Quality Resource Guide l Management of Malpractice Risk in Dental Practice 3rd Edition 4 www.metdental.com Inappropriate Pharmacologic Pain Management A relatively new area of concern in dental liability is the inappropriate prescribing of opioid (narcotic) pain medications in the management of acute dental-related pain. The dental profession has been increasingly scrutinized for its prescribing patterns ever since a 2013 study of prescribing patterns in South Carolina showed that 44.9% of first- time filled opioid prescriptions were from dentists. 12 Another study revealed that 54% of opioid pills prescribed by dentists go unused, creating a risk for diversion with the retrospective data showing a high correlation between dental prescribing and opioid dependence. 13 Contemporary research confirms that for acute dental-related pain management, nonopioid medications (NSAID +/- acetaminophen) represent first-line therapy and the use of opioids should be reserved for the infrequent clinical situations where the first-line therapy is insufficient to reduce pain or there is a contraindication for the use of NSAIDs. 14 Dentists must be in compliance with their state’s regulatory requirements pertaining to opioid prescribing and documentation as to why the opioid was indicated. While improper prescribing could result in criminal prosecution, the patient or patient’s family may also seek damages for allegations of not screening the patient for opioid dependency or for contributing to its development. Informed Consent* Malpractice cases linked to a “stand-alone” lack of informed consent are relatively uncommon. Typically, lack of informed consent is “bundled” with negligent diagnosis and treatment claims. It can be difficult to prove a “stand alone” lack of informed consent. Informed consent requirements vary from state to state. Some states, such as Massachusetts, adhere to the requirement that informed consent mandates disclosure of “material” risks, including risks associated with non-treatment. 12 The premise is that a practitioner must give the patient enough information to make an “informed” decision. What is a “material risk”? “Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient’s position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.” 13 That “materiality” decision is left to a judge or jury to determine. There is no “bright line” percentage, to determine what is “material”. For example, a statistically low risk may still be “material”, if it can cause great harm. It must be something that a reasonable patient would want to know, before making a decision to undertake treatment. For example, permanent nerve injury following surgical removal of a third molar, while occurring relatively infrequently, is something a reasonable patient would want to know. The plaintiff must also prove that the “risk” materialized. This information typically requires expert testimony. Any special risks that the patient is exposed to, due to his or her medical status (diabetes, cardiac heart disease) must also be disclosed, preferably in the consent form. * A more specific discussion of informed consent in the dental office may be found in the MetLife Quality Resource Guide, Informed Consent in the Dental Setting. Medical Battery Medical battery occurs when a patient is treated without informed consent. Most commonly, battery charges are alleged where there is a dispute over whether the patient agreed to treatment or refused treatment. Although not commonly brought forward in dental situations, a medical (civil) battery charge can be devastating to the practitioner because they are liable for all damages that flow from it, including emotional distress. In addition, the plaintiff does not need an expert witness to testify as to the standard of care. Dental battery cases typically involve extracting the wrong tooth. A battery case could also arise from placing “veneers” (necessitating removal of enamel from the patient’s front teeth) if the patient had only consented to a cosmetic procedure that required no removal of tooth structure. It is important to clearly document conversations regarding the nature and scope of the treatment to be rendered. of multiple dental visits and were scrupulous about attending their appointments. It is usually a subsequent provider that breaks the bad news to the patient. Documentation of the periodic and regular assessment of the patient’s periodontal status and appropriate therapy, or referral to a periodontist, is mandatory. If the patient does not comply with recommendations, they must be informed of the consequences of their non-compliance, and this must be noted in the record. Many organizations provide guidance on the standard of practice for a hygiene maintenance and the dentist should familiarize themselves with these standards. 10 Failure to Diagnose and/or Treat Oral Lesions Failure to diagnose and treat, or refer, an oral lesion that later progresses to a point where it is not curable, is negligence. Cases involving oral lesions (typically on the lateral border of the tongue) are usually those that were not biopsied and progressed to advanced cancer. 11 It is very important that the practitioner periodically conduct a review of the medical/dental history and accomplish a thorough head & neck examination on every patient. If the practitioner notes a lesion, they should schedule the patient for a follow-up evaluation in 10-14 days, and document if the patient fails to keep the appointment. The dentist should not tell the patient to do self-examination and return only if it does not go away or worsens. Given the severe consequences if cancer is left untreated, it is imperative that the dentist follow any equivocal lesion aggressively and perform, or refer for, a biopsy of a lesion that has not gone away within two weeks. The size, location and description of the lesion must be documented as well as all follow up appointments. The diagnostic reason for taking a radiograph should be documented as well as the findings from interpreting the radiograph images. Radiographic images should be reviewed thoroughly. Equivocal radiolucent or radiopaque lesions should be biopsied or referred for evaluation and management as appropriate.