NEWSLETTER problem. The patient may deny that you told them about the problem but it is more difficult for them to make that argument if the records clearly delineate the problem. VOLUME 28, NO. 3 July-August 2013 Now, how is the patient going to feel after you started a procedure and charged out a fee, only to have them be sent to a specialist who will also have to charge them? Often, the best way to solve such a fee issue is for the referring dentist to cancel his/her fee and have the patient simply pay the endodontist one time for the procedure. It helps if you have established a prior excellent relationship with the endodontist as he/she may then be more willing to help calm the patient down if they are upset over having to be referred as they expect to have to pay more money for the procedure. The patient may also wonder why they were not referred in the first place so the referring dentist may have to be prepared to answer that question. If the endodontist has to perform an apicoectomy or an extra procedure that would not have been required had the patient been referred to begin with, it may be necessary to add that into any refund that may have to be made. Over 30 years of serving the profession pie@pieutah.org www.pieutah.org ONLINE EDITION A PLAINTIFFS’ LAWYER SPEAKS! PROBLEMS ENCOUNTERED Recently I had a conversation with a lawyer who is willing to represent plaintiffs who have problems with prior dental treatment. The scary part of the conversation was when he told me he gets over twenty calls a week from potential clients. The good news was that only a small percentage of the situations he hears about are cases he is willing to pursue. At least this lawyer has better judgment than many! We deal with this very scenario several times a month and have Release forms ready to send whether a refund is made to the patient or fees are paid directly to a specialist, etc. Remember to call us for advice if you encounter this problem. Getting back to the lawyer, he explained that he often tells patients that their problem with the broken instrument is not substantial enough to get a lawyer involved. Instead, he tells the patient to go back to the treating dentist to see if a small settlement in the form of a refund, etc. can be arranged. There were two areas he described that generated the most telephone calls. The first had to do with broken root canal files where the patient was not notified of the problem. The second had to do with cases where no antibiotics were prescribed even though there was evidence of infection. You may ask, “Doesn’t the informed consent form spell out a broken or separated instrument as a known risk? Doesn’t this excuse me from any liability or obligation to the patient?” The informed consent form clarifies the risks but does not excuse the treating dentist from negligence. If the tooth in question is curved or calcified it could be argued that the treating dentist should have referred the case to a specialist and was negligent for taking on a difficult case that should have been treated with the microscope, etc. Were the files used new or overused? How experienced was the general dentist at treating molars, especially upper first molars with an MB2 canal? Was the tooth a lower molar with a tricky Cshaped canal? These issues come up when broken files are part of the problem, and increased risks must be considered by the treating dentist before the case is started. We have mentioned the reasons for the importance of disclosure of broken instruments before, but whether you use the term “broken” or “separated” or whatever applies, you must tell the patient anytime you have such a procedural occurrence, even if you end up incorporating the instrument portion as part of your final fill. In many cases the instrument separation will not have an adverse effect on the outcome of the case as the canal space is effectively obturated. Nevertheless, the instrument will show up on a subsequent x-ray and some dentist somewhere sometime will notice it and question the patient. If the root canal is failing, whether the instrument is the culprit or not, it will usually be implicated. So, how do you handle the situation with the patient? Of course you should have them sign an informed consent form ahead of time so they understand that separated or broken instruments are a known risk of the procedure. Then, if it happens you can explain that a portion of the root canal file lodged in the canal but you are confident that it will simply act as part of the fill and should not cause a problem. If, on the other hand, a significant portion of the canal space is either unfilled or un-instrumented, then you are probably committed to referring the patient to an endodontist so the problem can be resolved immediately to better ensure success. Now, what about the second area described earlier which involves the use of antibiotics? Of course, we have all read articles in the literature and attended lectures where the subject of overuse of antibiotics is covered. However, at PIE we have seen far fewer cases where antibiotics caused an allergy or untoward reaction when used as compared to cases where antibiotics were not prescribed and the patient ended up in the emergency room and received IV antibiotics along with drains necessary to treat serious infections which developed. One note we see in hospital records frequently is where the physician asked the patient why the treating dentist did not put them on antibiotics. The attorneys also note in their allegations that even though evidence or signs of infection were present, the dentist did not prescribe antibiotics. Are there legal advantages to disclosing such a problem to the patient? Yes, because there is a two-year statute of limitations provision in the rules governing malpractice claims which specifies that a patient has two years from the time that they discover or know about a problem to take legal action. Of course you must document in your records that you informed the patient of the So, our recommendation is: when in doubt, put the patient on proper antibiotics, particularly if the tooth in question is a lower 1 tooth! The patient’s age and any conditions which may compromise their immune system should be considerations as well. a case goes to trial, within the policy limit. PIE has also never charged a deductible, something that many other companies do. In summary, we hope the discussion I had with the plaintiffs’ lawyer prompts some contemplation on your part. Hopefully, one of your former patients will not be one of those angry enough to want to call him or another lawyer. There are certainly plenty of lawyers out there eager to have more business. Many will not have the same degree of judgment that precludes them from taking the types of cases described in this article. --RCE 6. Locum Tenens Coverage up to 120 days/year. Under your PIE policy, whether you are locum tenens (temporary) or not, there are no limits to the time frames or parameters for working in any particular office, as long as it is in the borders of the state of Utah. You are not limited to the address on your Declarations Page or proof of insurance page. 7. Free Tail Coverage at Retirement. As you know, with a claims-made policy such as the one offered by PIE, which is industry standard, you must generally purchase extended reporting or tail coverage at the time you cancel the policy, whether you move, retire, are disabled or die. However, with PIE’s policy if you are tenured, meaning you are insured for at least five years, you do not have to purchase the tail coverage when you retire. If you die during the coverage period, the five year tenure rule also applies. The tenure minimum is only three years if you have to terminate your policy due to disability. Unfortunately, the tail premium is not waived when a dentist moves away from the state to practice elsewhere. IS PIE STAYING AHEAD OF THE CURVE? WHAT OPTIONS MAKE PIE BETTER? Many of you get advertisements periodically from our competitors touting their options, etc. and encouraging you to consider switching. We thought it would be worthwhile for us to list these options and discuss how they are either built into your policy or why they are not a good idea. 1. Practice-Based Pricing, where the company determines the premium based on procedures performed and the complexity of the procedures. PIE already does this. For example, if you perform I.V. Sedation you pay a slightly higher premium. The same goes for oral sedation. PIE does not charge a higher premium for dentists who perform surgical procedures or implants, however, so we do not penalize practitioners who enjoy doing such procedures. 8. Part-time Coverage Discounts. This is a benefit that PIE does not offer. Why? The answer is that some of our worst claims have resulted from practitioners who work part-time. Therefore, we have determined that these dentists may have a higher risk of claims potential based on hours worked so we feel that we owe it to our self-insured pool to charge an appropriate premium which is the same as the regular premium. 2. Flexible Coverage Limits. PIE sees no need to have various liability limits as $1 million per claim and $3 million aggregate limit are more than adequate for the state of Utah. For many years we were able to keep the policy limits at $100,000 per claim which lessened the target available to lawyers and greedy plaintiffs. The main reason we raised the limits in 1999 was that hospitals were starting to set $1 million as their requirement for dentists desiring privileges. Since the higher limits have been in place, we have not had any payout even close to $1 million and we feel it would be foolish and unnecessary to arbitrarily raise the limits for everyone or to offer different limits. Most companies do not describe their protocols for handling insured who sustain claims in their brochures because their solution to this situation is often harsh – non renewal of the policy. PIE tries to handle this unfortunate situation in a more equitable fashion while still looking after the needs of our entire pool of insured. When PIE pays a settlement for any of our insured, the PIE Advisory Committee reviews the circumstances of the claim and makes a determination as to whether or not the claim was meritorious. In other words, did the dentist make a mistake that was avoidable? If the Committee determines that the claim was meritorious, the dentist is surcharged up to 10% of the total settlement paid each year for four years, over and above the regular premium. The purpose of the surcharge is not to recoup PIE’s loss but to remind the dentist to be more careful in the future. Currently about a half-dozen insured are paying surcharges since they wished to remain insured with PIE. However, if a dentist has a second meritorious claim as determined by the Advisory Committee, then they are not renewed. Non-meritorious claims may also be subject to smaller surcharges if an insured has more than one of these types of claims. 3. Protection for Entire Office. Some carriers advertise that they consider all insured to include all employees including outside, independent contractor hygienists. PIE has provided such coverage for many years. No carrier will cover any employee dentists under another dentist’s policy, however. Each dentist in a practice must carry an individual policy, no matter which carrier is utilized. 4. No Dental Specialty Procedures Excluded. Although our reinsurer does not allow PIE to insure Oral and Maxillofacial Surgeons, who are in a different classification due to the orthognathic and other surgical procedures they perform in hospitals, we do cover all other specialists. We do not exclude any specialty procedures performed by general dentists, however, such as endodontics, third molar extactions, etc. We do expect our insured to use their good judgment, however, in selecting those procedures and patients that are best suited to their abilities. One other thing PIE does not do is charge a “give-away” premium for the first year of insurance. Although new graduates are often tight for money due to loan repayments, etc., PIE cannot justify insuring them for peanuts, although they do start out at a lower rate. PIE’s rates slowly step up to a maximum amount at the fifth year. What other companies do is step up their rates higher than PIE does so the mature rate is several hundred dollars more than PIE’s but then charge an expensive tail premium to discourage 5. Defense Costs Paid in Addition to Policy Limits. PIE has never included defense costs, which can be substantial especially if 2 2. Who is Paying the Bill for an 18 or 19-year- old who Still Lives at Home? I have had a number of telephone calls recently where dentists are running into problems with patients over 18 who can authorize work to be done but are not paying the bill since they live at home and are covered by their parents’ insurance, etc. A problem will arise when the young adult makes the appointment and drives themselves to the office, fills out the paperwork, signs the informed consent, but then indicates that their parents are going to pay the bill. If the treatment plan turns out to be substantial, will the parents be willing to pay for it without being consulted? them from switching over to PIE. We cannot assume liability for prior years paid to another carrier without charging a premium for prior acts coverage if a prospective insured wants to avoid paying the tail to that prior carrier, yet does not want to be devoid of coverage for that period. So, the best thing to do as far as encouraging young colleagues to switch coverage to PIE is to talk to them when they are first in practice so they can keep their tail payment as low as possible! Other features that PIE has that the competitors cannot offer include: 1. Ownership by insured. Since PIE is a self-insured organization, all dentists who pay a premium are owners! 2. Management by and for dentists. PIE does not have any corporate overlords masterminding our activities or depleting our assets. Our Advisory Committee and management team are all experienced dentists. 3. On-site local dental consultant. Dr. Engar is available to answer your questions and handle your claims locally. He practiced in Utah, maintains his dental license and is still involved in clinical dentistry through his faculty position with the University of Utah. He is aware of local issues and understands the settlement trends, etc. where applicable. Another problem occurs if one of these young adults is scheduled for a filling but has caries so deep that the problem turns into a root canal and crown situation. The patient can authorize the treatment and sign the informed consent, but are the parents now willing and able to sink nearly $2,000 into one tooth, especially if they do not have dental insurance? In these situations the parents must be consulted before dental work can commence. It would be wise for the office manager or financial coordinator to schedule a face-to-face meeting with the parent to explain the treatment plan or alternative treatment plans and obtain a signed authorization to perform the dentistry in conjunction with a financial agreement. In cases where a filling turns into a root canal/crown, rather than simply proceeding with the procedure with no authorization from the parent paying the bill, you should do an “emergency” open and broach procedure or simply temporize the tooth and tell the patient you must discuss the expenditure with the parent who is paying the bill before you can proceed. Otherwise it will be easy for you to be burned as the parent will often refuse to pay the fee if they are not notified in advance of the change in plans. --RCE In summary, if you look at all of the plusses PIE offers and compare to what the non-Utah based competitors can’t or don’t provide, it is a no-brainer to see which alternative is best. And we have certainly appreciated the support we have enjoyed from our Utah colleagues since September 1978 when PIE was formed. --RCE SOME SHORT SUBJECTS 1. Missionary Examination Forms Since the LDS Church lowered the age to 18 for males and 19 for females to serve missions, there has been a lot of activity on the part of dentists performing the necessary pre-mission screenings. Once the information is filled out by the dentist, which consists of yes and no questions pertaining to dental problems pending or resolved, the status of third molars, the status of orthodontic treatment, etc. the missionary turns the written copy in to the Bishop who must then provide the paperwork to a Stake Clerk who must input the data electronically before the Stake President can complete the final process of submitting a recommendation following an interview, etc. I happen to be one who has to review these written documents and I have to admit that too often I have to struggle to interpret the name and address of the attending dentist due to poor handwriting or an incomplete address. I have often had to go online to obtain the necessary information which delays the submission of the application. PHONY ALLEGATIONS: CASE REPORT Have you ever had a post-surgical complication where a patient has complained of paresthesia but was vague or inconsistent on how the symptoms were reported? Or, have you ever had a patient report persistent numbness following a mandibular injection which did not make sense? Recently we dealt with an interesting claim where a very experienced practitioner took out a third molar tooth only to have the patient claim that he was numb following the procedure. The extent of the claimed numbness did not make anatomic sense, however, but the patient still obtained the services of a lawyer and sued our insured dentist for malpractice. The extraction was not necessarily easy and we had the claim reviewed by a potential expert witness who had some interesting commentary. Nevertheless, the claim had a positive end result for PIE. Following is a description of the procedure, the patient’s complaints, and the course of the claim: My purpose in writing this brief is to encourage all of you who handle these forms, which is probably every general dentist in the state, to write legibly and make sure the address is complete. The form also has a space for a telephone number and e-mail address which should also be included. I know how pharmacists feel sometimes when they must decipher a prescription and I am sure I am not the only one who has had trouble interpreting the information on the forms. So, please, help your patient by being sure that the form is complete and legible! A 45-year old male had been a patient of the subject dentist for 2.5 years and had several procedures performed, including crowns, root canals and preventive care. In August 2010 he presented for several procedures including the extraction of tooth #32, the lower right third molar. The patient complained later of continuing numbness when he thought the anesthetic should have worn off and the subject dentist prescribed a Medrol dose pack. He requested that the patient return for a follow-up evaluation and also discussed 3 The oral surgeon who disputed the patient’s claims of numbness reported to PIE’s lawyer who handled the claim that too many dentist’s just take a patient’s word for the location or extent of their numbness or do just a single examination. Taking this approach simply gives patients trying to make a fraudulent or trumped-up claim the opportunity to memorialize their false claims in an official dental record that they can use later as evidence to support their claim. The oral surgeon had the following technique to assess any patient’s claims of numbness following dental injections or other procedures: the situation with the oral surgeon he normally referred patients to, who speculated that the numbness could be a result of the injection. The patient returned one week later and complained of numbness on the right side of his tongue as well as his right cheek and gums on the upper right. Clinical testing was done by the dentist who logged his findings. These included numbness on the right side of the tongue, right cheek opposite #31, upper right gingiva, buccal gingiva from #25 to #31, and right lingual gingiva from 27-31. Interestingly, no numbness of the lower lip was noted. The patient was diagnosed as having a dry socket and this was treated with medicated paste. The dentist noted that he had not made a lingual incision, did not use Septocaine, and sectioned the tooth by removing the distal aspect of the crown. He told the patient he expected the numbness to ease off but also mentioned that the feeling may never come back. He would do an initial examination on the patient to map out the extent of the claimed numbness using a visual chart to mark areas of claimed numbness. He would use probes, etc. to delineate borders where the numbness stopped and started. He would then leave the patient in the chair and depart from the room for several minutes to see another patient, etc. Then he would return and repeat the examination but would use a new, blank chart to delineate areas of claimed numbness. He would then leave the patient in the chair again and return to his private office to compare the charts. If there were no discrepancies the examination would be complete and the numbness would be considered to be legitimate. If there were discrepancies he would repeat the examination and charting a third time and would then reassess for further discrepancies. Nearly six months later, in March 2011 the patient called and complained about the ongoing paresthesia. He was invited to return to the office for an evaluation but stated that he was not able to come in. He was also offered a referral to a specific oral surgeon but did not follow up. Soon after this telephone call, the subject dentist contacted PIE and reported that he had a patient who claimed a residual paresthesia following extraction of tooth #32 in August 2010. The dentist reported that the patient’s description of the numbness was strange considering the normal distribution of the nerves he claimed were damaged. He wondered if the numbness could be due to the injection of local anesthetic used as the apex of the tooth was not near the inferior alveolar nerve canal. The dentist was advised to secure the chart and provide any followup examinations, etc. that were indicated. Such an examination was done in the case in question eight months after the third molar was removed, in April 2011. When the patient presented for treatment he claimed that he had residual numbness from a root canal done in the upper left around the same time the third molar was removed. So mapping of the numbness was performed and due to discrepancies the procedure was done three times. The first time the patient claimed numbness on the right buccal mucosa from the gingiva of the lower right teeth all the way to the buccal vestibule of the maxilla and inside of the upper lip about halfway to the midline. During the second exam he claimed that the numbness of the right buccal mucosa extended about 5mm lower. The third time he claimed it was numb to about the plane of occlusion and inside the lateral third of the upper lip. The three examinations of the lower right lip area revealed similar discrepancies. Likewise, the three examinations of the tongue showed discrepancies, the most blatant being that during one of the exams the patient claimed numbness crossing the midline in the posterior tongue by about 1.5 centimeters. During the third exam the claimed numbness extended past the midline to almost the left border of the tongue. At this point the oral surgeon explained to the patient that while reviewing the panoramic film he took he could see that the outline of the extraction site showed that the roots did not even reach the mandibular nerve canal and that the extraction could not have caused the numbness he was claiming there. He also explained that a root canal procedure on the upper left side could not cause the numbness he was claiming on the other side of his face. The surgeon offered to see the patient again in four months to reassess the areas of claimed numbness and an appointment was made but the patient did not show up for his follow-up appointment. Following this examination the oral surgeon actually called the dentist who removed the tooth and reported only that he had examined the patient and that PIE will want to see his records since they do not help the patient’s case. In July 2011 the dentist received a request for records from an attorney. PIE suggested that he send us a copy of everything that he planned to send to the lawyer. He complied and had created a typed transcript of his handwritten records which made it easy to determine exactly what had transpired. One year went by until the subject dentist was notified of the patient’s intention of suing in September 2012. The dentists contacted PIE after the Notice of Intent to Commence Legal Action was received and records were reviewed. The dentist had the patient signed a detailed informed consent form specific for oral surgery and dental extractions and a review of the x-ray showed the tooth was a reasonable case for the dentist in question to perform. Therefore, PIE took the position that the claim was defensible. Therefore a Summons and Complaint was served on November 28, 2012 and so now we were dealing with an actual lawsuit. PIE’s position did not change and our lawyers maintained a defensive posture. Records of the oral surgeon with whom the patient consulted in April 2011 were obtained and the patient’s deposition was taken. Next the deposition of the oral surgeon was taken in May 2013. He came out and stated that the patient was “trying to pull off a fraud, that this was just downright obvious fraud” as his claims of paresthesia were inconsistent and anatomically impossible. This deposition had a very deleterious effect on the patient’s claim and the attorney ultimately talked him out of pursuing the claim any further and it was dismissed in July 2013 with no settlement being paid to the patient. The expert witness that we had review the case had some interesting comments as well that are worth repeating to help those 4 of you that take out third molars to take a hard look at your own protocols. He had the following positive comments about the procedure: 1. The tooth was indicated for removal because it was in a position which allowed for communication with oral fluids. 2. The pre-op x-ray was adequate (met the standard of care) 3. The apex was not too close to the mandibular canal. 4. There was a signed consent form specific for oral surgery/extractions. 5. The injury showed signs of improvement meaning the nerve had largely recovered (which indicates bruising or stretching and not cutting). which established governing principles for five Midwestern states. I also learned of the school’s storied dental history and its illustrious dean, Dr. G.V. Black. We studied his principles of cavity preparation, saw pictures of him with his giant teeth and various tooth preparations, and attended class in lecture halls bearing his name. After graduation when I became acquainted with doctors from other schools, I was usually met with, “ah, Northwestern… GV Black, right?” However, I soon learned that all schools have a Dr. Black, or a Dr. Woodbury, or a Dr. Ferrier. A few years after graduation, I had the opportunity to go back to Chicago to attend a meeting at ADA headquarters. As my wife had worked at the ADA during the dental school years, we were excited to take the offered tour of the headquarters building. As Northwestern was in the process of closing, many of the library materials and exhibits were being moved to the ADA building. On our tour, there was a GV Black exhibit with all the inherent reminders of dental school days, but it also included a display of his histology slides, microscope and notebooks. Suddenly I saw a side of him that I had not known. I was immediately taught the significance of one of his favorite sayings: ”The professional man has no greater responsibility than to be a continuous student.” The expert had the following criticisms: 1. The patient was in his mid forties, specifically age 45, which is enough reason right there for referral to an oral surgeon. 2. The tooth was tight against the second molar for its entire length, which pre-disposes the second molar to injury and makes access difficult. Fortunately there was no gouging or other trauma to #31, but PIE has had to deal with cases where the adjacent teeth were indeed damaged during third molar removal. 3, Although a Medrol Dose Pack was used, there was no indication in the records that other steroids or high doses of ibuprofen were recommended to help de-inflame the nerve. 4. It took about two hours to do the case, which is too long. 5. The patient did not see an oral surgeon for an assessment until eight months had transpired. It is best to have the patient see an oral surgeon at a three month period post-op at most when the clinician first suspects that the injury could be permanent and might be a candidate for microsurgery repair, which should be done within four months of the procedure causing the injury. 6. Was the tooth sectioned sufficiently to allow for a more efficient extraction? 7. Lingual nerve injuries are generally due to encroachment. In one out of five people, the nerve is located “at or above the crest of the lingual bone” in the soft tissue. The rest of the time it is just off the lingual plate and could be injured there. Anyone doing exodontia of third molars must understand anatomy and nerve location. During my senior year in dental school, Johnson & Johnson developed a white filling material called Adaptic that became all the rage for Class V fillings. We couldn’t use it fast enough. Then Lee Pharmaceuticals came out with an “acid-etch” technique with a white filling material, and the history books and operative dentistry manuals changed forever. It didn’t matter that the etch had to stay on for four minutes and you had to let the material set in place for ten minutes, we were thrilled with the new possibilities we could give our patients. Suddenly “toilet the prep” and “extension for prevention” became snide remarks seemingly doomed to the refuse pile of history. We didn’t need to ”cleanse and shape” because now we could use ”acid-etch”. My head swims as I think about the rapid development and deployment of new materials and techniques. Implants, bonding ortho brackets and obtaining space closure; dentin adhesion, the disappearance of screws for primary retention, adhesive cements, aesthetic pressed-porcelain crowns, interceptive orthodontic appliances, medicaments that work; and I truly do not miss packing gold foil in a Class III anterior prep! Did this patient have a legitimate lingual nerve injury? Possibly, although you would not have expected to see any residual numbness of the cheek or buccal gingiva, anywhere. If he had not tried to exaggerate the extent of the claimed numbness, he may not have scared his lawyer away. If this were a TV case, during trial someone would take a pin and want to stick it right through the patient’s tongue in front of the jury to verify the fraud, but this is the real world and we cannot do that! But, hopefully, this experience will give you some tips in more accurately evaluating claims of numbness, particularly if anything appears to be dubious. --RCE I think about the changes that have occurred in my short lifetime, and only guess at what is coming next. But I feel the need to remember some guiding principles that were once applied to gold and amalgam restorations, but now should also be applied to the materials we use today. Prep; cleanse and shape; finish and polish, still an innate professional responsibility. I think Dr. Black would be right up front using these new materials, and trying to find out what would make them work in the best possible way. He would expect us to be “always a continuous student”. GUEST COMMENTARY MAYBE GV BLACK WAS RIGHT AFTER ALL… I attended Northwestern University for dental school, and learned that the university is named after the Northwest Ordinance of 1789, 5