Kenneth Glasner, Q.C.
Who is at “risk” and why
All individuals, organizations, professional colleges and political parties are constantly at risk for loss of assets, prestige or even their political existence.
Individuals are at risk for infection, poisoning and accidental injury. Organizations are at risk for litigation and financial liability for the actions of their board members and management. Professional colleges and their staff are at risk for government intervention and alienation of their professional group or the public. Finally, political parties are at risk for voter disapproval as well as criminal or foolish acts of individual members.
We can take precautions to reduce the statistical chance of loss, we can actively take risks and increase our rewards (perhaps temporarily), or we can carry on in ignorance or apathy, wait for something to happen, and hope that we can bail out.
One trend that is apparent everywhere is increased choice. That is, the trend from either/or to multiple options. The most obvious example is the variety of cars but the most meaningful to us is the variety of choice of dentists. Industry deals with increased choice by marketing to selective segments of a diverse market. In short, it shouldn’t matter to youif there are too many dentists or there are dentists who are not busy enough. What matters is that youhave established a position in the market that you are comfortable with and you have more demand for your services than you can satisfy.
It is possible to combine a program of risk and quality management with a marketing approach that will make your practice stand out as a leader in health care. This approach to practice security will never appeal to the careless or disinterested dentist.
Development of a risk management program is essentially the establishment of systems and standards that will prove both your compliance with laws and concern for your patients’ fears and perceived needs. A dentist establishes a risk and quality management program to prevent loss (financial or reputation), and to market the practice as a leader in health care.
Risk managers consider two factors when assessing a risk. They are the cost if things go wrong and the probability of occurrence. If the cost is high, the probability must be minimized. If the cost is low, the probability may be allowed to increase according to the dentist’s personal assessment of “acceptable risk”.
Risks are controlled by:
- Eliminating the risk;
- Eliminating activities that produce undue risk;
- Insuring for uncontrollable risk;
- Informed consent;
- The establishment of standards, controls and regulations.
Do you know your patient’s concerns in order of importance? The term “stakeholder” is currently trendy yet the concept of answering a need is a cornerstone of marketing. We often think we know our patients’ needs and concerns but some of us are only half right. Fear of pain seems to have lost place to fear of infection and a new concern, lack of value for money has increased in importance. Of course, every patient may rate these concerns differently. Dentists, voluntary organizations and even licensing bodies would do well to keep in touch with the concerns of their “stakeholders”. This is one area where risk and quality management truly blend.
You need to be able to prove to your patients that you have a safe office.
Assessment of Risk
|Cost:||HIV, hepatitis or other serious infection of patient, staff or dentist.
Dentists reputation if office is perceived as “dirty”.
Decline in recall appointments.
|Probability:||Probability is moderate but all strata of society are aware that it is possible to “catch” an infection at a dental office.|
|Control:||Universal blood precautions.|
Assessment of Risk
|Cost:||Occasional overexposure of patient.
MoH or patient complaint to College about lack of compliance with HARP (Healing Arts Radiation and Protection Act) regulations.
Lengthy explanations to patient(s).
|Probability:||Risk of discovery of lack of compliance with the Act is genuine and penalties have been assigned.|
|Control:||Comply with legal requirements by adhering to standards.|
A rising concern is the patient’s perception that they are not receiving value for their money in dental care. This is a combination of the current recession, the fact that most patients feel dentists are paid too much and in some cases, feel that they are simply being “processed” through an office. The predisposing factor is the high cost of treatment and the precipitating factors can be a hygienist who begins treatment without explaining to the patient what she is about to do, or a dentist who chats to his/her staff without consideration of the patient undergoing treatment in the chair. This combination “sets the patient up” for anger and frustration if anything goes wrong with the dental product.
Assessment of Risk
|Costs:||Complaints about treatment rendered (product).|
|Probability:||Complaints are bound to occur, but with the public attitude that dental fees are too high, any of a number of precipitating events can stimulate the perception that they did not receive value for their dollar. This trend is expected to increase unless fees fall precipitously and this is impossible due to the rising costs of dental care.|
|Control:||Your patients must perceive that although dental fees are high, your office provides both superior product and service. This will increase the value: cost ratio in their mind. You can’t buck attitudinal trends but you can educate your patients about why the costs of dental treatment are high and demonstrate your superior service.|
In today’s service industry it appears that good service not product superiority or low prices determine ongoing success.
If patients are concerned about infection in your office, you can be sure your staff are concerned about infections from your patients. This is a clear example of how different people see “risk” through their own eyes. You must always assess and control the risk for each major stakeholder. If you have a set of procedures and standards for infection control and your staff and you abide by them, your staff will have confidence in both your concern and in your management abilities. Staff members who are nervous about the levels of disinfection and cleanliness of the office they work in will radiate that concern to patients. Furthermore, staff move from one dentist-employer to another so your standards of sterility and cleanliness are never a secret. This can affect referrals either positively or negatively.
Assessment of Risk
|Cost:||Injury to staff.
Personal liability for lack of compliance with existing legislation.
Personal liability to office and building.
|Probability:||Chemical hazards in dental practice are rare but fire is a possiblity. As well, chemical burns or the release of chlorine gas from inappropriate use of cleaning material is possible.|
|Control:||Staff education, fire plan, hazardous materials data sheets and review of all chemicals and solvents in the office.|
The major concern of dentists is simply “complaints.” Here a risk management program will prove its worth time after time. The real winner is the dentist but staff and patients will benefit as well.
“I’m not happy with the veneers you just did on my front teeth, I didn’t know that the teeth would be thick.” [informed consent]
“You didn’t tell me that you were going to take Sally’s front tooth out today. We were going to a birthday party right after this visit and now she is frozen and bleeding.” [treatment of a minor, consent]
“When you see a patient in that other room and then come back here with me, how do I know that patient doesn’t have AIDS?” [patient education, infection control]
“Is that X-ray equipment safe? It has been here since I first started to come to your office ten years ago?” [radiation safety]
Each of these issues should be dealt with to establish standards that your practice can be comfortable with.
Loss of assets through personal liability, physical disability or practice interruption is a second concern of the dentist. Here, the more traditional forms of protections against risk are used. That is, proper insurance coverage for yourself, you staff, and your premises. Remember that periodic review of insurance coverage is an integral part of risk management and standards can be written to remind you of this duty.
Fear of litigation rests with all of us. At the least it is a monstrous nuisance and at the worst it can destroy a dentist’s assets. Many of us will be named in an action some time in our professional lives as it reflects a strong societal trend. What matters is that you can defend yourself. If your risk management program is strong enough to prove that your office did not spread infection, irradiate patients unnecessarily or proceed without informed consent, it will have repaid its costs many times. If your service component is strong enough that patients judge your practice to be at or above their expectation then your practice will build on word-of-mouth referrals.
How many times did the dentist “duck” the patient rather than meet to discuss or even negotiate the perceived unsatisfactory product?
The purpose of your risk and quality management program should be:
- To make the operation of your practice comply with the laws that affect it;
- To establish systems that reduce your risk of complaints and litigation;
- To ensure that service is at or beyond patient expectations.
What are “standards of practice” and where do they come from? Actually, from a large number of governmental bodies and organizations that have a vested interest in maintaining the safety of their constituents. They do this by enacting regulations, by-laws or even formal laws that affect dental practice. There is a wide range of levels of authority and a wide range of requirements for compliance with the ever-growing numbers of regulations and guidelines that affect your practice.
Clinical Standards and Practice Standards
Clinical standards pertain to the dentist’s technical and diagnostic abilities, the dental product itself and the wide variety of possible outcomes. The professional colleges and university faculties are the prime repositories for the scientific and technical base of standards of clinical practice, human experimentation and technology transfer.
…dentists are advised to proceed cautiously in introducing any new product or technique into their practice, especially when the results of clinical trials and other research are not available. The onus is on each member of the College to ensure that the use of any new product can be supported by a sound scientific basis that demonstrates both its safety and effectiveness for the particular patient group being treated with the protection of the public being an overriding consideration. RCDA Dispatch 7(3) 7, 1993.
“an integral part of patient care is the need for each practitioner to be confident at all times that the treatment being rendered is within his/her capability.” RCDS Dispatch 9(3) 16, 1995.
The Five Main Risks
The five areas that need immediate attention are infection control, radiation protection, the health record, consent for treatment and storage of drugs.
Quality Assurance Program
Two aspects of risk management are about to change for dentists: Both the cost of failure to comply with standards and guidelines and theprobability of assessment have increased. This means that the dentist must reset his/her comfort level or face increased risk of loss of assets. This program involves:
- Development of practice guidelines/standards of clinical care;
- Mandatory continuing dental education (MCDE);
- Quality Assessment
- Practice review
- Dentist evaluation
- Dentist enhancement
- Remediation of behaviour or remarks of a sexual nature by a member towards a patient.
Process Development: Procedures and Forms
|Critical Indicators:||Observable and measurable criteria that permit ongoing accurate monitoring that reflects when standards of care or service are not being met.|
|Clinical Indicator:||An instrument that measures a quantifiable aspect of patient care and can be used as a guide to monitor and evaluate the quality and/or appropriateness of patient care.|
Indicators should be: relevant, important, valid, well-defined, discrete, collectible and capable of discriminating between causes of the observed outcome. Apply these criteria to each clinical or critical indicator chosen before using them. Then, after a try-out, test against these criteria again. Perhaps only the wording of your clinical indicator and standard need be changed.
- Volume indicators
- Number of patient visits per month
- Number of emergency patients per month
- General indicators
- Sick time utilization monthly
- Analysis of patient questionnaire administered one week quarterly
- Operational indicators
- Number of patient “did not shows”
- Number of vacant appointment slots
- Outcome indicators
- Number of repeat radiographs
- Daily processor testing results
- Sterilizer graph and spore test results
- Equipment maintenance tests (surgical suctions/central oxygen supply)
- Risk indicators
- Number of lost radiation dosimeter badges per month
- Occurences of gloves worn outside treatment rooms
- Management indicators
- Employee performance appraisals completed on time
- Accounts receivable monthly review
Standards: A specific statement that clearly defines the expectations for performance, care nd/or service. This provides a base against which care or service can be measured. Standards are usually written as 100% compliance to describe what is routinely expected to happen or may be written as 0% occurrence to describe what is routinely not expected to happen.
With the exception of standards that are required to comply with the law, all standards of a practice are designed and established by the dentist and his/her staff. This interactive process will lead to meaningful standards that the staff will strive to maintain.
Standard development begins with a problem or potential problem. For instance, take the case of secondary complaints due to pursuing accounts receivable. If the dentist is so bone-headed that he/she will relentlessly badger a patient just “to show him”, then let the chips fall where they may. On the other hand, if a dentist wants to establish standards to deal with accounts receivable concerns or complaints he/she must make sure:
- The dentist is informed immediately by staff if there is a concern/complaint expressed by a patient.
- Staff members don’t get drawn into the situation by a crafty patient.
- They deal with the concern/complaint immediately.
- The account ledger is placed with the chart to assure that the collection process does not continue until the problem is resolved.
What are some standards that might facilitate risk management in such a situation?
- Staff must know enough to tell the dentist if there are any potential problems. If the receptionist has dealt with a difficult person on the telephone prior to the first visit, the dentist must know this. If a patient grumbles on the way out of the office after treatment, the dentist needs to know this as well.
- Staff must know when a conversation is getting sticky and know enough to call in the dentist.
The Need for Risk Management
The need for Risk Management is a direct result of the increase in the number of malpractice claims against health care professionals as well as a diminishing insurance agent.
Risk Management includes reviewing accidents or incidents to prevent their recurrence.
Reviewing existing systems including:
- Office policies and procedures
- Equipment and premises
- Professional procedures
- Educating staff about practice and work habits
- Reviewing patient complaints and maintain personal involvement
- Establishing appropriate practice management procedures
Common Reasons for Litigation:
- Failure to diagnose and inform
- Failure to maintain standards of practice
- Failure to personally address legitimate patient problems
- Failure to maintain adequate records
- Failure to collect co-payment
- Faulty systems:
- poor procedures and staff direction
- faulty equipment and patient injury
- privacy violations
- Providing patient (insurer) with false or misleading statement
- Provision of treatment beyond expertise
- Aggressive collections following unsuccessful treatment
Risk Management may require a critical, introspective review of all office procedures.
- Murphy’s Law: If anything can go wrong, it will.
- The law of maximum bad luck: If any two things can go wrong, the worst possible thing will happen.
- It may take a pessimist to develop a safe office protocol and policy.
- It still requires an optimist to commence patient care!
How to minimize risk
- Maintain clear and complete notes and records.
- Insure that records are constantly updated (i.e. medical histories).
- Insure a full diagnosis has been developed (i.e. avoid hurried actions for impatient patients).
- Insure patient is made fully aware of treatment scope, alternatives and risks (i.e. informed consent).
- Consider formal written reports to patient for complex cases (a positive practice of orthodontists for years).
- Deal personally with patient problems and complaints (it is easy to sue someone if you are angry!).
- Develop a formal office policy manual that deals with likely problems and allows your staff to properly handle patient problems.
- Be available to your patients (often a simple telephone presence with a solution or acknowledgment is sufficient).
- Develop a formal policy to protect patient privacy (i.e. do computers face away from public areas, what is on the screen for the patient to see…).
- Insure the procedures you perform are those with which you are comfortable.
- Periodically audit claim forms and billings.
- Maintain records of qualification as part of employee records.
- Employment standards, workplace safety issues (i.e. HARP, Vaccinations etc.).
- Provide staff with clear concise direction.
- A small dash of paranoia.
1) Insurance Related
- recognize, unless a formal contract has been signed with an insurer, you have no legal relationship with an insurer.
- you have a legal responsibility to render an accurate statement to your patient;
- you have a legal responsibility to attempt to collect co-payments
- you have a legal responsibility to maintain standards of practice
Several instances whereby front desk staff have fraudulently added procedure to claim and skimmed this money from receipts.
- Proceed to complaint?
- Not covered by PLP. (Professional Liability Plan – malpractice insurance term used in Ontario)
- Risk that insurer will hold you responsible for the actions of your staff (vicarious responsibility) and seek damages.
Routine failure to collect co-payment resulted in formal complaint to College and fine or loss of registration could result in litigation in civil court for damages to the insurance carrier.
By not collecting co-payment, the carrier acknowledges that the fee submitted was not normal and customary.
In fact, the lesser amount paid was “normal and customary” and fraudulent invoice was submitted.
No coverage from PLP possible award in civil court as well as costs.
2) Care Related
- Major treatment undertaken with a few radiographs, no written estimate, no clinical notes and no indication of a discussion on scope of treatment or risks.
Classic case of failure to maintain standards – result
- Formal complaint to College and possible loss of registration.
- Civil action for damages – covered by PLP with deductible.
- Defence of case is difficult due to lack of notes to protect dentist.
- Lack of informed consent.
- Treatment rendered below standards of practice.
Why is Risk Management important?
- Direct cost and rise of higher insurance premium.
- Direct cost of deductibles.
- Inconvenience and lost time.
- Possibility of formal complaint.
- Possible loss of registration.
- Negative publicity and long term practice growth.
- Protects the patient and improves the standard of care.
It should also be noted that such damages or awards are not covered by professional liability insurance and I doubt whether any coverage would be obtained.
Dental Records Management
I refer you to the excellent pamphlet that is approximately 37 pages long published by the College of Dental Surgeons. This pamphlet should be reviewed promptly and on a regular basis.
If the following three principals are shown to hold, namely:
- Records accurate and complete;
- Records produced at or about the same time as treatment;
- Record taking is unfailingly routine.
then the Courts have accepted the records as a factual accounting of the events described.
In Ares v. Venner, a decision of the Supreme Court of Canada in April 28, 1970. The head note of the case described in 14 D.L.R. (3d) 4 states:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should in no way preclude a party wishing to challenge the accuracy of the records or entries from doing so. Thus, where the nurses whose notes are offered in evidence are present in Court, the defendant medical practitioner who wishes to challenge the accuracy of their notes is free to call them as witnesses.
Rules for records
- Write legibly.
- Use ink only, never pencil.
- Do not use white-out, no matter how messy things get.
- The person who makes the entry must be identified.
- Date each entry, regardless of how trivial.
- Do not skip lines or leave spaces.
- Don’t use short forms or initials without identifying them so that others will know what they mean.
- Note in chart any missed appointments, consents completed, release of information forms.
- Don’t alter the pre-operative chart.
- Never write anything in a chart that you would not be prepared to have the patient read, explain to a court or see published in a newspaper (even ten years from now). You are somewhat protected from libel/slander in your charts by “Qualified privilege” but clearly insulting comments may be subjected to legal challenge.
- Make arrangements to purge your office records periodically but remember clinical, financial and drug records as well as diagnostic/study models must be stored 10 years from the last entry in Ontario. In the case of treatment of minors, the primary rule is 10 years from last visit but not before the minor reaches age 20. This is the age of majority, (18), plus 2 years.
- Records of a deceased dentist can be destroyed after 2 years.
- Obviously, if a case is under review the records must be maintained.
- The dentist is responsible for the physical security of the records. This means protection from environmental damage such as mildew, water and fire.
- When it comes time to destroy health records, the dentist is responsible to make sure that confidential information does not end up in public hands.
- Electronic recordkeeping is acceptable and guidelines have been written.
- Charges to patient credit cards should have the patient’s actual signature as proof of authorization in case of a dispute.
- Police may secure records by presenting a Warrant for Seizure under the Coroners Act, section 16(2)(b).
Contrary to popular belief, the Employment Standards Act, R.S. 1996, c. 113, sets out a minimum requirement with respect to reasonable notice to be given to an employee where there is no written Employment Agreement.
The Employment Standards Act also sets out the requirements for the payment of overtime to employees who are not excluded from Part 4 of the Act.
Under section 63, Part 8 of the Act, an employee is entitled, after three consecutive months of employment, to an amount equal to one week’s wages as compensation for the length of service. Employers liability increases whereafter 12 consecutive months of employment, the employee is entitled to an amount equal to two weeks wages.
Further, after three consecutive years of employment, an employee is entitled to three weeks wages plus one additional weeks wages for each additional year of employment to a maximum of eight weeks wages.
It is important that a dentist does not construe that this is a limit of his or her obligation to the employee where the employee has been terminated for reasons other than cause.
In the case of an indefinite hiring (where there is no written Agreement that the person is being employed for a fixed term) there is an implied term that the employee is entitled to reasonable notice of termination. The only exception to this rule is where the employee’s behaviour has given the employee or the employer just cause for terminating the Contract, in which case the employee may be dismissed summarily without notice.
Before proceeding on terminating an employee, the dentist should make himself or herself aware of law as it relates to termination and to govern their actions prior to any termination as opposed to seeking legal advice, after the event – which generally is too late.
There are many decisions within our Courts dealing with the test as to what factors determine the length of notice. This length of notice applies to your staff and to your associates should they be employees of yours.
I can do no better than to cite the decision of Bardal v. Globe and Mail Ltd.,  24 D.L.R. 140 (Ont.H.C.), McRuer, C.J.H.C. said at p. 145:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
It is suggested that as a prudent employer you should not only consider having reduced to writing any agreement with Associates but also any agreement with respect to support staff whether they be dental hygienists, certified dental assistants, receptionists, secretaries, or other support staff.
One should ensure that the agreement not only follows the law in the province of British Columbia, but also deals with any particular matter which is governed by the rules of the College. Only when those factors are considered and applied will the dentist reduce (not eliminate) the possibility of any problems occurring in the future.
You are, after all not only a professional in the health care field, but a business person governing the economic situation of one or more persons who work with you.
The behaviour of employers has now become the subject matter of wrongful dismissal suits. Where an employer’s behaviour to his employee is callous and shows insensitive treatment in the dismissal, the Courts can properly compensate the employee by adding to the reasonable notice period. See Jack Wallace v. United Grain Growers Limited, S.C.C., File No. 24986, October 30, 1997.
Unfortunately, in today’s society the issue is not if you will be confronted with a problem by one of the stakeholders; whether it be a patient, an employee, an associate, another dentist, or the College, but when and how often you will be confronted with a problem over the length of your practice. As in my profession, the practice of law, one must practice defensively – which means that time must be given in servicing one’s client or patient according to the standard required by the governing body, the law, coupled with a dose of common sense.
All too often, the exigencies of our practice preclude us from making notes of the telephone conversation with the client/patient; lawyer/dentist.
Failure to adopt a practice implementing good risk management techniques only lead to interaction between our professions where the writer and his colleagues will see one of you – not as a solicitor, but as a barrister.
1. Dental Risk and Quality Management, published by the Ontario Dental Association.
2. Dental Records Management, published by the College of Dental Surgeons of British Columbia.
3. Material from “The Daily Discipline”, published by the Canadian Dental Protective Association.
4. Material supplied by ExperDent Consultants Inc.
5. Various employment law material in my office.
6. 29 years of experience in the trenches.
Kenneth J. Glasner, Q.C.
Tel: (604) 683-4181 / Fax: (604) 683-0226
Suite 1414, Nelson Square, Box 12156, 808 Nelson Street
Vancouver, British Columbia, V6Z 2H2 Canada