Protect yourself

July 25, 2012

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.”

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.

Remember…

The business adage holds true: A satisfied patient may tell some family and friends, but a dissatisfied patient will broadcast his anger far and wide.

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.

Put it on a video
In the 1980s, recognizing that audio-visuals were the finest teaching tools, we created a series of 2- to 3-minute informed consent videos (ICV) that frankly reveal possible consequences of a root canal filling, surgical event, denture or crown and bridge procedure. Professional liability experts edited the information, which is concise, consistent and delivered in plain English.

The video relates the bad news of potential unfortunate happenings-a file may go through a root canal, a dry socket might occur, a bridge does not last forever, half the success of a new denture rests with the patient and so on.

Patients must watch the video before we perform the procedure, and then both the chairside assistant and the dentist ask if they have any questions. When their questions are answered, we ask them to sign that they saw the video, understood it and that their questions were answered. Their signature is then scanned into their computerized chart.

During the past 23 years, 17 lawyers have sent our doctors those ominous letters. After reading the script of our short ICVs, all 17 lawyers faded into the sunset. We did not even call our insurer to report the incidents.

If 17 sounds like a large number of legal inquiries, understand that our office has 34 chairs, a staff of 55, three or more doctors, 12 hygienists and 250 to 300 patient visits daily.

It’s not always about winning
There’s one more step in the dissatisfied patient scenario-defusing the situation. Dissatisfied patients, if they do not simply walk, often will settle for an admission that we were wrong. But we don’t give in easily. Our combative instincts have programmed us to roll up our sleeves for the fight. And that attitude breeds danger.

I speak from experience. In my early years of practice, when patients had problems with my services, I fought to prove them wrong. In some cases I won and felt vindicated. More often I reached a stalemate, or I lost.

In time, I realized that trying to tame an upset patient was futile, both financially and emotionally, and it was a waste of time. I had to ask myself, if I won, just what had I won?

Talk it out
As my eyes opened to a smarter way to deal with patient adversaries, I invited them to sit with me and I asked: “What is the problem and what would you like me to do about it?”

Amazingly, some just said they wanted me to know about the problem. I assured them I would look into it and correct whatever was needed in a delivery system that had let them down. And I never failed to follow through on that promise.

Some dissatisfied patients wanted a refund, a remake, a different treatment option or even another doctor. We promptly gave them whatever they wanted and we bore the cost. Many felt we handled the remake situation well and remained as patients.
That solution costs far less than paying lawyers, and we wasted no time arguing, stewing or negotiating. The methodology is to defuse the patient’s discontent by resolving the complaint.

Despite our best efforts, a few disgruntled patients still wanted a pound of flesh. We gave them a brochure we had prepared that explained their rights under the AAA program. But in the vast majority of cases, managing a patient’s expectations realistically was a wise strategy with positive results.