TDIC Liability Lifeline - Volume 1, 2023

The Dentists Insurance Company’s Risk Management Advice Line provides one-on-one expert guidance to policyholders and dental association members. Callers in doubt about how to handle an issue or concerned about potential risks are guided to safe solutions by TDIC’s specialized Risk Management analysts. In 2022 alone, analysts responded to 9,364 calls from dental professionals.

While TDIC’s experts are prepared to address a wide variety of concerns, challenging areas of practicing dentistry frequently arise:

• Patient dismissal

• Documentation

• Disgruntled patients

• Employee termination

Learn from Risk Management analysts’ experience and expertise on the best practices for handling these challenges when they arise in your practice.

Patient Dismissal

TDIC receives numerous calls from dentists regarding when it is appropriate to consider dismissing patients.

When you must sever the patientprovider relationship, the first step is to thoughtfully consider potential risks and act in accordance with ethical

standards of treatment. In addition to state laws and any Dental Practice Act requirements, ADA’s Code of Ethics can guide your decision. Your state dental association should offer direction on the laws regarding treatment within your state. TDIC policyholders also

have access to specialized expertise through the Risk Management Advice Line.

A recent call to the Advice Line highlights the unique complexities of dismissing patients.

A Dismissal Case Study

his hand on his head and inexplicably mumbling to himself the words “larger restroom.” The patient then proceeded to share with the staff that he had taken a pill for anxiety in the office parking lot shortly before checkin. Staff alerted the periodontist of this situation.

The call: The office manager of a periodontal office contacted the Advice Line to discuss whether they had enough grounds to dismiss a new patient. Rather than being referred by their general dentist, the patient in question found the specialist on the web and presented for a consultation regarding periodontal issues.

After conducting a complete examination, the periodontist diagnosed mild to moderate periodontal disease and recommended scaling and root planing on all four quadrants.

The patient initially scheduled an appointment to begin treatment. However, in the next few months, he repeatedly canceled and rescheduled his appointments. When the office was finally able to reach the patient by phone, he expressed that he had other dental concerns and that he was seeking care at a general dentist’s office.

Months later, the patient finally appeared at the periodontal office for an appointment. After checking in, he asked if he could use the restroom. On his way out of the restroom, staff noticed that the patient was banging

During his discussion with the dentist, the patient shared that he was taking prescription anti-anxiety medications, but he did not share which medications had been prescribed or the dosage. The periodontist noticed the patient’s cognitive abilities appeared significantly affected as he mumbled with slurred speech. Given the patient’s altered state, the dentist informed the patient that they would be postponing treatment.

The patient became upset with this change of plans and proceeded to grab his keys and attempted to leave the office. The office staff tried explaining the reason for postponing treatment, but the patient refused to listen, becoming combative and using profanity. The office staff reached out to the patient’s mother, who was listed as his emergency contact on his medical history form. The patient’s mother asked the office staff to prevent the patient from leaving and to not provide any treatment, stating she would come pick him up. The patient's mother also requested that the office cancel any upcoming appointments for her son.

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A few days following this incident, the patient called the office demanding to know why he was not treated. The patient had no recollection of the events that occurred during his previous visit.

The advice: The Risk Management analyst commended the office for withholding treatment and taking the appropriate steps to ensure patient safety, considering the patient’s altered state. The analyst advised the periodontist to consider patient

Know When It's Time to Consider Dismissal

Unsure whether to pursue dismissal?

Some common and acceptable indicators that a dentist may need to consider dismissing a patient from care are:

• The patient is noncompliant with treatment recommendations or attempts to dictate treatment.

• The patient fails to pay for services rendered.

• The patient tries to take dental care into their own hands through actions such as trying to self-adjust a prosthesis or orthodontic appliance.

• The patient has not been in for an extended amount of time. Consider dismissal if the patient has not been seen in 24 months (about two years).

• The patient is disruptive to your practice, such as constantly being late for appointments or causing conflicts with other patients.

• The patient exhibits abusive or threatening behavior to any member of the dental team or other patients. You have a duty to protect the safety of everyone in your practice.

Patients may not be dismissed or discriminated against based on limited

dismissal. Even though the patient was still receiving treatment, there were adequate grounds for dismissal due to the patient’s erratic behavior and escalating abrasive treatment of staff members. The periodontist was reminded to fully document interactions and communication in the patient’s file. The analyst also guided the dentist in composing a letter to the patient providing a 30-day notice of dismissal, which allowed reasonable time for the patient to find a new periodontist.

English proficiency or status within a protected category under federal or state legislation, including race, color, national origin, sex, disability and age.

Preparing for Dismissal

Most dismissal cases should not be rushed. The exception is when the patient in question is a safety threat. You have a duty to protect the wellbeing of everyone in your practice. Carefully document the occurrence prior to proceeding with the dismissal.

Otherwise, before taking action to dismiss a patient from your practice, you should make well-documented attempts to communicate concerns to the patient

about potential consequences of their behavior. Try to learn and understand why the patient is not complying with treatment or paying bills and address any underlying issues that may be contributing to their behavior. For example, if a patient is noncompliant due to fear or anxiety, you may be able to address their concerns and help them feel more comfortable with treatment. In other cases, patients may be going through a difficult time in their lives that is affecting their behavior, and they may benefit from additional support and understanding.

If, after your attempts to communicate and address the issue, the problematic behavior continues, follow the proper steps of dismissal. When dismissing a patient, provide a formal written notice stating that you are withdrawing care and requiring the patient to find another provider. They should allow a reasonable amount of time for the patient to find another dentist (30, 60, or 90 days). Additionally, give two viable referrals, such as the local dental society, local dental schools or a managed care plan. Mail the confidential written notice to the patient by both first-class and

Your state dental association should offer direction on the laws regarding treatment within your state.

certified mail with a return receipt requested. Risk Management analysts can provide guidance on the dismissal process and letters along with resources to protect dentists before finalizing the separation.

Special Consideration: Orthodontic Patients

Exclusive consideration must be given to cases involving patients undergoing treatment such as orthodontics. In situations where patients elect to discontinue treatment and establish care elsewhere or there is a behavioral problem with a patient midtreatment, automatic dismissal is not recommended. Allowing the

patient to remain in appliances without ensuring the patient will be monitored could expose you to accusations of patient abandonment or other liability risks. Furthermore, there is increased potential for the patient to experience relapse, broken brackets, loose wires, decay, decalcification, etc. If the patient dismisses themselves or if the dismissal is a last resort due to nonpayment or other concerns, offer to remove the appliances and provide retainers to maintain existing tooth positions and any orthodontic tooth movement achieved, if appropriate.

No two cases are the same when it comes to patient dismissals. There is a reason they are the most frequently cited cause of calls to TDIC’s Advice Line. Since dismissals can be fraught with safety and ethical considerations, make sure to lean on the expert advice of a Risk Management analyst before initiating a patient dismissal.

Most dismissal cases should not be rushed.

The exception is when the patient in question is a safety threat.

Need guidance with a complex issue?

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Requests for Records

All dentists have been asked to release patient records at one point or another. Whether a patient is moving away, switching practices or documenting expenditures, patient records are commonly requested in

dental offices. But the guidelines on releasing patient records aren’t always clear, and the laws and requirements about what information to release, how to release it and when to release it can be difficult to navigate.

TDIC’s analysts are knowledgeable about HIPAA privacy laws and advise many callers on how to stay in compliance.

A Record-Request Case Study

for prior treatment rendered by him. The office sent the check to the patient; however, the patient did not cash the check.

The call: A dentist called for advice regarding handling a records request from a patient’s spouse.

The patient had originally presented for extraction of tooth No. 32. After the administration of local anesthesia, the patient started to complain about breathing issues and shaking. The office immediately called 911, and the patient was transported to the nearest emergency room.

Later that evening, the office learned from the patient’s wife that he suffered a mini-stroke and would be in the hospital for a few days.

Over the next few weeks, the office made several attempts to reach out to the patient and follow up. "The patient did not respond to any of the calls and eventually sent a text message stating, I can't speak with you any longer." The dentist was concerned to receive this message from the patient. He assumed that the patient’s condition may have been his fault and that perhaps he could have handled things differently at the time the patient presented for the extraction. To help remedy the situation, the dentist decided to refund the patient

Three months later, the office received a request for the patient’s records from his spouse. Considering the patient’s concerning history, the dentist reached out to TDIC for direction.

The advice: Any time a request for records comes from someone other than the patient, Risk Management analysts advise caution. In this situation, the analyst suggested that the dentist first check the patient’s records to see if the patient had signed a form authorizing the release of records to his spouse. If an authorization was on file, then the dentist should respond to the request for records without delay.

The analyst advised the dentist that to ensure adherence to both state and federal regulations pertaining to HIPAA and privacy laws, in the absence of a written authorization from the patient, the office should not release the records to the patient’s spouse. Additionally, the analyst advised the dentist of his obligation to comply with an authorized records request and the patient’s (or their representative’s) rights to having access to a copy of the record.

Protect Personal Health Information

Health care professionals have a legal and ethical obligation to protect the privacy of patients' personal health information (PHI). In turn, patients have the right to access their own medical records, including their dental records, under certain circumstances.

The first step is to ensure all adult patients sign a form authorizing the release of dental records and to keep a copy of the signed form in the patient’s chart. TDIC offers a downloadable sample authorization form. Patients can, and have, taken legal action against dentists who, for whatever reason, fail to produce records when requested. As legal documents, these records can be subpoenaed in legal cases and must be produced by the date indicated in the subpoena.

Subpoenaed records requested through the subpoena process isn't the only method that requires a practice to release a patient's records. Patients also

have a right to their own records, and dentists are obligated to produce them within a certain period after receiving a written request. For example, the state of California’s Health and Safety Code states that dentists have 15 days (about two weeks) to comply with such requests and must provide the records in full. Additionally, California Evidence Code states that if a patient’s legal representative submits a written request for records, the medical provider must make them available for inspection within five business days.

Health care

Releasing Records to Family Members or Third Parties

When it comes to releasing dental records for adult patients, be cautious and follow the guidelines outlined by HIPAA and your state's specific guidelines. If a family member requests dental records for an adult patient, the dental practice must first verify the identity of the requester and determine if they are authorized to receive the information.

If the adult patient is not present to provide authorization to access records, HIPAA guidance states that a provider may release the records to a family member if:

• The patient has provided written authorization for the release of their PHI to the family member.

• The patient has designated the family member as their personal representative for health care decision-making purposes.

professionals have a legal and ethical obligation to protect the privacy of patients’ personal health information (PHI).

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• The family member has legal authority to act on behalf of the patient, such as a court-appointed guardian or power of attorney.

• If none of these conditions are met, the dental practice may be prohibited from releasing the patient's PHI to the family member, even if the patient is deceased.

Dental practices should also be cautious about releasing PHI to thirdparty requesters, such as insurance companies or attorneys, without the patient's authorization. HIPAA requires that health care providers obtain written authorization from the patient before disclosing their PHI to third-party requesters. Failure to obtain proper authorization can result in significant penalties and fines.

While dental offices may be allowed to charge a fee for providing records, Advice Line analysts caution using

discretion when doing so. In many situations, requesting a fee to access records may not be a good idea, since it will inflame any existing tension. It is also important to note that access to patient records may not be withheld due to an unpaid balance.

Reporting to the Dental Board

This particular Advice Line call also highlights another aspect of patient records: reporting adverse occurrences to the state dental board. Because the patient in question had required emergency care during a dental procedure, that information needed to be reported to the dental board. Providing the dental board with PHI related to the adverse occurrence is not a HIPAA violation.

According to TDIC’s Advice Line analysts, most state dental boards require licensees to report any adverse occurrences or events possibly related to dental treatment to their state licensing board. This includes the death of a patient following treatment. Failure to submit a report to the state licensing agency can result in discipline against a dentist’s license and potentially a finding of unprofessional conduct. Advice Line analysts suggest that if there is any question of whether an incident should be reported, it is best to file a report out of an abundance of caution.

Due to the profound consequences of failing to properly report adverse occurrences, TDIC strongly advises dentists to contact the Advice Line as soon as possible following an in-office emergency or death of a patient. (In some states, the period for reporting can

be as soon as 48 hours after the event.) Knowledgeable analysts will guide you through the appropriate steps of timely board reporting and will provide the necessary referral to an attorney versed in handling board matters.

When reporting the death of a patient, state dental boards generally require the following information:

• Dentist’s name and license number.

• Contact information (email, phone number and address).

• Date and time of the occurrence.

• Facility where occurrence took place.

• Name of patient, gender and medical history.

• Dental procedure involved and the duration of treatment prior to the incident.

• Type and dosage of all drugs and medications used in the procedure.

• A description of the occurrence and interventions.

• The condition of the patient pre-op and post-op.

TDIC offers a helpful reference guide specifically for reporting adverse events, the Adverse Occurrence Guide Policyholders can log in to their TDIC online account to access this tool and other helpful resources to prepare for, prevent and respond to potential risks.

Balancing Privacy and Access

Patient-record access is a complex issue that requires dental practices to balance the patient's right to

access their medical records with the need to protect their privacy and confidentiality. Establish office protocols for records release and train your staff to proceed with caution when releasing PHI to ensure that proper authorization is obtained before disclosing any information. If a family member requests dental records for an adult patient, carefully verify the identity of the requester and determine if they are authorized to receive the information.

Dental practices should also be cautious about releasing PHI to third-party requesters, such as insurance companies or attorneys, without the patient’s authorization.

Disgruntled Patients

When an angry patient manifests their feelings into threatening behavior such as yelling, cursing, stalking or even violence, practice owners must intervene. As employers, they are obligated to provide a safe working environment for their staff, one in

which employees are not fearful for their own safety. Caution should be taken to address threats to the well-being of staff and patients just as seriously as threats to the practice owner.

TDIC’s Advice Line has received an increasing number of calls about patients who are overly aggressive or display unreasonable anger toward dental providers and staff.

A Disgruntled-Patient Case Study

reminded her that they had terminated her care, the patient became belligerent and hung up the phone saying, “I’ll see you in court.”

Uncertain and fearful as to what to expect next, the office reached out to the Advice Line.

The call: The Advice Line received a phone call from a dentist in reference to managing an unhappy patient. This patient had a history of being difficult to deal with and generally unpleasant. After completing a root canal, the dentist reminded the patient of the additional steps needed to complete treatment on the tooth. The dentist believed that the patient already understood that the tooth would require a crown following the root canal, as he had other teeth that had undergone root canal therapy.

Upon learning about the need for additional treatment, the patient became verbally and physically threatening toward the dentist and her team. Staff members repeatedly asked the patient to leave, but she refused. The patient eventually left but loudly voiced her displeasure with profane statements.

After enduring several negative encounters with the patient, this was the final straw. The dentist decided to terminate the doctor-patient relationship. Two weeks after the dismissal letter was mailed, the patient called the office, demanding an appointment. When the office

The advice: The analyst agreed with the dentist’s decision for termination of care, particularly because of the patient’s abusive and threatening language and behavior. The analyst reminded the dentist of her obligation as an employer to provide a safe environment for staff, free of harassment and hostility. Because of this, the analyst advised the dentist that in this situation, regardless of the patient being mid-treatment, dismissal was the best approach.

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De-escalation and Mitigation

Some key communication strategies are important when dealing with angry or aggressive patients.

• Set boundaries. Have clear expectations of behavior for both patients and staff, along with planned responses for when anyone crosses those boundaries.

• Remain calm. Always respond with a professional demeanor.

• Be understanding and empathetic. Listening is an essential element of communication. Let upset patients know you are willing to hear them out. “Sometimes patients just want to be heard,” Senior Risk Management Analyst Taiba Solaiman explains. “Sit down with them privately and let them know you understand they are upset and that you are willing to listen to their concerns. A compassionate ear can go a long way in diffusing a tense situation.”

• Remember documentation. Just as you make careful notes regarding treatment in a patient’s chart, you should document any conflicts that arise with a patient. Document these interactions in an area separate from the clinical notes such as a journal or side note area.

• Know when to contact law enforcement. It may not be necessary to contact police when a patient is upset or confrontational. However, if a patient refuses to leave the office when asked to do so or engages in behavior including — but not limited to — harassing staff by calling repeatedly, making threats to show up at the office and do harm or physically interacting with anyone in the office, it is appropriate to call the police to intervene. (If you are not in immediate danger, it is advisable to seek guidance from the Advice Line when these situations arise.)

On the rare occasion anger escalates to aggression, be aware of your obligation to provide a safe working environment for your employees. Also be mindful of the anxiety you and your employees may experience after a traumatic event and provide supportive resources. Request law enforcement to help de-escalate the situation when needed and seek expert support from TDIC analysts to help with properly dismissing a patient from care.

Caution should be taken to address threats to the well-being of staff and patients just as seriously as threats to the practice owner.

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Termination of Employment

Employee termination is one of the most difficult tasks that any dental practice owner may have to face. However, there are times when

it becomes necessary to let go of an employee due to ethical or lawful reasons. While employment laws differ by state, Advice Line analysts guide

practice owners on the best path they should take when navigating this sensitive issue.

An Employee-Termination Case Study

without his knowledge or authorization. Considering the increasingly problematic behavior exhibited by the hygienist, the dentist felt it would be best to terminate her employment.

The call: After repeated safety violations, a practice owner informed a hygienist that her services would no longer be needed. When the former employee failed to pick up her final paycheck, the dentist reached out to the Risk Management Advice Line for assistance.

In this case, the dentist terminated the hygienist for repeatedly exposing the staff and providers to unnecessary radiation. The hygienist was deliberately taking radiographs in the presence of the dentist or other staff in the operatory. On one occasion, the office was short-staffed, and the dentist asked the hygienist to take radiographs on one of their patients as she had a few minutes to spare between her hygiene patients. She hastily initiated taking the radiographs while the dentist was still in the operatory, entering notes in the patient chart. The dentist tried to stop her. The disgruntled hygienist threw the X-ray holder on the instrument tray and stormed out of the operatory.

Unfortunately, this was a repeated behavior already addressed with the hygienist. As an added complication, the dentist had recently discovered that the hygienist had added her family to the group medical plan that the practice owner offered to qualifying employees,

After the hygienist’s last patient, the practice owner took her aside and told her he would no longer need her services and that her final paycheck would be ready for pickup the next day. The employee left the office in tears and did not show up the following day to pick up her check.

The dentist had decided to make deductions from the employee’s final pay to cover the unauthorized medical insurance premium she had received. Considering the various issues, the dentist reached out to the Advice Line for guidance on how to proceed prior to mailing the employee her check.

The advice: While the analyst agreed with the practice owner’s decision to terminate employment, they advised caution regarding the final check. The analyst noted that according to the employment laws within that state, an employee’s unpaid wages are due and payable to the employee immediately at discharge. The analyst advised the dentist against making any deductions. Instead, the analyst referred the dentist to a qualified employment law attorney to discuss how the dentist could be protected from wrongful-termination suit and gain compensation for the lost health care premium.

Employment Best Practices

It’s rare to meet an employer who has never had to terminate an employee. Know that there are steps you can take to ensure that employee termination is the exception in your practice, not the rule. The following best practices will also help to reduce the risk of bad hires and employment liability lawsuits.

Implement effective processes to find and hire quality employees. Creating a robust screening process is invaluable when it comes to searching ideal candidates. A carefully composed job description allows an employer to define their expectations, qualifications, necessary experience and education along with explaining key job functions. Not requiring the candidate to fill out a job application is a missed opportunity for filtering out potential bad hires, allowing you to collect information and the applicant’s signed approval for you to check their background and qualifications. When these filters are in place, you essentially refine your pool of candidates to avoid costly and timeconsuming hiring mistakes.

Invest in interviewing. After identifying candidates who can fulfill the duties of the job description and who have accurately portrayed their qualifications, an interview is the next step. Maintain consistency in the questions you ask other candidates applying for the same job as a basis for equitable comparison. It is advisable to ask for a copy of the candidate’s license (RDA, RDH, DDS) so you can verify that the license is in good standing with the state dental board. You can improve the odds of a “good hire” with

attention to details and mitigating risks during the interview process

manual that can be given to employees is a key step to documenting your compliance with federal, state and local employment regulations. An employee manual also simplifies the performance evaluation and corrective action process, as reference to performance — improved or needed — can be related back to your handbook and your established office policies. TDIC policyholders have access to downloadable sample employee handbooks specific to the state in which they practice.

An employee handbook is a crucial tool for communicating employment conditions and expectations. Minimize risk by documenting your practice’s employment policies within a handbook and making sure all employees are offered training on the practical implementation of and adherence to those policies. Certain employment laws require employers to notify employees of workplace rights in writing, so a well-developed

Performance evaluations should be routine. By conducting regular performance evaluations, dental practice owners can identify any issues with an employee's performance or behavior early on and address them before they escalate. Regular performance reviews establish the validity of employment decisions by creating a pattern of communication and documentation related to the employee. A well-defined job description can assist practice owners and managers as a reference when

Know that there are steps you can take to ensure that employee termination is the exception in your practice, not the rule.

providing performance feedback and, if needed, the development of a performance improvement plan.

Establish checks and balances. Within the setting of a dental practice, checks and balances ensure that no one person has absolute control over decisions, clearly define the assigned duties, and enforce cooperation in completing tasks. They help reduce mistakes and prevent improper behavior in organizations. In the case study cited previously, the terminated hygienist’s unauthorized use of health benefits could have been prevented by a regular check of the office’s plan by two or more employees.

Maintain personnel files. A personnel file is just as important as a patient chart. Documentation in a personnel file can provide important supportive data. For example, to show

an employee’s discipline history in support of a termination and any subsequent litigation. Include the employee’s signed acknowledgement that they have received, read and understood the employee handbook, as well as copies of performance reviews and improvement plans. It is essential to keep certain employee records and information in a confidential file, separate from the personnel file, such as their medical records, workers' compensation claims information, their I-9 form and background checks.

Ethical and Lawful Reasons for Termination

Employee termination can be a tricky and sensitive matter, but there are several ethical and lawful reasons for termination. The following are some of the most common reasons for employee termination:

• Poor performance or misconduct: Inferior performance can be a valid reason for termination if an employee consistently fails to meet the expectations of the dental practice owner as stated in the employee handbook. Misconduct, such as theft, harassment or discrimination, can also be grounds for termination.

• Violation of company policies: If an employee violates company policies, such as repeatedly showing up late for work or failing to follow safety procedures, this can be a reason for termination.

• Poor attendance or punctuality: Consistent absenteeism or tardiness can disrupt the workflow of a dental practice and can be a valid reason for termination.

• Loss of necessary qualifications: An employee losing the necessary qualifications to perform their job, such as losing their dental license, can be a valid reason for termination.

• Position elimination: If a dental practice owner needs to downsize or restructure their practice, they may need to eliminate certain positions, which may result in justified employee termination.

Steps to Ensure Appropriate Termination

When it comes to employee termination, dental practice owners must take certain steps to ensure that the process is handled appropriately. TDIC’s analysts urge practice owners facing challenging employment issues to contact them before initiating a termination. Advice Line analysts offer expertise and can assist you to complete the following steps:

• Provide documentation: Keep a record of any performance issues or policy violations, including any attempts to correct the behavior, in case of future legal action.

• Communicate clearly: Communicate the reason for termination clearly to the employee and make sure they understand why they are being terminated. If the employee was hired on an at-will basis, in the absence of a contract, both employee and employer are free to end employment at any time, so long as the decision is not based on any discriminatory issues or protected classes. Employers must be careful that their decision to terminate at will does not violate or appear to violate state or federal law. The termination should also be consistent with employee policies (including the Employee Handbook, if there is one), practices and any other implied or actual agreements.

• Be respectful: Terminating an employee can be a difficult and emotional experience for both parties. Show respect and compassion to the employee during the process.

• Provide final pay: You are legally obligated to provide the final paycheck to the terminated employee, including any unused vacation time or sick leave. The timing of final pay varies by state, so check your state’s employment laws to make sure you will comply.

• Collect company property: Collect any company property, such as keys or uniforms, from the terminated employee. Remember to disable the terminated employee’s passwords and email access and change alarm codes and locks to the office or building, if necessary.

Additionally, be sure to remove check-writing authorization if applicable and update your practice’s website to reflect the staffing change.

TDIC offers Employment Practices Liability Insurance (EPLI) to dental practice owners in several states. EPLI provides coverage for claims made by current or former employees, such as claims of discrimination, harassment or wrongful termination. This insurance can protect dental practice owners from the monetary impact of these types of claims, including legal fees and settlement costs.

Employee termination can be a difficult and sensitive matter, but there are times when it becomes necessary to preserve the safety, integrity and reputation of your practice.

Communicate the reason for termination clearly to the employee and make sure they understand why they are being terminated.

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