Law and Risk Management in Dental Practice
By
Burton R. Pollack, DDS, MPH, JD
Course Outline
This book presents all the information practicing dentists need to know to protect themselves, their employees, and their practice in the US judicial system. The reader will learn the proper way to take medical and dental histories, keep patient records, and employ risk management techniques. The text also provides helpful pointers regarding what to do (and what not to do) when sued and how to behave during depositions and while giving testimony in court. Also covered are topics such as contract law; informed consent and informed refusal; the difference between negligence, malpractice, and breach of contract; standards of care; and transfer of liability. Recommended reading for all dental practitioners.
About the Author
Burton R. Pollack, DDS, MPH, JD served for 30 years on the faculty of the University of Maryland dental school. He is currently a professor of health law at the School of Dental Medicine at Stony Brook; he served as dean of the school form 1993 to 1998. A popular lecturer and leader in dental law and risk management worldwide, Dr. Pollack conducts continuing education programs in law for dental professionals and serves as a legal/dental consultant. Dr. Pollack is founder of the National Society of Dental Practitioners, the author of numerous articles and book chapters in the field of dental law and risk management, and co-editor of the book Dental Jurisprudence and Risk Management (PSG, 1987).
Learning Objectives
After completing this course you’ll be able to:
- Compare upper and lower courts.
- Describe black letter law.
- Compare criminal and civil law.
- Discuss several legal terms in written law.
- Discuss caveats in the regulation of dental practice.
- Describe the Dental Practice Act.
- Describe how hospitals and health centers regulate the practice of dentistry.
- List several items used to maintain infection control.
- Describe the three parts of a contract.
- Define an adhesion contract.
- Define exculpatory clauses.
- Compare negligence and malpractice.
- Define the occurrence rule and the discovery rule.
- Define statute of repose.
- Discuss the need for experts when a dentist is tried for malpractice.
- Compare the community practitioner standard and the locality rule.
- Discuss the question, “Is there a national standard of care?”
- Define vicarious liability.
- Discuss the three forms of associate practice.
- Discuss the question, “Is a referring or absent dentist liable for the negligent acts of the specialist or substitute?”
- Discuss antidiscrimination legislation.
- Discuss the role of the Occupational Safety and Health Administration.
- Discuss accommodation and discrimination.
- Discuss the legal history of obtaining consent.
- Compare the professional community standard and the reasonable person standard.
- Discuss the Good Samaritan law.
- State the elements needed for a consent to be valid.
- Define abandonment.
- List reasons dentists may terminate treatment before it is complete.
- Discuss common areas in history taking.
- Describe the three steps to completing a health history.
- Describe faulty forms.
- Discuss who owns the patient’s records.
- State how long treatment records should be kept.
- Define spoliation.
- Discuss the transfer of records when a practice is sold.
- Discuss the appointment book.
- Discuss hearsay.
- Define res ipsa loquitur.
- Describe a verified bill of particulars.
- Discuss the examination before trial.
- State what to do and not to do if sued.
- Describe the role of a fact witness.
- Compare a fact witness and expert witness.
- Discuss disciplinary proceedings against dentists.
- Discuss risk management.
- Define the levels of legal risk.
- State the final admonition.
- Discuss the amount of coverage and the limits.
- State additional coverage to consider.
Course Contents
1.1 The Court System
1.2 Common Law, Case Law, and Black Letter Law
1.3 Criminal and Civil Law
1.4 Legal Precedents, Stare Decisis, and Appeals
1.5 Flexibility in Law
1.6 Legal Terms
1.7 Special Characteristics of the Law
1.8 Legal Research: How to Find a Case
1.9 Case Citations
1.10 A Sample Case Report
2.1 History
2.2 Caveats in the Regulation of Dental Practice
2.3 Regulation by the State: The Dental Practice Act
2.4 Regulation of Dental Practice in New York
2.5 Other Laws that Affect Dental Practice in New York
2.6 How to Find the Law
2.7 Regulation by Hospitals and Health Centers
2.8 Regulation by Third-Party Payers
2.9 OSHA and Infection Control
2.10 Americans with Disabilities Act
2.11 National Practitioners Data Bank
2.12 Internet Access to Information About Dentists
2.13 Dental Jurisprudence
3.1 What Is a Contract and Why Is it Important to Dentists?
3.2 Offer and Acceptance
3.3 Consideration
3.4 Contracting Parties Must be of Sound Mind
3.5 Adhesion Contracts
3.6 Must the Contract Be in Writing?
3.7 Minors and Contract Law
3.8 Implied-in-Fact Contracts
3.9 Implied-in-Law Contracts
3.10 Exculpatory Causes
3.11 When Does the Dentist-Patient Contract Begin?
3.12 Terms of the Agreement
3.13 Breach of the Terms of the Agreement
3.14 When does the Dentist-Patient Relationship End?
4.1 Background
4.2 Breach of Contract
4.3 Negligence and Malpractice
4.4 Errors in Judgment
4.5 Summary
5.1 Statute of Limitations
5.2 Statute of Repose
5.3 Some Examples
6.1 Avoiding Confusion Regarding “Standards”
6.2 Need for Experts
6.3 Cases in Which Experts Are Not Required
6.4 Cases in Which Experts Are Required
6.5 Case Law and the Standard of Care
6.6 Community Standard
6.7 Reasonable Prudent Practitioner Standard
6.8 Locality Rule
6.9 National Standard of Care: Is There One?
6.10 Inference Testimony
6.11 Summary
7.1 Definitions and Applications
7.2 Applications of Dental Practice
7.3 Summary
8.1 Freedom to Refuse to Treat
8.2 The First Limit: Protection of People of Color from Discrimination
8.3 The Second Limit: Protection of People with AIDS and Other Infectious Diseases
8.4 Summary on the Limitation of Dentists’ Right to Restrict Their Practices
8.5 Courts Define Discrimination
8.6 Employees and the Treatment of AIDS Patients
8.7 Employees Who Have AIDS or Are HIV-positive
8.8 Other Problems Related to AIDS
9.1 Background: Consent
9.2 Legal History of the Need to Obtain Consent
9.3 Is Lack of Consent Assault and Battery or Negligence?
9.4 It Must Be Informed
9.5 Black Letter Law on Consent
9.4 Consent Implied by Law: Emergencies
9.6 Minors and Consent
9.7 Telephone Consent
9.8 Exculpatory Terms
9.9 Who May Obtain Consent
9.10 Is a Written Consent Necessary?
9.11 Summary of the Elements Needed for a Consent to Be Valid
9.12 Informed Refusal: a New Caution
10.1 Abandonment
10.2 Dismissal of a Patient from the Practice
11.1 Courts and the Health History
11.2 Common Errors in History Taking
11.3 The Problem
11.4 Matter of Documentation
11.5 The Process
11.6 The Form
11.7 Faulty Forms
11.9 Health-Related Questions
11.10 History Updates
11.11 Drug and Medication Log
11.12 Summary Guide in History Taking
12.1 Why Keep Patient Treatment Records?
12.2 A Brief History of Dental Records
12.3 Ownership
12.4 Purpose and Contents of the Treatment Record
12.5 Retention of Treatment Records
12.6 Confidentiality
12.7 Signatures on Treatment Records
12.8 Spoliation of Records
12.9 Records at the Trial
12.10 Advice to Employee-Dentists and Those Selling a Practice
12.11 Computer Records
12.12 Appointment Book
12.13 Drug and Medication Log
12.14 Summary
13.1 Introduction
13.2 Courts and Their Jurisdiction—A Brief Review
13.3 Hearsay Testimony and Evidence
13.4 Res Ipsa Loquitor
13.5 Contributory and Comparative Negligence
13.6 Trial
13.7 Trial Procedure
13.8 Settlements
13.9 Appeals
14.1 What to Do If You Are Sued
14.2 What Not to Do If You Are Sued
14.3 Some Additional Don’ts
14.4 Dentist As Witness
14.5 Background
14.6 Are You Required to Appear in Court?
14.7 Dentist As Nonparty (Fact) Witness
14.8 Fee for Appearance
14.9 Dentist As Expert Witness
14.10 Expert’s Fee
14.11 Forensic Odontology
16.1 Jury Trials: Background
16.2 Disciplinary Cases: Background
17.1 Background
17.2 Introduction to Risk Management
17.3 An Admonition
17.4 Levels of Legal Risk: Informed Decision Making
17.5 Loss Without Fault
17.6 Data on Malpractice Suits Brought Against Dentists
17.7 Dentists’ Legal Risk Exposure
17.8 Stages in Risk Management
17.9 Legal Claims
17.10 General Problems
17.11 Why Dentists Get Sued When There Is No Fault
17.12 Consent
17.13 Office Records
17.14 Employees
17.15 Associates
17.16 Insurance
17.17 Referrals
17.18 Patients
17.19 Health History
17.20 Miscellaneous
17.21 Final Advice
18.1 Office Equipment
18.2 Emergency Preparedness
18.3 Infection Control and Use of Barrier Techniques
18.4 Treatment Procedures
18.5 Treatment of Minors
18.6 Following up on Treatment
18.7 Availability
18.8 Patient Complaints
18.9 Noncompliant Patients
18.10 Dropping Patients from the Practice
18.11 Financial Issues
18.12 Records
18.13 Health Histories
18.14 History Updates
18.15 Consent
18.16 Waivers and Authorizations
18.17 Appointment Logs
18.18 Recalls
18.19 Medications and Prescriptions
18.20 Employees
18.21 Hiring Policies and Associate Practice
18.22 Professional Liability Insurance and Notice of Suit
18.23 Final Admonition
19.1 Glossary of Terms
19.2 Introduction
19.3 General Rule of Construction
19.4 Policy Application and Declaration Page
19.5 Amount of Coverage
19.6 Insuring Agreement: Who Is Insured?
19.7 Insuring Agreement: The Basic Provisions
19.8 Occurrence Form
19.9 Claims-Made Form
19.10 Notice Requirements
19.11 Cooperation Clause
19.12 Subrogation
19.13 Defense and Settlement
19.14 Exclusions
19.15 Other Insurance Clauses
19.16 Additional Coverage to Consider