Patient dissatisfaction leads to licensing board action, probation and fine

Dental Expressions® – From the CNA Claim Files
Licensing Board Action: Periodontal Treatment and Patient Dissatisfaction

Facts:
The patient was a middle-aged female with a history of periodontal disease, cigarette smoking, and bruxing, who had been a patient of the general practitioner dentist for over 20 years. The dentist had referred the patient to a periodontist in the past and did so again after reassessing the patient’s periodontal status. 

The patient underwent periodontal surgery, which resulted in exposed crown margins: the patient was not pleased with this outcome. Her dissatisfaction led to a complaint to the state board of dentistry. Shortly thereafter, the dentist received notice from the board regarding the patient’s complaint, which included a request for records. The same day, he reported the board complaint to his insurer. The CNA claim professional assigned a defense attorney to advise and represent the insured dentist. 

The dentist and the attorney met and began preparing for the board’s investigatory hearing. Counsel’s opinion was that sanctions were likely, based upon his experience that the dental board often sanctioned dentists whom they believed failed to appreciate a patient’s declining periodontal condition.

The attorney accompanied the dentist to the investigative interview and nearly 3 months later, the dentist received the board’s determination. The board found fault with the dentist’s care and proposed a consent order in which he would admit his wrongdoing. In retrospect, the dentist believed his record keeping had been inadequate, and he should have been more aggressive in his periodontal treatment approach and patient recommendations. As a result, the dentist chose to forego a full hearing and signed the consent order.

Within one month of signing the board consent order, the dentist and defense counsel received a call from the patient’s husband. He demanded $20,000 in settlement of all claims on behalf of his spouse. Further, he stated that failure to meet this demand would result in malpractice lawsuit against the dentist. The attorney believed any civil claim would have a strong statute of limitations defense: more than two years had elapsed since the patient learned of her alleged injury, and the state statute of limitations was two years. The demands were denied, and no lawsuit was filed.

Key Allegations: Patient alleged failure to diagnose and inform her of her ongoing periodontal disease and deteriorating periodontal health.

Claimed Injury/Damages: The patient’s complaint to the state dental board stated that she lost a number of teeth due to the dentist’s inattention to her periodontal problems, resulting in a less than aesthetic smile.

Analysis:
The primary treatment issue before the dental board focused upon the dentist’s diagnosis and treatment of the patient’s periodontal disease. In his view, the patient had not been dependable about keeping her recall appointments. Therefore, her disease progression was due to her own neglect. The dentist recalled numerous discussions with the patient about periodontal disease risk factors, emphasizing the impact of cigarette smoking and poor oral hygiene. In his view, the patient had ignored his recommendations until she began to see the visual evidence of her gum disease. By then, her condition was advanced. Although he regretted that his long-time patient developed periodontal disease, he initially believed it was not due to the lack of a diagnosis, referral, or treatment on his part.

The patient’s dental record was scrutinized by the board during its review of the complaint. The Board acknowledged that the patient was noncompliant and that there was a total of six calendar years during which she did not return for dental care. Notwithstanding the patient’s conduct, the dental board found fault with the dentist’s treatment in the following areas:

• The records demonstrated that although he had treated the patient for twenty-two years, the only full mouth series of radiographs were from her initial visit over 20 years ago. The dentist referred the patient to a periodontist three times over a period of approximately 8 years. In view of the patient’s long history of periodontal disease, the board determined that the “referrals to a periodontist were not timely made.”
• The patient records documented only three periodontal examinations recorded in the record, and that there were “no records of periodontal charting” over the twenty-two years of treatment.

The board reprimanded the dentist about documentation during the investigative interview and noted in the final consent order that his infrequency of periodontal examination and radiograph assessment, and absence of exam appropriate documentation breached the standard of care.

Dental licensing boards have broad authority to investigate the dental professionals named in complaints. As a result, reprimands for an action, error, or omission not related to the specific issue cited by the complainant are common. In the course of investigating the periodontal complaint against the insured dentist, the dental board also found that he failed to take a diagnostic preoperative radiograph of tooth #14 prior to preparing it for a crown. This deficiency also cited in the consent order.

The timeline for resolution of a dental licensing board complaint is highly variable among the states and even within a given state. Important factors include the processes required under state law or administrative rule, the nature of the complaint, the quality and accuracy of the dental record, and the cooperation of the parties involved. The dentist’s case required seventeen months to resolve, even in the absence of a full board hearing.

The dentist exercised prudence in immediately reporting the dental board complaint to his professional liability insurer. (Note that not all professional liability policies include this type of coverage.) The attorney was experienced and conversant with the state dental board’s procedures, as well as actions taken against other dentists, giving him pertinent insight into the situation. Through his efforts to negotiate with the board, the dentist’s original fine was reduced substantially. 

Following the resolution of the dental board complaint, the patient’s husband threatened to use the findings of the board as evidence in a professional negligence civil liability lawsuit against the dentist. Initial filing of a board complaint represents a common method for patients to have their case investigated without incurring litigation costs and to determine its strengths and weaknesses. Any negative findings by the board often become the basis for a negligence claim. 

Outcome:
The state dental board placed the dentist’s license on probation for three years and levied a fine of $1,000. The board also mandated that, within one year from the date of the consent order, completion of eight hours of risk management continuing education, eight hours of periodontal diagnosis continuing education, and eight hours of diagnosis and treatment planning continuing education, in addition to the continuing education hours required for license renewal. 

Article by: Ronald Zentz, RPh, DDS, FAGD, CPHRM, CNA Dental Risk Control