March 2021

Poor Communication Between Providers and Deceptive Communication With Patient Leads to Malpractice Lawsuit

Mario Catalano, DDS, MAGD

Introduction

To err is human. This observation from the Institute of Medicine was true when written in the landmark 1999 publication To Err is Human: Building a Safer Health System, and it is true today. Although any attempt to completely eradicate human error is obviously doomed to fail, every effort must be made to ensure precision in the planning and execution of dental care. Thus, clear and precise communication are essential when two or more dentists are collaborating on a case. In this unfortunate case from the Southwest, multiple instances of failed communication, combined with one dentist’s unethical behavior, resulted in a treatment error and an indefensible malpractice lawsuit.

CASE DISCUSSION

The patient was a 7-year-old male who was brought to Dr. A, an orthodontist, for evaluation of a malocclusion. After reviewing the patient’s records and performing a thorough examination, Dr. A recommended a period of observation. She did note a supernumerary tooth in the position of 8/9 and indicated that it would require extraction once it erupted.

Six months later, the patient returned and was reevaluated. At that time, he was referred to his primary care dental practice for extraction of the supernumerary tooth. Dr. A’s referral slip stated “Please extract palatal supernumerary number 99.”

The primary care dental practice was a large practice that employed numerous dentists. When Dr. A’s referral was received, it was forwarded to the practice’s treatment coordinator. The treatment coordinator attempted to enter the future extraction into the patient’s digital record; however, the record system would not allow her to enter tooth number 99. The treatment coordinator then reviewed the panoramic image that Dr. A had supplied and concluded that Dr. A meant tooth number 8. Based on that information, the treatment coordinator entered tooth number 8 into the record.

When the patient presented for the extraction, he was assigned to Dr. N, a new-to-practice dentist who was recently hired as an associate. Following the treatment plan in the patient’s record, Dr. N extracted tooth number 8, an apparently healthy, partially formed central incisor.

Almost immediately, Dr. N realized he had extracted the wrong tooth. He immediately called Dr. A and admitted his error, and he and Dr. A discussed treatment options. Dr. A carefully documented this discussion, including Dr. N’s admission that he had relied on the patient chart alone (i.e., without questioning why he was extracting a properly placed, healthy tooth).

In Dr. N’s subsequent conversation with the patient’s mother (during which she learned that the wrong tooth had been extracted), he attempted to justify the extraction by suggesting that the root formation of tooth number 8 was incomplete because of the influence of the supernumerary tooth. This was simply untrue and inconsistent with the informed consent form the mother had signed, which indicated that the purpose of the extraction was for orthodontic reasons.

The parents returned to Dr. A’s office and discussed the matter with her. Dr. A was completely truthful with the parents, including admitting her documentation error on the referral slip. The parents initiated a malpractice lawsuit against Dr. N and his practice. Because of Dr. A’s honesty and transparency, the parents did not sue her.

Expert reviewers concluded that the case against Dr. N and the practice could not be defended, and the case was settled with a payment to the patient’s family.

Further, the legal discovery process during the lawsuit revealed that the extraction had been billed to the patient’s insurance company as extraction of a partially impacted tooth and necessary bone grafting. A charge of insurance fraud was then initiated against Dr. N and the practice. Although not certain, that state board of dentistry might have instituted an investigation of Dr. N for his unethical actions.

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Risk Management Considerations

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

In risk management, a principle called the “Swiss cheese effect” refers to instances in which errors reach a patient because of multiple weaknesses, or “holes,” in systems. Despite numerous safety barriers, these holes sometimes align (just as the holes in Swiss cheese might align if multiple slices are stacked together) to create the opportunity for potential failures and harm to occur. This case illustrates the concept of the Swiss cheese effect.

Dr. A obviously made an error in ordering the extraction of tooth number 99. If she (or someone else) had reviewed the referral slip before it was sent, the error likely would have been caught. Also, if Dr. A had provided some explanation of the reason for the extraction, the error also might have been identified.

Next, the actions of the treatment coordinator were completely inappropriate. When the documentation system would not accept tooth number 99, she should have either contacted Dr. A’s office to clarify the order, or discussed the error with one of her practice’s dentists. Rather, she took it upon herself to read the panoramic image and conclude that Dr. A meant tooth number 8.

Dr. N, who performed the extraction, was the person who had the last (and best) chance to prevent this maltreatment. The proverb “measure twice, cut once,” is good advice for anyone who is undertaking an irreversible action. In both medical and dental risk management, this guidance translates to the action of taking a “time-out,” which is the standard of care. A time-out involves taking the time to verify the right patient, the right tooth, and right procedure.

Tooth number 8 was obviously a normal, healthy tooth; observation of the tooth should have prompted the question “Is this the correct tooth to extract at this time?” The fact that Dr. N’s observation of the tooth did not prompt this question may speak to his inexperience and need for closer supervision.

Beyond the treatment error, this situation was made much worse when Dr. N was not truthful with the patient’s mother after he identified the error. When an error occurs, the first priority is to ameliorate the injury to the patient. When the time comes to disclose the error, tell the truth about what occurred. If all of the details are not immediately known, disclose the known facts and follow up with the patient as more information is determined.¹

Dentists have an ethical duty to be honest with patients (even in difficult circumstances); failure to do so is very likely to produce further negative consequences such as reputational damage, a board of dentistry investigation, and/or an indefensible malpractice lawsuit. Errors are forgivable, but deliberate deception rarely is.

The final issue in this case was the improper billing, which may have been done intentionally and not just in error. Although it possible that Dr. N was not complicit in the submission of the improper bill, it was billed under his provider number and he is ultimately responsible. The effects of conviction on a charge of insurance fraud are far reaching and all dentists should be cognizant of appropriate billing practices.

SUMMARY SUGGESTIONS

The following suggestions may help improve communication and prevent cases of improper dental treatment:

• When communicating with another dentist in writing, carefully review what was written. Transcription errors are common, but even a quick review can help identify them.
• Only appropriate individuals should communicate treatment orders, and they should follow well-established protocols. Nonclinicians should not be vested with clinical decision-making authority.
• Dentists should conduct time-out protocols at the beginning of procedures. This process should ensure agreement between the treatment plan, the X-rays, the consent form, and the patient’s understanding.
• When errors occur, dentists should ensure prompt, complete, and truthful disclosure of the circumstances to the patient. Full disclosure is the best way to handle the situation both strategically and ethically.
• Whenever possible, dentists should review billing done under their provider numbers. Although billing errors and outright fraud are uncommon, they typically are the responsibility of the billing dentist.

CONCLUSION

Every dentist and patient would love to have a perfect result every time. Unfortunately, errors occur and complete perfection is unrealistic. However, well-structured policies and procedures that minimize the potential for errors, as well as proper handling of failures when they occur, will assure the best possible outcome for the doctor and the patient.

QUESTION

What are some steps the new-to-practice dentist can individually take to minimize the likelihood of error when providing treatment?