New AAOIC Mouthguard Release Form Available Below

The AAOIC has developed a mouthguard release form for AAO members.  This release form states that children should wear a mouthguard while participating in sports, particularly collision sports.  It goes on to state, though, that mouthguards of any kind cannot prevent injuries from occurring, but, in most caes, may help to reduce the severity of injuries.  The patient's and parent/guardian's signatures release the doctor from any liability.  To download a copy of the form click here.

Inadequate records, poor communication hurt legal defense
Mock trial presented at Annual Session

The Doctor’s Risk Management program at the 108th Annual Session presented a mock trial. Ms. Immen Payne sued Dr. Perfect Smilemaker. The facts of the case follow.

Case Facts

Ms. Payne, a young professional woman, read an ad placed by the orthodontist that stated: “Change your life with a complete smile makeover.” She wanted a smile like the one in the ad, so she contracted for orthodontic treatment.

After examination, Dr. Smilemaker planned a four-bicuspid extraction treatment using fixed appliances; he projected completion in approximately two years. The cost was $6,500, which the patient agreed to pay on a monthly basis.

Ms. Payne had her general dentist extract the bicuspids. This doctor took a cone beam scan and gave her a copy to provide to the orthodontist. Dr. Smilemaker reviewed the scan and seeing nothing inconsistent with his own films, placed brackets and began treatment.

Over the next two years, the patient had some instances of non-compliance. She missed several visits and failed to follow some treatment directives. At the end of two years, when treatment was incomplete, she complained, and requested that the braces be removed. She still owed $2,000 of the treatment fee. Dr. Smilemaker asked her to continue treatment for an additional six months; she agreed to do so. During that time, she paid nothing further on the balance owed.

At trial, Dr. Smilemaker testified that he asked the patient to pay the balance due on her account while he was completing her treatment. He denied that he threatened non-removal of the braces until the fee was paid. Ms. Payne asserted that he had refused to remove her braces until she brought her account current. She testified that she became upset with the doctor, left his office, had her braces removed by another orthodontist, and filed a lawsuit against Dr. Smilemaker.

The other orthodontist noted that the patient had periodontal disease that had been left untreated for an extended period of time. He also found that she had an open bite and some occlusion problems. She complained to him of having headaches; he opined that they were coming from TMD dysfunction secondary to the occlusion problems. This doctor recommended the patient undergo periodontal treatment, then a TMD work up, followed by additional orthodontic treatment. The patient said she could not afford this additional work.

The case was tried because the doctor and his insurer did not agree with the plaintiff’s demand. The case facts, as they developed during testimony, present several areas of the treatment that, had they been handled differently by the orthodontist, may have precluded the breakdown in doctor/patient relationship that resulted in the malpractice claim. Those issues follow:

Risk Management Issues

Record-keeping/documentation: Dr. Smilemaker’s records were sparse and of poor quality. There were no progress x-rays, and no signed informed consent verification document. The notes were incomplete, and insufficient to document the work that needed to be done on such a complex case. That allowed the plaintiff’s attorney to challenge both the treatment plan and the treatment.

The purpose of orthodontic records is to preserve critical treatment information and improve the quality of patient care. Secondarily, records provide defense for malpractice allegations. In this case, the records did not provide good defense, thus leaving the doctor vulnerable to the patient’s allegations.

Radiological and cone-beam records: Dr. Smilemaker failed to take progress x-rays during his treatment. In addition to this, the x-rays he did take were not diagnostic quality. Because of this, the development of periodontal disease and bone loss was undetected.

Many of the claims handled and settled by the AAOIC (RRG) involve cases in which there was a dearth of quality x-rays, and particularly progress x-rays. Progress x-rays will allow the orthodontist to be aware of the treatment consequences throughout the treatment time.

Cone-beam scans are a relatively new form of imaging available to the orthodontists to enhance patient treatment. Many orthodontists, however, are not trained to read three dimensional scans. If the scans are not read accurately and thoroughly, and incidental findings are missed, the orthodontist can assume a greater liability for failure to refer. To protect from this exposure, the scans should be read by a trained practitioner.

Periodontal referral of adult patients before beginning orthodontic treatment: Dr. Smilemaker was unaware of the patient’s periodontal problems. Many orthodontists refer all adult patients to a periodontist for examination and clearance to begin orthodontic treatment. This procedure provides some protection against allegations of development and/or exacerbation of periodontal disease from orthodontic treatment. Doctors should verify that the visit took place and request documentation of the consult; some claims have developed because the patient failed to comply with the referral but advised the orthodontist otherwise.

Communication: From the trial testimony it was evident that Dr. Smilemaker’s communication skills were inadequate during Ms. Payne’s treatment. The patient did not clearly understand his goal for her treatment, and he did not understand that she was in pain. Even if he could not alleviate her pain, he should have acknowledged it, pursued the etiology, and referred as appropriate. Because he ignored her, she felt discounted. When doctors communicate effectively with patients about their treatment, the incentive to sue is minimized. Doctors must talk to patients. Describe the anticipated treatment, and the time elements involved. Acknowledge problems that arise and discuss solutions to them. Have staff assist with communication on appropriate issues. Ask the patient questions and listen to the responses to determine needs and satisfaction.

Fee Issues: The patient testified that Dr. Smilemaker refused to remove her brackets until she brought her account current. Do not refuse treatment until fees are paid; this makes an unfavorable impression. In most instances, if you cannot agree on a payment plan, the better course is to finish the treatment and then consider a collection action for unpaid fees.

Informed consent: Dr. Smilemaker testified that he obtained Ms. Payne’s informed consent prior to beginning treatment. There was no signed verification document in the patient records.

The purpose of obtaining informed consent is to advise the patient of the nature of the treatment, of available alternatives and of foreseeable risks, benefits and complications. Based on this information, the patient has the right to accept or reject treatment.

Lack of informed consent is a separate allegation from negligence in a lawsuit. In the AAOIC (RRG) claims, we often see lack of informed consent alleged, even if the doctor has a signed verification document in the records. Patients say they did not understand the information relayed to them during the initial discussion. In many states it may not be inappropriate for staff members to convey the informed consent information to patients, but the orthodontist is ultimately responsible for ensuring the adequate communication thereof. Defense of an informed consent claim is much easier if the orthodontist explained to the patient the risks and alternatives of the treatments. It is absolutely critical to a doctor’s defense to some malpractice allegations that the verification document be signed by the patient or parents and placed in the records.

Consumer protection act/misrepresentation: With escalating advertising by professionals, we are seeing an increase in claims for misrepresentation and violation of consumer protection acts. In malpractice litigation, this is a separate claim from negligence. The basis for this type of claim is that prior to commencing treatment, the orthodontist somehow misrepresented the outcome the patient would receive from the treatment. An important element of this claim is that in many states, if the patient prevails, he/she can recover three times actual damages, plus attorney’s fees and costs. An additional concern for the doctor is the fact that professional liability insurance will generally not provide coverage for that allegation. In order to protect from these claims, doctors should carefully review all advertising to ensure there is no message that a patient can interpret as misrepresenting the outcome he/she will receive following treatment. Be sure there are no guarantees or agreements regarding treatment outcomes.  

Conclusion

This mock trial was an excellent demonstration of how small issues that occur during an orthodontic treatment can be problematic to defend in an actual malpractice trial. Take advantage of the opportunity to learn from the experience of one of your colleagues, before you are the doctor sitting in the defendant’s chair. If you were unable to attend the 2008 Doctor’s Risk Management Program at the 108th Annual Session, a DVD of the event will be available for purchase later in the summer through the AAO order department.

This article is brought to you by the AAO Insurance Company (a Risk Retention Group) (AAOIC). Elizabeth Franklin, the claims manager for the AAOIC, prepared this article. The AAOIC provides professional liability insurance to AAO-member orthodontists and is endorsed by the AAO. For more information, call 800-622-0344.