Spring 2017 Dental Insights.

Posted in Dental Insights on Wednesday, February 1, 2017

Geraldine Walker, a retired teacher in her 60s, had been seeing her general dentist, Elijah James, DDS, for more than 15 years. Until about five years previously when a multispecialty clinic opened its doors, Dr. James was the only dentist in their small community.

Geraldine’s relationship with Dr. James had always been very amicable, and they saw each other regularly in the community. They both felt they had a positive professional relationship. Geraldine’s care consisted of regular yearly cleanings, interspersed with fillings, root canals with crowns, and a bridge in the upper right. Geraldine began to have some sensitivity in her teeth, and she asked Dr. James about it.

Dr. James explained to Geraldine that she had some moderately deep periodontal pocketing in approximately five teeth. However, he believed with diligence in home care, as well as a more frequent recall schedule for cleanings, he could treat the areas and return her to good periodontal health.

In the following year, Geraldine’s bridge on the upper right became loose, and she broke a lower crown she’d had for a number of years. At that time, Geraldine was going through a bad divorce and was having serious financial issues because of retirement. Additionally, she didn’t have dental care coverage. It seemed to Geraldine as though everything bad was happening all at once, and she became increasingly stressed.

Despite her prior diligence, Geraldine fell off track with home care, failed to make financial arrangements for a permanent crown and failed to return for the recommended appointments. Dr. James’ office sent reminder cards explaining the importance of the recommended care, but Geraldine did not respond, and she failed to pay her outstanding balance of less than $1,000.

After Dr. James sent letters asking Geraldine to pay her outstanding balance, Geraldine called the office. Geraldine spoke to the office manager who told her in no uncertain terms that she would have to pay the outstanding balance before Dr. James rendered further care. That conversation left both sides angry and frustrated. Dr. James was not aware of this call or the outcome. Thereafter, Geraldine developed an ulcer, which she attributed, in large part, to the stress of her dental problems.

Dr. James entrusted his staff to work with patients who did not return for follow-up care and to collect their unpaid balances. Not wanting to be heavy-handed with patients, Dr. James wanted to focus on rendering dental care and delegated billing and collecting procedures to the front office staff. Moreover, he always prided himself on his good chairside manner—patients often complimented him and gave him positive reviews for being a good and caring dentist.

As problems between Geraldine and Dr. James’ office staff escalated, the town’s new multispecialty clinic began offering first-time patients a free evaluation. Geraldine had heard the clinic’s rates were lower than Dr. James’, and they advertised easy credit terms. Given her financial concerns and her frustration with Dr. James’ staff, the idea of switching to the new clinic appealed to her. Therefore, a year after last seeing Dr. James, Geraldine decided to visit the clinic. She felt it would be a fresh start.

When she first went to the clinic, Geraldine complained of worsening sensitivity in all her teeth. She told the staff that she’d had this issue for more than two years. She mentioned she had a temporary crown in place for about the same time and that her partial was very loose.

The dentist who evaluated her at the first visit at the clinic diagnosed severe periodontal disease, told her she had significant bone loss, noted failing crown and bridgework, and observed severe decay in additional teeth. This dentist recommended Geraldine see the clinic's periodontist and prosthodontist.

Without much information about Geraldine’s prior care with Dr. James or his recommendations, both of these specialists expressed serious concern about Geraldine’s current state of oral health and intimated that she should have seen a specialist long ago. Their recommended treatment included scaling and root planing, as well as options for redoing the crowns or implant placement in lieu of restorations. Upon hearing this, Geraldine became upset. She felt Dr. James should have stopped these problems earlier. Had he done so, Geraldine believed she would not have these dental problems or the expense of ongoing care.

When Geraldine lamented these issues to her divorce attorney, the attorney suggested she sue Dr. James. Then, if he was found liable, the money from the lawsuit could help Geraldine pay for future dental bills.

Geraldine sought out a local attorney who spoke to her current treating dentist at the clinic. The treaters told the lawyer about Geraldine’s current condition and the estimated treatment cost. They suggested Dr. James’ treatment was subpar, and he should have referred Geraldine to a specialist long before. Confident that those treaters would support his case, the lawyer recommended that Geraldine contact Dr. James, get her records and see if his insurance carrier would settle the case. Geraldine agreed.

Dr. James received a letter from the lawyer with Geraldine’s authorization to release her records. He produced all of his records to Geraldine’s lawyer and to his insurance carrier.

Dr. James was firm and confident in his care of Geraldine. He strongly believed that Geraldine’s periodontal condition did not require specialist intervention at that stage and that his recommended treatment was proper. He believed Geraldine’s failure to follow up and perform good home care was what led to her more serious periodontal conditions. Additionally, he felt the crown and bridgework were well done, and their current clinical issues were not due to improper work.

The carrier found no basis to recommend settlement. Therefore, the lawyer filed suit. Geraldine’s lawyer then requested the clinic’s specialists review Dr. James’ records, put their criticisms of Dr. James in writing and advised them that their deposition and/or trial testimony may be required.

Upon hearing this, the dental specialists realized the seriousness of the lawyer’s request and its possible impact on their practice. They were concerned about their working relationship with Dr. James and other practitioners in the community as well as how their patients might react.

Both dental treaters noted that Dr. James’ records painted a different picture of his care than Geraldine described. What’s more, they saw Dr. James’ multiple documented efforts to get Geraldine to return, his advice about the consequences of not following up and his legitimate efforts to have her pay her outstanding balance. They were far less confident in their criticisms of Dr. James. They decided they could only testify about the state of Geraldine’s mouth when she saw them, her alternative care plans and the cost of these plans.

The failure of these treating dentists to criticize Dr. James’ care proved fateful. Without any expert testimony to support the case, Geraldine’s lawyer decided he didn’t want to pursue it.  This is likely because he’d have to pay for an expert witness at deposition and at trial.

Geraldine attempted to find another lawyer to take her case but could not. Despite Geraldine’s attempt to pursue the case on her own without a lawyer, the case was eventually dismissed.

What Can We Learn?

This case presents a good example of how a seemingly positive relationship can take a turn for the worse. Competition among providers, innocuous comments, efforts at collection and outside influences on patients’ lives all can spark a lawsuit.

Prudent practitioners should, first and foremost, stay up to date on the field of dentistry so they can be fully confident of all the care given to their patients. They should know how and when to refer to specialists. Moreover, being sensitive to patient concerns, stresses and their ability to adhere to the treatment plan is always important as an ongoing evaluation. Maintaining a working relationship in the community—and in the dental community—always serves provider well.

Even though Dr. James was ultimately successful in defending this matter, it caused much stress and time to get to that result. Dr. James was right to believe that a good chairside manner was beneficial to minimize risk. Yet, he forgot to carry over that practice to the collection and follow-up side of his practice. When things became terse with the office manager and Geraldine, it may have helped Dr. James’ cause to try to speak to this longstanding patient personally.

Additionally, it likely would have helped if he had followed up with Geraldine to find out why she had not returned as recommended, since it was not like her to do so. Dr. James had a good relationship with this patient. Only at the end did that relationship deteriorate. Better and direct communication may have allowed an amicable resolution earlier.

This case exemplifies the critical importance of how financial concerns can create more than a money issue for the practitioner. Dentists must be aware of and actively involved in accounts receivable procedures that have a clinical impact and the associated risk management exposures of their practice.

The recognition by the clinic treaters about the consequences of getting involved in litigation was helpful to the defense. Prudent practitioners should evaluate all information, including records, testimony and bigger-picture considerations, before criticizing care. The failure to evaluate these matters properly would have left the clinic treaters vulnerable to effective cross-examination by the defense.

Dealing with Patients’ Financial Issues 

• Although financial arrangements are based on treatment recommendations, don’t make treatment recommendations based on finances.
• Hold conversations in private to protect patients’ privacy and dignity. 
• Discuss financial arrangements in full before rendering treatment.
• Include an estimated insurance payment in the financial arrangements. Also include a clearly worded statement to advise patients that they are responsible for treatment charges regardless of insurance payment.
• Have the patient sign off on the financial plan as well as the treatment plan. Provide a copy of each plan to the patient and place another copy in the patient’s record. 
• Never drop a patient solely for financial reasons. Have a strict office policy to deal with financial problems, which includes the importance of handling financial issues in a sensitive manner.
• Document all efforts to resolve patients’ unpaid treatment charges.

This case study was written by Linda Hay, J.D. All names used in Dental Insights case studies are fictitious to protect the privacy of the dentist and the patient.

Linda J. Hay is a partner in the Chicago office of HeplerBroom, LLC. Ms. Hay has practiced in the professional liability defense arena for more than 25 years and has tried numerous cases to verdict. She is actively involved in a variety of defense bar, professional liability and risk management organizations. Ms. Hay can be reached at Linda.Hay@heplerbroom.com.