’s right for you. I want you to be fully informed”.
    2. Avoid jargon: Research suggests that dental jargon will confuse patients. Your goal is to choose words that are understandable to patients so they think “This dentist speaks my language. I feel better when I know what’s going on”. Remember that the dento-legal literature is full of stories about patients have successfully sued dentists who have provided warnings which were not given in plain English that a lay-person could be expected to understand! For example, if you are warning about the risk of post-operative paraesthesia after third molar surgery, don’t say “There is a risk of you sustaining inferior alveolar nerve paraesthesia which is usually transient”. Instead say “There is a risk that you could end up with a numb lip, tongue or chin, and that numbness may be permanent”.
    3. Open the doors to information: Today we live in the era of information, whether we like it or not. The knife cuts both ways, and there is a lot of pseudoscience and misinformation on the internet, posted by unknown people who may have no formal education or knowledge, and in some cases be more than one sandwich short of a picnic! Dentists believe that they are the holders of dental knowledge and sometimes do not take kindly to this ‘authority’ being usurped. I once overheard a senior dentist say “Your mother told you what? Where did she go to dental school?”

    Whilst this pseudoscience is of course very frustrating to the consummate professional who has dedicated his or her life to amassing scientific knowledge and skill the hard way, patients wonder if you’re hiding something when you discourage them from gathering information on their own. If a patient says “I read somewhere that this treatment doesn’t work”, don’t waste your time quizzing them on the source of the information (“Was it A Current Affair?”) or try to criticise the publication (“Well, I’ve never considered the Woman’s Weekly a dental journal”). Instead, you might say something like this: “I know there have been some articles in the press and on the internet. Sounds like you have done some research into this. Would you be willing to consider or read some additional information?” Provide the patient with brochures, research reports, and if requested, referrals for second opinions. Believe it or not, a patient does not actually have to read the material or go and get the second opinion. Sometimes your willingness to go this far with them is enough to build their trust!

    1. How do you communicate confidence?: When it comes to building patient trust, it is not just what you say but how you say it. Your non-verbal behaviour is as important as your word choice in communicating confidence in your abilities. Eye contact, body language and vocal style are all important factors in developing a dynamic and confident presence. Speak with energy, not in a tired monotone. Smile, but vary your facial expressions. Make and hold direct eye contact and don’t look down or away when you are speaking. Have a good forward posture so the patient feels that they have your complete attention. Don’t fold your arms or fidget.
    2. Voice respect for the patient’s concerns: When a patient expresses a concern involving any of the trust issues, begin by understanding the concern and stating it in your own words. It is all too easy to take the other approach when your credibility is being brought into question. Some dentists will leap to their own defence and suddenly they are on the opposite side to the patient. In all of these situations, the patient will hold fast to his or her views until they are acknowledged. It’s the universal law of indirect returns, which you should learn if you don’t already know. The law says that if you wish to receive something, you should first learn to give it. So know this: you must grant credibility to gain it.

    You need to practice the skills of ‘active listening’, a concept first introduced by Psychologist Carl Rogers. Simply put, it is understanding what the other person is saying and feeling, and then communicating back in your own words what you think has been said. You thus serve as a mirror. In this way, you validate the patient’s position, without necessarily agreeing with it.

    If a patient voices an opinion and you respond immediately with information that contradicts that position, the patient may think “He doesn’t get it. He must have not heard or understood what I said. I better say it again, louder.” And so he does. People are prone to repeat their message until they get a clear signal that the message has been received. Ask any parent of teenagers, who are surely the masters of this technique!

    The best clue for effective paraphrasing is to ‘voice the value’. If you voice a patient’s values in a given situation, you can make a positive statement of his or her views. You will frequently find that you and the patient agree on the value and can search for a way to meet it. For example, if the patient has said “Really, I‘m not comfortable about a treatment that costs that much” you could reflect the patient’s values by saying “It certainly is a significant investment. You deserve to know precisely what you are paying for. Perhaps it will be easier for you to make the decision if we review the benefits of the treatment for you and the risks of not having it.”

    Don’t say “trust me!”

    More is less! The paradox of trust is that the more you ask people to trust you, the less they trust you. Again the law of indirect returns, but this time, upside down! Trust is built when trust is unnecessary and not asked for – such as when patients are given a sense of control over their situation and a way to judge your abilities for themselves.

    First off, invite doubtful patients to judge their dental condition for themselves, the so-called mutual or co-diagnosis. For example “That’s an excellent question. If you have a look at the image shown on the screen by the intra-oral camera — do you see this — and this — in your mouth? Have you noticed X or Y symptoms? You have? Then you have experienced for yourself the existence of this problem and you can now see the cause.”

    Don’t forget that most patients do not have a high dental IQ. You have to bring their dental IQ up by providing educational materials so that patients can assess your recommendations. Some patients will not watch the video or read the brochure. Sometimes the offer is all that is necessary and the fact that you have provided these things to assist them to come to an informed decision.

    If you insist on a treatment plan without input from the patient, the patient will likely reject it. The problem will lie with the patient’s suspicion of a process which excludes him or her. One treatment plan does not fit all! Patients are individuals and will rail against a universal approach which dictates the same plan for all patients! Patients are far more likely to accept treatment if they are involved early on as partners in their own care.

    This article has been about establishing trust with patients. There are many tough questions that a dentist may get asked every single week of his or her practicing life. Whilst all such answers must take into account the many factors that are only revealed in an individual consultation, there are some tremendous answers to be found in Robin Wright’s book Tough Questions, Great Answers[11]. A highly recommended read for all practitioners who wish to improve their communications skills.

    Some examples of trust-based questions and answers from Robin’s book are below:

    Patient: “Wow! I can’t believe that those specialists are so expensive. Do you get any kickbacks from your specialty referrals?
    Dentist: “What an unusual idea! (Dentist surprised at question) I suppose people do wonder how we select the specialists we refer to. We refer our patients to specialists based on the excellence of their clinical skills and patient care. The only ‘kickback’ we ever receive is a patient telling us they were pleased with the specialist!”

    Patient: “My neighbour/husband/co-worker etc says that . . .”
    Dentist: “Well, it’s good that you have a family member willing to discuss your treatment with you. Dental researchers actually looked into that idea. It actually works for very few, and unfortunately you are one of the people for whom it won’t work. What we have found is far more successful in our experience is . . . “

    Patient: “My old dentist/hygienist cleaned my teeth for years and never said anything about gum disease. How long have I had it?”
    Dentist: “I can tell that this diagnosis comes as a surprise. I can certainly sympathise. Were you wondering about how severe the condition is right now, or wondering when this condition began? (Wait for the answer)

    Patient: wondering about how severe the condition is (and thus the accuracy of your diagnosis!)
    Dentist: “Yes, of course you want to know how serious this is. It is the only way of knowing whether this is something that you would wish to be treated. If you hold this mirror/If you look up at the screen of the images from the intra oral camera, I can show you the signs of gum disease in your mouth. Then we can compare what you see with this chart of the progression of gum disease. That way you will know where you are now with this and where you may be headed in terms of your oral health.”

    Patient: wondering about when the condition began.
    Dentist: “I can’t tell you precisely how long you have had the gum disease, because it progresses at different rates in different people. It can be slow or rapid, depending on such aspects as your general health, age, stress, medications, smoking, and many other factors. However, we can talk about the condition of your mouth right now based on a thorough diagnosis. Then we can set up a program of treatment to bring your mouth back to the best dental health possible”.

    Patient: “Would you have this treatment if you were me?”
    Dentist: “Wow, that’s a good question! In truth, I would never recommend a treatment I wouldn’t want for myself or for a member of my family. In fact, my sister actually had this same treatment and it turned out really well. But this treatment is for you. You might ask yourself the following questions to be sure you are making the best decision for your particular situation. Will you be happy with the expected treatment results? Do you understand the benefits and risks? Are you clear on what will happen if it’s done and if it isn’t done? Have all your questions been answered?

    Patient: “Gee, I’m not sure about all of this. Do you ever recommend a second opinion?”
    Patients who doubt your clinical judgment don’t ask about second opinions, they go out and get them! Patients who ask this question are wondering about your candour, and whether you are prepared to provide all necessary information.
    Dentist: “You know, I know that this is a big decision for you and I want you to be as comfortable and confident about what I am proposing to do as I am. If a second opinion will help you with that, I would strongly urge you to seek one. I am more than happy to refer you for such an opinion.”

    An early discussion with a friendly Advisory Services team member can provide reassurance and assistance as how to approach a patient if you feel that they have come to you with trust issues or tough questions. The Advisory Services team have considerable experience in dealing with such situations and we all love to assist members with such enquiries.

    Contact: (02) 8436 9944  or email advisory@adansw.com.au

    By Dr Roger Dennett – ADA NSW

    Bibliography

    [1] Thompson TL. Patient health care: Issues in interpersonal communication. Communication and Health: Systems and Applications. Hillsdale, NJ; 1990: 27-44.

    [2] Kasteler J et al Issues underlying prevalence of “doctor shopping” behaviour. Journal of health and Social Behavior 1976: 17: 328-339.

    [3] Adler K Doctor-patient communication: A shift to problem-orientated research Human Communication research 1977; 3:179-90.

    [4] Korsch BM, Negrete VF Doctor-patient communication. Scientific American 1972; 227:66-74.

    [5] Roter DL Patient question-asking in physician-patient interaction. Health Psychology 1984;3:395-409.

    [6] Dentistry in the 90’s: Consumer Attitudes and How They Affect Your Practice American Dental Association 1991.

    [7] Egbert LD et al Reduction in post operative pain by encouragement and instruction of patients: A study of doctor-patient rapport. New Eng J Med 1964; 270:825-27.

    [8] Jepsen CH Some behavioural aspects of dental patient compliance. Journal of Dental Practice Administration 1986;3(4):117-22.

    [9] Boswell, S The Mystery Patient’s Guide to Gaining and Retaining Patients. Tulsa: Pennwell Books, 1997.

    [10] O’Keefe DJ Persuasion: Theory and Research. Newbury Park CA: Sage; 1990

    [11]Wright, R Tough Questions, Great Answers: Responding to Patient Concerns about Today’s Dentistry. Quintessence Books, 1997.

    communication
  • The second dentist and patient dissatisfaction

    There is little doubt that in this day and age, patients are becoming “clients”. Consumerism is on the rise, and “dental practices” are often seen and referred to as “dental businesses”. This is associated with a diminution of the perceived professionalism of the practitioner, with the result being an increase in the likelihood of a patient compliant. If one is lucky, your patient will bring their issue(s) to you, the practitioner, in whom they have placed their trust. However, when trust is gone and respect gone with it, then a patient becomes a consumer and is far more likely to lodge a complaint.

    Complaints can go in a number of directions. Whilst the time honoured facility of complaining civilly by alleging negligence through the Courts is still being used by unhappy patients, a growing trend for many complainants has been to involve the Consumer Complaint Tribunals, such as the Health Care Complaints Commission (HCCC), the Dental Board and of course in NSW the Consumer Tenancy and Trader Tribunal (CTTT). Such complaints cost a patient very little in money and little more in time, and often pressure is brought to bear on the practitioner in such jurisdictions by the powers that be. There is sometimes the expectation that if treatment has not had a positive outcome, then the practitioner should refund the cost of the treatment.

    As always, the decision to financially assist a patient should turn on the merits of the case. There is no absolutely right or wrong approach which can be universally applied to all situations. Rather, there are possible avenues that may be worth exploring in most cases to settle a grievance before such dissatisfaction becomes a claim. The three cases below highlight how the outcomes that exist for settlement of grievances may be affected by the comments or actions of the “second” dentist.

    Case #1

    A dentist contacted the DDAS wanting advice as to how to settle a dispute with a patient. The DDAS recorded the following complaint history: “Dr X saw an EPC Medicare patient who initially presented in February 2005 with an RCT which had already been started on the #21. Dr X finished the treatment and subsequently performed another two RCT’s (teeth #35 and 46) and issued 3 crowns (teeth #25, 35, 46) some three years after the initial treatment. About one year later, in February 2009, the patient was in pain and could not get an appointment to see Dr X, so saw another dentist, Dr B. Dr B allegedly informed her that the crown margins on one of the crowns were deficient. She is now unhappy with the crowns.”The patient saw the “second” dentist, Dr B, who had concerns about the standard of some of the endodontic work carried out by Dr X. He referred the patient to an Endodontist, with a request for the work to be assessed. Dr B noted that tooth #21 had been veneered with a porcelain veneer, subsequent to the root canal treatment.

    The Endodontist reported to Dr B: “The initial intra-oral examination revealed gingival inflammation at the cervical margins of the anterior veneers. A grey discolouration of the clinical crown was noted . . . The pre-operative radiograph revealed an adequate root filling in situ with no obvious periradicular deterioration. Diagnostic testing was within normal limits and no tenderness to percussion or palpation was noted.” As no definite endodontic diagnosis could be made at the time of consultation, no treatment has been initiated or is indicated. (The patient) requested that I take a radiograph of teeth #35 and #36.

    Although no obvious apical pathology was evident, a deficient crown margin at tooth #35 was noted. She has been referred back to your office for ongoing management…..” The patient was referred back to the original dentist Dr X by Dr B. Dr X referred the patient to a Prosthodontist for an opinion on the treatment he had carried out. The Prosthodontist reported on the patient’s condition in March 2009:

    “The patient required assessment of previous treatment provided by you on endodontically treated teeth including teeth #21, 25 and 46. The patient expressed concern regarding the reasons for having root canal therapy in the first place. She could not understand why she required such extensive treatment as she felt that her oral hygiene was very good. As you are aware the patient has now seen three other dentists for a second opinion regarding the quality of the crowns placed by you over the years. She has had varying opinions regarding this, with some stating that the crowns required replacement due to inadequate fit.

    Intra-oral examination revealed adequate oral hygiene with minimal interproximal plaque, apart from teeth #21, 25, 36, 35 and 46. There was a Class 1 incisal relationship with 30% overbite and 3 mm overjet. Anterior guidance was noted on the right lateral mandibular movement and group function was noted on left lateral mandibular movement due to wear of the canines. Centric relation was not coincident with centric occlusion, with a minor slide of less than 1 mm from CR to Co. There was moderate tooth wear, isolated to teeth #17 and #13.

    Assessment of individual teeth noted a PFM crown on the #25, 36, 35, 46 plus porcelain veneers on #11 and 21. An OPG radiograph noted endodontic treatment on teeth #21, 25, 36, 35 and 46. Radiographic assessment also noted possible pulp capping of tooth 17, to which the patient alluded at our initial discussions.

    Careful assessment of indirect restorations noted restorative overhangs on the buccal aspect of #11 and 21, mesio-palatal aspect of #25, buccal of #35 and disto-bucaal aspect of 46. Soft tissue irritation with bleeding upon probing was noted related directly to plaque accumulation around these overhangs. Caries was noted around the mesial aspect of #37, requiring immediate attention and careful probing of the margin around the #36 noted possible caries on the distal aspect as well as the disto-lingual and mesio-lingual aspects of this particular tooth. The same was noted on the distal aspect of the #35 and radiographic assessment of these teeth noted open margins/caries on the distal aspect of #35 and 36.”

    Subsequently, the patient saw another general dentist who provided a plan of treatment which included the following:

    • Retreatment of RCT @ #21, including lengthy dressing with calcium hydroxide
    • Retreatment of RCT’s @ #35 and 36 and placement of 2 crowns
    • Placement of new porcelain restorations on teeth #16 and 26
    • Recontouring of restorations @ #11, 25 and 46
    • Provision of an occlusal splint
    • Ongoing preventive/hygiene maintenance

    The fees quoted for this retreatment were over $13,000.

    The DDAS Peer Advisor was of the view that some of the work was not of a reasonable standard, and was supportive of the preference of Dr X to settle the matter early on the best terms possible. Early action to bring some certainty and finality in this case was indicated if it could be achieved.Perhaps somewhat surprisingly, the patient accepted the offer of Dr X to settle the matter by refunding Medicare the total cost of the two crowns that would require replacement. Initially, the patient herself sought a direct personal refund, but given that she had paid nothing out of her own pocket, this was not appropriate.

    The DDAS provided the member with a Deed of Release to assist with the refund. The refund was provided to Medicare with a request to apportion the refund against the patient’s account. A Deed of Release is a simple legal document which, once signed by the parties, confirms the resolution of the patient’s dissatisfaction and provides some certainty to both parties moving forward. The resolution of the case in this fashion was certainly an excellent outcome for the practitioner Dr X.

    What if?

    What were the alternatives in this matter for Dr X? Firstly, as the patient was a Medicare EPC patient, had she wished to make a formal complaint, the likelihood of her engaging a solicitor and alleging negligence was not the strongest possibility. Indeed, it would have been considerably more likely that she would have logged a complaint with either the Health Care Complaint Commission (the HCCC) or the Dental Board. Given the abundant and clear evidence in the case which was available to the DDAS Advisor, he opined that if the matter were to go to the Dental Board, the Board would likely have been critical of the following:

    • Crowns at #35 and 36 with deficient margins and this within a year of being placed.
    • All root canal therapies being performed without rubber dam isolation.
    • Inadequate treatment planning and documentation.

    Comment

    Time and time again, the issue of dental records comes up in cases such as this. We all know that it takes time to generate good clinical records. However, when things go wrong, so often we see that inadequate records generally reflect inadequate treatment, and this is the view taken by Courts and solicitors alike.

    The Dental Board has minimal requirements for dental records and so for failings in this area, ignorance is no excuse. Of course the Board requirements for records are only a minimum standard and any self respecting practitioner should look upon them as such. Remember that your clinical records are evidence to support your side of the story, and a lack of appropriate information in the records leaves you in a difficult position as to defending your treatment.

    Dr X sensibly decided that he would not wish to come before the Dental Board in such a matter, which is where many Medicare EPC complaints end up. Indeed, the DDAS, like the Dental Board, has experienced a considerable increase in complaints over the last year or so, and much of this increase is associated with Medicare EPC complaints. There is every chance that, if the Board had to consider a complaint from the patient, not only would a full refund of fees been ordered, but also the practitioner would likely have been found to have been guilty of unsatisfactory professional conduct and been asked to undertake refresher courses in Endodontics and treatment planning, with the possibility of having a practice restriction placed limiting the dentist’s rights to provide endodontic treatment pending further assessment or approval from the Board after the completion of the necessary coursework as approved by the Board.

    Direct negotiation with a dissatisfied patient, as difficult as it might be, is usually preferable to having to deal directly with a Dental Board complaint.

    In Dr X’s case, due to the dentist’s timely response, there was no Dental Board complaint and the DDAS provided a Deed of Release which the patient duly signed.

    Of course, this case is noteworthy for the level of respect and cooperation achieved between the dentist, other general dentists and specialist colleagues. At no time was there any direct criticism of the dentist subsequently by the other practitioners involved in the case. There was certainly full and frank disclosure of all relevant details by the subsequently-consulted dentists which was evidence of a high level of communication and trust.

    Sadly, however, so often this is not the case. Time and time again at the DDAS we hear of patient’s disquiet and subsequent decision to complain after comments alleged to have been made by the “second dentist”. Dentists need to be on the alert so that, when asked to give an opinion on treatment that has not had a satisfactory outcome, they do not comment on the standard of care of the treatment provided by another.

    In saying this however, it is important to realise that our patients pay well for our services and care, and we should not turn a blind eye to problems which exist. All patients at all times are owed a proper and professional diagnosis. A clear discussion with the patient with explanation and co-discovery of problems that are apparent at the time of consultation are what we should be considering if we find ourselves being in the unenviable position of “the second dentist”. Some recent case examples with which the DDAS has been involved are illustrative.

    Case #2

    The patient attended for routine restorative treatment on some posterior teeth. Deep caries was removed, linings placed and the teeth restored. There were no pulp exposures evident. However, the dentist warned the patient that, due to the extent of the decay present, there was a chance that further treatment might be required and that if the teeth became painful, they should contact the practice.

    Some six months later, the patient had pain emanating from one of the teeth treated. As her usual dentist was unavailable that day, she saw a second dentist who took a radiograph, diagnosed irreversible pulpitis and recommended RCT or extraction. The patient chose to have the tooth extracted.

    When she asked why this had happened on a tooth recently restored, the second dentist advised that it was due to caries being “left behind” under the restoration. The patient was upset, not surprisingly, and obtained a copy of her records with the second dentist. She also requested to keep the tooth. Subsequently, she took the tooth and the records to her usual practitioner to show her.

    The first dentist was somewhat flabbergasted at the claim voiced by the patient that she had “left decay behind”. A radiograph was obtained of the extracted tooth which showed no caries under her restoration whatsoever! In this situation, obviously the tooth was exhibiting the common signs of pulpitis and pulpal death. As we all know, many posterior teeth with a long restorative history will ultimately require endodontic procedures if they are to be saved in the long term, and this is often associated with an extensive caries history, rather than the perfectly fine restoration which is placed.

    Above all else, practitioners should remember not to falsely criticise others in an attempt to justify the treatment they are recommending. No dentist looks ‘bigger’ in a patient’s eyes by making the previous dentist (in whom the patient has placed their trust) look ‘smaller’.

    Case #3

    A dentist was contacted by a patient from interstate who was visiting relatives in town. The patient had a crown on an upper central incisor tooth come out, and wanted it recemented. The dentist who saw the patient noted a small crack in the root face of the incisor which supported a post crown. He also noted a periodontal pocket on the distal aspect of the root. A radiograph was taken which showed that there was a fractured file remnant in the apical third of the root and a distal perforation of the root at the level of the post end.

    The dentist discussed the problem with the patient who didn’t appear to show any concern for the clinical problems. She simply demanded that it be recemented and she would worry about it when she got home.

    In fact the patient did not worry about it when she got home! Some 15 months passed before the tooth became painful. Now living in a different town, she attended a local dentist. She recounted that she had some work done when visiting relatives a year or more earlier. The new dentist took a radiograph and, it seems, saw an opportunity to criticise:

    “Well, we’ve certainly got a problem here! We have a fractured instrument in this tooth and a crown with a post coming out the side of the root! I’ve seen better work done by students – Vet students! You’ll have to have it taken out and replaced with an implant. Very expensive! But do you know what I think? I don’t think you should have to pay for it! Do you?

    In the case mentioned above, the last dentist only saw the patient as an emergency patient. He was not the dentist who did the suspect work!

    Sadly, some dentists are expert at being the ‘second dentist’. Don’t let this be you! If you come across a case where work done recently is going to need to be replaced, ask permission from the patient before contacting the previous dentist and research how things have got to this point. Point out the clinical problems that exist in a calm manner without criticising others. Remember that one day you may be in the position of having your work criticised by others so be honest with the patient and fair to your colleagues.

    In every such case, an early discussion with a friendly DDAS Peer Advisor can provide reassurance and assistance as how to approach a patient if you feel that they have recently had substandard work done which you feel will require replacement.

    By Roger Dennett (ADANSW)

    clinical-records
  • Patient complaints and early intervention

    Governments and health professionals around the world understand the importance of early intervention in the context of disease and disorder. As health professionals gain a better understanding of the aetiology of some diseases and disorders the profession necessarily focuses on prevention, early identification and early treatment. The objective is to provide a better outcome for the patient and less of a financial drain on the public purse.

    The ideals of prevention and early intervention should not be limited to the clinical context. Why wouldn’t a dentist apply these sensible principals to the management of patient complaints?

    Sooner or later all dentists can expect to be presented with a patient complaint and nearly all complaints have the potential to snowball. What may seem an innocuous comment by a patient could escalate into a complaint to a Dental Board or a civil claim. This can be a stressful process for the dentist. Precious time can be taken up with dealing with regulatory bodies and lawyers and outcomes can be unpredictable. There can be a sense of loss of control over the situation and immense frustration.

    What this article aims to do is empower the dentist to properly manage a patient complaint. The focus is on early intervention with the assistance of Guild Insurance, your ADA and Guild Lawyers.

    Incident management

    When dealing with a complaint, no matter how trivial, time is of the essence. An irate patient who does not receive a prompt response may feel ignored and be more likely to take matters further. To help avoid such an outcome the following steps are recommended:

    1. Ensure that you or another senior person (such as the proprietor of the dental practice) handles the matter. This should convey the message that it is being taken seriously.
    2. Contact the patient as soon as possible. Make it clear that the grievance concerns you and listen. It is important to remain calm but firm—there is no point getting involved in a slanging match, but neither should you put up with abuse. Hopefully the patient will feel better for venting their feelings and you will have gathered further information.
    3. Do not offer compensation or mention your insurance cover. This may encourage further pursuit of a claim. Rather, inform the patient that you will investigate the matter and provide a response as soon as possible. This will buy you time to obtain professional advice.
    4. Notify your ADA of the complaint. If necessary, your ADA will in turn notify Guild Insurance and if legal advice is required, Guild Insurance will retain Guild Lawyers to provide advice.

    The key is to maintain control over the situation and seek advice.

    Apologies

    There has been an historical reluctance to offer an apology to a patient on the basis it may be misconstrued as an admission of fault. In this regard, dentists have often harboured the concern that if they offer an apology to the patient, the patient will rely on that apology to establish a case in negligence before the civil courts.

    Legislative reform across all states has put this concern to rest. Put simply, an apology is not an admission of liability. Set out below is a table referring to the legislation in Tasmania, South Australia, Victoria and New South Wales dealing with the treatment of an apology. Whilst there is variation with respect to the wording from State to State, all provide that an apology is not an admission of liability for the purpose of civil proceedings.

    Tasmania

    Civil Liability Act 2002 –  Section 7

    Definition:
    “Apology” means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, which does not contain an admission of fault in connection with the matter.

    Application:
    An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person, does not constitute an express or implied admission of fault or liability by the person in connection with that matter and is not relevant to the determination of fault or liability in connection with that matter.

    Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

    South Australia

    Civil Liability Act 1936 –  Section 75

    Application:
    In proceedings in which damages are claimed for a tort, no admission of liability or fault is to be inferred from the fact that the defendant or a person for whose tort the defendant is liable expressed regret for the incident out of which the cause of action arose.

    Victoria

    Wrongs Act 1958 –  Section 14 I and J

    Definition:
    “Apology” means an expression of sorrow, regret or sympathy but does not include a clear acknowledgment of fault.

    Application:
    In proceedings in which damages are claimed for a tort, no admission of liability or fault is to be inferred from the fact that the defendant or a person for whose tort the defendant is liable expressed regret for the incident out of which the cause of action arose.

    New South Wales

    Civil Liability Act 2002 –  Sections 67,68 and 69

    Definition:
    “Apology” means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.

    Application:
    An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and is not relevant to the determination of fault or liability in connection with that matter.

    Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

    The effect of an apology should not be underestimated. It is the experience of your ADA, Guild Insurance and Guild Lawyers that many civil claims would not have eventuated if a carefully worded, timely and sincere apology had been provided to a patient. Very often a patient may simply feel wronged and want acknowledgement. If ignored they will often take matters further. A further reason to make an apology is that regulatory bodies tend to place weight on an apology when determining the outcome of a disciplinary matter.

    Early intervention in practice

    Patients need to know that their complaints are recognised and taken seriously. A prompt response and if appropriate, an apology, can go a long way towards averting an expensive and potentially reputation damaging claim.

    Guild Insurance works with the your ADA and Guild Lawyers with the aim of providing you with the best legal protection and with a view to minimising damage. In order to demonstrate that objective we have set out below some case studies. Some of these case studies highlight the benefits of early intervention. Sometimes, despite early intervention, a patient will escalate a complaint and so some of the case studies deal with outcomes before Dental Boards.

    Case Study 1

    Prepared by Marianne Nicolle, Principal, Meridian Lawyers

    This case involved an orthodontist based in NSW. The orthodontist sought legal advice when a 15 year old patient called to say that she had left home and wanted her orthodontic appliances removed because she could not afford treatment.

    The orthodontist was an extremely caring professional who recognised that this was a tricky situation. He was having difficulty contacting the young patient and did not know if he should contact one of her parents. He did not know whether contacting the parents would put the young patient at risk. He knew the premature removal of the appliances would result is a less than desirable clinical outcome but he knew that he had to respect the wishes of the patient. In other words, a lot of “grey area” and not much “black and white”.

    The orthodontist wisely contacted his ADA. With the assistance of Guild Lawyers the legal issues were identified: was the patient legally competent to make the decision to have the appliances removed? Would the orthodontist be breaching his duty of confidentiality and/or offending privacy laws by contacting one of the parents? Would he be criticised by his peers if he removed the appliances?

    The orthodontist was advised that the law in NSW recognises that a patient as young as 15 can still have capacity to consent to treatment (or the cessation of treatment). The orthodontist needed to satisfy himself that the patient had the capacity to provide such consent. He was advised not to contact the parents but rather to send a letter to the young patient explaining the consequences of early removal of the appliances. It was advised that the letter suggest that a meeting be arranged between the patient and her parents with a view to reaching an arrangement whereby orthodontic care continued with the fees being paid by the parents. It was recommended that the letter be sent to the patient at her home address and marked “Private and Confidential”.

    Within a short period of time the young patient attended the orthodontist. She said that she had “patched things up” with her family. The appliances remained in place and the parents agreed to continue to pay future fees.

    When presented with a complex problem such as above it is advisable to obtain the opinion of your peers and seek legal advice. A less savvy practitioner may have simply removed the appliances and in doing faced criticism from the patient and/or parents at a later date. The early intervention in this matter arguably resulted in the best outcome for the orthodontist and the patient.

    Case Study 2

    Prepared by Don Grant, Senior Associate of Guild Lawyers

    A 60 year old female patient of the dentist slipped and fell on the verandah when leaving the dentist’s premises sustaining an injury to her wrist. The dentist’s staff had heard a thud and found the patient getting up on her hands and knees. The patient said that she had slipped on the wet floor boards and fallen forward onto the concrete ramp. It had been raining heavily prior to the incident and the staff had noticed that the heavy rain had been blown onto the verandah at an angle by a stiff breeze. (Guild Lawyers obtained information from the Bureau of Meteorology confirming that heavy rain had fallen in the area during the day and prior to the incident). There was a question as to whether suitable non-slip matting had been appropriately placed at the time.

    The patient subsequently submitted her medical treatment costs to the dentist for payment. The dentist was at all times caring and sympathetic to his patient. The dentist held a public liability policy with Guild Insurance and so at an early stage sought advice from his insurer. Whilst it was debatable as to whether the dentist carried a legal liability for this incident it was considered prudent by both the dentist and his insurer that the patient’s relatively small claim for medical out of pocket expenses (radiology, medical and surgical consultations) be paid. The most recent advice from the patient’s surgeon is that he considers it unlikely that there are any foreseeable problems on the horizon.

    In the result the dentist’s clear concern for his patient’s wellbeing following an injury sustained at his premises – a concern that was appreciated by his insurer – saw a satisfactory outcome all round. Significantly, the patient did not make any formal claim for compensation.

    This dentist followed the rules of early intervention. He dealt with the complaint in a direct manner with the patient. He showed concern whilst not admitting that any failure on his part caused the patient to slip and fall. He sought advice at an early stage. As a result he has maintained a good relationship with his patient and avoided what could have been a long and costly dispute over the cause of the patient’s fall and the nature and extent of her injuries.

    Case Study 3

    Prepared by Caroline Tuohey, Solicitor of Guild Lawyers

    This case involved a dentist in Victoria who was working as an independent contractor with a ‘boutique’ cosmetic dentistry practice.

    A patient made a complaint against the dentist to the Dental Practice Board of Victoria (the Board) in connection with the placement of upper and lower veneers. The patient was unsatisfied firstly because the veneers repeatedly failed and secondly because the practice owner refused to accept any responsibility and told the patient to find the individual dentist himself to make a complaint.

    The Board alleged that the dentist had engaged in unprofessional conduct on a number of grounds relating both to her treatment of the patient and that her dental records were not compliant with the Board’s Code of Practice on Dental Records.

    Specifically, it was alleged that the dentist failed to record her diagnosis and that photographs taken were not maintained with the record.

    A practitioner has a professional obligation, in accordance with the Board’s published Code of Practice, to record (at a minimum) the prescribed information set out in the Code. Relevantly to this practitioner, it was alleged she failed to record the diagnosis she had reached, and failed to keep the clinical photographs with her treatment records.

    The practitioner was able to direct the Board to a brief reference in her notes of what she says was her diagnosis. She was also able to explain that the photographs were kept in a separate location within the clinic, but cross-referenced against the patient’s record.

    Importantly for the dentist, her records were otherwise not criticised. They were computerised and otherwise very detailed, making it clear to the Board that she had taken a detailed history and consulted extensively with the patient during the treatment process.

    Whilst computerised records are not mandatory, they do greatly assist a practitioner in cases where the records are being scrutinised by the Board. Practitioners ought to bear in mind that

    whilst they may have explained their diagnosis with the patient, it is a requirement that they document this in the treatment record.

    Whilst there was an adverse finding made against the practitioner’s treatment, there was no adverse finding about the dental records. The Board did not pursue this allegation once it had the benefit of the practitioner’s explanation.

    Interestingly, the Board expressed concerns about the practice manager’s conduct in refusing to assist the patient. It was felt that notwithstanding the dentist was a contractor, to a member of the public the services were performed by the practice, and a patient should not ‘fall between the cracks’ of the practice and the dentist when seeking to have a complaint addressed.

    Case Study 4

    Prepared by Fiona Dransfield, Principal of Guild Lawyers

    For the dentist, responding to a complaint to a Dental Board, can be a time consuming process. One such example is a complaint to the Dental Board of New South Wales (“the Board”), by the daughter of a former patient in relation to the provision of dentures.

    The treatment in question was provided over a number of months in 2008. The patient attended upon referral from his general medical practitioner under the EPC Medicare Scheme. At the first appointment, the patient was examined and advised that his options were to have a cobalt chrome or acrylic dentures. The patient elected to have upper and lower cobalt chrome dentures. Subsequently, over a number of appointments, upper and lower impressions were performed and sent to a dental laboratory. Thereafter, the dentures were tried in, adjusted and issued.

    Within a day of the dentures being issued, the patient presented complaining of experiencing pain, that the dentures were cutting his tongue and that he was bleeding. Upon objective examination, the practitioner could not detect any lesions present. However, the patient remained unhappy and refused to wear the dentures leaving them at the practitioner’s surgery.

    Complaints Handling Process

    Within a month after the last consultation with the patient, the practitioner received a letter from the Dental Board of New South Wales indicating that the patient had made a complaint pursuant to Section 48(1) of the Dental Practice Act 2001 (“the Act”). As a result of the complaint being made, the practitioner was required to respond to the complaint within 21 days in accordance with Section 51 of the Act.

    In providing a response, the practitioner was required to provide copies of his entire clinical file (including financial details), a typed transcript of any handwritten notes and a typed representation relating to treatment of the patient.

    Once the practitioner submitted his response, the Board would investigate the complaint or refer the complaint for further investigation to determine whether the complaint established unsatisfactory professional conduct or professional misconduct.

    The majority of complaints to the Board involve treatment which may be tantamount to unsatisfactory professional conduct. Unsatisfactory professional conduct includes any conduct that demonstrates a significant lack of adequate knowledge, skill, judgment or care by a dentist in the practice of dentistry, as defined by Section 41(1) of the Act.

    In submitting a response, the practitioner’s representations would then be considered by the Board’s Complaints Committee sitting with the Health Care Complaints Commission and could be referred to the Dental Care Assessment Committee (“the DCAC”). The DCAC may either investigate the complaint, encourage the complainant and practitioner to settle the complaint by consent or make a recommendation to the Board.

    Given that a recommendation by the DCAC could be adverse to a practitioner, the Board allows the practitioner to respond in writing to any DCAC recommendation before the recommendation is considered by the Board.

    However, at no stage does this prevent a practitioner from attempting to initiate a settlement of the complaint direct with the patient.

    Response

    Once the practitioner received notification from the Board of a complaint being made by the patient, contact was made with the Dental Defence Advisory Service (DDAS) of the Australian Dental Association (NSW Branch). Assistance was then provided by the DDAS and Guild Lawyers in drafting an appropriately worded letter of reply, responding to all elements of the patient’s complaint and outlining the treatment provided at every consultation with a view to submitting that at all material times the treatment and advice provided was appropriate and in accordance with accepted standards of care. The body of the report therefore provided a summary of clinical treatment and refuted those factual matters that were in dispute as referred to in the patient’s complaint.

    Once the letter of reply was settled and the practitioner considered its content to be suitable, the practitioner forwarded the reply to the Board.

    Investigation and outcome

    Following receipt of the reply by the Board, it determined to refer the matter to the DCAC for further investigation and assessment. The patient was referred to an independent assessor to allow the DCAC to obtain a report as to the treatment provided by the practitioner. Once the independent assessor completed their assessment and report, the report was forwarded to the DCAC in furtherance of its investigation.

    Ultimately, the DCAC formed the view, as a result of the independent assessor’s report, that the dentures provided to the patient were of good fit and make. The DCAC then forwarded a recommendation to the Board that the complaint be dismissed.

    Subsequently, the Board at a formal meeting resolved to accept the recommendation of the DCAC that the complaint be dismissed. The outcome of the complaint and its investigation was then notified in writing to the patient and the practitioner.

    Comment

    The result in this instance was extremely pleasing and attributable to the practitioner, after taking advice from the DDAS and Guild Lawyers, submitting a thorough and detailed reply to all complaints and allegations made by the patient and his daughter.

    In addition, the DCAC was not doubt assisted by the quality of the practitioner’s notes which included radiographs, study models and ultimately the denture itself which the patient had refused to accept.

    Case Study 5

    Prepared by Marianne Nicolle, Principal, Meridian Lawyers

    The patient attended the dentist concerning tooth 16. The dentist diagnosed a crack on the amalgam of tooth 16. When the amalgam was removed it was noted that the crack ran through to the pulp chamber. The dentist discussed the options for treatment which included extraction or RCT followed by the placement of a ceramic inlay or crown. The patient chose the option of RCT followed by the placement of a ceramic inlay.

    The patient subsequently complained to the dentist that the ceramic inlay fractured within 9 months. He asserted that he had been given a guarantee that the ceramic inlay should last for between 5-6 years and that is what influenced his treatment decision. The patient asserted that he consulted another dentist who extracted the tooth. In preparation for an implant he also underwent some bone grafting. He asserted that the bone grafting procedure was complicated by abscess formation requiring drainage and antibiotic therapy.

    The patient sent an email to the dentist setting out his complaint and seeking a refund of fees together with compensation for associated out of pocket expenses. The patient said that he had obtained a second opinion to the effect that a crown, as opposed to a ceramic inlay, should have been placed on tooth 16. The patient wanted the dentist to place the implant for free.

    The dentist notified his ADA and Guild Insurance of the communication from the patient. The dentist also received assistance from Guild Lawyers. The preliminary view was that the ceramic inlay was not a good treatment option and therefore the dentist was at risk of criticism from his peers (if a complaint was made to a Dental Board) or a judge (if a civil claim was pursued). The dentist accepted advice that he should write a letter to the patient expressing sympathy for his position whilst not admitting liability. The letter offered a full fee refund (around $3,000) as a gesture of goodwill. The dentist recommended that the patient have the implant placed by an oral surgeon.

    The patient accepted the proposal. This is an example of early intervention at its best. As soon as the dentist received the patient complaint he obtained peer advice and legal advice. The advice was to the effect that the dentist may have a liability exposure and so an attempt should be made to resolve the dispute as soon as possible. The dentist was provided with advice about the content of the letter to the patient. The complaint was resolved within a short time frame. The patient now has funds to assist with the placement of an implant (which would have been required at some stage in any event) and the dentist has avoided escalation of the complaint.

    Prepared by Marianne Nicolle, Principal, Meridian Lawyers

    communication
  • Old concepts, new buzz words, big issues in dentistry

    Recent times have seen a lot of change in dentistry, from which came greater clarity in some areas — Open Disclosure — and greater confusion in others — Scope of Practice.

    Open disclosure

    No matter how careful, qualified or experienced we are, adverse events are an inevitable part of dental practice. For many years ADA NSW has been writing articles on a practitioner’s obligation to fully inform a patient should something go wrong. So the concept is not new and ‘open disclosure’ is already occurring in many areas of dentistry, but what is new is the Australian Commission on Safety and Quality in Healthcare’s standard and the reference within the Dental Board of Australia Code of Conduct .

    Both these references aim to promote a clear and consistent approach by healthcare professionals to open communication with patients and their nominated support person following an adverse event. This includes a discussion about what has happened, why it happened and what is being done to prevent it from happening again. They also aim to provide guidance on minimising the risk of recurrence of an adverse event through the use of information to generate systems improvement and promotion of a culture that focuses on health care safety.

    Principles of open disclosure

    Open disclosure is the open discussion of incidents that result in harm to a patient while receiving health care. The principles of open disclosure include:

    1. Openness and timeliness of communication: When things go wrong, the patient and their support person should be provided with information about what happened, in an open and honest manner at all times. The open disclosure process is fluid and may involve the provision of ongoing information.
    2. Acknowledgment: All adverse events should be acknowledged to the patient and their support person as soon as practicable.
    3. Expression of regret: As early as possible, the patient and their support person should receive an expression of regret for any harm that resulted from an adverse event.
    4. Recognition of the reasonable expectations of patients and their support person: The patient and their support person may reasonably expect to be fully informed of the facts surrounding an adverse event and its consequence, treated with empathy, respect and consideration and provided with support in a manner appropriate to their needs.
    5. Staff support: Dental Practices should create an environment in which all staff are able and encouraged to recognise and report adverse events and are supported through the open disclosure process.
    6. Integrated risk management and systems improvement: Investigation of adverse events and outcomes are to be conducted through processes that focus on the management of risk. Outcomes of investigations are to focus on improving systems of care and will be reviewed for their effectiveness.
    7. Good governance: Open disclosure requires the creation of clinical risk and quality improvement processes where adverse events are investigated and analysed to find out what can be done to prevent their recurrence. It involves a system of accountability through the practice principal/senior dentist to ensure that these changes are implemented and their effectiveness reviewed.
    8. Confidentiality: Policies and procedures are to be developed by a dental practice with full consideration of the patient’s, carer’s and staff’s privacy and confidentiality, in compliance with relevant law, including Commonwealth and State/Territory Privacy and health records legislation.

    The open disclosure process

    As health professionals, we have a legal and ethical duty to our patients to notify them when things go wrong. A good practitioner will recognise what has happened and;

    • act immediately to rectify the problem, if possible, including seeking any necessary help and advice,
    • express regret,
    • explain to the patient as promptly and fully as possible what has happened and the anticipated short-term and long-term consequences,
    • acknowledge any patient or client distress and providing appropriate support,
    • comply with any relevant policies, procedures and reporting requirements, subject to advice from a professional indemnity insurer,
    • review adverse events and implementing changes to reduce the risk of recurrence,
    • report adverse events to the relevant authority as required,
    • ensure patients or clients have access to information about the processes for making a complaint.

    It is important to note that an explanation of the facts is different to, and certainly should not be, an admission of liability, the latter being statements made by the practitioner indicating direct acceptance of all responsibility for the adverse outcome which has occurred. Dental practitioners need to be aware of the risk of making an admission of liability during the open disclosure process. In any discussion with the patient and their support person during the open disclosure process, the dental practitioner should take care not to:

    • state or agree that they are liable for the harm caused to the patient
    • state or agree that another health care professional is liable for the harm caused to the patient
    • state or agree that the dental practice is liable for the harm caused to the patient

    Case studies

    The following case studies emerged from a search of DDAS files for incidents which involved a decision on whether to inform the patient of a problem. Whilst the search was a purely random one, you will see that in every instance no action was taken by the patient. Whilst not necessarily illustrated by all of the examples below, a policy of open disclosure can help to build patient trust and in many instances, results in a positive change to practice procedures thereby improving patient care.

    Caries overlooked

    Case details: Tooth 45 requires RCT as a result of a cavity not being detected on the x-ray two years ago. Patient has had an exam by a partner in the practice in between times (no x-rays) and the cavity was also not detected. A crown may also be required. A patient presented for emergency treatment of severe toothache emanating from tooth 45. RCT was commenced.

    On subsequent review of the patient’s records, the dentist discovered that there had been undiagnosed distal root caries on 45 visible on bitewings taken 15 months earlier. The caries had also not been detected during a dental examination undertaken by a partner in the practice some months afterward. Rather than attempt to cover up the oversight, the treating dentist accepted responsibility and wished to correct the error. The patient was informed of the caries and the RCT was completed for no charge. A good relationship was maintained with the patient who had loyally attended this particular practitioner for 15 years, including following her through three changes of practice location.

    Comment: Radiographs are one of a dentist’s most important diagnostic tools (and can contribute significantly to the defence, or lack thereof, of a claim). On a busy day in a busy practice, occasional oversights are bound to occur. Having a systematic order of examining structures on a radiograph reduces this risk, as does rechecking radiographs at the end of the appointment at which they are taken.

    Wrong filling replaced

    Case details: The family had been attending a dental practice for 8 years. One of the adolescent members of the family, with a history of high caries, had fillings placed on 26 and 37. A couple of months later a filling in 47 was to be carried out due to recurrent caries. Unfortunately the practice manager wrote the wrong tooth number on the patient’s card, the dental nurse took a digital x-ray for tooth 37, and when the patient attended for treatment, the dentist removed the 37 filling to find no decay, at this point realising that the wrong tooth had been worked on. The dentist explained to the patient and her mother that she had just redone the filling in tooth 37 by mistake instead of replacing the one in tooth 47. Naturally, there was no charge for the treatment. The filling in 47 was also subsequently replaced for no charge. The dentist’s prompt and honest disclosure was rewarded by the patient’s calm acceptance of the error and the family’s continued attendance at the practice.

    Comment: When multiple members of the dental team are involved in providing treatment, the risk of error increases. Good communication and a system of cross-checking is necessary to avoid perpetuation of errors. The individual practitioner, however, is ultimately responsible for the treatment provided and it is clearly incumbent on him/her to check that the right tooth is about to be treated before commencing any dental procedure.

    Perforation during root canal therapy

    Case details: A patient presented for emergency treatment of pain on the lower right side of her mouth. The dentist commenced RCT on the deeply filled 46, during which he perforated the lateral wall of the mesial root. This was confirmed radiographically. The tooth was dried and dressed, and it was explained to the patient that the perforation had occurred and had reduced the prognosis for long-term retention of the tooth. An endodontic consultation with an Endodontist was recommended should the patient wish to continue with the treatment. The patient, was not too concerned and was more interested in having the tooth extracted and a bridge placed. She declined specialist referral. After further discussion, the dentist suggested that she consider what had been discussed before making a final decision on the future of the tooth. The following day the patient experienced severe pain and attended another dentist at the practice who adjusted the temporary filling, provided a script for antibiotics and analgesics, and referred the patient to the endodontist. One month later, the patient wrote to the practice principal accusing the assistant dentist of being “negligent in his treatment” of her. She stated that she had “not been given any antibiotics or painkillers by him, the temporary filling had not been completed properly, and he should not have commenced RCT if he was not capable”. She advised that she would be continuing treatment with the Endodontist.

    The original treating dentist sent a courteous letter of reply to the patient outlining how the perforation had come about and been addressed, and reminding her of their detailed discussion about the problems with, and treatment options available for, tooth 46 at a visit prior to the RCT appointment. As a result of those discussions, it had been agreed that although the tooth may have to be eventually extracted, they would attempt to salvage it with RCT. The patient had been informed that no guarantees could be given and that there was a failure rate of around 10%. The dentist ended by saying that he was nevertheless happy to offer the patient a full refund ($200) for the treatment he had provided to 46 because of the unfortunate outcome and his primary concern for the satisfaction and wellbeing of his patients.

    Five months later the dentist had still heard nothing in reply and the patient had failed to take up the offer of refund. The RCT was completed by the E ndodontist and the patient was apparently happy with the service that had been provided. A crown was planned to be placed in the near future by another dentist at the practice.

    Comment: A patient will commonly accuse a dentist of “negligence” however negligence is a legal concept which must be determined by a court of law. With the exception of prima facie examples such as extraction of the wrong tooth, negligence can be very difficult for a patient to prove and comparatively few adverse incidents in dentistry are ever deemed to be “negligent”. More often they would be considered as unexpected, but always possible, complications of the procedure being performed, and about which the patient should be warned before the procedure is commenced. Perforations are more common when treatment has been carried out in an emergency appointment when staff can be rushed and unprepared. When a perforation occurs, it can be tempting to hide it by not taking adequate radiographs which would assist in demonstrating the problem, however by doing so, this may only delay its discovery (often by a future practitioner) when the uncomfortable truth inevitably comes out. It was fortunate in this case that the perforation did not render the tooth unsalvageable. The outcome was assisted in part by both the dentist’s prompt admission of the problem and specialist attention at an early stage. It is important to follow up on patients who have been referred to ensure that they follow through with care. A patient who was well-informed prior to treatment plus a well-worded letter of explanation and genuine expression of regret were important in preventing this matter from escalating.

    Wrong tooth filled

    Case Details: It is often very difficult and embarrassing to admit errors to patients and it can be tempting to want to hide them. What distinguishes us as professionals is our management of errors when they happen. A set of bitewings taken as part of a routine examination on a young adult revealed that a filling was required in tooth 27. At the treatment appointment 3 weeks later, the dentist carried out a tunnel preparation on the tooth. When no decay was found upon drilling to the depth indicated by the x-ray, it was discovered that the x-rays had been accidentally mixed with nearly identical bitewings of a similarly-aged patient, and tooth 27 did not in fact require a restoration. When the correct x-ray was located, a distal carious lesion was noted in tooth 26. Upon contacting the DDAS for advice, the dentist was advised to phone the patient and apologetically admit the error and advise of the need for the restoration in tooth 26. If the patient allowed the opportunity for the filling to be placed, it was suggested that it be done for no charge as a goodwill gesture.

    It was a difficult call and when it came to the crunch, the dentist opted simply to inform the patient that he had missed a filling and that another appointment would be needed. When the patient presented for treatment, he made no enquiries about the need for the extra filling so the dentist offered no explanations.

    Comment: Whilst Dr C may have “gotten away with it” (for now), his management would be considered in breach of professional ethics. In addition, it is important to note that whilst an error or bad outcome is not necessarily negligence, failure to disclose it can be, and can be the basis for a successful claim. Hence the recommendation is always to be transparent with the patient, as difficult as that may be in such circumstances. On a positive note, the dentist amended his procedures so that x-rays are now labelled immediately to avoid a similar error recurring.

    Clinical privileging

    In the last six months, how many times have you heard another dentist state that his/her hygienist is able to perform procedures that your hygienist doesn’t. Equally so for a therapist or Oral health therapist. And you wonder how they can “get away with it”. With the introduction of the National Law, many of the state based differences could not be maintained and specifically defined as previous. The scope of practice for Dental hygienists, dental therapists and oral health therapists is one such area.

    Dental hygienists, dental therapists and oral health therapists exercise autonomous decision making in those areas in which they have been formally educated and trained. They may only practice within a structured professional relationship with a dentist. They must not practise as independent practitioners. They may practise in a range of environments that are not limited to direct supervision

    — Dental Board of Australia Scope of Practice Standard

    There is no longer a blanket descriptor for each of the roles. The onus is now firmly on the dental practitioner to assess their own competency and perform only those procedures for which they have been formally educated and trained in programs of study approved by the Board. The pursuit and development of additional skills will then raise some legal considerations that must be addressed in the context of the broad range of patient care for which the dental practitioner is legally accountable. It will undoubtedly be the obligation of the practice principal/senior dentist to ensure that the right people have the right education to provide the right procedure within the practice- clinical privileging.

    By David Sweeney (ADANSW)

    communication
  • Ever bought something expensive?

    It may have become second nature to most of us but in reality the decision-making process for a consumer when deciding whether to purchase a good or service is anything but straightforward. The potential influences on consumer behaviour are many and varied and will differ from one person to the next. The marketing analysts, for example, cite a wide range of factors affecting purchasing decisions. These may include, but are not limited to:

    • External Influences – culture, group, situation;
    • Internal/Personal Influences – perception, attitude, knowledge, personality, income, opportunity cost, lifestyle, role;
    • Marketing Influences – product, promotion, price, distribution, service.

    It is worth noting that these matters are not, for the most part, mutually exclusive. They interconnect in a way that influences who we are and how we behave.

    After feeding the available information through our personal decision-making sieve, we arrive at our own conclusion – to buy or not to buy? It may, of course, be the case that we still decide to proceed with a purchase despite having formed the perception that the good or service is “expensive”. We have simply satisfied ourselves that the outlay is justified given the outcome we expect to achieve by making the purchase. Confronted with similar circumstances, however, another person may deem our “expensive” purchase to be a “bargain” and vice versa. Indeed, none of us are really in a position to speak for others in the marketplace as to what constitutes value for money.

    Is dentistry any different? Whether we are comfortable with the terminology or not, our patients are consumers. Are we as dentists able to predict how any patient (given their individual circumstances, many of which we are not privy to) will perceive the fees we charge for the services we provide? The reality is that we are unlikely to be able to predict their perception but we may be able to have some input in to how they arrive at their conclusion.

    At the heart of this process is information, which takes a number of different forms. In broad terms, a patient needs first to understand (on a technical level) and agree to the treatment procedure(s) being recommended. This is classically referred to as Informed Consent. Secondly, but no less importantly, the patient should be made aware of the costs they are likely to incur in receiving the treatment. It is this latter issue, Informed Financial Consent, which is addressed here.

    There is nothing in the Competition and Consumer Act 2010 (Cth) that regulates the prices charged by professionals. As such, professionals are free to decide what fees they will charge clients for their services. Because of this, the Australian Competition and Consumer Commission (ACCC) believes that professionals have an ethical duty to inform their patients about the cost of the services they provide while consumers have a right to obtain information on these costs – “where possible, in advance of the services being provided”. The ACCC contends that consumers are often not as well informed about professional services as they are for other sectors because of the imbalance between what they know of the service provision compared with what the provider knows. It follows that better information needs to be provided about professional services to enable consumers to make better-informed choices about purchasing services and whether to provide consent for such services to be provided.

    The source of protection for consumers is provided by the Australian Consumer Law (ACL), which is contained in a schedule to the Competition and Consumer Act 2010. Generally, the ACL requires that professionals do not, in their promotional activities, act in a way that is misleading or deceptive, or is likely to mislead or deceive. Through its enforcement of the consumer protection provisions of the ACL the ACCC is concerned that professionals obtain informed financial consent from their clients. Practitioners should be aware, for example, that failure to disclose material information such as fees may, in some circumstances, put them in breach of ACL provisions.

    The issue of misleading and deceptive conduct is an important one to consider in relation to “failure to disclose material information”. In its 2010 publication Professions and the Trade Practices Act the ACCC states:

    “Misleading and deceptive conduct – whether that conduct actually misleads clients or is merely likely to mislead them – is prohibited. Generally this type of conduct involves leading someone into error, or being likely to, and includes behaviour such as:

    • lying
    • leading someone to a wrong conclusion
    • creating a false impression
    • leaving out (or hiding) important information
    • making false or inaccurate claims

    It is irrelevant whether these are done intentionally or not. A business can break the rules by both deliberate and inadvertent actions”.

    What, then, does this all mean in real terms for the practitioner? We know from the above where the legislators stand, but what about consumer organisations? CHOICE has published several articles in recent years which touch on the issue of Informed Financial Consent as it relates to the provision of dental services. The articles Guide to choosing dental care (12 June 2007) and Can you trust your dentist? (23 November 2009) are worth reading if only to put yourself in a patient’s shoes and to understand what a consumer advocate body feels is appropriate. Both articles refer to the benefit of patients having a written quotation for proposed dental treatment. There are also several statements which acknowledge the need for dentist and patient to understand the perspective of the other. To the dentist, CHOICE urges the need to explain:

    “Dentistry is said to be a notoriously inexact science, or even art based on scientific knowledge. With most people now assuming they’ll keep their teeth for life, dentists have an unprecedented duty of care. While preventative care is simply good practice, unnecessary work could ultimately destroy a tooth. Most people aren’t in a position to judge whose opinion best serves their long-term interests”.

    To the patient, CHOICE endeavours to explain some of the reasons for fee variations:

    “…there’s a wide cost range for most item numbers. Charges vary for many reasons, including the surgery overheads, the expertise of the practitioner and the time it takes. Even a single item number can be charged differently by the same dentist: a filling on one surface may be particularly large or hard to access, for example, and require more time; or if you’re having several fillings done at once there may be a discount (because it takes less time than doing each as a single filling)”.

    And a cautionary note to patients from the same publication:

    “Don’t let leading questions sway your judgement, and watch out for the sales pitch that doesn’t sound like a sales pitch. Is your dentist in the business of dentistry or the practice of dentistry?”

    Would it not be reasonable for a dentist to operate in both of these spheres? It may just be that the perception of only being in the “business of dentistry” could be largely reversed by the open disclosure of fees prior to the commencement of treatment (together, of course, with a patient-appropriate explanation as to why the treatment is being recommended).

    And so to the practicalities. Where does your Association stand on this matter and how can we help you? ADA Inc has an excellent resource for you to consider and I commend it to you. The Policy Statement Informed Financial Consent (“The Policy”) is complete in its coverage yet concise in its expression. You can find it on the Federal ADA website at www.ada.org.au/Professional-Information/Policies/Third-Parties/5-16-Informed-Financial-ConsentThe document deals with the relationship between dentist and patient and additionally considers the impact of third party funding bodies. Some of the major points to note from this document are:

    • Informed financial consent is sound ethical professional practice. This is also good business practice and will result in fewer disputes over accounts, lower debt recovery costs and fewer bad debts;
    • Many patients will be unfamiliar with what is involved with their dental procedure. In some instances, patients may have wrongly assumed that the fee for the dental service is fully covered by their health fund;
    • Patients may be apprehensive over the pending dental procedures. They may be unwell, distressed, disoriented, or affected by more than one of those conditions. Discussing financial implications with some patients at this time may be impractical and unworkable;
    • Dental fees may be based on an itemised schedule of treatment or on the time taken to complete the dental procedure. Accordingly, the dentist may only be able to estimate a range of fees based on the expected time to undertake the procedure. Similarly, if the planned procedure is changed during surgery, due to unforeseen circumstances, this may also result in a change to the final fee charged by the dentist. Of course, any such fee should be advised at the appropriate time.

    The Policy sensibly advises that any information about expected charges, provided to the patient prior to treatment, should include advice that the estimate is not guaranteed and the cost to the patient may increase if the planned procedure takes longer than expected or other procedures are required. The point is also made that dentists should ensure that patients are in a fit state to give informed financial consent.

    In the public domain your Association has made its position on informed financial consent clear. On October 2008 the then Federal President, Dr John E Matthews, issued a media release in response to statements made by the Federal Minister for Health and Ageing, Nicola Roxon. In a speech to the Australian Health Insurance Association Annual Conference Minister Roxon mentioned Dental Services in relation to out-of-pocket costs, “Insurers publish information about the benefits they pay for dental treatment – but consumers often don’t get information about the actual charges until after they’ve had the treatment and receive an account”. Dr Matthews responded “The Minister is generalising when she makes such a statement as often patients request or are offered a treatment plan before commencing treatment. The ADA supports the principle of full disclosure of fees before a course of dental treatment and encourages dentists to provide and patients to seek a full estimate of treatment in advance. This is part of the ADA’s policy on informed financial consent”.

    So how could you go about managing the issue in your day-to-day working life? Every practice has a different “feel” to it and there are no hard and fast rules. You know your business and your patients better than anyone else and have to decide what will work best in your particular circumstances. For some, it may be a blanket policy of providing quotations for all treatment proposed for all patients. Many current software programs make it quite easy to produce a quotation document based on the treatment plan you have entered. Given the compliance requirements of the Medicare Chronic Diseases Dental Scheme (CDDS) this should, by now, be routine for many. For others, you may choose to place a sign at reception with wording such as “We are happy to provide you with an estimate of fees for your treatment. Please advise if you would like us to prepare a quotation for you”. Other practices may take the decision to only provide quotations for treatment above a certain dollar amount and still others may just leave it to the practitioner’s discretion to suggest a quotation at the time when treatment is being discussed. Whatever the case, be mindful that what seems in prospect to be an imposition on your time (and that of your staff) is as nothing compared to the time and emotional energy you will need to invest in responding to a complaint about fees made by a patient (either to yourself or a statutory authority) after the event.

    The issue of disputes over fees is very real. At the Dental Defence Advisory Service (DDAS) we are regularly assisting members on matters relating to treatment costs. The database of matters reported to DDAS currently contains some 130 files specifically on issues of fees. These are broadly categorised into one of two areas: Failure to Advise All Treatment Costs and Excessive Fees. So what are the types of circumstances that give rise to problems? Examples include:

    • Differences between what was quoted and what was subsequently charged with no explanation as to why the change occurred. The difference between the fee for a simple extraction and a surgical removal, for instance, needs to be discussed;
    • Seeing a patient for the first time and at the initial visit undertaking examination, prophylaxis, radiographs and multiple restorations – all without any discussion of what the fee payable would be at the end of the appointment;
    • Misunderstandings regarding ongoing costs such as subsequent denture relines where the patient may believe such fee was included in the original cost of the prosthesis;
    • A patient not being aware that the fee quoted for endodontic treatment was not inclusive of the subsequent restoration of the tooth. Similarly, a patient quoted for an “implant” needs to understand what this term means as a dentist’s usage of the term may be vastly different than the patient’s mental picture of a complete new tooth;
    • Unexpected additional procedures being required. An example would be the need to graft at an implant site which is only determined at the time of surgery. This possibility should ideally be canvassed prior to the event but, at the very least, addressed with the patient as soon as the practitioner becomes aware of the need to do so;
    • A patient’s monetary limit under the CDDS being exceeded such that the patient will unexpectedly incur out-of-pocket expenses;
    • Patients not understanding their gap payment obligations under either the CDDS or with health fund cover.

    There are many, many more. Whatever dentistry you practice you will justifiably seek remuneration for the provision of this service, however it cannot be stressed enough just how important it is that you discuss fees with your patients prior to treatment and document these matters in your treatment notes. As a consumer yourself, would you expect anything less than to know the cost of the good or service you are considering purchasing?

    At DDAS we are always just a telephone call away to provide an ear, a shoulder and, of course, advice. This is delivered in a non-judgemental way to help members deal with some of the problems that unfortunately arise as a result of dealing with people and being only human ourselves. Nonetheless, it is hoped that reading this article may stimulate you to rethink how you approach the matter of informed financial consent and perhaps, just perhaps, save you some trouble in the times ahead.

    Article on Informed Financial Consent for NSW Dentist June 2011
    Craig Brown, DDAS Peer Advisor

    communication

Similar Articles

Exception occured while executing the controller. Check error logs for details.