Case study – a good news clinical record story

It is always encouraging to hear that good, comprehensive clinical records can and do assist dental practitioners in successfully defending patient complaints. This case study is about one such positive outcome.

In 2009, the patient lodged a complaint against the dental practitioner with the Dental Board of New South Wales (as it was then known). The patient complained that her health had declined as a result of alleged injuries sustained from implant placement. The practitioner rejected the allegations of complaint and submitted to the Board that his management of the patient had been appropriate and in accordance with established standards of good practice.

In 2010, the matter was considered by the Dental Care Assessment Committee (DCAC) of the newly established Dental Council of New South Wales. The DCAC considered the matter, including reports from the consultants whom the patient had subsequently attended. An independent practitioner also provided an assessment, based on examination of the case records. The DCAC formed the view that the treatment provided was unsatisfactory on the following grounds:

  • Failure to record a medical history and patient assessment.
  • Incorrect diagnosis and treatment planning, failure to assess bone levels and failure to consider the necessity for bone grafting resulting in unsatisfactory case selection.
  • Incorrect placement of implants resulting in perforation of the maxillary sinus and bony floor of the nasal cavity resulting in apparent infection in the maxillary sinus.

The Committee made a recommendation to the Dental Council of New South Wales that the practitioner be directed to refund treatment fees.

The Dental Council sought the practitioner’s attendance before it so that the issues could be ventilated.

At the meeting with the Dental Council in 2011, the practitioner made submissions addressing the grounds above and answered questions from the Dental Council members. The practitioner also supplied the Dental Council with all of his clinical records, radiographs, and other materials.

In the result, the Dental Council decided as follows:

  • Council compliments the practitioner on his thorough and excellent records.
  • Council does not agree with the decision of the DCAC.
  • Council resolves to dismiss the complaint.

The Chairman of the Dental Council specifically commended the practitioner on the quality of his records and said that this matter is likely to be a good teaching tool for the rest of the profession. The outcome is an excellent one for the practitioner and, in our view, the wider profession in that it highlights the importance of good records and demonstrates that good, comprehensive records are important not only in the context of providing good clinical care but are also useful in successfully defending the practitioner against complaints.

For the current requirements in record keeping, practitioners are referred to the “Dental Guidelines on Dental Records” which can be found on the Dental Board of Australia website at www.dentalboard.gov.au.

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    Property maintenance - could your property cause an injury?

    Guild Insurance sees many insurance claims which have come about due to poor maintenance of a property.  In too many of these cases, the poor state of the building or its grounds is obvious and it’s quite surprising, as well as disappointing, that repairs haven’t been carried out before an incident has occurred.

    What can go wrong?

    There are a range of incidents which can occur due to poor maintenance of a property.  Staff can be injured leading to a worker’s compensation claim as well as staff being absent from work for an extended period.  Visitors to the premises, such as customers, clients or contractors, can also suffer injuries leading to public liability claims.  As well as the insurance claims which need to be managed, there’s the added stress of knowing that someone has been injured while at your premises.  Some of these injuries can be very serious and life changing.  Unfortunately, the hazards which lead to these injuries are often not viewed as seriously as they should be.  Yet with appropriate property maintenance many of these injuries could be avoided.

    Case 1

    A client entered a building and tripped over an edge of carpet which was ripped and curled up.  The client sustained a fractured wrist when they landed.

    Case 2

    An awning out the front of a building was old and worn out.  During heavy winds it broke off from the building and hit a person walking past at the time.

    Case 3

    While walking through the carpark of a premises, a staff member has tripped on a large crack in the asphalt which had caused the surface to be uneven.  They fractured their ankle as they fell.

    Case 4

    Poor maintenance doesn’t just lead to people suffering injuries, it can also lead to further damage to the property.  An old deteriorating roof collapsed when hit by heavy rain as it no longer had the strength to support the weight of this rainfall.  This led to excessive water damage within the building.

    Property maintenance tips

    • Have a documented maintenance program in place. This requires a schedule for regularly checking the property to identify hazards as well as details on what needs to be serviced, repaired or replaced and when.
    • Be aware of the out-of-sight, out-of-mind hazards. Many properties have roofs, guttering and downpipes in poor condition due to a lack of maintenance as no one has thought to get up on the roof and inspect it. Include the less obvious hazards in the maintenance program.
    • Have a maintenance budget. Some maintenance work can be planned, other work will come up unexpectedly when something breaks down. You need to be able to find money to fix hazards when identified.
    • Be sure to use qualified tradespeople to undertaken maintenance work. While it can be tempting to undertake some DIY and save money, the risk of things not being maintained or repaired correctly will not be worth the savings in the long term.
    • If you’re a tenant, be aware of what you’re responsible for maintaining and what’s the responsibility of the landlord. Not all tenancy agreements are the same, so you need to be across the details of your agreement.
    • Don’t wait to undertake maintenance till a more convenient time. There are many cases of injuries occurring due to hazards which had been identified but not yet acted upon, usually due to costs, time or not acknowledging the risk of the hazard.
    • All staff have a responsibility to create and maintain a safe workspace. Some hazards will be identified through regular property inspections, however, you can’t rely solely on these inspections. Therefore, encourage all staff to continually be on the lookout for hazards and to speak up when they see something.
    • Don’t think it won’t happen to you and your property. These incidents are a lot more common that many people realise.

    Download Property Maintenance article

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    Orthodontic and third-party agreements: risks and concerns.

    In recent times, there has been a growing number of companies on the internet offering orthodontics like braces, aligners, and other products that people can use at home. While the convenience is very appealing for patients, the same can’t be said about the risks and concerns that come with partnering with foreign-based aligner companies. With the recent demise of two overseas aligner providers, some dentists have not been able to continue patient care in the middle of a course of orthodontic treatment. This has resulted in patient complaints against dentists, who had no part in the companies’ collapse but are left to manage the fallout and develop a re-treatment plan with another aligner provider.

    Another recent development is that patients are asking dentists to place attachments for “at-home, do-it-yourself” aligner treatment. Seeing that this is a complex issue, the ADAVB has approached their advisors at Meridian Lawyers to make general comments about the pitfalls for dentists undertaking either of these two types of treatment. Their advice is that the provision of aligners and/or attachments may make the dentist liable for any adverse treatment outcomes and possibly affect a dentist’s professional indemnity (PI) cover.

    The ADAVB recommends that any member undertaking orthodontic treatment with third-party aligner providers familiarise themselves with the risks and ensure that they are not exposing themselves to additional liability, which may place them in a precarious position when defending a claim.

    Major concerns 

    Treatment plans by aligner companies are often computer-generated offshore with some input from a technician. Blindly following these plans may result in a compromised outcome and potentially irreversible damage. Orthodontists often make changes before a satisfactory plan is reached and may even further modify plans during treatment, depending on the progress. As the clinician, you’re responsible for the treatment and any adverse outcomes, not the aligner company that generated the treatment plan.

    As a result, any claims by patients would most likely be against the dentist or the clinic. Contractual and duty of care considerations need to be taken into account. Even if the contract says the aligner company will cover your liability, that can’t be enforced. By Australian law, the dentist cannot delegate liability for treatment performed to another party. So, in the end, the problem comes back to bite the dentist.

    Fault by association

    A claim against the aligner provider would necessitate chasing shelf and overseas companies, making it almost

    impossible for the patient. The patient will turn to the only person they can reach and direct the blame to – their dentist. It should be noted that at present, there are two class action claims in courts overseas against aligner providers, but these may take years to play out, and it’s unknown if they will be successful.

    An insurer is not privy to the contracts dentists sign or warranties offered by aligner companies. This means warranties deflect back to the dentist and may not be covered under a professional indemnity policy. In Australia, health service providers cannot give warranties, so that part of the company’s “promise” is worthless unless it relates specifically to the aligners themselves (breakages, replacements, etc), not treatment outcomes. 

    The issue with consent

    Informed consent is potentially lacking as most dentists are utilising documents supplied by the aligner company, which in many cases, are not comprehensive enough to satisfy the Australian Code of Conduct requirements.

    Less experienced dentists are often targeted to promote this type of orthodontic treatment as an easy treatment option to provide to patients. Patients seeking aligner treatment usually have high expectations, and it can be challenging to achieve the desired result using aligners only. 

    Unaligned with Australian laws

    While there is a high demand for DIY aligners, dentists should be mindful that undertaking treatments designed by a foreign company can bring more damage than good, especially as they don’t usually meet the standards set by

    Australian authorities. Some examples of these breaches include:

    > Against regulatory guidelines: advertising may not be compliant with Ahpra’s Code of Conduct because the company is based abroad.

    > Products may not be TGA approved (as required in any PI policy): there is a high risk that the insurer may reject a claim when these devices are being used.

    > Australian Privacy Principles (APPs) may be broken by sending confidential patient information overseas: if there is a breach of privacy, the insurer can deny cover as the policy wording indicates the dentists must abide by the APPs in how they store patient information. Foreign companies are not bound by the APPs, so a dentist must weigh the risks and inform the patient about the potential breach of confidentiality before undertaking treatment. In saying that, the risk

    remains that an indemnity claim could still be denied.

    > Companies may offer incentives or discounts, equipment, etc: these all need transparent disclosure under Ahpra’s regulatory framework. If you don’t disclose these on all advertising and patient material, you could be in breach of Ahpra

    or TGA’s advertising standards and guidelines.

    A professional indemnity policy is a contract between you and your insurer, and part of that contract is that you will abide by all regulatory requirements, and the issues mentioned above may expose you to a regulatory finding of

    unsatisfactory professional conduct.

    The ADAVB recognises that there are a lot of hidden issues that members are not familiar with. It’s strongly recommended that you consider your practice before agreeing to take on such treatments. ADAVB has provided some links to follow if you would like more information. You can also speak to your Account Manager or contact Guild Insurance at 1800 810 213 to review your policy for coverage and exclusions.

    Australian Health Practitioner Regulation Agency (Ahpra) – Guidelines for advertising
    Therapeutic Goods Administration – The Therapeutic Goods Advertising Code:  tga.gov.au/about-tga/legislation/legislationand- legislative-instruments/therapeutic-goodsadvertising- code

     

    Office of the Australian Information Commissioner (OAIC) – Australian Privacy Principles: oaic.gov.au/privacy/australian-privacy-principles

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    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.

    Download PDF here


    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    .

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