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Encounter-Based Risk Management in Orthodontic Practice

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by Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA

Evaluating a series of 200 recent dental malpractice claims reveals a pattern of commissions and omissions that, if corrected, would eliminate the potential for a lawsuit. The problem exists with the dynamics of each patient encounter with the orthodontic practice. This includes telephone calls (which have been an aggravating and precipitating factor in many professional negligence actions), visits to the office, and interactions with staff including front and back office, financial, the orthodontist and any associates. An important component of the Encounter-Based Risk Management (EBRM) System involves the manner in which the encounter note is recorded. More specifically, that a note is recorded and the required sequential follow-up occurs.

As a background and foundation to developing effective orthodontic practice risk management, it is important to understand the reasons for losing a professional negligence lawsuit. The frequently cited reasons are: failure to diagnose; failure to treat; failure to respond; failure to refer; failure to follow-up; failure to inform; and supervised neglect.

The EBRM System eliminates these as bases for losing an orthodontic professional negligence malpractice action and by so doing, all but eliminates the initiation of the lawsuit. In my book, Managing Risk in Orthodontic Practice, the major lawsuit initiators are presented and discussed, including the two most frequently cited initiators – poor interpersonal relationships and second practitioner criticism – both of which are readily avoided by using the protocols and procedures described within. The EBRM System especially incorporated in conjunction with either a Risk Management Self Audit or Professional Audit enables the orthodontist to avoid the initiators as well as the bases for losing a lawsuit.

For example, the exam visit is arguably the most important visit from the patient’s perspective and should be from the practitioner’s perspective also. Far too little time is devoted to thinking about the comprehensive needs of this patient and how these needs will be satisfied.

At this first encounter, and throughout treatment, the EBRM System serves as an overlay to whatever manner of practice management is currently used. It is a simple, yet elegant and effective process that continually identifies and records any deviation from the normal or expected. These findings are observed, presented, discussed and treated or referred for treatment without significant additional time allocated.

A frequent and high-litigation value basis of negligence has been periodontal disease that becomes an issue during orthodontic care. Several recent cases address the need for tooth removal and either implants or bridges. Such malpractice actions are avoidable and result in large measure from the practitioner not following a set protocol during visits. EBRM provides a customized protocol structure and sequence that is suggested to avoid the “failures” referred to earlier. Importantly, with many treatment techniques, appointments are now eight to 12 weeks apart. Much can occur during that time period. The orthodontist does not have a margin of safety for failing to recognize a developing problem.

It is suggested that, with an EBRM System, each area which has been identified as a potential or real basis for a negligence action should be evaluated, recorded in the chart, communicated to the patient/parent, communicated via correspondence to all treating practitioners and the patient/parent, observed, treated and/or referred for care. At the next visit, the follow-up should be noted, whether the condition is resolved, other treatment planned or additional referrals made and the plan for the future recorded. All this is again communicated and sent in a correspondence. The EBRM System is an ongoing quality assurance overlay for each patient and insures an optimal treatment result. As such, the EBRM System serves the risk management needs of the orthodontist and the practice. The additional benefits include increased referrals and stress elimination. EBRM is a constant and repeating process of evaluation (based on a customized, formatted protocol), notation, communication, correspondence and follow-up until the condition is resolved.

The EBRM System’s power can be seen in part from its simplicity. No longer will the practitioner forget a key step. This is especially true in the care of patients where it means the most. Murphy’s Law instructs that when you need the data the most, it isn’t available. This is especially true for patients who need follow- up… it is usually lacking. With the encounter-based system, each patient visit is monitored for potential areas of risk, involvement of other referred practitioners, referrals needed, communication needed, correspondence to be sent, feedback to be received or given and follow-up to be scheduled.

With an understanding of what is expected and any deviation there from, EBRM seamlessly integrates the patient’s treatment needs, alerts the practitioner to the need for communication and directs the correspondence. The system also suggests the follow-up needed and controls the latitude to be given under any scenario to that which satisfies the standard of care.

A typical visit-by-visit encounter analysis follows for an orthodontic patient and an oral surgery patient, complete with an “emergency” aspect that could represent the potential trigger for a potential malpractice case and/or for a breakdown in the interpersonal relationship.

During the orthodontic practice risk management audit process, which each orthodontic practice should do or have professionally done, as reviewed in my book, Managing Risk in Orthodontic Practice, each possible patient encounter is analyzed. Emergencies are superimposed and potentially negative attitudes are simulated to better script the responses and make the outcomes predictable in a positive way. An example from an actual orthodontic professional negligence lawsuit is described below.

Example: A 14-year-old male patient arrives for his 3:30 p.m. check-and-adjust visit. His oral hygiene is poor, the upper archwire is bent, the lower left second bicuspid bracket is loose and the tooth has drifted lingually approximately 4mm. His overjet, currently at 5mm, has not improved over the last three visits, decalcifications are noted on his upper and lower incisors, gingivally, and the gingival tissues are all but covering the lower central incisor brackets. His mother is distraught that no progress seems to be occurring, he has been in treatment for 22 months and she would like to speak to you since she hasn’t heard a word about her son’s progress or spoken to you for months. The only feedback that she receives is the occasional “he’s doing fine” from the assistant of the day who never is the same from appointment to appointment, and when she asked her dentist who referred her, he indicated that he hasn’t heard anything about this patient since the original “thank you for referring” note. There are four patients in the reception room for their 3:30 p.m. appointments, all four treatment chairs are occupied, one with a missing molar band that needs to be replaced, the others will be finished shortly, and you are one chairside assistant short today since she went home sick after lunch.

This is an interesting scenario. Not unlike the typical office on occasion. Unfortunately, this scenario can be the basis of a lawsuit if not handled properly. The EBRM System never lets the situation arise. Imagine the stress level for the practitioner, the staff and the parent (Note: 14-year-old boys don’t feel stress, they are merely carriers).

There are many moving parts to this scenario and as the facts are reviewed, how to diffuse the situation will be presented as well as how to avoid the situation will be discussed.

Overlaying these facts on the framework of the seven main reasons for losing a lawsuit and the five main reasons for the initiation of a professional negligence lawsuit, the practitioner begins to develop a systematic approach to each issue and how better to handle it now and avoid it in the future. However, without the EBRM protocols and procedures in place, developed with the assistance of the practice audit, key aspects can be forgotten, overlooked, poorly handled, etc.

Dissecting the presentation, several aspects are revealed and discussed below. The analysis will not be complete, merely instructive as to how it could be viewed. Although all aspects are critical, focusing on several mission-critical aspects will be instructive.

Primary Concerns
Poor communication regarding several aspects of the patient’s treatment, behind schedule, poor oral hygiene, decalcifications, poor cooperation with elastic wear, possible missed diagnosis as to the overjet, poor cooperation as to the breakage, possible recognition of the breakage and tooth displacement and failure to call in, possible scheduling problems, etc. As a thought experiment, and from the perspective of a parent and then as a juror or judge, how would the practitioner handle assertions such as: failure to diagnose, failure to treat, failure to respond, failure to refer, failure to follow-up, failure to inform (by the way, failure to inform is an ongoing duty not merely at the treatment/ informed consent conference), etc. Many, if not all of these, could be implicated in this scenario.

The scenario could have included a “clicking,” “popping” or pain TM joint, root resorption (but how would the practitioner know, since he hasn’t taken a progress film), extraction space closure difficulty, and the list could go on.

The actual manner in which this scenario was “handled” is not unusual, although frequently problematic, as in this case. The practitioner told the mother that her son wasn’t cooperating in almost every way: brushing, cleaning, wearing elastics, refraining from eating hard foods, advising of loose brackets, etc. He informed the mother that he was too busy at 3:30 p.m. to speak with her about the problem now since there were several patients waiting for treatment, and since a loose bracket was involved, a separate appointment would be needed to repair it and place a thinner archwire to recover the tooth that had moved.

The mother had taken off of work early to pick up her son and bring him to the appointment and now she would need to take off more time. She hadn’t received the answers to her questions and was very upset. She raised her displeasure and her voice and the practitioner became defensive indicating again that it was her son’s “fault” not the practitioner’s. The situation escalated and the conversation became louder and other parents and patients overheard the unflattering display.

Mother and son left without making another appointment. Several weeks later, the practitioner received a request for the records. The study models, photos, ceph and pan were sent along with a treatment chart of average to below average legibility and minimum depth of detail. Several months later, a sheriff in full uniform appeared in the reception room (also during the rush of the afternoon appointment) and served the practitioner with a malpractice lawsuit notice.

How to Better Handle the Situation
A lawsuit, from start to finish, takes three to seven years. The practitioner might spend hundreds of hours answering interrogatories, depositions, interviews and discussions with counsel and insurance company representatives, and countless hours thinking and reviewing the scenarios that lead to the lawsuit. With this background, and understanding that everyone, from time to time, says and does things that they regret, the advantage of “scripted” scenario responses and “rehearsed or prepared” protocols can be a lifesaver. For example, karate schools repeat sequences over and over until they become second nature, for the precise situation of surprise that can occur in the setting described.

The preferred response, notwithstanding the other factors including a busy office, short staff, problem situation, is to understand that the priority under these facts is and must be that parent! Apologies to the other patients and parents with a brief explanation about the emergency that will cause a delay relieves the stress of the moment. The small amount of time needed to both talk to the parent and replace the bracket, perhaps 30 minutes or so of combined assistant and practitioner time, would likely avoid what could turn into a long and drawn-out process. That is not to say that the practitioner would not prevail in the end, but at what cost. Also, the plaintiff might win, which would lead to a cascading list of effects. All these are avoidable.

With the script clear, inviting the mother into the consultation room or private office to discuss her concerns is the key component of allowing the situation to resolve. Allowing the parent to express her thoughts and feelings without defensiveness and without interruption is critical. When she is finished, a careful review with her of the treatment, progress, remaining needs and the promise to communicate regularly is essentially what parents want and are satisfied and elated that the encounter was resolved so well.

Interviews and surveys of parents of orthodontic patients who for one reason or another were dissatisfied with one or more aspects of their child’s care have revealed several key points that each practitioner should consider as required for positive interactions. They include:
  • Regular and specific communication about the progress of treatment.
  • Immediate communication concerning problems with cooperation and treatment.
  • Communication about the plan of action in the case of cooperation or treatment problems.
  • Communication about the success or absence thereof of any remedial measures.
  • Consultation prior to deciding when treatment is completed.
Some or all of these aspects may seem burdensome and/or unnecessary to the practitioner. A paradigm shift may be needed for the practitioner to understand the complex dynamics of the relationship and view the series of encounters from the perspective of the patient/parent. Once this “refocusing” takes place, the practitioner has an “AHA” moment and begins to appreciate that what may seem burdensome and unnecessary is really minimal in nature and elegantly simple yet powerful in improving the quality of patient care, optimizing patient satisfaction, eliminating negative patient comments, increasing referrals and eliminating malpractice lawsuits.

When considering the benefits, the small incremental time involved, once the system is in place, is trivial compared with the benefits to everyone involved… practitioner, staff, patient/ parent, etc. Not only is it the best way, it is the only professional way to ensure consistent, predictable and excellent results with treatment and interpersonal relationships.

How to Avoid the Situation Entirely
Many additional procedures and protocols for a stress-free, professional, patient-centered, litigation-free, quality practice are sequentially and chronologically presented in my book and can be implemented into any orthodontic practice. The process is straightforward. However, to achieve the desired optimal results, the orthodontist is encouraged to perform their own risk management practice audit or have it done professionally. The information obtained is important and necessary as a foundation for implementing the EBRM System and also to obtain a picture of how the practice can be optimized to provide optimal patient care, increase referrals, eliminate stress and eliminate lawsuits.

Avoiding the unpleasant and difficult situation described above as well as all other potential practice damaging scenarios begins with the first encounter. The EBRM System working as an overlay in an optimized practice facilitates the relaxed manner that leads to developing an easy rapport as the foundation for the each practice relationship. This continues with the informed consent/ treatment consultation wherein a framework for communication about each visit, the various milestones and deviations from a smooth treatment progress are discussed. The expectations for cooperation and the obligation of communication on a regular and continuing basis are acknowledged and a discussion of the manner of these communications is presented.

It is important to repeat that with many current treatment systems, patients may be seen at eight-to-12-week intervals. Much can happen in that time frame. Each appointment must be carefully planned and the expectations carefully checked against the patient presentation, or treatment can be extended significantly with all the attending problems.

A systematic approach to evaluating the patient at each visit should be utilized to ensure conformity with plan. Documenting deficiencies and communicating problems from the plan of action is a minimum. Several key components include the major areas considered important by patients and parents in the interviews and surveys, but include approximate time left in treatment, any problems noted, what was done today, next appointment what will be done, barring emergencies, areas of improvement needed, mini-consult suggested, etc. If the parent is present, a brief visit with him/her explaining the notes and perhaps attached digital image is of great value. However, even more so, is when the parent is not present. Such a communication, whether via mail or email, is vital and all but eliminates the endless stream of telephone calls requesting information about “what occurred today” and “when will treatment be completed.”

Each practitioner must decide for him or herself whether to expend the time and effort to collect and analyze the practice forms, correspondence, protocols and procedures as well as other data and then implement solid risk management procedures and protocols or continue to practice as in the past. The benefits from such an audit are incalculable. However, it only takes one malpractice lawsuit to derail the practice. If you or someone you know has had the experience of a lawsuit, or if you have read an accounting of the horrible details the defendant orthodontist experiences, the choice is clear. Also, consider some of these ancillary ramifications:
  • You will likely lose the referral source and today they are hard to replace.
  • The negative and adverse patients comments are painful and harmful to the practice and staff.
  • The loss of self-esteem and resultant second-guessing reduce the pleasure of practicing.
  • Future staff and patient relations are frequently strained and distant.
Interviews and discussions with the lawyers for the plaintiff and defendant practitioner, the experts for both sides and the defendant doctor have offered significant insight into this and the other scenarios presented in this book. The common denominator is illustrative and informative, yet the overriding theme is simple in its elegance. Specifically, the majority of negative patient comments and professional negligence lawsuits are avoidable and are not initiated by poor treatment outcomes. The initiating factors are poor interpersonal relationships and second practitioner criticisms. Again, both are avoidable most particularly by following the concepts suggested. Implementing these protocols and procedures eliminates these factors and the cascade of snowballing effects that can ruin an otherwise excellent practice.

The overriding benefit of implementing the EBRM System overlay after performing a practice risk management audit is optimal patient care with predictable and consistent results. From this, so many other benefits are derived including: a stress-free practice environment, low staff turnover, increased referrals from current and new referral sources including physicians, increased market share, increased self-esteem and self-confidence, genuinely-warm interpersonal interactions, no negative patient experiences or comments and elimination of professional negligence lawsuits.
Author’s Bio
Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA, is the recognized authority on risk management in orthodontic practice having initiated the discipline in the mid-1980s. He developed, moderated and presented at the AAO’s first national risk management telecast to more than 2,600 orthodontists. He has represented orthodontists, dental specialists, general dentists and physicians in malpractice lawsuits and other legal matters as a trial lawyer and currently is a trial court judge in Pennsylvania having served for more than 14 years. He is a board certified orthodontist maintaining a part-time practice and is on the orthodontic faculty of Case Western University Dental School and The University of Pittsburgh School of Dental Medicine. He is also an Adjunct Professor of Law at Duquesne University School of Law where he teaches malpractice litigation. He lectures extensively to orthodontic groups, both large and small, focusing on developing highly effective systems for eliminating lawsuits, optimizing patient care and increasing practice referrals. Dr. Machen is the author of Managing Risk in Orthodontic Practice and is managing director of Risk Management Consultants, LLC. He can be contacted at: drmachen@orthormc.com.
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