COVID 19 WARNING - TO DENTISTS

I have just learned that consultants are advising dentists to encourage patients to keep scheduled appointments for non-emergency or elective procedures. THIS IS TERRIBLE ADVICE.  DO NOT DO THIS.

In 1920, the North Carolina Supreme Court ruled, “It is a well-settled proposition of law that a person is liable if he negligently exposes another to a contagious or infectious disease.”  In 2006, California courts, citing the North Carolina case and many others, agreed that negligently exposing another to a contagious disease is actionable.  The Plaintiff in the California case won $12.5 million in damages.  Insurance did not cover the loss.

Although the recent CDC guidance urges dentists to take precautions with patients who have signs of respiratory illness, that guidance did NOT state that dentists should see patients for non-emergency or elective dental procedures.

The corona virus is highly contagious.  A person can be contagious without showing any symptoms of respiratory illness.  The virus is deadly.  Public health experts from Johns Hopkins tell us that that there are probably 500,000 infected persons in the United States.  It would be grossly negligent for any health care provider to encourage a patient to come to a public office under these conditions for a routine visit.  Please reschedule these patient appointments as soon as possible.

You, your employees, your patients and families risk infection if you do not reschedule these patients.  Moreover, you risk significant liability and damage to your professional career if the government traces cluster of infections to your office. 

Ain't Nothing Funny About This!!!

In the fall of 1969, Dad drove me to college in Richmond, Virginia, to begin my freshman year.  After moving me into the dorm, he sat down for a father-daughter talk.  Although I was excited to be in college, I was nervous as I didn’t know any one at the school.

          As always, Dad sensed how I felt.  He said, “Now Trice, there’s absolutely nothin’ for you to be worried about here.  If anything comes up that you can’t handle, you just pick up the phone and I’ll be here within two shakes of a rattlesnake’s tail.”

“But, Dad”, I asked, “how will I know whether I can handle the problem on my own?”

He answered, “Well, you think about the problem a bit and if you can’t find anything funny about it, you call me.”

The past few weeks, I’ve thought about that afternoon.  I’m hiding out at my home office from a highly contagious virus that’s killing thousands of people worldwide.  If that weren’t bad enough, the stock market has tanked.  I wonder if my meager life savings will be in the bank next week.  Will there even be a bank next week? I have thought and thought but I can’t find anything funny about this. 

 At a time like this, I believe Dad would have told me to see if I could find anything else that was funny.  After all, any laugh would help.  Luckily a 2019 State Bar Ethics opinion flashed across my news feed. Thinking that you folks could also use a laugh, I’m passing it on.

It seems that a district attorney and a criminal defense lawyer decided to have an affair.  You might think that they would have a few worries – jealous spouses, rashes, or pregnancy.  But these two were most worried about the State Bar finding out.  Now I don’t think the State Bar has a sex investigations unit, but just to be careful, these lawyers asked the Bar for an opinion. 

First, the Bar thoroughly researched the issue, citing cases from around the country.  (I didn’t know that this type of behavior was a nationwide epidemic, but apparently it is a big problem.)  Then, after due consideration, the Bar ruled that in order to avoid the appearance of a conflict of interest, the lawyers should FIRST obtain their clients’ informed, written consent to the affair.  

I’m not sure what information you have to give your client to be sure that the consent is informed.  I leave that to your imagination.  As far as getting consent, I guess the district attorney will have to request a special election so he can get written consent from his clients – the local voters.  Imagine the campaign promises!!!  It would surely get out the vote.   Is a majority vote sufficient?  Or does the DA need 100% approval?

But my chief worry is that when these two lovebirds told the Bar that their affair had gone on for “one to three months,” they had unknowingly confessed to the crime of lewd and lascivious cohabitation.  (N.C. Gen. Stat. 14-184). 

Now you might think that the “carrying on” could not have been too “lewd and lascivious” as the lawyers couldn’t remember how long it went on.  Of course, that depends on the legal meaning of “lewd and lascivious cohabitation.”  As a law student, I was clueless – but couldn’t wait to find out.  To my surprise, it doesn’t matter which sex acts took place. The only issue is how long the sex continued.  In the landmark Robinson case, the Court noted that the defendants had been shacked up in a trailer park for   three or four weeks.  That was entirely too long.

Years ago, a local high school asked me to teach a law class.  As I was explaining the dangers of lewd and lascivious conduct, one young fellow asked, “Does that mean that on day 14, I need to break up with my girlfriend and hang out with someone else for a day or so and then I can go back?”  Before I could answer, an angry young lady in the back of the class yelled, “No!!!! You MAY NOT!”   The lecture kind of disintegrated from there and, to my surprise, I was never asked to return.

Dad was one of the wisest people I ever knew.  He’s right.  You can always find something funny.  And when you can laugh, you can handle anything.  We’ll get through this.  We’ve seen worse.

Patrice Walker      

North Carolina's Response to the Corona Virus

The Corona Virus and North Carolina Clinics

          Our state has issued a corona virus “guidance” to all “healthcare providers.”  The term “healthcare providers” covers physicians as well and others who do not treat patients for the flu such as dentists, physical therapists, optometrists, and pharmacists,  The following tips will help non-physician providers comply with the guidance and avoid legal problems that may arise.

All non-physician providers should:

1.      Take infection control measures appropriate to the clinic setting,

2.    Consider postponing non-emergency care when the patient appears to have a respiratory illness,

3.      Comply with HIPAA, and

4.    Enact corona virus policies that do not discriminate on the basis of national origin. 

Notices

Our state asks all “health care providers” to post signs about the corona virus. North Carolina has not given us a sign template.  The Texas sign tells patients to let “staff” know whether they have been “ANYWHERE IN CHINA” in the 14 days prior to the appearance of symptoms.  North Carolina asks patients to tell providers whether they have traveled to “areas with ongoing corona virus transmission in the last 14 days”.  Unfortunately, this assumes that patients know which countries are of concern. 

Our signs should simply ask patients to report flu like symptoms upon checking in.  The signs should list CDC flu symptoms such as fever, cough, sore throat, runny nose, body aches, headaches and fatigue.

Patient Evaluation and Additional Protocols

Our state asks “healthcare providers” to evaluate patients for any “respiratory infections” including the flu.  Although non-physician providers are not licensed or equipped to diagnose the flu or the corona virus, anyone can determine whether the patient has flu-like symptoms.

Other North Carolina corona virus protocols address managing the patient, the clinic environment, diagnostic testing, and visitor access as well as using personal protective equipment.  Some of these protocols clearly do not apply to non-physician providers.  Still, all providers should adopt those practices that do apply to their clinic setting.

What to Do When Patients Report Flu-like Symptoms

If the patient reports flu-like symptoms, non-physician providers should consider rescheduling the patient.  If rescheduling would endanger the patient, the provider should ask questions about recent international travel or other exposure to the corona virus, such as being near people who are known to be infected.  To comply with HIPAA, this discussion should take place outside of the view and hearing of other patients.  If the patient reports having been in “areas with ongoing corona virus transmission” within the past 14 days, the provider should call the NC Communicable Disease hot-line at 1- 919-733-3419 to consult with experts on the virus.

Recommended Office Policies

The clinic should enact an office policy that references the parts of the N.C. guidelines that apply to the clinic.  That policy should clearly state that it applies to ALL patients who present with symptoms of the flu.  Although the virus may have originated in China, the evidence clearly indicates that people of many different countries have been infected by the virus.  A provider who only asks questions of people from China is ignoring the data and contributing to the spread of the virus.  He or she also risks being charged with illegal discrimination. Finally, the policy should require documentation of the discussions with the patient that relate to the above.

This flu will eventually go away.  Meanwhile, providers must comply with DHHS guidelines as well as other relevant federal and state laws.

Thanks for reading.   Patrice Walker

[1]https://epi.dph.ncdhhs.gov/cd/coronavirus/_Interim%20Guidance%20for%20Healthcare%20Settings.pdf?ver=1.4.  DHHS updates those guidelines frequently, so please check them often for new information.

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

Take Care of Yourself - Legally

The day at the pharmacy was long and hectic.  Customer lines were endless and the phones rang constantly.  In the middle of all this confusion, Bill, the supervising pharmacist, checked the name, route of administration, dose, and strength of every prescription before it went to the consumer.  During his shift, he managed two five-minute bathroom breaks and ate a snack behind the counter.  Unfortunately, he also missed a technician’s error and gave one patient the wrong medication.

When the patient discovered the mistake, he contacted the Pharmacy Board and filed a complaint against Bill and the pharmacy.  Upon learning of the complaint, the pharmacy told Bill not to worry about it.  The pharmacy’s lawyer would represent them both at no cost to Bill. Relieved that he wouldn’t have to pay a hefty legal fee, Bill set up an appointment with his new attorney.

At the beginning of their meeting, the lawyer said that Bill would have to sign a conflict of interest waiver.  Although the attorney tried to explain the waiver, the legal jargon was confusing.  Still worried about the cost of hiring his own lawyer, Bill signed the form.

The lawyer asked how the medication error occurred.   The pharmacist began describing the working conditions at the pharmacy.  It was significantly understaffed.  This resulted in an impossible workload for the technicians and the pharmacist.  Before he could further explain, the lawyer interrupted him saying that he couldn’t discuss those kinds of factors because it would hurt the pharmacy.  Suddenly Bill understood the form he had signed.  He concluded the interview and hired his own attorney.

Representing both Bill and the pharmacy put the attorney in a classic conflict of interest.  If he offered evidence of poor working conditions, he would help the pharmacist.  But that same evidence would reflect badly on the pharmacy.  By helping one client, he would injure the other.

The pharmacist wisely chose to hire someone else.  His new lawyer did offer the evidence of poor working conditions.  For his part, the pharmacy’s attorney argued that the pharmacy provided an exemplary work setting.  Fortunately for Bill, the Board agreed with him about the working conditions.  Bill kept his license.

While Bill fared much better with his own lawyer, he was out several thousand dollars in attorney fees.  Unfortunately, he did not have his own liability insurance.  That insurance would have paid most of his defense costs.  When the pharmacy hired Bill, it assured him that he was covered under their policy.  Relying on that assurance, Bill had not purchased his own coverage.

The pharmacist learned many important lessons from the experience.  First, a health care provider needs individual insurance that covers licensure disputes.

Second, it is dangerous to work in an understaffed facility.  Before the drug error, Bill felt good about doing all he could to help the pharmacy succeed despite the staffing problem.  He happily skipped breaks, worked overtime, and tried to be as efficient as possible. He cared about his patients, employer, and coworkers.  He thought he could safely meet his employer’s expectations. 

He now understands that lack of adequate staffing will cause even the best pharmacist to make mistakes.  He maintains adequate insurance coverage.  Before taking on a new job, he checks out staffing and other working conditions.  He also talks with former facility employees to determine the level of support provided by the company.

These are lessons that can benefit all licensed health care employees.  Please consider obtaining your own professional insurance coverage.  Remember that you must take care of yourself in order to take care of those who need you.

Begin at the Beginning

     The best part of my 16^th birthday was getting my driver’s license.  I could hardly wait to jump in Dad’s lime green ’57 Ford Fairlane 500 and hit the road.  Freedom, if not style, was within my grasp at last.  To my surprise and disappointment, however, Dad still wouldn’t let me drive.  He said that it wasn’t enough to know how to drive, I needed to understand how cars worked.  He would only let me drive after I had disassembled the engine, cleaned it, and put it back together.  Knowing that it was useless to argue, I asked when I could get started.

     Early the following Saturday morning, Dad spread a big sheet on the floor of the carport, brought out his tools and showed me how to take the engine apart.  I was to place the parts on the sheet in the order that I removed them.  That way I’d know the order in which to reinstall them after cleaning them. 

     I rolled up my sleeves, grabbed a wrench and dug in.  I could quickly see why this machine needed a good cleaning.  Everything was covered in grease and gunk.  I wondered how it ever got out of the driveway. 

     By late Sunday afternoon, I was ready to clean the engine.  I grabbed a big scrub bucket, several rags, Brillo™ pads, a can of Comet™ with bleach, and a scrub brush with metal bristles.  I filled the bucket with Tide™ detergent and lots of hot water.  I was determined to have every part of that engine sparkling clean when I got behind the wheel.  I had just finished dragging the hose over to the carport when Dad returned from a round of golf.  He jumped out of his car, began waving his hands in the air and ran over to me yelling, “Stop!! Stop!!”  Having no idea what could have set him off like this, I froze mid-stride.

     Turns out that cleaning a car engine is not like scrubbing the outdoor grill after a family barbeque.  Had Dad not arrived when he did, I would have killed the engine for good.  Engines need grease and gunk.

     Things moved along much faster after Dad decided to take over the project.  He quickly “cleaned” the engine and began putting it back together.  My job was to watch from the sidelines.  When I noticed that he wasn’t putting back all the nuts and bolts, I timidly asked why he was leaving them out.  He explained that all manufacturers install extra screws in case some get lost.  Although he told me not to worry about the leftovers, I gathered them up in a bucket just in case. 

     By Sunday afternoon, Dad had reassembled the car.  After school, he gave me permission to take it out to the grocery store.  Joyous, I jumped in the driver’s seat and took off.  I almost made it to the grocery store when the car quit running.  I was able to get it off the road, but I couldn’t get it to start.  I lamented having left my bucket of bolts back at the house.  I was sure that a missing screw was causing this disaster. 

     Luckily, I wasn’t far from a gas station.  I found an attendant who agreed to walk back to the car with me to see if he could get it started so that we wouldn’t have to tow it in for repairs.  He took the keys and, like me, he was unable to start the car.  However, unlike me, he immediately knew the problem.

     “You know, lady” he said, “these things need gas to run.  You’re on empty.”  With this, my humiliation was complete.  I walked in shame with him back to the station where he loaned me a can to take some gas back to the car.  I was grateful that he didn’t ask if I knew how to get the gas into the tank.

     I didn’t tell my parents about the gas issue.  My father’s estimation of my intelligence had already dropped by at least 25 IQ points after the engine cleaning episode.  If he knew how dense I really was, he would probably never let me out of the house again.

     I did learn quite a bit from the entire experience.  My understanding of car engines became outdated as engines changed over the years.  But I discovered an important lesson about being a teacher.  You must never assume that your student knows the “basics.”  Always begin at the very beginning.