December 2014

Inadequate Supervision of Dental Assistant Leads to Malpractice Suit and Board Investigation

Mario Catalano, DDS, MAGD

Background: This edition of Malpractice Minute discusses a case in which a misunderstanding occurred between a dentist and her assistant, resulting in root canal therapy being performed on the incorrect tooth.

Case discussion: The patient was a 17-year-old male who presented to the corporate dental practice on an emergent basis with complaints of sensitivity to hot, cold, and percussion, as well as buccal swelling surrounding tooth number 18. He was seen by Dr. K, a dentist who had 2 years of clinical experience and who had worked at the practice as an associate since her graduation. Dr. K’s examination showed extensive decay to tooth number 18, resulting in her recommendation of root canal therapy. The patient and his mother agreed with this recommendation. Dr. K gave the patient a prescription for amoxicillin and scheduled the procedure.

The patient took his medication as prescribed and returned as scheduled. At the time of his return, the pain and swelling had subsided. Dr. K conducted an informed consent discussion with the mother and patient, and the mother signed an informed consent form. Dr. K then administered a local anesthetic and went to finish work on another patient. However, before leaving the operatory, Dr. K asked her assistant to place a dental dam in preparation for the procedure.

When Dr. K returned to the operatory, the patient was numb and the dental dam was in place. The procedure went as planned, and, at its conclusion, Dr. K removed the dental dam and asked her assistant to take a postoperative X-ray to confirm the success of the procedure.

Upon examination of the X-ray, Dr. K realized that she had performed the procedure on tooth number 19, rather than 18. She immediately discussed the mistake with the office manager. Dr. K then reapplied the dental dam and performed the procedure on tooth number 18. Once it was confirmed that the correct tooth had been treated successfully, Dr. K and the office manager disclosed the error and apologized to the patient and his mother. They also offered to place a crown on tooth number 19 at no charge.

Shortly thereafter, the mother filed a malpractice suit against Dr. K and the practice, and she also filed a complaint against Dr. K with the state board of dentistry. With her consent, the malpractice claim against Dr. K was settled in the low range; however, she was promptly terminated from the practice. She also was called before the state board of dentistry and ultimately was fined for inadequate supervision of her assistant.



Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

This case raises several interesting issues for the new dentist. The first issue is the relationship between the treating dentist, the patient, and the practice that employs the dentist. In the work world, it is well accepted that “the boss calls the shots.” Generally, the employer controls or heavily influences all aspects of the employment relationship (for example, work hours, rate of compensation, etc.).

However, when it comes to actual clinical decision-making and treatment of a patient, the treating dentist bears primary responsibility for the patient’s welfare. Almost universally, boards of dentistry hold the treating dentist to a fiduciary duty to the patient (in effect, putting the welfare of the patient ahead of the welfare of the dentist). An example of this duty is the expectation that a dentist will not perform aggressive treatment that isn’t of clear benefit to the patient merely to bill for it. The reasoning for this fiduciary duty is both regulatory and ethical. Thus, dentists should not confuse the employer’s authority over workplace conditions with the authority over patient care. Authority over patient care must reside with the treating dentist(s).

In this case, nothing indicates that the practice actively contributed to the mistake. Because of this, and because no other dentists were participating in the treatment of this patient, Dr. K was fully responsible for the patient’s care and welfare, even though she did not employ the assistant with whom she was working and may have perceived herself as having limited authority within the office. The state board of dentistry certainly viewed Dr. K as responsible for the patient’s care when they fined her for inadequate supervision of the assistant.

In medical surgery, it is quickly becoming the standard of care for a “timeout” to occur prior to the commencement of surgery. The timeout provides an opportunity to verify that the surgeon, the operating room staff, and the patient (if he/she is awake and coherent) all agree on which procedure is taking place on which body part — and that any imaging and informed consent forms also reflect this consensus. The timeout is an application of the old rule in carpentry that states “measure twice and cut once” — meaning, “Let’s take one more look before doing something that might not be reversible.”

In this case, we don’t know whether the wrong tooth was exposed because the assistant misunderstood which tooth required treatment or she simply made a mistake applying the dental dam. In the end, it doesn’t matter; if a timeout had occurred prior to the commencement of treatment, this error likely would not have occurred.

Finally, when the error was discovered, it was handled correctly in some ways and incorrectly in others. Dr. K was correct in immediately notifying the office manager about the error so that they could discuss the method of disclosing the error to the patient and mother.

Although Dr. K technically had permission to proceed with the treatment of tooth number 18 (as indicated on the signed informed consent form), it might have been appropriate to reconfirm permission prior to initiating the treatment — this is a judgment call for the treating dentist.

Conclusion: To err is human, and no reasonable person expects perfection in the practice of dentistry. However, when techniques exist that can minimize the risk of injury to patients (such as timeouts), the standard of care generally requires their use. The treating dentist also should remember that they have ultimate responsibility for, and authority over, the patient’s treatment.

Question: If disagreements arise between the treating dentist and nonclinical staff regarding clinical treatment of patients, how should the dentist seek to resolve the disagreement?