September 2015

Associate Dentist Provides Remedial Treatment for Substandard Care Rendered by Previous Dentist in Same Practice

Mario Catalano, DDS, MAGD

Background: Upon graduating, many new dentists work as an associate in an existing dental practice. This can be a great opportunity for dentists to hone their skills and receive mentoring from an experienced dentist. However, challenges may arise when entering an existing practice. For example, a patient may have previously received substandard care from the practice and a new dentist may need to remedy the situation without upsetting the practice. This edition of Malpractice Minute discusses the challenges associated with this type of situation.

Case discussion: Dr. J, a recent dental school graduate, took a position as an associate in a practice owned and managed by Dr. A. Dr. J was one of five associates who worked for the practice. In this unusual practice model, Dr. A did not handle any direct patient care. Instead, he did the initial intake of all new patients, developing detailed treatment plans for all patients and overseeing the work of his associates (in addition to managing all business aspects of the practice).

In this case, the patient was a 32-year-old female, who was an established patient of the practice, presented for a recall appointment. During the appointment, several large carious lesions were identified. Dr. A developed a treatment plan and assigned the case to Dr. J. The treatment plan did not include any treatment of teeth 5, 30, or 31, as they had recently been treated by another associate who was no longer with the practice.

Dr. J commenced treatment according to the treatment plan, which consisted of four appointments. At the conclusion of the appointments, upon visual examination, Dr. J was uncomfortable with the condition of tooth number 5 (which had an apparent carious lesion) and teeth 30 and 31 (which had received previous endodontic treatment but had apparent decay under the crowns). When Dr. J consulted the X-rays of these three teeth (taken by the previous associate) the doctor had found them to be of such poor quality that they were unreadable.

Dr. J expressed concerns about the three teeth to the patient and recommended more X-rays to determine their current status. The patient was hesitant to have the additional X-rays because it was unlikely that her dental insurance would cover the cost because of the timeframe.

Dr. J also expressed her concerns about the three teeth to Dr. A, who was hesitant to redo the X-rays at the practice's expense. Dr. A felt that it might obligate the practice to provide remedial care at no charge to the patient. Because the patient was symptom free, Dr. A directed that she receive no further treatment and be discharged. Dr. J complied with these instructions.

Approximately 8 months later, the patient returned for prophylaxis and expressed that she was hot and cold sensitive in her right upper quadrant. A bitewing X-ray was performed at this visit, and a large carious lesion was identified on tooth number 5. The X-ray also showed that teeth 30 and 31 had extensive recurrent caries under the crowns.

Dr. J again discussed this case with Dr. A, who concluded that endodontic treatment was needed on tooth 5. Dr. A also decided that teeth 30 and 31 could not be saved and required extraction. This treatment was accomplished during a subsequent appointment, and the patient was again discharged.

Approximately 4 months later, the practice received a request for records from a dental malpractice attorney. A malpractice suit was subsequently filed against Drs. J, A, and the practice. The suit alleged failure to diagnose caries in a timely manner, resulting in the loss of two teeth and extensive treatment of a third tooth. The case was settled against Dr. A and the practice in the midrange (between $20,000–$50,000), and a minimal payment was made on behalf of Dr. J.



Risk Management Considerations

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

This case raises some interesting issues that new dentists should be aware of as they begin their careers. The first of these issues has to do with the unusual arrangement of one dentist doing the treatment planning and another dentist executing the plan.

Although not preferable, this arrangement is acceptable because the person doing the treatment planning is a licensed dentist. Situations in which a nondentist is doing the treatment planning is cause for concern from both an ethical and legal standpoint (i.e., some states do not allow nondentists to perform treatment planning).

The other potential challenge of this practice arrangement might occur if the planning dentist develops a treatment plan with which the treating dentist disagrees. In this situation, the treating dentist could be put in a position of providing care that he or she does not believe is appropriate. At best, this would be an ethical dilemma and, at worst, a legal one.

Dr. J was in a difficult position because she was aware of previously rendered care that was most likely substandard - either due to poor-quality X-rays which led to an inaccurate diagnosis or ineffective treatment.

Dr. J was cautious in approaching this issue and communicating with the patient about the previous care, which is wise from a risk management perspective. It is all too common in dentistry for one dentist to criticize the care of a previously treating dentist. Such criticism is not helpful, and the criticizing dentist frequently comes to regret their remarks — either because of damage to their reputation with their peers or because a plaintiff lawyer's attempts to use the criticism in furtherance of a malpractice case.

Additionally, young dentists should always be mindful of their ethical and legal duties to patients. Just because a dentist is employed by — and presumably controlled to some extent by — another person (dentist or not), he or she is not relieved of the responsibility to practice within the standard of care at all times. During a board of dentistry review or malpractice litigation, substandard care is not justified by the explanation that the dentist was simply "doing what she was told."

Unfortunately, Dr. J found herself swept into the net of a malpractice suit resulting from care that she either did not render or had limited choice in rendering. Fortunately, the plaintiff's attorney recognized her limited involvement in the damages to the patient and released her for a nominal amount.

Unfortunately, even this small payment resulted in a report to the National Practitioner Data Bank and, most likely, the state board of dentistry. As a result, Dr. J is compelled to disclose that she has had a previous paid claim on every future application (e.g., for a license to practice, to participate in an insurance plan, or for dental malpractice insurance).

Conclusion: Often, new graduates may find that their practice options are limited. — and, as the saying goes, "beggars can't be choosers." However, prior to taking a position, young dentists should do all they can to ensure that the practice environment will allow them to practice at all times in an ethical manner and in full compliance with the applicable standard of care.

Question: What is the best way to communicate to a patient that his or her previous care was inadequate or inappropriate?


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