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Malpractice: Changing the Way We Practice by Bryan Laskin, DDS

View Comments (1) More by Bryan Laskin, DDS (3)More by Barbara Brunner (1)


At the most-recent ADA meeting in San Antonio, I had the pleasure of hearing Dr. Doug Wolff give a fantastic talk on how and when to offer sincere apologies to our patients.

Doug was one year ahead of me in dental school and I happened to be walking by when I noticed his name on the board outside his hall. I went in to listen, and it turned out to be one of the more valuable—albeit unexpected—moments of my career. I learned that empathizing with our patients by saying, "I'm sorry," is the simplest, most powerful and most sincere way to avoid a malpractice claim.

Personally, I know I constantly bug my patients by asking too many questions like, "Are you okay?" or "How you doing?" and reiterating that I'm sorry for things, from the taste of articaine to the slight discomfort I may cause at the beginning of an injection. I had never considered, however, that this constant communication with patients might in fact be lowering my malpractice risk. It's just been an ingrained habit for me, as I'm sure it is for many of you. But what if honing this habit of constant, complete communication could protect our practices and reputations even more?

As I left the lecture room that day, I began to think about how much value good communication adds to our practices and how most malpractice claims are an indication of a breakdown in either the patient/doctor relationship or legal documentation (that is, in cases that do not involve actual clinical negligence, which sadly do occur).

In legal terms
True communication goes way beyond the choice of words we use. Words are known to be the least important aspect of our communication and, of course, undocumented words don't hold much weight in the eyes of the law. Accurately and properly documenting patient communication is imperative and it's also one of the larger challenges we face from a legal standpoint.

The dental chart is the most important legal document in most malpractice suits, but it's often an overlooked task in the day-to-day operations of a dental practice. We all know that in the midst of juggling everything from coping with staff issues to ordering supplies to doing hygiene checks, it is understandable that complete, legal documentation might fall by the wayside. Nonetheless, complete record-taking and documentation of the discussions we have with our patients is essential.

To paraphrase Boyd W. Shepherd, DDS, JD's article, "The Ten Commandments of Dental/Legal Charting," some of the important aspects of complete charting are as follows:
  1. Never alter patient charts (meaning, do not try to cover up a mistake or mistaken chart entry).
  2. Chart patient comments in quotation marks, even (or maybe especially) compliments.
  3. Chart patient noncompliance.
  4. Take care to thoroughly chart unfortunate or unforeseen results.
  5. Make sure chart procedure notes are consistent with times and dates in the charts, including cancellations or rescheduled appointments.
  6. Involve your lab in your communications with patients who are undergoing complex restorative treatment.
  7. Make follow-up telephone calls to patients.
  8. Chart alternatives discussed, as well as recommended treatment, including the risks and benefits of each option.
  9. Review charting done by auxiliary staff members.
  10. Update the patient's medical status at each visit.
Note that six of these 10 commandments involve communication on some level, even though the topic of the article is adequate documentation (numbers 2, 6, 7, 8, 9, and 10).

Clearly, proper communication includes everything from educating patients to obtaining informed consent by accurately and legally describing the risks and benefits of all the available treatment options, as well as documenting their response. Failure to follow through with complete patient education can result in malpractice lawsuits, such as when an inferior treatment fails after the patient was not given the choice of another treatment. An example of this would be a failed bridge in an area where an implant was an option.

Writing the wrongs
Another common precursor to a malpractice case is poor documentation, such as extracting the wrong tooth due to an error in charting or undecipherable handwriting. Knowing that penmanship is the weakest link in my personal communication chain, I avidly resist manually writing prescriptions of all types. In fact, in the past I have relied on staff members to keep us compliant, and now prefer to utilize HIPAA-compliant software to email or text protected information to my team, labs and specialists.

You might have noticed that the new HIPAA Omnibus Rule has opened wide new avenues to even more malpractice lawsuits. If you haven't heard the news, you should know that we must now comply with these rules in entirety when electronically transferring and storing protected patient health information—even if we are simply emailing a patient's name or uploading a single radiograph. Fortunately, solutions to this technological dilemma now exist, including free options, so we can finally eliminate handwritten notes altogether while embracing more-efficient technologies. Now we can communicate more accurately and quickly, in full HIPAA compliance, which in the end is better for everyone.

For example, by using HIPAA-secure instant messaging you can obtain all the information from your auxiliary staff prior to entering an operatory, or you can use any one of several available online tools that allow for multiple dentists and laboratories to collaborate in real-time in a single, secure online location. This means that everyone can be aware of a patient's progress and every action is accurately and instantly and legibly noted, and can therefore easily be proven in court should the need ever arise. In this way, you protect not only yourself, but your colleagues and your patients as well. If you've ever played the "telephone game," you can understand the advantages of this style of communication in preventing errors.

Communicating confidence
Most of our patients are not trained to accurately judge our clinical dentistry, and instead they do their best by naturally equating excellent communication with clinical competence. I believe that our patients are watching for us to "be on the same page" with both them and our teams, and expect us to consistently exhibit confidence in each other's abilities. I'm sure you've seen this firsthand as I have when, after investing thousands of dollars and countless hours on continuing education and spending 30 minutes going into the risks and benefits of occlusal guard therapy, the patient turns to your wonderful new assistant (who just graduated last week from the local assisting program) and asks in all seriousness, "What do you think?"

Yet, you've also experienced how, when a patient totally understands your treatment recommendations and all questions are answered, he or she is much more likely to follow through with complete confidence, reducing your risk of a lawsuit down the road.

Therefore, employing excellent communication with our patients not only protects us from malpractice—it's also good for the health of our practices and our patients.



Dr. Bryan Laskin operates a private practice in Wayzata, Minnesota. A 1999 graduate of the University of Minnesota Dental School, Laskin is a certified CEREC trainer, founder of Prehensile Software, and developer of OperaDDS: the total communication dashboard for the dental profession which includes intraoffice messaging, HIPAA-compliant secure emails, laboratory prescriptions and specialty referrals, using any device, anywhere.


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April 2024
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