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Dental Practice Risky Business!
Dr Annalene Weston Dento-Legal Advisor Dental Protection Ltd [email protected]
Challenges in modern dentistry
• What options are available? • Setting patient expectations • Whose decision is it? • Time constraints • Adverse outcomes • Bias for treatment selections
• Litigation • Dental Boards • Tribunals • Claiming fees • Criminal
investigation
• Complaints
Where are the problems?
• “In the six weeks after 1 July 2010, the number
of members who have reported receipt of a ….. Notification letter from AHPRA has reached the same number as reported being received …. from the Dental Board of Queensland for the entire previous year”
• ADAQ News September 2010
The AHPRA effect
• 2008 • 1 in 50 dental practitioners received a complaint
• 2011 • 1 in 20 dental practitioners received a complaint
• And Now?..........
Number of notifications
• 2011 • Total 8,139 • Dental 1,322
• 2012 • Total 7,594 • Dental 992 (516)
• 2013 • Total 8,648 • Dental 1052 (466)
Number of notifications
• 14% total increase in notifications
• 33% increase in mandatory notifications
• 8,648 notifications received 53% about conduct 8% about health 38% about performance
• 54% of notifications were about medical
practitioners, who make up 16% of total practitioners AHPRA report notification statistics for 2012-2013
1 Endodontics 2 Crown and Bridgework 3 Nerve damage 4 Oral surgery (except 3,7,10) 5 Periodontics 6 Orthodontics 7 Implants 8 Veneers 9 Dentures 10 Failure to diagnose/ treat
Claims frequency by type of treatment 2000-2010
Australian case distribution 2001-2011
• Incorrect diagnosis • Poor case selection • Poor treatment planning • Poor execution of treatment • A failure to anticipate problems
Identified through analysis of trends in Dental Protection worldwide case experience 2000-2010
Treatment errors
• Consent • Communication • Records • Money • The Unexpected
Where else do the problems come from?
If you can’t bring yourself to tell the patient how much the treatment plan costs, then you shouldn’t be doing
the treatment!
Difficult conversations
• How much is it going to cost?
• (How much is my Health Fund going to pay?)
• How long is it going to last? • Are there any alternatives? • (better?) • (cheaper?)
Patient’s financial expectations
The Clinician’s Dilemma
Need?
Demand!
Is the treatment for financial gain?
Managing Expectations
Consent
Patients Don’t like
Nasty Surprises
Consent
Consent
Tell Patients what is likely to happen
Explanation or Excuse?
Consent
Consent
Consent
Sloppy attitude to consent Paternalistic Consent forms? Treated as an admin process not a two way conversation
Consent
Consent
No consistent process to ensure that all key areas are covered and all key stages are documented
Dental Board – Code of conduct
• Good practice involves…..
f. documenting consent appropriately, including considering the need for written consent for procedures which may result in serious injury or death
Consent forms – what’s the standard?
ADA Policy on Consent • Consent may be given in writing, orally or by
conduct. • Where the proposed treatment involves complex
or invasive procedures, anaesthesia, sedation, significant expense and/or is of an elective or cosmetic nature, good professional practice warrants the use of a signed written consent form
• A signed consent form does not, by itself, provide conclusive proof of a legally valid consent
Consent forms – what’s the standard?
CLINICIAN PATIENT
CONSENT
Patient autonomy
“The voluntary and continuing permission of the patient to receive a particular treatment …”
Gulf in knowledge and understanding between patient and clinician
CLINICIAN PATIENT
CONSENT
Patient autonomy
“It must be based upon adequate knowledge of the purpose, nature and likely effects and risks of that treatment including the likelihood of its success and any alternatives.”
Gulf in knowledge and understanding between patient and clinician
A persons voluntary decision about health care that is made with knowledge and understanding
of the benefits and risks involved
Dental Board of Australia
Code of Practice Guidelines www.dentalboard.gov.au
Consent
THE
AUSTRALIAN WAY
Rogers v Whitaker
Chappel v Hart
Rosenberg v Percival
Hookey v Paterno
Privacy Legislation and Consent
Privacy Laws and Consent
• New privacy laws enacted 12th March 2014
• National Privacy Principles
(NPP’s) replaced by Australian Privacy Principles (APP’s)
• Multiple new obligations
relating to the collection, storage and disposal of
personal information
Privacy Laws and Consent
• APP 1 requires organisations to have ongoing practices and policies in place to ensure they manage personal material in an open and transparent way
• This policy must be made available to patients
Privacy Laws and Consent
• Practice privacy policy must contain
The kinds of information collected/held How it is collected For what purpose it is collected/held/used Who could information be disclosed to and why The process for an individual to access the
information
Privacy Laws and Consent
• Practice privacy policy must contain
How an individual will be notified if access is withheld Consent process for collection of information Situations where consent is not required (eg in an
emergency) Complaint process if privacy is breached Whether information is to be disclosed overseas and to which recipients
Privacy Laws and Consent
• APP 2 – patient anonymity
• APP 3 – collection of solicited personal information
• APP 6 – use and disclosure of personal information
• APP 8 - Patients must be advised if an overseas electronic storage system is in use
Privacy Laws and Consent
The privacy policy should contain the mechanism by which a patient can lodge a complaint if they believe their privacy has been breached
Aspects of Communication
• Who should we be communicating with?
• What is being communicated?
• What are the benefits of communicating more effectively?
• What is the price of poor communication?
Communication
• Many clinicians believe complaints related to poor treatment
• Good evidence to show that complaints can be avoided by improving your communication skills
Complaint dynamics
The majority of claims initiated after adverse outcomes are NOT associated with error Localio 1991, Studdert D et al 2000, Davis et al 2002, Bismark et al 2006
Only 1-3% of patients claim after a serious adverse outcome due to error Localio 1991, Andrews et al 1997, Studdert D et al 2000, Davies et al 2002
The Facts!
• Only 3% of patients
who have cause to complain do so
OFT2008, Schwarz 1998, D’Cruz 2003
• Greater than 60% of all complaints are found not to involve error
Krause 2001, Hopcraft 2006 DCNSW 2007
The Facts!
The Seeds of Conflict
• Predisposing Factors
• Rudeness • Delays • Inattentiveness • Mis/no
communication • Apathy
• Precipitating Factors
• Adverse outcomes • Iatrogenic Injuries • Failure to provide
adequate care • Mistakes • System errors
Bunting RF et al. Practical Risk Management for physicians.
J Health Risk Manag. 1998 Fall;18 (4):29-53.
• Hickson • Beckman, Markakis et al • Vincent, Young et al • Lester & Smith • Shapiro, Simpson et al • Mangels • Hickson, Wright, Clayton et al
And many others
Which practitioners receive the most complaints?
• Fabric/technology focused • Preoccupation with
procedures • Little time spent talking with
patients • Very little explanation • Doctor knows best • Arrogance and self satisfaction
Common Findings
• Dr Gerald Hickson
• Differences in attitude and behaviour between doctors who have never been sued, and those who have been sued frequently
Which practitioners receive the most complaints?
• An unwillingness to listen • An appearance of being rushed • An impression of detachment, disinterest or
lack of respect for the patient • Perceived lack of care and concern • No ‘small talk’ • A sense of arrogance on the part of the
clinician
Which practitioners receive the most complaints?
• Lester & Smith
• Viewed tapes of 160 patient consultations, both negative and positive
• Found that negative communication made litigation more likely
Which practitioners receive the most complaints?
• Levinson and Rotor
• Reviewed 1200 consultation audiotapes (120 practitioners)
• A clinician’s tone of voice and level of interruptions significantly impacts on their likelihood of being sued
Which practitioners receive the most complaints?
• Dimatteo et al
• 500+ patients
• Found verbal skills had significant influence in the patient satisfaction levels towards outcomes
Which practitioners receive the most complaints?
• Patients form views based on practitioners body language
• When deciding whether or not to litigate, a dissatisfied patient would be strongly influenced by how they felt about the practitioner
Which practitioners receive the most complaints?
Effective Listening
Listening is not the same as agreeing!
• Body language
• Gestures
• Look interested
• Summarise
• No interruptions!
Effective Listening
‘Oh, I’m sorry….did the beginning of my sentence interrupt the middle of yours?’
Effective Listening
• Rhoades, McFarland and Finch
• First interruption commonly occurring 12 seconds
into patients ‘story’
• 25% talking over the patient
• Males more than female clinicians The price of the interuption!
• Acknowledge
• Apologise
• Story
• (Summarise)
Effective Listening
• Research shows that poor quality records present in 66% of cases where damages are awarded
• J Health Risk Management 1998
• 32% had recorded caries • 30% had a medical
history • 10% recorded any
discussions • BDJ 2001
• 58% of dentists felt that their records were probably inadequate
• 27% of dental radiographs were of no or limited clinical use
• BDJ 1999
What the research shows
• Dental Board of Australia
• Guidelines on Dental Records
• Patient details;
• including a completed and current medical history form
What’s the standard?
• Clinical details; • History – include presenting complaint • Assessment/examination type • Clinical finding and observations • Diagnosis • Treatment plans and alternatives • All procedures conducted • Instrument batch (tracking) • Any medicine drug prescribed • Details of advice given
What’s the standard?
• Unusual sequelae of treatment
• Radiographs and any other diagnostic data
• Other digital info including CAD-CAM restoration files
• Instructions/communications with labs
• Any referrals to/from practitioners
• Any relevant communication with patent
• Details of anyone contributing to dental records
• Estimates/quotations given
What’s the standard?
What Should The Records Contain
Discussion of : • patient expectations • all treatment options including option of no treatment • risks & benefits of treatment options • details of what the patient needs to do • limitations of treatment
• Burns • Cuts and Lacerations • Chemical Injuries • Supine Injuries;
– Eyes
– face – Airway
• You’re Kidding!
Expect the unexpected
Expect the unexpected
Avoiding the Pitfalls
Prevention is better than cure….
(spotting a risk before you set off is always best)
Helpful Resources • Dental Protection www.dentalprotection.org.au
• Dental Board Code of conduct www.dentalboard.gov.au – codes and guidelines • ADA Consent to treatment www.ada.org.au • Australian Privacy Principles Australian Privacy Principles and National Privacy Principles – Comparison Guide – Australian Government; Office of the Information Commissioner
