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June 2009 | Dental Products Report
Products in practice: protocol

Protect yourself

There are precautions you can take to keep patient expectations reasonable and you out of court.

by Dr. Duane A. Schmidt, President of pre/op/ed

Photo: Comstock/Getty Images

This morning, 11 dentists received a special delivery letter that changed their lives forever.

It began, “Dear Doctor: We represent your patient Jane Doe and demand that within the next 10 days, you submit your entire records and x-rays for her treatment.”

week’s end, more than 50 dentists will receive a similar letter. By the end of the month hundreds more, and by the end of the year thousands will be jarred by a similarly ominous letter. In a decade, a third of all practicing dentists will receive such a letter, and their lives will never be the same.

Virtually everything that follows these letters is uncomfortable, if not unconscionable. Anxiety and sleeplessness set in. There may be costly time away from the chair, attorneys engaged and depositions taken. Negative publicity may occur: “Local Dentist Charged With Substandard Care.” Payment may be due the former patient and his or her attorney. Professional liability insurance may cost more. And a stigma may hang over the dentist’s practice.

It could happen to you
There is nothing pretty about this picture, and no dentist is immune. The rain of litigiousness falls on the just and the unjust alike. If a dentist believes these letters are only delivered to ‘bad’ dentists, then that dentist needs a reality check. To a lawyer, all dentists are equally culpable. It’s what lawyers do.

Ah, but you respond, “I have professional liability insurance and am protected.” In a limited sense, that’s true. But relying on liability insurance to ‘fix’ a problem that could be avoided is akin to your patient failing to engage preventive dental care hoping you can fix problems that may occur.

Each year dentists plop hundreds of millions of dollars into the coffers of professional liability insurers. And the insurers spend most of those millions defending dentists against largely preventable incidents.

Informed consent
Since the late 1980s, our office has created a barrier to the most precipitant cause of litigation: unrealized expectations. Insurers report that at least 80% of all of these legal fishing expeditions come from patients who expected heavenly results yet found they only received earthly products and services.

That misconception lies squarely on our shoulders. It’s because we get rushed and behind in our schedules. Standard of care protocol gets shortchanged. We become pressed for cash flow and we oversell. We fail to perform strict informed consent procedures.

A patient agrees to a service but is unaware that a sinus may be opened during certain extractions, a hematoma might occur, a lip may remain numb for weeks or forever, a filling may chip, a bone chip may work out, a new crown may experience root decay, a new denture may crack or lose a tooth and on and on.

The real culprit is how we obtain an informed consent. Presently, we do so in one of two ways. Either our assistants or we give the informed consent talk, or we ask our patient to read a text.

Later, when worse has come to worst, our former patient tearfully tells the jury she wasn’t given enough time to study a document containing words she did not understand. Or he claims oral warnings were never issued and the jury listens to a “No, you didn’t” vs. “Yes, I did” argument.” The patient always wins that one. After all, we are the ‘deep pockets’—and we have insurance.

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