Posted on by Seth Brewer
Practice More Safely // Risk Tips // Transfer of Patient Records When Selling or Closing an OMS Practice

Transfer of Patient Records When Selling or Closing an OMS Practice

February 2023

Reading time: 5 minutes

Most Oral and Maxillofacial Surgeons (OMS) are aware of the requirements to protect patients’ personal protected health information (PHI) as specified by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). However, some OMS who are selling their practices do not realize that they cannot simply hand over their patient health records to a purchasing practitioner or entity. Many OMS also are not aware that individual states might have privacy regulations, some of which are more stringent than national regulations.1

HIPAA allows for the exchange of PHI without a written authorization between current and prior practitioners or contemporaneously treating practitioners (including practitioners who are treating the patient at the same time, such as consultants). However, when a practice is being sold, HIPAA does not permit the transfer of PHI from one OMS to another without the patient’s written authorization. Although transferring the records to the purchasing practitioner or corporate entity might seem to be the most expedient solution, it is not permissible under HIPAA.

State statutes and administrative rules may further complicate the process. For example, states can require practitioners to maintain patients’ health records for specified periods, dating from the last treatment date. Many states impose a 7-year or longer record maintenance requirement, and many states impose separate — and often more rigorous — requirements for retaining pediatric records. HIPAA does not diminish the authority of these laws.2

Self-Storage

To comply with HIPAA’s records retention requirements, some OMS who are selling or closing their practices choose to store their records themselves. Electronic health records (EHRs) help simplify the self-storage process because they do not take up much physical space and can be easily secured. However, many retiring OMS today do not have EHRs, or they have a mix of EHRs and paper records.

Paper records present different storage challenges. Besides the space requirements, storing paper records can be problematic if the information has not been maintained in an ordered system and a former patient requests a copy of his/her record (to which the patient is entitled to under HIPAA).3

Record Storage Companies

OMS who do not want to assume the responsibility of storing their own records might choose to contract with a records storage company. Although record storage companies can have substantial fees, they offer several advantages:

  • They will pick up the records and store them in a climate-controlled facility, which can protect them from environmental damage (e.g., dampness, mold, vermin, etc.).
  • They are usually bonded or insured, thereby reducing providers’ risk exposure if stored records are damaged, destroyed, or stolen while in the records storage company’s possession.
  • They can easily respond to patients’ requests for records. Patients can be referred directly to the records storage company, which then will locate and copy the records and collect the applicable fee from the patient.4

At the time of records transfer, a records storage company will execute a legal document called a business associate agreement (BAA) with the storing OMS. This HIPAA-required document obligates the storage company to appropriately safeguard the PHI contained in patient health records to the same standard that the practitioner must protect it. Through the BAA, the practitioner and the patient are assured that the PHI will be secure.

Custodianship

When a practice is sold, many (but not all) patients remain and continue their care with the purchasing practitioner. This potential for continuity is convenient for patients, and it also enhances the practice’s value.

It is ideal when patient health records are immediately accessible to the new practitioner. This can happen if the purchasing OMS becomes the custodian of the selling practitioner’s records through execution of a BAA.

In this case, in addition to compliance with HIPAA privacy and security regulations, the BAA should specify that the custodian will provide the selling OMS with access to the physical health records upon reasonable notice (such as 2 business days), and that the custodian will not release or dispose of any original health records without the seller’s written authorization.

As needed, patients who continue their relationship with the practice will be asked to provide written authorization to release their records from the seller to the purchaser. Once the release is authorized, the purchaser (who is in physical possession of the records) can use the records as he/she would with any other active patient. Health records of patients who leave the practice would ultimately be placed in storage or archived, which is permissible under HIPAA.5

Conclusion

HIPAA has been valuable in providing uniformity in administration and enhanced protection of patients’ PHI — an important consideration in this age of medical identity theft. With proper planning, OMS wishing to sell or close their practices can provide continuity in ongoing patient care and, when necessary, the transfer of patient information, while fully complying with HIPAA requirements.

  1. For example, many state privacy laws end their jurisdiction at the time of a patient’s death; however, HIPAA does not. Following the death of a patient, the only person who can authorize the release of the patient’s PHI is usually the executor or personal representative of the deceased’s estate. If an estate does not exist, a court order might be required to authorize the release of the information.
  2. Practitioners should know exactly what the retention requirements are in the state(s) in which they practice. State medical or dental societies are good resources for this information.
  3. Under HIPAA, a practitioner’s responsibility to provide patients with copies of their records does not terminate with the practitioner’s retirement. As long as the practitioner still possesses the records, he/ she must provide copies if patients request them.
  4. HIPAA allows a reasonable fee to be charged for labor and copying. Many states also have laws related to health record copying fees; if these laws are not consistent with HIPAA, then providers must abide by the federal HIPAA regulations.
  5. In the case of EHRs, the selling practitioner would transfer all records electronically to the purchaser (in an encrypted format and after executing a BAA). The purchasing practitioner would then, with the patient’s written authorization, transfer individual records to active files when needed. The health records of patients who do not remain with the practice would be stored as inactive/archived records. The selling practitioner could also easily retain a copy of all patient health records for his/her future use.
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In this real-life case study, OMS can learn how patient autonomy and clinical standards may conflict when making treatment decisions. The case points out the risks of prioritizing patient requests over the standard of care, and how such decisions can lead to Dental Board sanctions or malpractice claims.














Key Concepts





    

  • Sanctions from Board complaints
    • 




  • Does malpractice insurance cover Board fines?
    • 




  • Patient autonomy vs. the standard of care
    • 










Underlying facts





Dr. P was an oral and maxillofacial surgeon who returned to her relatively rural hometown to practice, making her the only such specialist within a nearly two-hour drive. Most members of the community had known her since she was a child, and all were quite appreciative that she had likely sacrificed financially to come home rather than work in the large city where she trained. Late in the afternoon on the last calendar day of the month, W, a local resident, presented to the office in excruciating pain emanating from a grossly decayed and severely periodontally involved lower bicuspid, wanting to have it extracted. Dr. P knew from previously treating him that he had a heart valve replacement years ago and was taking warfarin daily since that surgery. In anticipation of an extraction that day, W took the antibiotics he kept on hand that had been prescribed for him by his cardiologist. However, prior to extractions Dr. P had performed for W in the past, W stopped his anticoagulant days before the procedure, on the advice of his physician, such that his INR would reside below its usual target of 3.5, in the 2.5-3.0 range for surgery, after which the anticoagulant would be restarted a day later.





On the day of presentation, W had not stopped his anticoagulant therapy, and he reported to Dr. P that his most recent INR, about a week or so prior, was "on the high side" at roughly 4.5. Dr. P expressed to her patient that she did not feel comfortable extracting a tooth, particularly one with periodontal disease, at that INR level. Dr. P contacted W's cardiologist who agreed with the oral surgeon's bleeding concerns and suggested deferring surgery. After the call, Dr. P reiterated her concerns, suggesting that W see his cardiologist to dial down the warfarin so that an acceptable INR level could be reached for surgery.





W became upset, complaining about his unrelenting pain and, perhaps more significant to him, the fact that the health insurance policy provided by his employer was expiring the next day in favor of a less expensive medical plan that had a high deductible and did not reimburse for dental procedures. He pleaded with Dr. P to accommodate him, as "a favor from one friend to another." What she would later say was against her better judgment, she gave in and performed the extraction uneventfully and packed the site with a gelatin sponge and a topical coagulating agent known to be effective for that purpose. Gauze pressure was applied, with hemostasis achieved, and W went home. 





W's wife called Dr. P the following morning, telling her that overnight, W had been taken by ambulance to the nearest hospital due to persistent heavy bleeding from his mouth. There, he was admitted to the medical service (as there was no dentist or OMS on site), where he was fluid-managed and transfused, leading to the stoppage of bleeding and W's hemodynamic stability. Dr. P visited W after her office hours ended, finding W in great distress emotionally, but stable physiologically. W was discharged home two days after admission, with no further complications. His new medical insurance left him with a sizeable bill for emergency transport and hospital care.





Legal action





Quickly forgetting the "favor" given to him, W became angry with Dr. P when she refused to pay for his medical expenses. Unable to find a lawyer who would sue Dr. P, given the lack of permanent physical damage and limited monetary expenses, he filed a lawsuit pro se, serving in effect as his own attorney. Dr. P was assigned counsel through her malpractice insurance carrier, who quickly took procedural steps to have the case dismissed. W did not have the capability to fight legal battles against a lawyer, so the court did, in fact, dismiss the case.





W searched online for other options available to him, and he came upon a Complaint Form which he completed and sent to the state Dental Board. W detailed his version of events, submitting copies of his medical, ambulance, and hospital records. Upon receiving W's complaint, the Board contacted Dr. P, seeking her office records and an explanation of events. With the assistance of the same attorney who had gotten the lawsuit dismissed, she complied.





Dr. P was interviewed by a 3-member Board panel, accompanied by her attorney. The thrust of Dr. P's position was that she was there to serve the needs of an underserved community, which sometimes requires compromises from the ideal. She explained that she had to make an on-the-spot choice, weighing pros and cons, and determined that taking this patient out of severe pain – which she believed could not be adequately accomplished with medications alone – and trying to spare him non-reimbursable oral surgery expenses that he could not easily afford, was her ethical duty under the tenets of patient autonomy and non-maleficence ("do no harm"). She acknowledged that performing the extraction without a known acceptable INR level was against her better medical judgment but in concert with her best ethical judgment.





The Dental Board was unmoved. Its members determined that Dr. P had conducted herself in an unprofessional way, improperly weighing treatment options and succumbing to the desires of a lay person who could not reasonably understand all of the potential ramifications. The report of sanction, which would be posted on the Board's public-facing website, stated that Dr. P mischaracterized the concept of autonomy so as to include patient self-determination at the expense of patient health, and that she created a situation which led to increased patient harm, that could have even ended up worse; "Patients have the right to refuse, but not to dictate." Realizing that suspending Dr. P would hurt the community greatly, the Board's sanctions were limited to a substantial monetary fine and a licensing requirement of continuing education in the areas of ethics and management of medically compromised patients. 





Takeaways





A fundamental concept in this case study is that patients have multiple avenues to seek redress against OMS (and all dental practitioners): suing them for malpractice and/or lodging Board complaints. While malpractice insurance will provide legal representation and financial protection (up to policy limits) in the event of a lawsuit based upon malpractice, the same is not true when a Board complaint is filed. Most malpractice policies will offer legal representation to insureds for Board proceedings, but they do not indemnify for monetary penalties, and they cannot mitigate sanctions, educational requirements, or other levies by state Boards.





Had the malpractice litigation moved forward to be decided by a jury, instead of having been dismissed, it is fair to say that an expert for the plaintiff (patient) would have provided the opinion that, despite all of the underlying factors – change of insurance coverage as of midnight, patient pain, antibiotic prophylaxis having already been taken – Dr. P departed from the standard of care in performing an extraction on a patient with an elevated INR level, to the extent that even she acknowledged was against her better clinical judgment, with that departure directly leading to a true medical emergency. It is also reasonable to expect that W's cardiologist would have testified that he agreed with the stated bleeding concerns of Dr. P and that he suggested holding off on the extraction until the patient was less anticoagulated. To counter those opinions, an expert for Dr. P would need to feel comfortable with the actions taken by Dr. P and be willing to express them in front of a trial jury. A wild card, which is jurisdictionally and factually dependent, is whether the findings of the Dental Board would be permitted by the trial judge to come into evidence. In the end, a jury would make the ultimate determinations.





It is an undisputed reality that oral surgeons often have non-clinical pressures placed upon them – by patients, by referring dentists, by employers, by personal obligations – to take clinical actions that they would preferably not perform. And it is also true that some situations pit ethical concepts against standards of care. Which directions they choose become based upon an unavoidable mix of personal philosophies, professional experiences, and external forces. Realizing these conflicts can go a long way toward making the most idealized choices, although sometimes not easy. Professionalism means placing a patient's best interests, however that might look, ahead of all else. The dentistry and the medicine are often times the simple parts.





Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.


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Patient care is complex and personal, which is why it can lead to malpractice risk for oral and maxillofacial surgeons (OMS). That’s why preparing to face malpractice claims before they arise is an essential aspect of risk management. By implementing proactive strategies, OMS can better protect their practice and their patients.









Key Concepts     





    

  • What is an OMS malpractice claim?
    • 




  • Preventing OMS malpractice claims
    • 




  • Securing OMS malpractice insurance
    • 










Oral surgery is an essential healthcare service. As an OMS, you play an important role in your patients' well-being. However, the responsibility of patient care comes with the risk of malpractice claims.





Malpractice claims can be financially draining and damaging to your professional reputation. That's why it's helpful to know the risks and identify ways to reduce them in your practice. In this article, we will share tips to help reduce the likelihood of malpractice claims in oral surgery and discuss the importance of malpractice insurance for OMS.





Understanding OMS malpractice claims





Malpractice occurs when an OMS fails to provide treatment in conformity with the standard of care, thereby making it negligent, resulting in harm to a patient. This can include incorrect or missed diagnoses, improper treatment, or improper choice of or planning for a procedure. To avoid these situations, it's vital to have a comprehensive claim prevention strategy in place.





Acquiring OMS malpractice insurance is a crucial aspect of your claim prevention strategy. It can provide financial protection against claims, covering legal fees, settlements, and damages awarded after a trial. Choosing the best malpractice insurance requires thorough research of available coverage options.





MedPro Group offers tailored malpractice insurance for OMS, ensuring that you have the protection you need to practice with peace of mind.





Key strategies for preventing malpractice claims





In addition to getting a malpractice insurance policy, what can you do to help prevent malpractice claims? Here are some useful strategies to consider:





Keep detailed patient records





    

  • Maintaining detailed and accurate patient records is essential. This includes documenting patient histories, examinations, treatments, and any communication. Keeping thorough records is important for providing consistent care and can be crucial in a legal dispute. Records should never be altered. Complete and contemporaneous documentation is a key factor in maintaining professional credibility.
    • 






Stay informed and educated





    

  • Continuing education allows you to stay up to date with the latest oral surgery techniques and standards of care. Going to workshops and classes can help you take better care of your patients and reduce the possibility of mistakes.
    • 






Manage your practice effectively





    

  • Continuing education allows you to stay up to date with the latest oral surgery techniques and standards of care. Going to workshops and classes can help you take better care of your patients and reduce the possibility of mistakes.
    • 






Communicate clearly with patients





    

  • It's important to talk openly with patients about their treatment. Obtain comprehensive informed consent for all treatments, ensuring patients understand what to expect, including possible risks, from the proposed treatment. Clear communication can help prevent misunderstandings that could lead to malpractice claims.
    • 






Practice within your scope and abilities





    

  • As an OMS, it's important to only practice within the scope of your expertise and licensure. Avoid offering treatments or advice outside of your professional capacity, as this can increase your malpractice risk. Similarly, non-professional office staff should never be permitted to provide any dental or medical advice to patients. If you feel as though the patient's condition or treatment would be better handled by a practitioner with particular expertise regarding the issue at hand, refer the patient out.
    • 






Follow the standard of care





    

  • Adhering to the standard of care – what a reasonable practitioner would do under similar circumstances – can help minimize the chance of mistakes and your malpractice risks. 
    • 






Prioritize patient safety





    

  • Always prioritize patient safety during treatments. Be mindful of techniques that pose risks, especially for patients with pre-existing conditions or complex medical histories. If you're uncertain about a particular treatment, seek a second opinion or refer the patient to a dental specialist.
    • 






How to handle an OMS malpractice claim





In the unfortunate event of a malpractice claim, it's important to act promptly and professionally. Here are some initial steps to consider:





Contact your insurance provider





Immediately notify your OMS malpractice insurance provider if you receive a claim or have reason to believe a claim is imminent. Avoid discussing the claim with anyone before contacting your insurance carrier. They will help guide you through the process and provide legal representation if necessary.





Do not alter patient records





A clinical note should be completed as contemporaneously as possible with treatment. If you notice an error in your original note or omitted information, do not alter the original note. Rather, make an addendum and reference the date of the original note and the date of treatment, and then explain your addition. Altering records can be seen as an attempt to cover up the facts and can severely harm your ability to resolve a claim.





Cooperate with your claims consultant





Work closely with your malpractice insurance carrier’s claims team. Provide them with all the necessary documentation and information to address the claim





Check out this article for more information on what to expect from a malpractice claim.





Malpractice insurance considerations





Facing malpractice claims in oral and maxillofacial surgery can be daunting, but acquiring the best malpractice coverage can help you manage risk. By being proactive, you can keep your patients safe and practice with confidence.





When purchasing OMS malpractice insurance, keep the following in mind:





Coverage limits





    

  • Make sure your policy provides adequate coverage to protect your assets and practice in the event of a claim.
    • 






Policy types





    

  • The coverage you need is unique to your practice and specialty. That's why MedPro Group offers both Occurrence and Claims-made policies tailored to meet the specific needs of OMS. Read this article to learn more about policy types and choosing the right one for your career and practice.
    • 






Pure consent





    

  • For greater control during the claims process, look for a malpractice insurance policy that includes a pure consent provision. This means you’ll have the right to refuse to settle a claim. Not all carriers offer pure consent, so make sure to check if it’s included before signing on the dotted line. At MedPro, our insureds always have pure consent to settle.
    • 






Customer service and support 





    

  • Excellent customer support goes a long way. Your carrier should guide you through the process of handling claims and answer any questions you may have. MedPro Group offers hands-on, reliable service so OMS can feel confident in their coverage. Additionally, our OMS on our Advisory Board help provide ensure the products and services we offer continue to meet the needs of today’s OMS.
    • 






Carrier strength 





    

  • Your malpractice insurance carrier should have the financial strength and expertise to defend you from claims. MedPro Group is a carrier with an A++ financial rating (AM Best) and has a trial win rate of 95%.
    • 






Get the right coverage from MedPro Group





MedPro Group, the nation’s leading malpractice insurance carrier, offers coverage options tailored to the unique needs of OMS. With the industry’s best claims team and 125+ years of malpractice expertise, we have the experience and resources to protect your good name.





Secure your peace of mind today with a free quote.





For latest AM Best rating, access ambest.com.





All data is derived from MedPro Group records and calculations; claims data range is 2013-2022 unless otherwise indicated. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are administered by MedPro Group and underwritten by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. 





© MedPro Group Inc. All Rights Reserved.


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Considering recent guidelines regarding joint replacement surgeries, it’s more crucial than ever that oral surgeons coordinate their care with other medical professionals. In this case study, an oral surgeon performs multiple tooth extractions, unaware of the new guidelines surrounding the timing of dental procedures in relation to total joint arthroplasty (TJA). To reduce the risk of joint infection, the orthopedic surgeon reschedules the patient’s knee surgery for several months later. The patient expresses frustration at the inconvenience and the oral surgeon's lack of awareness regarding these guidelines. However, no legal action is ultimately taken.









Key Concepts





    

  • Staying informed on evolving dental guidelines 
    • 




  • Separating guidelines from standards of care 
    • 




  • Understanding protocols for patients with joint replacements
    • 




  • Documenting communication between healthcare providers
    • 










Background Facts





P knew, from years of being told by various dental professionals, that he needed a number of teeth extracted due to gross decay. He admittedly did not have regular and adequate home oral hygiene habits, often leaving him with plaque build-up throughout his mouth and several areas of calculus, particularly on his lower anterior teeth. With an elective knee replacement surgery coming up in 2 weeks, he thought that this would be a good time to have those teeth extracted, in large part because he had read some online information about knee surgery and the potential for mouth bacteria to spread to that surgical site and lead to knee prosthesis loss.





When Dr. N examined P, clinically and radiographically, she noted 8 teeth in need of extraction, in addition to a long-overdue prophylaxis. P made Dr. N aware of the upcoming knee surgery. She arranged for P to have a cleaning that same day, with the extractions to be completed in 3 days.





The extractions went forward uneventfully, leaving a week-and-a-half before the scheduled orthopedic surgery. P saw Dr. N post-operatively to check the extraction sites, 5 days before the knee was to be treated, and all appeared to be healing within normal limits, although a lone bone spicule was easily removed.





P met with his orthopedic surgeon, Dr. C, in the hospital's pre-surgical waiting area, where P casually mentioned that he had multiple dental extractions about 10 days prior, and the removal of a "small sliver of bone 5 days ago." Dr. C immediately canceled the knee replacement surgery and told P to contact his office to reschedule once there would be no further dental intervention in those sites. At P's request to understand more, Dr. C explained that current guidelines, which had "just taken effect," included that there be a waiting period between oral surgery procedures and certain elective joint surgeries. Frustrated at the situation – because he had taken time off from work, asked family members to rearrange their own schedules to assist him upon his return home, would now need to redo his pre-operative lab testing, and would have to again go through the stress in anticipation of surgery. P contacted Dr. N's office, asking to come in immediately.





Dr. N was surprised to see P, expecting that he would have been hospitalized and under his orthopedic surgeon's care. P angrily explained what had happened, with Dr. N listening intently. Dr. N said that she had been unaware of any protocols in place that would have led Dr. C to cancel surgery for a dental-based reason. Nevertheless, she apologized profusely, but P never returned to see her. P located another dental practitioner, who determined the extraction sites to be completely healed, roughly a month or so later. P underwent successful knee replacement surgery, albeit several months after initially planned, with no complications.





Legal Action





Still upset over the entire episode, P spoke with a cousin who is an attorney, as well as a local medical malpractice lawyer. Both gave him the same advice, namely that, although he had suffered from significant inconvenience due to Dr. N's lack of knowledge, he had no damages which would reasonably be compensable. The second attorney also pointed out that, even if Dr. N had been aware of the new protocol, the teeth were quite likely in need of extraction before the joint surgery anyway, so the orthopedist would have postponed the procedure in any event. All of P's frustrations would have, therefore, been essentially the same.





Understanding that suing Dr. N would only be able to happen if he represented himself, P sent her a letter requesting copies of his entire chart, and asking her to report the incident to her malpractice carrier, which she did. No further action was ever taken by P.    





Takeaways





The "current guidelines" referenced by Dr. C came into effect in late 2024, by way of protocols jointly developed by the American Academy of Orthopedic Surgeons (AAOS), the American Dental Association, and several other organizations. By way of history, the use of antibiotics in association with dental procedures for patients with joint replacements was recommended until as recently as approximately 2012, when the guidance changed to consider discontinuing that practice. The current approach regarding the relationship between dentistry and joint replacements takes antibiotics out of the picture, and instead speaks to the timing of certain dental procedures, both before elective total joint arthroplasty (TJA) and after any TJA. The organizations involved carefully referred to them as guidelines, as compared with standards of care (SOC). But in a litigation setting, it is far from unforeseeable that an expert for a plaintiff might well incorporate the guidelines into their testified-to SOC, if the guidelines were not followed and a negative event ensued.





The new guidelines, briefly stated, are: (1) noninvasive and minimally invasive dental procedures can be performed until the day before elective TJA; (2) dental extractions and other oral surgery procedures should be completed at least 3 weeks before elective TJA (because they can be expected to take up to 3 weeks to heal); and (3) most dental procedures should be delayed – if possible – for 3 months after TJA. The goal, according to the co-chair of the guideline group, is to prevent infections that might emanate from dental procedures, due to bacterial entrance into the bloodstream, which can then attach to the new joint prosthesis, thereby infecting it.





Even though litigation never took place in this case study, it would not be unexpected to imagine that litigation might well have gone forward if the result to P were different. For example, if P had the TJA and then presented to Dr. N 1-2 months later, and if Dr. N had performed the extractions at that time (with both P and Dr. N unaware of the new guidelines), and if the joint prosthesis were then lost to infection due to bacteria commonly found in the mouth, an expert for P, as plaintiff, would be able to make a colorable argument that P suffered as a result of Dr. N not following a published guideline, namely the waiting for 3 months after the TJA to extract the teeth.





A fair reading of the guidelines leaves some room for interpretation, such as what constitutes “noninvasive and minimally invasive dental procedures,” and what dentistry fits under the umbrella of "most dental procedures." If unclear, a risk-protective approach is to directly involve the orthopedic surgeon, explaining what dentistry is planned, so that the surgeon replacing the joint can have input into the plan of action. In such situations, documentation of those communications is critical, in the event that a lawsuit or Board action were to later arise. A written plan – a letter, email, or text message – from the orthopedist is ideal, but absent that, a detailed, contemporaneous entry by the dentist/oral surgeon into the patient's chart will serve as a solid, if not perfect, memorialization.





With dentistry and medicine fronts expanding at a fast pace, and with technology fueling that expansion, sometimes seemingly overnight, the burdens upon dental professionals to stay up to date about all aspects of patient care can be daunting. But that is exactly what is required to practice within the standard of care. The fact that a dentist might not be aware of very recent, yet relevant, changes that directly affect their practice will not serve to excuse any lapses that occur as a result. An approach looked at today as up-to-date might be viewed as old-fashioned and outdated tomorrow. Here, although Dr. N was made aware of P's upcoming knee replacement surgery, she was not aware of the potential impact of her planned dental treatment upon that surgery. That directly and negatively affected P, but fortunately, in not very significant ways.





A question to consider is whether the patient, P, bears any responsibility for the events in this case, particularly by allowing his teeth to fall into such disrepair, all at his own hand, and for waiting until the virtual eve of knee surgery before seeking to address his dental problems. States vary in their handling of this type of issue during the course of litigation. But even when a particular jurisdiction allows for claims by the defendant against the plaintiff that might greatly reduce or completely eliminate monetary compensation, it becomes a strategic question for defense counsel (and the dentist's malpractice carrier) as to whether there is value in going down that road, with the specter of the potential for a jury to be angered by the attempt to "blame the victim." Litigation is a process that includes facts, law, strategy, ethics, and assessments of human nature, complex and intellectually stimulating.





Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.


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In this real-life case study, OMS can learn how patient autonomy and clinical standards may conflict when making treatment decisions. The case points out the risks of prioritizing patient requests over the standard of care, and how such decisions can lead to Dental Board sanctions or malpractice claims.














Key Concepts





    

  • Sanctions from Board complaints
    • 




  • Does malpractice insurance cover Board fines?
    • 




  • Patient autonomy vs. the standard of care
    • 










Underlying facts





Dr. P was an oral and maxillofacial surgeon who returned to her relatively rural hometown to practice, making her the only such specialist within a nearly two-hour drive. Most members of the community had known her since she was a child, and all were quite appreciative that she had likely sacrificed financially to come home rather than work in the large city where she trained. Late in the afternoon on the last calendar day of the month, W, a local resident, presented to the office in excruciating pain emanating from a grossly decayed and severely periodontally involved lower bicuspid, wanting to have it extracted. Dr. P knew from previously treating him that he had a heart valve replacement years ago and was taking warfarin daily since that surgery. In anticipation of an extraction that day, W took the antibiotics he kept on hand that had been prescribed for him by his cardiologist. However, prior to extractions Dr. P had performed for W in the past, W stopped his anticoagulant days before the procedure, on the advice of his physician, such that his INR would reside below its usual target of 3.5, in the 2.5-3.0 range for surgery, after which the anticoagulant would be restarted a day later.





On the day of presentation, W had not stopped his anticoagulant therapy, and he reported to Dr. P that his most recent INR, about a week or so prior, was "on the high side" at roughly 4.5. Dr. P expressed to her patient that she did not feel comfortable extracting a tooth, particularly one with periodontal disease, at that INR level. Dr. P contacted W's cardiologist who agreed with the oral surgeon's bleeding concerns and suggested deferring surgery. After the call, Dr. P reiterated her concerns, suggesting that W see his cardiologist to dial down the warfarin so that an acceptable INR level could be reached for surgery.





W became upset, complaining about his unrelenting pain and, perhaps more significant to him, the fact that the health insurance policy provided by his employer was expiring the next day in favor of a less expensive medical plan that had a high deductible and did not reimburse for dental procedures. He pleaded with Dr. P to accommodate him, as "a favor from one friend to another." What she would later say was against her better judgment, she gave in and performed the extraction uneventfully and packed the site with a gelatin sponge and a topical coagulating agent known to be effective for that purpose. Gauze pressure was applied, with hemostasis achieved, and W went home. 





W's wife called Dr. P the following morning, telling her that overnight, W had been taken by ambulance to the nearest hospital due to persistent heavy bleeding from his mouth. There, he was admitted to the medical service (as there was no dentist or OMS on site), where he was fluid-managed and transfused, leading to the stoppage of bleeding and W's hemodynamic stability. Dr. P visited W after her office hours ended, finding W in great distress emotionally, but stable physiologically. W was discharged home two days after admission, with no further complications. His new medical insurance left him with a sizeable bill for emergency transport and hospital care.





Legal action





Quickly forgetting the "favor" given to him, W became angry with Dr. P when she refused to pay for his medical expenses. Unable to find a lawyer who would sue Dr. P, given the lack of permanent physical damage and limited monetary expenses, he filed a lawsuit pro se, serving in effect as his own attorney. Dr. P was assigned counsel through her malpractice insurance carrier, who quickly took procedural steps to have the case dismissed. W did not have the capability to fight legal battles against a lawyer, so the court did, in fact, dismiss the case.





W searched online for other options available to him, and he came upon a Complaint Form which he completed and sent to the state Dental Board. W detailed his version of events, submitting copies of his medical, ambulance, and hospital records. Upon receiving W's complaint, the Board contacted Dr. P, seeking her office records and an explanation of events. With the assistance of the same attorney who had gotten the lawsuit dismissed, she complied.





Dr. P was interviewed by a 3-member Board panel, accompanied by her attorney. The thrust of Dr. P's position was that she was there to serve the needs of an underserved community, which sometimes requires compromises from the ideal. She explained that she had to make an on-the-spot choice, weighing pros and cons, and determined that taking this patient out of severe pain – which she believed could not be adequately accomplished with medications alone – and trying to spare him non-reimbursable oral surgery expenses that he could not easily afford, was her ethical duty under the tenets of patient autonomy and non-maleficence ("do no harm"). She acknowledged that performing the extraction without a known acceptable INR level was against her better medical judgment but in concert with her best ethical judgment.





The Dental Board was unmoved. Its members determined that Dr. P had conducted herself in an unprofessional way, improperly weighing treatment options and succumbing to the desires of a lay person who could not reasonably understand all of the potential ramifications. The report of sanction, which would be posted on the Board's public-facing website, stated that Dr. P mischaracterized the concept of autonomy so as to include patient self-determination at the expense of patient health, and that she created a situation which led to increased patient harm, that could have even ended up worse; "Patients have the right to refuse, but not to dictate." Realizing that suspending Dr. P would hurt the community greatly, the Board's sanctions were limited to a substantial monetary fine and a licensing requirement of continuing education in the areas of ethics and management of medically compromised patients. 





Takeaways





A fundamental concept in this case study is that patients have multiple avenues to seek redress against OMS (and all dental practitioners): suing them for malpractice and/or lodging Board complaints. While malpractice insurance will provide legal representation and financial protection (up to policy limits) in the event of a lawsuit based upon malpractice, the same is not true when a Board complaint is filed. Most malpractice policies will offer legal representation to insureds for Board proceedings, but they do not indemnify for monetary penalties, and they cannot mitigate sanctions, educational requirements, or other levies by state Boards.





Had the malpractice litigation moved forward to be decided by a jury, instead of having been dismissed, it is fair to say that an expert for the plaintiff (patient) would have provided the opinion that, despite all of the underlying factors – change of insurance coverage as of midnight, patient pain, antibiotic prophylaxis having already been taken – Dr. P departed from the standard of care in performing an extraction on a patient with an elevated INR level, to the extent that even she acknowledged was against her better clinical judgment, with that departure directly leading to a true medical emergency. It is also reasonable to expect that W's cardiologist would have testified that he agreed with the stated bleeding concerns of Dr. P and that he suggested holding off on the extraction until the patient was less anticoagulated. To counter those opinions, an expert for Dr. P would need to feel comfortable with the actions taken by Dr. P and be willing to express them in front of a trial jury. A wild card, which is jurisdictionally and factually dependent, is whether the findings of the Dental Board would be permitted by the trial judge to come into evidence. In the end, a jury would make the ultimate determinations.





It is an undisputed reality that oral surgeons often have non-clinical pressures placed upon them – by patients, by referring dentists, by employers, by personal obligations – to take clinical actions that they would preferably not perform. And it is also true that some situations pit ethical concepts against standards of care. Which directions they choose become based upon an unavoidable mix of personal philosophies, professional experiences, and external forces. Realizing these conflicts can go a long way toward making the most idealized choices, although sometimes not easy. Professionalism means placing a patient's best interests, however that might look, ahead of all else. The dentistry and the medicine are often times the simple parts.





Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.


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Additional Risk Tips content

OMS Relents After Patient on Blood Thinners Demands Tooth Extraction

A real-life case study exploring the ethical and clinical challenges faced by an oral surgeon when a patient on anticoagulant therapy demanded an emergency tooth extraction. Learn how patient autonomy, standard of care, and legal implications intersect in high-risk scenarios.

Proactive Strategies to Avoid OMS Malpractice Claims

Patient care is complex and personal, which is why it can lead to malpractice risk for oral and maxillofacial surgeons...

Patient Must Cancel Joint Surgery Due to New Dental Guidelines 

Read about a patient who faces unexpected consequences when their oral surgeon is not up-to-date on new dental guidelines.

This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and/or may differ among companies.

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