Dental Expressions^® – From the CNA Claim Files
 
Introduction: Orthodontic care is not often associated with high-severity professional liability claims, though patient dissatisfaction regarding treatment outcome, time and professional fees are not unusual. This claim scenario highlights a number of risk management considerations, including management of a small claims court action.
 
Practitioner: General dentist
Claimant: 42-year-old female patient
Risk management topics: informed consent/specialty treatment; patient expectations; fee refund; small claims court suit
 
Facts: The patient presented for an orthodontic evaluation, having had a history of “braces” in the past. Her orthodontic concerns included an end-to-end relationship of the anterior teeth. She believed that upper front teeth might be damaged without correcting the relationship. Another concern involved her poor posterior occlusion. The patient stated that the “teeth were not touching at all.” She also was frustrated by her uncomfortable “closed bite” and complained that this caused mouth-breathing as well as bruxism. The patient was anxious to complete treatment as soon as possible to address her concerns and enhance her smile.
 
The patient completed a medical/dental history and following the examination, the doctor recommended orthodontic treatment using a clear aligner system with which he had several years’ experience. Impressions and the aligner treatment followed soon after the examination.
 
A few months later, the patient dental healthcare record indicated that results were tracking according to plan. Therefore, moving to the retention phase would be considered at the next visit. However, the next chart entry states that new impressions were recommended for refinement and to close remaining gaps. New trays were created/delivered and a third set of impressions/trays followed. Treatment was determined to be complete at just over 2 years from the start. The final clinical note indicated that everything looked great. However, the patient sent a detailed complaint letter a few months later. She explained that the results were not as expected for either the front or back teeth. Moreover, instead of the estimated six-month treatment time, the process took more than two years. The patient demanded a full refund of fees, as well as an additional $5,000 for her time, frustration and payment for expected damages to the front crowns/natural teeth. Emails between the dentist and patient led to a partial refund offer, or coverage of the cost of subsequent orthodontic care. Absent an acceptable agreement, the patient filed a small claims lawsuit.
 
Key Allegations: Failure to deliver promised results; extended treatment time; potential future damages to crowns/teeth; future orthodontic complications
 
Claimed injury/damages: Financial damages of $9,500: professional fees and more, as noted. (The limit of this small claims court venue: $10,000.)
 
Analysis: What can we learn regarding the important risk management topics noted in this claim scenario.
 
Informed consent/specialty treatment. Obtaining informed consent from the patient/parent represents a key risk management action for any procedure. The process is educational for the patient, helps to establish effective communications and builds trust. In addition, documentation of the informed consent discussion comprises a critical component of an effective defense, in the event of a claim or lawsuit. In this case, the patient complaint letter explains the [alleged] details of the proposed treatment and care plan. However, the patient record reflects limited documentation of these important elements. Were the benefits, risks and alternatives discussed in sufficient detail to obtain informed consent? The dentist recommended aligner therapy. Were other treatment options appropriate/discussed? What risks or events may lead to an extended treatment time? Were they discussed? General dentists often provide treatment associated with the dental specialties and this dentist was experienced in the provision of aligner therapy. Nevertheless, discussing and documenting the offer of specialty care as part of informed consent is recommended. These points and others would typically be part of the informed consent discussion for orthodontic care. However, they are absent from the patient record.
 
Patient expectations. Assessing/setting reasonable treatment expectations is a prerequisite to patient satisfaction, as well as an opportunity to mitigate potential risks. In hindsight, we may consider the patient’s expectations were unreasonable. We know that the patient had previous orthodontic care. Moreover, concerns expressed at the outset indicated she was knowledgeable about tooth positioning, occlusion and related concepts. Would referral to a specialist have been prudent? Or, when the anticipated results were not achieved at six months, would it have been better to recommend other treatment options and/or refer? Each dentist must consider both the patient’s best interests and their professional experience/comfort level to determine how best to proceed. Part of that assessment includes understanding and meeting the specialist standard of care for the treatment involved – the standard to which the general dentist will be held in most states.
 
Fee refund. While providing a refund of professional fees may be a reasonable risk mitigation (and patient satisfaction) strategy, the patient may not agree that this option is acceptable. Two of the most common risk management questions received from dentists are: “If I refund, am I admitting wrongdoing?” Followed by, “I did nothing wrong…why should I refund the fee?” First, as long as the dentist does not admit to wrongdoing, it may be argued the refund is solely a business/patient satisfaction decision. Second, the dentist must weigh the value of the refund against the risk of a claim or lawsuit, and the impact of a claim or lawsuit on the dentist’s well-being and business. Each situation must be assessed individually: Consultation with your insurer’s risk manager or your attorney can help to determine a preferred approach and other important protocols, including obtaining a patient-signed waiver of liability before providing a refund of fees. This case was further complicated by the patient demand for compensation beyond the professional fee payment.
 
Small claims court suit. While discussion with the claim professional revealed that the dentist tried to implement some of the recommended risk management actions, documentation of these actions was very limited. There is also no record of specific patient complaints in the dental healthcare information record during treatment. The doctor also was somewhat surprised to receive the detailed letter describing the patient’s concerns, allegations and demands. When negotiations with the patient broke down, the dentist reported the incident to the Claim department. Shortly thereafter, the dentist received notice of the filed lawsuit. Because of the facts in this case, the incident met the requirements for coverage under the professional liability policy terms and conditions. Although the dental records lacked detail, there was no evidence of a standard of care breach. Irrespective of these matters, a lawsuit is worrisome to most dentists and seeking legal counsel is recommended. Most small claims courts do not permit attorneys to accompany the plaintiff or defendant. However, the insured dentist received advice and recommendations from counsel appointed to assist with claim defense under his policy.
 
Outcome: Judgment for plaintiff: very low 4-figures, plus court costs of $200; claim expenses: less than 4-figures.
 
Summary: Considering the patient demand, many would agree this was a “win,” although the plaintiff succeeded in receiving a judgment in her favor. The real value of this case may be in reflecting on the risk factors that led to patient dissatisfaction and the implementation of effective risk management procedures.
 
Article by: Ronald Zentz, RPh, DDS, FAGD, CPHRM, CNA Dental Risk Control
 

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Risk Management services are provided by Dentist’s Advantage and the NSDP to assist the insured in fulfilling his or her responsibilities for the control of potential loss-producing situations involving their dental operations. The information contained in this document is not intended as legal advice. Laws are under constant review by courts and the states and are different in each jurisdiction. For legal advice relating to any subject addressed in this document, dentists are advised to seek the services of a local personal attorney. The information is provided "AS IS" without warranty of any kind and Dentist’s Advantage and NSDP expressly disclaims all warranties and conditions with regard to any information contained, including all implied warranties of merchantability and fitness for a particular purpose. Dentist’s Advantage and NSDP assume no liability of any kind for information and data contained or for any legal course of action you may take or diagnosis or treatment made in reliance thereon.}