Thou Shalt Chart!!!

Another  Sad Charting Failure

          How important is charting?  According to the Hebrew Bible, even the Lord God Himself charted important information.  He didn’t simply tell Moses the laws that would govern His people.  He wrote them down on “tables of stone.” In the health care business, we all know that “If it wasn’t charted, it wasn’t done.”  Ignoring that rule cost one California dentist his license.

Dr. L was a general dentist who limited his practice to dental implants and oral surgery.  His patient presented complaining of pain around tooth #14.  She had no complaints of lower-tooth pain.  Yet, Dr. L convinced her to let him pull her lower left and right wisdom teeth in addition to tooth #14.  He removed all three teeth the day she first came to the office.

Dr. L anesthetized the patient at 12:20 pm but did not begin the surgery until 2 pm.  He performed a coronectomy on tooth #32 and pulled teeth #14 and #17.  He placed bone-grafting material at each site.  After the surgery, the patient had increasing pain.  That pain has continued for more than 4 years.

The Board found the following errors among others:

1.      After the surgery, Dr. L did not conduct a follow-up call or perform a postoperative examination.

2.     Dr. L did not record or monitor the patient’s continuous oxygen-saturation levels or respiratory rate.

3.     He waited too long after administering anesthesia to begin the surgery and kept the patient anesthetized too long.

4.     He failed to record the patient’s preoperative medical history.

5.     He failed to document his preoperative exam findings.

6.     He failed to obtain consent to perform the bone grafts.

7.     He failed to document the use of a barrier to close the bone-graft sites.

8.     He failed to record the type of biomaterial used for the bone graft.

9.     He failed to record the type of fluids infused during the surgery.

10.  He failed to obtain and interpret a 3-D scan before performing the coronectomy.

11.       He misdiagnosed root resorption.

12.       He had no clinical indication for performing a graft at tooth #17.

Dr. L argued that while he may have failed to document some of the above actions, he did perform them.  The Court ruled, “The lack of documentation corroborating Dr. L’s testimony is itself substantial evidence that he did not perform the acts he claims.”

The Court upheld the revocation of Dr. L’s license.

Thanks for reading.  Remember – write it down!

Patrice Walker

How to Legally Handle Bad On-line Reviews

He that filches from me my good name makes me poor indeed.

           The patient was difficult from the start.  She refused necessary treatment and then got angry when her decision resulted in the need for expensive dental work.  You wrote off her bill when she would not pay it and you hoped that would be the end of it. But, alas, it was not to be.  The patient has now filed a nasty review of your practice on social media.  Do you have the right to respond to the untrue claims that this patient has published? 

You can defend yourself, provided you proceed with caution.

        Last year, the federal government fined a dental practice $10,000 because of its answer to a bad Yelp review.  Replying to the post, the dentist revealed the patient’s full name and details of her treatment.   Those disclosures violated the patient’s right to privacy.  In addition, the dentist did not have a written office policy addressing the proper way to respond to on-line criticism.  HIPAA requires all covered practices to have such a policy. 

In the final settlement documents, the government warned that it had the right to impose a much higher penalty than $10,000.  It stated that the doctor’s cooperation with federal investigators was a mitigating factor in determining the size of the fine.

          After on-line reviews became popular, many providers filed defamation lawsuits over derogatory on-line posts. Not having the funds to defend such lawsuits, frightened patients withdrew their reviews.  Congress and state lawmakers responded by passing laws to protect patients’ rights to free speech.  Despite these laws, one dentist sued the same patient three times in connection with a bad review.  Each time, the court sanctioned the dentist and awarded the patient thousands of dollars in attorney fees and court costs.

          What lessons do these cases teach us?

1.        Be sure you have a written policy addressing the proper way to respond to a negative social media review.  The policy can be as simple as: “No response to an on-line review will be published without our attorney’s review and authorization.”

2.          Do not identify the patient by name, or otherwise, in your response. 

3.        Do not discuss the patient’s dental condition in your response. 

4.       Before hiring a lawyer to sue the patient, consider whether the patient has made a false statement of fact in the bad review.  Mere opinions may not be actionable.  For example, a patient’s false claim that you hit the patient, misdiagnosed the patient, or committed dental malpractice can support a defamation lawsuit.  A claim that you were “not very nice” probably won’t impress a judge or jury.

5.         Consider whether your patient has the means to pay any damages that a court might award.  If not, the only one smiling at the end of the case may be your lawyer.  

6.              North Carolina law prohibits lawsuits filed for “an improper purpose.”  I know of one North Carolina case where a judge awarded several thousand dollars against a plaintiff who filed a suit in order to get even with a relative who had hurt the plaintiff’s feelings.  To avoid a similar result, you should have evidence that the defamatory review has actually damaged your practice.

7.           Finally, be sure your practice attorney reviews your response to a bad review before you press “Send.”

Patients do have the right to post honest reviews.  But providers have the right to protect the good will of their businesses.  

Thanks for reading.

Patrice Walker