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The unprecedented increase in the level of complaints, litigation, and media and regulatory scrutiny is reflected in our recent experience at Dental Protection
As ever, the fundamental key to defending a claim in negligence or a complaint is almost always related to the details recorded in the patient’s notes. Increasingly, clinical records are being used as a measure of a clinician’s performance.
These records, of course, are not limited to a description of the clinical procedures, but should also address the options offered to patients, comprehensive treatment plans, and details of the consent process.
Sometimes, some of the patients will be unhappy about the treatment that they have received, and if they are, it is often due to a misunderstanding about either what treatment was going to be provided, or what discussions took place between the patient and the dentist about the alternative treatment options and the benefits and possible risks involved. Patients are renowned for having extremely short memories of verbal discussions that may have occurred in the consulting room, and without any noted record of them, the dispute will often boil down to the patient’s word against the dentist’s.
If Dental Protection is able to produce comprehensive and contemporaneous documents which demonstrate the discussions that took place, it can make our response to any complaint or proposed claim in negligence, that much more persuasive – after all, the patient is unlikely to have made a written note of such discussion themselves, and courts and judges are always keen to see written evidence rather than having to rely on a verbal recollection of events which will often have taken place some years previously.
Case Study 1
The dentist had been treating this particular patient for many years. He attended regularly for maintenance of a very slowly deteriorating periodontal condition. Although every visit included a thorough periodontal assessment with pocket depth assessment, long discussions about oral hygiene and the risks created by the patient’s tobacco smoking, home maintenance techniques and verbal warnings of possible outcomes, none of this information was recorded in the records. The patient became dissatisfied when told that several teeth might soon be lost, and sued the dentist for a poor standard of care. The patient’s witness statement adamantly stressed that the visits had been brief and the discussions even more so.
When the dentist’s minimal records were examined, the Tribunal preferred the patient’s verbal evidence and the dentist received a very severe warning from the relevant Dental Council. Two more similar cases were later brought to the attention of Dental Protection, but by that time, the dentist had sold his practice and retired. It only remained for Dental Protection to negotiate discreet out of court settlements on behalf of the dentist.
Case Study 2
A complaint was received from the husband of a patient who had attended for some cosmetic treatment to her front teeth. The complaint alleged that the colour of some of the veneers and crowns were not the same as the shade which she had chosen prior to treatment.
Fortunately, the dentist had kept comprehensive notes of discussions which took place during the process of taking shade, and these were backed up by clinical photographs taken at the time, with the sample from the shade guide included in the frame. After Dental Protection assisted the dentist in drafting a strong reply to the patient, it became clear that the patient’s husband had never wanted his wife to have the treatment in the first place and that he had launched the complaint when he became aware of the fees that he was being asked to pay on his wife’s behalf.
Throughout this period, the patient herself had never expressed disapproval of the final appearance – indeed she had been very pleased with the result at both the trial stage and after the final fitting. A few weeks later the outstanding account was settled and nothing further was heard from the husband.
Conclusions
These two cases, although they are of a very different clinical nature, serve to highlight the differences between minimal records and full records. The first case could easily have been defended if there had been slightly more comprehensive records to back up the dentist’s treatment.
Copies of the records and photographs in the second case were disclosed to the patient to support the dentist’s approach to the case and the complaint was thereafter not pursued. Full records are every dentist’s best form of defence.
Based on an article featured in the Dental Protection 2007 Annual Review