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Record keeping – It’s not going away

I can almost hear the groans this topic often elicits. Yes, it’s those dirty words again – clinical records. Hang on a minute! Please read on…
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Surely we don’t need to be reminded again, I hear you protest. There’s always someone nagging us about it. Yet hundreds of dental claims every year remind us that it’s a topic that’s not going away. Good clinical records are an essential part of contemporary dental practice. As the following claims highlight, good records help protect you against the unexpected.

Adverse patient outcomes

  • A dentist referred one of her patients to a colleague for extraction of tooth 44. While the initial conversation was had over the phone, she emailed through a written referral a few days later. However, in preparing the referral, the dentist realised she hadn’t made note in the patient’s record of which tooth was to be extracted. Relying on memory, she wrote tooth 45 in the referral, instead of 44. The wrong tooth was subsequently extracted, causing much embarrassment to both dentists and claims of negligence against them.
  • A young woman presented for the extraction of tooth 35. She completed a ‘medical history form’ in the waiting area on which she disclosed her allergy to codeine. While the dentist asked her a number of questions about her medical history, he did not review the form or ask her about known allergies. He subsequently prescribed an analgesic containing codeine. The woman’s mother contacted the dentist a few days later to advise that her daughter had required hospital treatment for an adverse drug reaction. A letter of demand for compensation followed soon after.

Claims of negligence or misconduct against you

  • A patient telephoned her dentist after hours to report persistent pain and swelling post procedure. The dentist took the call on his mobile phone while he was driving home from work. He clearly recalls advising the patient to come back in the following day if her symptoms had not settled. However, he did not make any record of their conversation.   As the patient did not return the next day, he assumed her symptoms had subsided. Yet the patient was subsequently hospitalised with a systemic infection and later claimed the dentist was negligent in failing to diagnose her condition. She denied that he had told her to return to the practice the following day if her symptoms had not subsided.

Disciplinary action for failing to meet your professional obligations

  • A patient lodged a complaint with AHPRA about the quality of veneers performed on teeth 11 and 21. In investigating the patient’s claim, AHPRA also found the dentist’s record keeping to be seriously deficient. At times he had referred to porcelain fused to metal crowns instead of veneers, and at other times he had recorded the wrong date of the patient’s appointment. Furthermore, while the dentist insists he carefully worked through a process of gaining informed consent to treatment, there was no evidence of this in the clinical record. Therefore, the dentist had the added pressure of responding to further allegations about the appropriateness of his practice.
  • A dentist was asked to provide a copy of her clinical records to AHPRA in response to a complaint made about another dentist. While they had both treated the patient over time, there was no complaint about this dentist. Her records were simply required to help the investigators better understand the patient’s course of treatment. Having provided her records, she was shocked to receive notice from AHPRA advising that her records were now the subject of an investigation. Her record keeping was deemed inadequate in that the hand written notes were illegible, not maintained in chronological order and did not include adequate details of the treatment provided.

Why keep clinical records?

Contrary to popular belief, good record keeping is not simply about protecting yourself from ‘being sued’. It’s more important than that. The primary purpose of clinical records is to ensure the safety and continuity of patient care. That is, to record the patient’s unique journey from start to finish. Carefully recording the sequence of events allows you or someone else, to return to the records at any time to clarify the facts behind your decision making. Even a dentist with a photographic memory can’t remember the circumstances of every patient. Who has a known allergy? What did the OPG taken 4 years ago reveal? What did you advise the patient about that broken endodontic file?

Although good clinical record keeping has always been a requirement for health professionals, the Dental Board of Australia has formalised dentists’ obligations by issuing the Guidelines on dental records. Remember, you must be familiar with the guidelines and disciplinary action can be taken against those who fail to comply.

In addition to the Board’s requirements, good clinical records are essential for fulfilling your obligations to funding providers such as government agencies and private health funds. As dentists well know, compliance audits can be onerous and costly for those who fail to comply.

Finally, good clinical records will assist you in defending a claim of negligence or misconduct against you. The old adage of good records – good defence, poor records – poor defence and no records – no defence is no cliché. If you fail to keep good records, disputes will ultimately boil down to the patient’s word against yours. Conversely, you are much better placed if you can demonstrate that good record keeping is part of your usual practice. Not just for the patient in question, but for all of your patients.

Copies of the Dental Board of Australia’s Guidelines on dental records (2010) can be readily accessed via www.dentalboard.gov.au/Codes-Guidelines/Policies-Codes-Guidelines.

What constitutes clinical records?

Clinical records generally encompass any hard copy or electronic information pertaining to a patient’s care. This includes:

  • Clinical notes, including any diagrams, photographs or consent forms
  • Diagnostic imaging and reports including CAD-CAM restoration files
  • Dental models
  • Reports, referrals and any other correspondence pertaining to the patient that has been exchanged with third parties. This includes Instructions to and communications with laboratories.

General principles for collecting and maintaining clinical records

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What information should be recorded in clinical records?

  • Identifying details of the patient
  • Details of who the patient would like contacted in the unlikely event of a medical emergency
  • Previous and current medical history including any allergies or adverse drug reactions
  • The date of each visit and the identifying details of the practitioner(s) providing the treatment
  • The patient’s presenting problem and any changes in their condition since their last contact with you or your practice
  • Information about the type of assessment, examinations and diagnostic imaging performed
  • Your observations, clinical findings and diagnosis
  • Proposed treatment plans, associated risks and alternatives as discussed with the patient
  • Estimates or quotation of fees
  • The patient’s consent to the agreed treatment and proposed fees
  • All treatment provided and the patient’s response to that treatment. Include the use of any medicines, prostheses or other products. Did the treatment go according to plan? Did the patient respond as you expected?
  • Instrument batch (tracking) control identification, where relevant
  • Instructions to and communications with laboratories
  • Instructions or warnings given to the patient
  • Details of any further exchanges with the patient, or carer, that occurred via telephone, text message or other method
  • Any correspondence with other service providers, or third parties, pertaining to the care of the patient
  • Any other information you feel is relevant to the continuity of the patient’s care

Achieving good clinical records

While it can be tempting to declare that good record keeping is simply too onerous for a busy dentist, many health professionals do manage to achieve it, dentists included. Arguably, success lies in structuring your processes for gathering and recording clinical information in a way that reduces any administrative burden. Work with your Practice Manager to explore ways in which your record keeping processes could be streamlined.

Consider the benefits of using hard copy or electronic templates for recording clinical information. Ensure they are set out in a way that is easy to use.

  • Ensure information gathering follows the sequence of clinical workflow
  • Set out relevant headings in the order a dentist is most likely to use them
  • Insert prompts to remind dentists to record particular information
  • Use colour coding where appropriate, as a visual cue for recording certain information

While it might take some time to set up the practices that work best for you, there are significant benefits to be had, including opportunities for greater business efficiencies.

Why do people complain to the ADA about their dentist?

Unfortunately, with all the very best of intentions and with all the professional training, skill, care and experience the dental team may exhibit, things don’t necessarily turn out as expected. This can result in an adverse treatment outcome and patient expectations not being met. The vast majority of these situations are managed in-house by the treating professional by offering to re do a procedure for the patient or referring the patient for specialist attention. Most patients are accepting of this approach, especially when the professional shows genuine concern for the patient’s well being and the patient is not greatly disadvantaged.

However, when a patient, their parent or guardian considers they have not been treated in a considered, appropriate nor professional manner, they may make a complaint to an authority such as the Dental Board of SA, the Health and Community Services Complaints Commission or the Australian Dental Association.

Such a complaint to the ADA (SA Branch) may then be forwarded to the Review Committee of the Association or a Community Relations Officer to review the circumstances involved, in an attempt to reach resolution to the mutual agreement of the parties involved whilst minimizing the chance of escalation of the dispute to expensive and time consuming litigation.

Acting as a Community Relations Officer with the Australian Dental Association (SA Branch) my role for 3 or 4 hours a week is to help mediate such incident reports and complaints which arise between members of the Association, their employees and their patients.

Having practiced Dentistry for some 30 years and then having spent the last 10 years with a nationally Registered Training Organisation which has a focus on Personal Leadership Development and Frontline Management training, as both a facilitator and an assessor, I am in the fortunate position of being able to wear two hats which enables me to conceivably empathise more closely with both sides of a dispute arising from unsatisfactory dental treatment outcomes.

Frontline Management training and development addresses the soft skills (i.e. the most desirable attitudinal and behavioural skills required by any individual in a leadership or supervisory role to maximize their own and their team’s effectiveness, performance and productivity in any area of industry), as distinct from technical skills. Topics covered in a development program include such things as the importance of clarity of roles and responsibilities, good communication, planning and prioritizing of workloads, decision making and problem solving, handling and preventing problems with people, exercising authority effectively and taking personal responsibility for one’s own actions and many more. Not surprisingly, these are invariably the very same areas involved when disputes between a member of the Dental profession and a patient arise.

Unfortunately, poor communication is one of the most frequent complaints anywhere in any workplace and certainly lies at the heart of many complaints received by the A.D.A. Many patients complain that they received treatment they weren’t expecting, were not fully informed of the costs involved, and didn’t understand the nature of the treatment, the complexity of the treatment or that things could in fact go wrong. For instance, they may have attended an appointment in pain and expected the treatment provided and paid for would fix their problem, totally unaware that the pulpitis may not resolve with an extensive restoration and could actually progress to root canal therapy. Naturally, one of the first questions asked when reviewing such a complaint with a dentist is “What did you say to the patient and did they understand what was said?”

Communication is both telling and listening and the very nature of communication is to clarify and understand. It involves words, the tone of voice and body language yet too often it would seem that “telling” is perceived as communicating. Dental patients are invariably at a distinct disadvantage whilst having procedures performed on them, especially under rubber dam, because they can’t ask clarifying questions whilst their mouth is open.

Tight time constraints are often blamed when communication fails because “we were busy” or “running behind time” and an assumption is made that the patient actually heard and understood what they were told on a single occasion.

Informed consent is so critical in this day and age. Unfortunately, it is very hard to defend any complaint when the patient says “I wasn’t told”, “I wasn’t aware” or “I didn’t understand” as it then becomes one person’s word against another. A follow up appointment, a written quotation for treatment or an explanatory handout helps people understand what is involved with their treatment and should help to avoid misunderstandings.

Good records help enormously in defending a dentist’s actions when a dispute arises, as they record facts. Record keeping is fundamental for any clinician and the record must be contemporaneous and accurate. Case notes must be dated, clearly written to define the procedure involved and contain sufficient content for a third party to understand what treatment was actually performed. Whenever a complaint is made against a dental professional one of the fundamental pieces of evidence requested to help defend the person, their actions and what was said, is the clinical record. It is extremely difficult to help and defend a practitioner against an allegation if their own records are inadequate, incomplete or poorly written.

Naturally, clinical records include charts, radiographs, photographs, study models or any other items associated with the examination or treatment of the patient and provide evidence to help justify any treatment provided by the dental team. Radiographs in particular provide supportive evidence of why decisions are made to undertake treatment and as such should be of good quality and show the area of concern, such as the periapical area when root canal therapy is required or the entire tooth of an impacted wisdom tooth requiring extraction. Surprisingly, many endodontic treatments are still initiated today without a clear pre-operative radiograph as partial evidence for that decision to be made.

Incidents and complaints made to the ADA vary enormously in nature. On many occasions when an incident or complaint is reviewed it becomes clear that the dentist has not done anything wrong at all and there is very little basis for the complaint. There may be some misunderstandings, however the treatment and services provided, the itemisation of accounts and the fees charged are deemed proper, appropriate and professional. The dentist can be defended by the ADA as having acted in the best interests of the patient, the treatment can be explained to the patient and generally the complaint can be considered as closed.

However, when treatments fail or fail to meet patient expectations and the dentist involved is not prepared to admit to the failure nor offer to address and correct it, things become more difficult to defend. The ADA must then address and be seen to address the patient’s complaint seriously and appropriately.

Surprisingly, some dentists refuse to even discuss the situation with the patient or they get their administrative staff to deal with the issue. Naturally patients resent this approach, become indignant, emotional and occasionally hostile. Even so, they are still encouraged by the ADA as a first step to return to the practice and request a discussion of the situation with the dentist involved in an attempt to resolve the issue. Should this approach fail, the ADA becomes more heavily involved and a more formal and time consuming process to mediation is required.

Complaints can range from a simple mismatched colour of a bonded composite resin, to a broken restoration, post operative discomfort, a failed endodontic treatment, a non retentive full lower denture through to a complex and extensive multiple implant case. A common sense approach is naturally required with all these cases with the facts being gathered and the emotions controlled to understand both sides of the dispute and enable the problem to be solved. Fortunately, the majority of dentists cooperate with the ADA in an attempt to rectify the situation and as a gesture of goodwill with the patient.

Unfortunately, some dentists are seemingly unaware of their own limitations of competency and often undertake treatments that are beyond their capability to provide. A little bit of knowledge and expertise can be a dangerous thing and knowing one’s own limitation is extremely important for any professional. Specialties exist in dentistry to deal with the more difficult, complex and challenging cases faced and in this age of increasing litigation a practitioner needs to make decisions on a daily basis as to what treatments he or she decides to undertake for a patient and what to refer.

For instance, a very common complaint arises when a general practitioner undertakes a molar endodontic therapy for a patient, places a crown on the tooth, charges the patient accordingly and the patient pays the fee assuming the problem has been rectified. Within several months however, the tooth becomes painful again, the patient returns to the dentist and is then referred to an endodontic specialist who then charges his appropriate fee to retreat the tooth. The patient is naturally and justifiably unhappy to be charged again and complains to the A.D.A. about the initial unsatisfactory treatment, the extra time and inconvenience involved and the extra costs.

Similarly, when complex restoration involving veneers, crowns, bridges and implants is undertaken involving considerable costs for the patient, dentists must ensure that patients are fully informed and aware of the expectations and limitations involved with the treatment. So often complaints arise due to a failure some time after the restoration has been placed, such as fracturing or breakage as a result of trauma or occlusal overload, with the patient then seeking and expecting financial compensation for replacing the restoration from the original treating dentist.

These are just a few of the reasons why people complain to the ADA about their dentist. There are many more which involve unprofessional conduct, excessive fees, clinical incompetence or an arrogant or dismissive attitude of a dentist. All dental personnel must have a constant awareness of what can and does go wrong, as Murphy determined many years ago and naturally prevention is far, far better than cure. For those of you who might say, “I’ve heard that all before but it doesn’t happen to me”, be cautious as your very next patient may contact the ADA or other authorities as a result of what you do or do not do. Make sure you can always defend yourself appropriately against any accusation that may be made against you.

“To know but not do, is to not yet know”

Jim Ball (B.D.S. Adel).
A.D.A. (S.A. Branch) Community Relations Officer.  

The second dentist and patient dissatisfaction

There is little doubt that in this day and age, patients are becoming “clients”. Consumerism is on the rise, and “dental practices” are often seen and referred to as “dental businesses”. This is associated with a diminution of the perceived professionalism of the practitioner, with the result being an increase in the likelihood of a patient compliant. If one is lucky, your patient will bring their issue(s) to you, the practitioner, in whom they have placed their trust. However, when trust is gone and respect gone with it, then a patient becomes a consumer and is far more likely to lodge a complaint.

Complaints can go in a number of directions. Whilst the time honoured facility of complaining civilly by alleging negligence through the Courts is still being used by unhappy patients, a growing trend for many complainants has been to involve the Consumer Complaint Tribunals, such as the Health Care Complaints Commission (HCCC), the Dental Board and of course in NSW the Consumer Tenancy and Trader Tribunal (CTTT). Such complaints cost a patient very little in money and little more in time, and often pressure is brought to bear on the practitioner in such jurisdictions by the powers that be. There is sometimes the expectation that if treatment has not had a positive outcome, then the practitioner should refund the cost of the treatment.

As always, the decision to financially assist a patient should turn on the merits of the case. There is no absolutely right or wrong approach which can be universally applied to all situations. Rather, there are possible avenues that may be worth exploring in most cases to settle a grievance before such dissatisfaction becomes a claim. The three cases below highlight how the outcomes that exist for settlement of grievances may be affected by the comments or actions of the “second” dentist.

Case #1

A dentist contacted the DDAS wanting advice as to how to settle a dispute with a patient. The DDAS recorded the following complaint history: “Dr X saw an EPC Medicare patient who initially presented in February 2005 with an RCT which had already been started on the #21. Dr X finished the treatment and subsequently performed another two RCT’s (teeth #35 and 46) and issued 3 crowns (teeth #25, 35, 46) some three years after the initial treatment. About one year later, in February 2009, the patient was in pain and could not get an appointment to see Dr X, so saw another dentist, Dr B. Dr B allegedly informed her that the crown margins on one of the crowns were deficient. She is now unhappy with the crowns.”The patient saw the “second” dentist, Dr B, who had concerns about the standard of some of the endodontic work carried out by Dr X. He referred the patient to an Endodontist, with a request for the work to be assessed. Dr B noted that tooth #21 had been veneered with a porcelain veneer, subsequent to the root canal treatment.

The Endodontist reported to Dr B: “The initial intra-oral examination revealed gingival inflammation at the cervical margins of the anterior veneers. A grey discolouration of the clinical crown was noted . . . The pre-operative radiograph revealed an adequate root filling in situ with no obvious periradicular deterioration. Diagnostic testing was within normal limits and no tenderness to percussion or palpation was noted.” As no definite endodontic diagnosis could be made at the time of consultation, no treatment has been initiated or is indicated. (The patient) requested that I take a radiograph of teeth #35 and #36.

Although no obvious apical pathology was evident, a deficient crown margin at tooth #35 was noted. She has been referred back to your office for ongoing management…..” The patient was referred back to the original dentist Dr X by Dr B. Dr X referred the patient to a Prosthodontist for an opinion on the treatment he had carried out. The Prosthodontist reported on the patient’s condition in March 2009:

“The patient required assessment of previous treatment provided by you on endodontically treated teeth including teeth #21, 25 and 46. The patient expressed concern regarding the reasons for having root canal therapy in the first place. She could not understand why she required such extensive treatment as she felt that her oral hygiene was very good. As you are aware the patient has now seen three other dentists for a second opinion regarding the quality of the crowns placed by you over the years. She has had varying opinions regarding this, with some stating that the crowns required replacement due to inadequate fit.

Intra-oral examination revealed adequate oral hygiene with minimal interproximal plaque, apart from teeth #21, 25, 36, 35 and 46. There was a Class 1 incisal relationship with 30% overbite and 3 mm overjet. Anterior guidance was noted on the right lateral mandibular movement and group function was noted on left lateral mandibular movement due to wear of the canines. Centric relation was not coincident with centric occlusion, with a minor slide of less than 1 mm from CR to Co. There was moderate tooth wear, isolated to teeth #17 and #13.

Assessment of individual teeth noted a PFM crown on the #25, 36, 35, 46 plus porcelain veneers on #11 and 21. An OPG radiograph noted endodontic treatment on teeth #21, 25, 36, 35 and 46. Radiographic assessment also noted possible pulp capping of tooth 17, to which the patient alluded at our initial discussions.

Careful assessment of indirect restorations noted restorative overhangs on the buccal aspect of #11 and 21, mesio-palatal aspect of #25, buccal of #35 and disto-bucaal aspect of 46. Soft tissue irritation with bleeding upon probing was noted related directly to plaque accumulation around these overhangs. Caries was noted around the mesial aspect of #37, requiring immediate attention and careful probing of the margin around the #36 noted possible caries on the distal aspect as well as the disto-lingual and mesio-lingual aspects of this particular tooth. The same was noted on the distal aspect of the #35 and radiographic assessment of these teeth noted open margins/caries on the distal aspect of #35 and 36.”

Subsequently, the patient saw another general dentist who provided a plan of treatment which included the following:

  • Retreatment of RCT @ #21, including lengthy dressing with calcium hydroxide
  • Retreatment of RCT’s @ #35 and 36 and placement of 2 crowns
  • Placement of new porcelain restorations on teeth #16 and 26
  • Recontouring of restorations @ #11, 25 and 46
  • Provision of an occlusal splint
  • Ongoing preventive/hygiene maintenance

The fees quoted for this retreatment were over $13,000.

The DDAS Peer Advisor was of the view that some of the work was not of a reasonable standard, and was supportive of the preference of Dr X to settle the matter early on the best terms possible. Early action to bring some certainty and finality in this case was indicated if it could be achieved.Perhaps somewhat surprisingly, the patient accepted the offer of Dr X to settle the matter by refunding Medicare the total cost of the two crowns that would require replacement. Initially, the patient herself sought a direct personal refund, but given that she had paid nothing out of her own pocket, this was not appropriate.

The DDAS provided the member with a Deed of Release to assist with the refund. The refund was provided to Medicare with a request to apportion the refund against the patient’s account. A Deed of Release is a simple legal document which, once signed by the parties, confirms the resolution of the patient’s dissatisfaction and provides some certainty to both parties moving forward. The resolution of the case in this fashion was certainly an excellent outcome for the practitioner Dr X.

What if?

What were the alternatives in this matter for Dr X? Firstly, as the patient was a Medicare EPC patient, had she wished to make a formal complaint, the likelihood of her engaging a solicitor and alleging negligence was not the strongest possibility. Indeed, it would have been considerably more likely that she would have logged a complaint with either the Health Care Complaint Commission (the HCCC) or the Dental Board. Given the abundant and clear evidence in the case which was available to the DDAS Advisor, he opined that if the matter were to go to the Dental Board, the Board would likely have been critical of the following:

  • Crowns at #35 and 36 with deficient margins and this within a year of being placed.
  • All root canal therapies being performed without rubber dam isolation.
  • Inadequate treatment planning and documentation.

Comment

Time and time again, the issue of dental records comes up in cases such as this. We all know that it takes time to generate good clinical records. However, when things go wrong, so often we see that inadequate records generally reflect inadequate treatment, and this is the view taken by Courts and solicitors alike.

The Dental Board has minimal requirements for dental records and so for failings in this area, ignorance is no excuse. Of course the Board requirements for records are only a minimum standard and any self respecting practitioner should look upon them as such. Remember that your clinical records are evidence to support your side of the story, and a lack of appropriate information in the records leaves you in a difficult position as to defending your treatment.

Dr X sensibly decided that he would not wish to come before the Dental Board in such a matter, which is where many Medicare EPC complaints end up. Indeed, the DDAS, like the Dental Board, has experienced a considerable increase in complaints over the last year or so, and much of this increase is associated with Medicare EPC complaints. There is every chance that, if the Board had to consider a complaint from the patient, not only would a full refund of fees been ordered, but also the practitioner would likely have been found to have been guilty of unsatisfactory professional conduct and been asked to undertake refresher courses in Endodontics and treatment planning, with the possibility of having a practice restriction placed limiting the dentist’s rights to provide endodontic treatment pending further assessment or approval from the Board after the completion of the necessary coursework as approved by the Board.

Direct negotiation with a dissatisfied patient, as difficult as it might be, is usually preferable to having to deal directly with a Dental Board complaint.

In Dr X’s case, due to the dentist’s timely response, there was no Dental Board complaint and the DDAS provided a Deed of Release which the patient duly signed.

Of course, this case is noteworthy for the level of respect and cooperation achieved between the dentist, other general dentists and specialist colleagues. At no time was there any direct criticism of the dentist subsequently by the other practitioners involved in the case. There was certainly full and frank disclosure of all relevant details by the subsequently-consulted dentists which was evidence of a high level of communication and trust.

Sadly, however, so often this is not the case. Time and time again at the DDAS we hear of patient’s disquiet and subsequent decision to complain after comments alleged to have been made by the “second dentist”. Dentists need to be on the alert so that, when asked to give an opinion on treatment that has not had a satisfactory outcome, they do not comment on the standard of care of the treatment provided by another.

In saying this however, it is important to realise that our patients pay well for our services and care, and we should not turn a blind eye to problems which exist. All patients at all times are owed a proper and professional diagnosis. A clear discussion with the patient with explanation and co-discovery of problems that are apparent at the time of consultation are what we should be considering if we find ourselves being in the unenviable position of “the second dentist”. Some recent case examples with which the DDAS has been involved are illustrative.

Case #2

The patient attended for routine restorative treatment on some posterior teeth. Deep caries was removed, linings placed and the teeth restored. There were no pulp exposures evident. However, the dentist warned the patient that, due to the extent of the decay present, there was a chance that further treatment might be required and that if the teeth became painful, they should contact the practice.

Some six months later, the patient had pain emanating from one of the teeth treated. As her usual dentist was unavailable that day, she saw a second dentist who took a radiograph, diagnosed irreversible pulpitis and recommended RCT or extraction. The patient chose to have the tooth extracted.

When she asked why this had happened on a tooth recently restored, the second dentist advised that it was due to caries being “left behind” under the restoration. The patient was upset, not surprisingly, and obtained a copy of her records with the second dentist. She also requested to keep the tooth. Subsequently, she took the tooth and the records to her usual practitioner to show her.

The first dentist was somewhat flabbergasted at the claim voiced by the patient that she had “left decay behind”. A radiograph was obtained of the extracted tooth which showed no caries under her restoration whatsoever! In this situation, obviously the tooth was exhibiting the common signs of pulpitis and pulpal death. As we all know, many posterior teeth with a long restorative history will ultimately require endodontic procedures if they are to be saved in the long term, and this is often associated with an extensive caries history, rather than the perfectly fine restoration which is placed.

Above all else, practitioners should remember not to falsely criticise others in an attempt to justify the treatment they are recommending. No dentist looks ‘bigger’ in a patient’s eyes by making the previous dentist (in whom the patient has placed their trust) look ‘smaller’.

Case #3

A dentist was contacted by a patient from interstate who was visiting relatives in town. The patient had a crown on an upper central incisor tooth come out, and wanted it recemented. The dentist who saw the patient noted a small crack in the root face of the incisor which supported a post crown. He also noted a periodontal pocket on the distal aspect of the root. A radiograph was taken which showed that there was a fractured file remnant in the apical third of the root and a distal perforation of the root at the level of the post end.

The dentist discussed the problem with the patient who didn’t appear to show any concern for the clinical problems. She simply demanded that it be recemented and she would worry about it when she got home.

In fact the patient did not worry about it when she got home! Some 15 months passed before the tooth became painful. Now living in a different town, she attended a local dentist. She recounted that she had some work done when visiting relatives a year or more earlier. The new dentist took a radiograph and, it seems, saw an opportunity to criticise:

“Well, we’ve certainly got a problem here! We have a fractured instrument in this tooth and a crown with a post coming out the side of the root! I’ve seen better work done by students – Vet students! You’ll have to have it taken out and replaced with an implant. Very expensive! But do you know what I think? I don’t think you should have to pay for it! Do you?

In the case mentioned above, the last dentist only saw the patient as an emergency patient. He was not the dentist who did the suspect work!

Sadly, some dentists are expert at being the ‘second dentist’. Don’t let this be you! If you come across a case where work done recently is going to need to be replaced, ask permission from the patient before contacting the previous dentist and research how things have got to this point. Point out the clinical problems that exist in a calm manner without criticising others. Remember that one day you may be in the position of having your work criticised by others so be honest with the patient and fair to your colleagues.

In every such case, an early discussion with a friendly DDAS Peer Advisor can provide reassurance and assistance as how to approach a patient if you feel that they have recently had substandard work done which you feel will require replacement.

By Roger Dennett (ADANSW)

Ransomware – an infection control story

Janine arrived at the practice early as she always did. She liked to have all systems up and running before the dentists arrived. As practice manager she felt responsible for the IT system, and she liaised with the practice IT consultant regularly to ensure it was functioning effectively.

When she logged on this morning however, a message appeared on the screen from the Australian Federal Police saying that the computer had been locked, that all activity on the computer had been recorded, and that to unlock the system, a fine would have to be paid. This was allegedly because the practice had violated copyright laws and someone had been viewing pornographic content.

AFP

Alarmed at this, Janine immediately rang Steve, the practice IT consultant.

“Is it true Steve? Has one of our staff been using our system illegally?” she asked.

“Let me have a look at it. I’ll use my remote login to check it out” Steve replied.

In the meantime, Tony, the principal, and Marla and Quong, the assistant dentists had arrived, and wanted to know why they couldn’t see the day list of their patients, and call up their records to start preparing for their arrival.

“How am I supposed to work without access to the patient files?” asked Quong.

Tony said “If the patients arrive before we get this fixed, we are just going to have to do our best without the system. Focus on what the patients are attending for, and use handwritten notes to record your observations and actions. Remember to add a note for each patient indicating that the system was down. We’ll scan these notes and add them in later when the system is restored.”

Steve rang back and spoke a little nervously to Janine, “I’m sorry to have to tell you that the system has been locked by ransomware. I’ll have to come and load up a backup file after we’ve done a complete flush of your current system.”

“What’s ransomware Steve, and how did it get onto our system? she asked.

“When I checked this out it seems that back in March 2012, Microsoft announced there was a vulnerability in their Remote Desktop Protocol. Since then hackers have been finding various ways to gain access to authorised accounts like Administrator, Staff or User. They throw a dictionary of passwords at these accounts, and if password protection is poor, they can get in and start doing whatever they like to your files. This ransomware approach doesn’t steal your files; it locks them with encryption which only the hackers know. They demand money to unlock your files, but this doesn’t mean they will actually do that if the money is paid.”

Janine was becoming more anxious, “What do we do then? Call the Police? How do we get our system back? I’ve got patients arriving now, and my dentists need the system to help them provide and record their care.”

“Thankfully we have been saving a complete offsite backup and we will be able to restore later today, although it will take me a while to go through all the processes,” Steve reassured her.

Janine reflected on what Steve had been saying, and felt she had to better understand the way this had come about.

“Are you saying that this happened because you left a network port open to be able to provide us with remote network support?

Steve paused and then offered his apologies, “I’m sorry Janine, I should have used another method to get remote access for your support services.”

After the dust had settled, Janine rang her friend Sally at a nearby practice and told her what had happened. Sally was very knowledgeable in regard to IT security within a practice and offered her the following advice:

“Regardless of whether you think you are vulnerable to external attack, ask your IT consultant to:

  • Apply the Microsoft Security update. This will probably require a reboot, so consider the right time to do it.
  • Ensure that your Administrator password is a hard one.
  • Verify if you have the standard Microsoft RDP port (3389) closed on your firewall to prevent someone external to connect to your PC or server via the Internet hack isn’t going to affect you. If it had been the standard access method replace it with LogMeIn or similar, which doesn’t require opening the firewall.
  • On the Computer that has RDP forwarded to it, open the Microsoft Event Viewer and have a look at the Security Log. Look for Audit Failures related to logins. If you are being hacked now, you’ll probably see thousands of attempts ticking over every few seconds. Scrolling back through the log over recent weeks, you could see many thousands of break in attempts.”

Sally said, “Our practice uses an offsite backup so we would probably be able to restore everything without too much trouble.”

Sally cautioned that “the offsite backup needs to be a complete, image-based backup if you are to have an effective disaster recovery plan. Given that the hackers are likely to have corrupted Windows when they encrypted the C Drive, an internet backup may not be good enough. Your IT consultant would need to manually reinstall and reconfigure everything on the computer, which could take some days and therefore be an expensive process.”

“Talk to your IT consultant about the difference between these backup methods and go for the one that will let you restore everything in one day”, Sally urged. She also advised Janine to report the situation to the police and to notify other relevant organisations so that information about the attack could be shared with other practices, including advice on how to avoid similar events.

Garry Pearson
(ADAVB CEO)

 

While the practice in this story may be imaginary, the circumstances are real and the advice is sound. Computer infection control is another important risk management area for every practice. Make sure one of your staff is assigned responsibility for it, that they are given training support, and that it is addressed as a key part of your practice system. Practices using non-Microsoft systems may also be vulnerable, and specialist advice is required in all circumstances.

Private health fund audits

Reading relevant articles can count towards your required continuing professional development hours.  Therefore, reading the article below may assist you to achieve these required hours. (see more below)

Practitioners can be subjected to an audit of their billing practices by a private health fund. This article explains what can trigger an audit; answers some frequently asked questions; identifies some common billing issues that Meridian Lawyers has observed; and provides some hints and tips to practitioners seeking to avoid common pitfalls.

How are audits commenced?

What triggers an audit?  

Audits are typically triggered as a consequence of the practitioner (provider) having a high servicing ratio relative to their peers in their state and postcode.   It is important to remember that each of the private health funds collects data, and turn that data into statistical models that identify billing trends across the industry. The funds collect data on individual provider’s billing and patterns and compare these levels to industry “norms”.

A provider’s servicing profile has been explained by one of the private health funds, as being made of up the following:

  • Service and Benefit ratios per patient
  • Service and Benefit level ratios per membership
  • Service and Benefit level comparison ratios for the provider’s State and Postcode
  • Age Group Service comparison ratios for the provider’s State
  • Item Category Service comparison ratios for the provider’s State

A high servicing ratio may often trigger a letter to the provider seeking an explanation, which is generally followed by a second letter informing the provider that an audit is to occur. Typically, a provider who has been identified as having a high service ratio, can expect the following line of correspondence from a private health fund:

Letter 1 : Provider advised of high servicing profile and asked to provide an explanation

                                                                             

Letter 2 : Provider advised that private health fund has decided to conduct an audit of the practice. Private health fund will seek access to the clinical records of specific patients over a specific period of time.

                                                                              

Letter 3 : Provider will be advised of audit’s findings. Provider will be provided an opportunity to respond to the audit findings.

                                                                              

Letter 4 : Provider will be advised of the private health fund’s decision. The provider will be informed as to whether the private health fund will take action.

FAQs

What power does the private health fund have to audit my practice?

The relationship between a provider and a private health fund is contractual in nature. As such, the power of a private health fund to perform an audit will be created by the terms of the contract. Generally speaking, these contracts contain a clause requiring the provider to co-operate with any request for documents. A failure to perform an obligation under such a contract, may give the private health fund the right to suspend that provider’s billing privileges, and ultimately, end its relationship with the provider.

Will I breach patient privacy if I provide the private health fund a copy of my clinical records?

Previously, this has been an issue faced by providers. However, most patients will have now consented to such a disclosure when becoming a member with the private health fund. Before providing a copy of any clinical records, it is prudent to request a copy of the patient’s consent or at least, written confirmation from the private health fund that this has been obtained.   We note that some funds provide this information at the time of a request for clinical records. We recommend seeking legal assistance to draft an appropriate first response to such a request.

What can the private health fund really do if I do not cooperate/respond in a timely manner?

Most private health funds reserve the right to suspend billing privileges or end the relationship with the provider, should there be a failure to respond by the nominated date. It is extremely important to keep this in mind if correspondence is received from a private health fund. We are aware of private health funds suspending the provider’s billing facility until a response is received.

What are the possible outcomes of an audit?

The contract between the private health fund and the provider generally reserves the right of the private health fund to end its relationship with that provider, if a serious breach has occurred.   It is important to remember that when an item number is billed to a private health fund, it is a representation that the service has been appropriately provided. Consequently, audits that uncover item numbers that have been inappropriately billed, albeit unintentionally, could result in termination of the relationship with the provider.

Private health funds may also reserve the right to require the provider to fix the breach, if possible. For item numbers that have been billed incorrectly, this generally means paying back to the private health fund the billed amounts. This is called restitution. Be warned that if a billing trend for a particular item number is uncovered by an audit, the private health fund very often seeks full restitution for all times that item number has been billed, even beyond the sample of audited files.

We note that should a provider’s status as a provider be terminated, as a consequence of an audit, the provider may have an obligation to notify AHPRA of the event. Depending on the circumstances, this may also be the case should a provider’s billing privileges be suspended during an audit. We recommend that a provider seek legal advice should either of these events transpire.

Frequent issues

Audits by private health funds generally focus on the following three issues:

  • Was the treatment in fact provided?
  • Was the treatment provided warranted?
  • Was the item number appropriately used?

The potential to defend these types of allegations depends almost entirely on the quality of and the detail in the provider’s notes. The provider, in answer to these issues, will need to look to the following:

  • Is there a record of the treatment that is the subject of the claim?
  • Does the record of the history and examination findings, including the conclusions from any radiology/intraoral photographs justify the treatment that was provided?
  • Is the recorded treatment within the scope of the claimed item number?

 

Audits frequently target the use of the following item numbers:

Item 011                      which provides for a comprehensive oral examination.   The funds have taken issue with clinical records that do not support a comprehensive oral examination having been completed.

Item 013                      which provides for a limited oral examination. The funds have taken issue with providers who bill this item number in conjunction with planned treatment.

Item 015                      which provides for an extended consultation of 30 minutes or more. The funds have taken issue where this item is being used for every first consultation; or routinely where there does not appear to be any clinical justification for doing so. Where there is complex treatment proposed, and the provider is required to explain the treatment plan in detail, including the risks and benefits, and the outcomes, such circumstances may justify the use of this item. However the provider must ensure that this necessity is detailed in their notes. A simple consultation is unlikely to justify the use of this item.

Item 022                      which provides for intraoral periapical or bitewing radiograph per exposure. Providers need to ensure that radiographs that are being claimed under this item are actually able to assist in clinical diagnosis.   Audits have identified instances where radiographs of poor and unusable quality have been claimed inappropriately. It is important that providers retain all radiographs and document the findings/conclusions from these radiographs in the patient’s clinical file.

Item 122                      which provides for home application topical remineralising and/or cariostatic agents. This item requires that the patient is provided with a custom-made tray. Audits commonly identify the inappropriate use of this item where providers are simply providing the patient with an over the counter tray.

Item 123                      which provides for concentrated remineralising and/or cariostatic agents. This item cannot be used where restorative treatment of the same tooth/teeth is also provided. We note that this item may be used for the prolonged and targeted application of concentrated fluoride where it is a procedure to promote caries resistance in a specific situation. Audits have focused on the incorrect use of this item for fluoride treatment or for the issuing of tooth mousse, particularly in circumstances where there are no clinical records to justify such treatment. It is not appropriate to claim item 123 where a desensitising agent is applied.

Restoration items       The funds have focused on providers that claim for restorative items on the same tooth over a relatively short period of time. They maintain the position that this may indicate an issue with the quality of the workmanship, and believe it should be a cost borne by the provider. We recommend that providers think carefully when engaging in this practice. If the replacement restoration is not because of workmanship, the reasons for the treatment should be detailed in the patient’s clinical notes.

We understand that providers rely heavily on their administrative staff when it comes to billing.   We have observed that some of the item numbers disputed by the funds have arisen because the administrative assistant entered the incorrect item number; or the administrative assistant billed and then cancelled an item number in order to quote a service to the patient. These entries form part of a provider’s servicing profile, thereby adding to the provider’s servicing ratio.   Providers should ensure staff are trained on how to use the billing systems properly and what is and is not acceptable.

Auditors regularly seek explanation for pre-claiming, back dating or splitting claims over the calendar/benefits year.

Hints and tips

Practitioners need to be mindful of the potential for audits to be conducted by the private health funds. Meridian Lawyers’ recommends that practitioners:

  • Ensure complete and accurate clinical records are retained
  • Ensure administrative staff are educated regarding appropriate billing practices
  • Ensure they are familiar with the ADA Schedule of Dental Services and Glossary, and that their treatment accords with accepted practice
  • Ensure that any clinical records provided to a private health fund are:
  • Complete; and
  • Good quality copies (if the x-rays are digital, we recommend providing a CD/DVD containing the digital image)
  • It is strongly recommended that any practitioner contact their professional indemnity insurer for assistance, if correspondence from a private health fund regarding an alleged high servicing ratio is received.

Detailed clinical records enable a provider to respond to an audit request, or demand by a private health fund with:

  • a contemporaneous record of the treatment, which accords with the item description; and
  • a contemporaneous record of the clinical justification of the treatment.

Without detailed notes, whether the treatment was provided, whether it was appropriate, and whether it was within the item number claimed, are open to dispute.

 

This article was prepared by Jeremy Smith, Solicitor; Marnie O’Brien, Solicitor and Kellie Dell’Oro, Principal of Meridian Lawyers.

Case study – a good news story

It is always encouraging to hear that good, comprehensive clinical records can and do assist dental practitioners in successfully defending patient complaints. This case study is about one such positive outcome.

In 2009, the patient lodged a complaint against the dental practitioner with the Dental Board of New South Wales (as it was then known). The patient complained that her health had declined as a result of alleged injuries sustained from implant placement. The practitioner rejected the allegations of complaint and submitted to the Board that his management of the patient had been appropriate and in accordance with established standards of good practice.

In 2010, the matter was considered by the Dental Care Assessment Committee (DCAC) of the newly established Dental Council of New South Wales. The DCAC considered the matter, including reports from the consultants whom the patient had subsequently attended. An independent practitioner also provided an assessment, based on examination of the case records. The DCAC formed the view that the treatment provided was unsatisfactory on the following grounds:

  • Failure to record a medical history and patient assessment.
  • Incorrect diagnosis and treatment planning, failure to assess bone levels and failure to consider the necessity for bone grafting resulting in unsatisfactory case selection.
  • Incorrect placement of implants resulting in perforation of the maxillary sinus and bony floor of the nasal cavity resulting in apparent infection in the maxillary sinus.

The Committee made a recommendation to the Dental Council of New South Wales that the practitioner be directed to refund treatment fees.

The Dental Council sought the practitioner’s attendance before it so that the issues could be ventilated.

At the meeting with the Dental Council in 2011, the practitioner made submissions addressing the grounds above and answered questions from the Dental Council members. The practitioner also supplied the Dental Council with all of his clinical records, radiographs, and other materials.

In the result, the Dental Council decided as follows:

  • Council compliments the practitioner on his thorough and excellent records.
  • Council does not agree with the decision of the DCAC.
  • Council resolves to dismiss the complaint.

The Chairman of the Dental Council specifically commended the practitioner on the quality of his records and said that this matter is likely to be a good teaching tool for the rest of the profession. The outcome is an excellent one for the practitioner and, in our view, the wider profession in that it highlights the importance of good records and demonstrates that good, comprehensive records are important not only in the context of providing good clinical care but are also useful in successfully defending the practitioner against complaints.

For the current requirements in record keeping, practitioners are referred to the “Dental Guidelines on Dental Records” which can be found on the Dental Board of Australia website at www.dentalboard.gov.au.

Case study – the importance of detailed and careful assessment, treatment planning and communication when dealing with patients of advanced age

The case:

When the patient was 78 she attended the specialist practitioner (periodontist) for the placement of an implant at site17. This tooth had fractured and required extraction. A crown was subsequently placed by the referring general dental practitioner. The process was uneventful and the treatment outcome successful.

The patient returned to see the periodontist when she was 83 as she was experiencing discomfort and sensitivity associated with an old bridge replacing missing teeth 14 and 15.

The practitioner took a fresh medical history which disclosed changes since he had seen the patient 5 years previously. This exchange allowed the practitioner to assess the patient’s intellectual capacity generally. He formed the view that she still had capacity to make decisions about her healthcare.

He then performed a careful and thorough assessment which included updating the medical history, the periodontal chart and taking further radiology. The practitioner diagnosed mild chronic periodontitis. At that stage he did not think abutment teeth 13 and 16 required extraction. He recommended a conservative treatment plan of cleaning with re-assessment in 3 months’ time.

The patient returned 2-3 weeks later complaining of pain from the lower right area. Examination and assessment (including radiology) revealed an endodontic lesion at the 45 and a fracture of 46. The practitioner described his findings to the patient and discussed treatment options: endodontic re-treatment with crowns or extractions restored with implant supported crowns. The practitioner recommended extractions. Again, the practitioner spent a lot of time explaining his findings and the options and the discussion was recorded in the clinical record. He satisfied himself the patient understood the discussion and therefore had capacity to make decisions.

The upper bridge subsequently fractured. Radiology investigation revealed she was a suitable candidate for implants in the upper and lower jaws and the patient ultimately agreed to a treatment plan that provided for:

  • the extraction of teeth 13 and 16
  • the placement of 3 implants at the 13-16 site
  • the extraction of teeth 45 and 46
  • the placement of 3 implants at the 45-47 site

It was clearly explained to the patient that the cost of the treatment plan did not include the cost of the crowns which were to be placed by her GP dentist.

The extractions and implant placement proceeded without event. The patient was happy with all aspects of treatment. But someone else wasn’t happy, her son. The son was a lawyer.

The patient’s son sent a letter to the practitioner asserting that he had extracted two of his mother’s teeth “by mistake and without her authority”. He requested a “healthy discount” on the fees which he perceived were incurred in fixing a “mistake”.

The outcome:

The practitioner sent a detailed letter to the son explaining all the treatment steps and the associated decisions. He strongly denied the general assertion that the treatment was provided without the informed consent of the patient and noted that his mother had made no complaint and wanted to continue treatment with him.

The practitioner noted that his mother had paid all fees.

The practitioner stressed that he never had any doubt that the patient had capacity to consent to treatment and queried the son’s basis for asserting he had no authority to proceed. He queried whether the son had been appointed an enduring guardian authorised to make decisions about dental care on behalf of his mother.

The practitioner never heard from the son again.

The practitioner was in a strong position because of the comprehensive nature of his assessment, examination, treatment planning, communication and notes. He had communicated well with the referring GP dentist. In short he was able to “back himself” when it counted.

Lessons to be learned:

  • Practitioners must assess a patient’s mental state and cognition in order to be satisfied the patient has capacity to consent to treatment.
  • When dealing with patients of advanced age, always provide adequate time for the patient to absorb the information – don’t rush treatment.
  • Always document the discussions with the patient and note the consent of the patient.
  • If a patient does not have capacity to consent (for example due to dementia) then the practitioner needs to obtain consent from someone authorised to make decisions on behalf of the patient. Failure to obtain valid consent may leave the practitioner open to a claim for assault, battery and negligence.

Marianne Nicolle
Principal
Meridian Lawyers

Case study – the importance of clinical records in the defence of a claim

The case:

The patient commenced proceedings in the District Court following root canal therapy that was performed by the dentist. As a consequence of the root canal therapy, the patient suffered a penetration of his right maxillary sinus cavity leading to infection, chronic right-sided sinusitis, headaches and nasal blockages.

In May the patient presented to the dentist complaining of pain involving tooth 15. The dentist examined the tooth, took an x-ray and subsequently recommended root canal therapy. The records did not contain any findings of the examination and assessment.

Not surprisingly, the dentist did not recollect the consultation with the patient and therefore was not in a position to give direct evidence about what was discussed with the patient. There was no record of a discussion in the clinical record.

The patient alleged that the dentist used sodium hypochlorite solution during the procedure. The dentist’s clinical records did not record the use of any solution. The patient alleged that he noticed pain and swelling in the area where the solution was injected.

The patient re-attended the dentist in June. At this appointment, the dentist completed the second stage of the root canal therapy. The patient did not return to the dentist after this appointment.

Following the treatment, the patient developed severe symptoms in the right maxillary sinus region and was admitted to hospital with an acute epistaxis in September. The patient consulted with two ear nose & throat surgeons who advised that surgical treatment for ongoing infected maxillary and ethmoid sinuses would be required. The patient had tooth 15 extracted in October the following year.

At the time the tooth was removed, the clinical and radiographic evidence indicated that the patient’s maxillary ethmoid sinus condition had worsened. However, the patient was reluctant to undergo surgery because of the risk of possible loss of vision. In this regard he had already lost vision in his left eye and was particularly concerned about the risk of further loss of vision which was reasonable in all the circumstances.

The outcome:

Both parties (dentist and patient) obtained expert opinion in the matter on the following issues:

  • Whether it was reasonable for the dentist to perform root canal therapy rather than extracting the tooth;
  • Whether the dentist failed to perform the appropriate irrigation technique and use the appropriate instruments during the root canal therapy; and
  • Whether the dentist penetrated of the patient’s right maxillary sinus cavity and whether such penetration was below the standard of care.

Based on the x-ray taken in May and the patient’s version of events, the patient’s first expert considered the long-term prognosis of tooth 15 to be poor and therefore argued that endodontic treatment was not a reasonable option in all the circumstances. The patient’s second expert simply noted that the dentist’s reason for performing the root canal therapy was “unknown” as it was not recorded in the dentist’s clinical records.

The dentist’s expert disagreed with the patient’s experts. He considered the dentist’s decision to attempt to save the tooth was reasonable in all the circumstances. The dentist’s expert commented that in general dental practice, the clinical decision as to whether to extract or perform root canal therapy on a tooth is not absolute. Many variables may contribute to a dentist’s decision including the treatment aims, the patient’s desired outcome, the health of the patient, the prognosis of other teeth and financial concerns. Thus, the dentist’s expert did not believe that the dentist “was necessarily in breach of his duty of care in attempting to save the tooth rather than extract it.”

The patient’s second expert believed that the patient’s symptoms of immediate pain & swelling after the injection were consistent with a sodium hyperchlorite injury and that the dentist had failed to take appropriate precautions to prevent such an injury, given the proximity of tooth 15’s apex to the maxillary sinus. The expert said a side ported needle should have been used (ensuring that the irrigation needle was not blind to the root canal during the root canal irrigation) in order to reduce the risk of sodium hyperchlorite injury. The expert considered the root canal therapy itself to be acceptable. However, he considered the dentist’s alleged failure to take appropriate precautions and prevention of sodium hyperchlorite injury to fall below the standard of acceptable practice.

The dentist’s expert felt that the radiograph (which showed that the root apex of tooth 15 was very close to the sinus floor) should have alerted the dentist to the possibility of perforation or entry to the sinus. The dentist’s expert said that the dentist’s “choice of irrigant and irrigating needle syringe may have directly contributed to the sodium hyperchlorite injury”. The expert suggested that sterile isotonic saline should have been used instead, and that the needle used with the irrigation syringe should have been side ported to reduce the pressure of the irrigant in an apical direction, which is this case, was directly towards the sinus itself.

The patient’s first expert opined that it was likely that during or after the root canal therapy at the second appointment that an infection penetrated into the right maxillary sinus due to the proximity of the dental root to the sinus.

A decision was reached to settle this case prior to the hearing. This decision was made because it was difficult to defend the treatment provided by the dentist when his clinical records did not reflect details of the treatment provided. The dentist did not include any details of why the treatment was necessary, the instruments used or the type of solution used for the procedure. The dentist’s clinical notes simply recorded that he had performed root canal therapy.

Lessons to be learned:

  • Every practitioner needs to review and follow the Dental Board of Australia’s “Guidelines on dental records”. These Guidelines provide that dental practitioners “must create and maintain dental records that serve the best interests of patients, clients or consumers and that contribute to the safety and continuity of their dental care”.
  • In addition to the above rationale, a practitioner’s clinical records are evidence and essential to the defence of a civil claim. In this case the records did not contain any findings about tooth 15 to support the recommendation for RCT. The records did not record any discussion about treatment options. They did not record clinical details about the RCT itself including the solution used. Ultimately the records were of no assistance in the defence of the claim.

Amy Rogerson
Solicitor, Meridian Lawyers

Kate Hickey
Special Counsel, Meridian Lawyers