To tell or not to tell - Part 2

As health professionals, the need to notify our patients when things go wrong is both a legal and an ethical duty. It requires a factual and timely explanation of what happened, why it happened, an expression of apology/regret, and a discussion of options on management. As stated in the previous article, it is important to note that an explanation of the facts is different to, and certainly should not be, an admission of liability, the latter being statements made by the practitioner indicating direct acceptance of all responsibility for the adverse outcome which has occurred.

It is important to note that an explanation of the facts is different to, and certainly should not be, an admission of liability.

It is imperative to notify your Insurer immediately the incident becomes known to you and within the current policy year. Failing to do so may affect the indemnity extended to you by your Insurer, unnecessarily lengthen or complicate the settlement of a matter, or leave you with a large bill for out of pocket expenses.

The sooner a matter is notified the better, even if you feel that the patient has remained onside and the pursuit of a complaint is unlikely. We have numerous cases on file where there was a delay in notification, and what had begun as minor matters escalated to become more significant problems when the practitioner initially endeavoured to handle things unassisted. Had notification occurred right at the start, advice and support from DDAS (Dental Defence Advisory Service) and the Insurer would have been available to assist in decisive action being taken and the likelihood of a better and swifter outcome for both parties.

The case studies in this article were all matters notified to Guild Insurance in which the practitioners fulfilled their obligation to discuss with the patient when something had gone awry during treatment. They further illustrate that good management of such incidents can actually enhance the dentist/patient relationship, as well as avoid legal action being taken by the patient.

Case 1. Apicectomy Done On Wrong Tooth

A patient in his late forties was referred by a dentist to an oral surgeon for apicectomy of 11, an abutment on a bridge from 11-13. The tooth was tender to percussion and buccal palpation, and had a small buccal fistula. Upon examination, the surgeon informed the patient that he agreed with apicectomy being the only feasible treatment, since the preferred option of RCT was prohibited due to a post in the tooth. He advised that statistically an apicectomy was not a guarantee of success.

Three weeks later, an apicectomy was done to tooth 13 and a retrograde amalgam seal placed. A couple of weeks later, the patient returned for review and advised the surgeon that he had performed the apicectomy on the wrong tooth. After taking radiographs to confirm this, the surgeon immediately apologised and acknowledged responsibility and asked what the patient would like him to do. He most graciously replied that "we all make mistakes" and requested he fix the sore (correct) tooth. The surgeon agreed to do so and explained that 13 needed RCT and that both treatments would be carried out for no charge.

The 13 RCT and 11 apicectomy were completed over the next 6 weeks and at all times the patient was most pleasant. He kept all his appointments and at the end of treatment, there was no indication that he would pursue the matter further other than to return for scheduled periodic reviews. The case was closed some months later.

Case Comment:

If only all patients were this understanding. The surgeon did strike it lucky to encounter such a gracious patient, however, he was also a highly skilled and considerate practitioner who handled the incident in an admirable way and so remained on good terms with the patient. This case illustrates the distinction between negligence and incompetence, terms which are sometimes thought to be interrelated. Whilst the treatment of the wrong tooth would have been deemed "negligent", the practitioner was a highly competent surgeon and just as competent to perform oral surgery the next day as he was prior to the incident occurring.

Case 2. RCT Started On Wrong Tooth

Dr A rang and reported that a patient she had been treating for some time had presented with pain. Dr A had started RCT on tooth 14 which was the wrong tooth. The source of the pain was subsequently found to be tooth 15. Dr A has offered to do the RCT on tooth 14 for no charge and to charge the normal fee for the RCT of tooth 15. She had initially felt that the patient would accept this offer but at the time of her call to DDAS, Dr A was starting to suspect that the patient would allow her to do the work and then lodge a formal complaint.

Upon discussion with Dr A, it was suggested that as a genuine mistake had occurred, it might resolve the matter if the patient was offered a referral to an endodontist for RCT treatment of both teeth, with the patient then to be referred back to Dr A for placement of crowns. She was asked to forward documentation about the case to DDAS so that the matter could be officially logged with Dr A's insurer and further advice provided.

Nothing further was heard from Dr A. An update sought a year down the track revealed that she had not heard again from the patient and believed he had decided to attend another dentist closer to home. No action from the patient was anticipated.

Case Comment:

In a matter like this where the error could be considered prima facie negligence, it is necessary to make every attempt to amicably resolve the case as soon as possible, and via provision of the ideal treatment, to minimise the likelihood of a large claim being pursued.

Case 3. Wrong Antibiotics Issued

A new patient with a complicated medical history presented for extraction of a painful tooth. She had recently had a cisternoperitoneal shunt placed. Neither the patient nor the dentist were certain of the need for antibiotic cover, however the dentist decided to carry out the treatment under prophylaxis as a precaution. The patient was allergic to penicillin so 600mg clindamycin was issued one hour prior to the extraction which proceeded uneventfully. Prior to the patient's next appointment 5 weeks later, the dentist spoke to the patient's surgeon who confirmed the need for antibiotic cover for all procedures involving local anaesthetic.

Another 6 years passed during which time the patient continued to have clindamycin prophylaxis as needed (once every year or two). It was normal practice that such antibiotics were issued pre-operatively to patients at the surgery on the day of treatment. At the dentist's instruction, the nurse would retrieve them from the medication cupboard and set them out for the patient. At one such appointment, the dentist told the nurse not to get the antibiotics out this time as he would get them himself after first checking the patient's current medications. Having confirmed that there was no contraindication to proceeding with the usual antibiotic regimen, the dentist issued 2g amoxicillin to the patient who took them and left the treatment room to make an appointment for her husband.

A minute later, as the dentist was writing up the patient's card, the nurse reentered the room and realised that the patient had been given penicillin to which she was allergic. The dentist immediately asked the patient to return to the treatment room and very apologetically informed her of the error. The patient's previous response to penicillin had been an anaphylactic reaction as a child which had resulted in cessation of her breathing in the ambulance. The dentist took the patient to the bathroom with the intention of having her vomit up the capsules to lessen the absorption. When this was unsuccessful, the patient's GMP was contacted and at his instruction, the patient was immediately taken to his rooms for administration of oxygen and intramuscular adrenaline. Whilst she was there, the patient was aware of tingling in her lips and puffiness in her face and was subsequently taken to hospital when she started to feel some constriction. Fortunately no anaphylaxis or bronchospasm ensued and the patient was treated then released from hospital without further complications 4 hours later. The dentist followed up with the patient several times by phone during the next week.

Due to the dentist's caring management before, during and after the event, the patient and dentist remained on very good terms. The patient declined the dentist's offer to cover the medical fees incurred and she and her husband have remained faithful patients of the practice.

Case Comment:

An error occurred on this occasion because this normally highly conscientious dentist failed to follow his usual procedure of enquiring about allergies before issuing any medication, whether it be antibiotics, painkillers or a prescription. He also overlooked the "Allergy" warning written in red on the patient's card. The alertness of the nurse, the immediate admission of the mistake to the patient, and the quick corrective action by the dentist all combined to avert a potentially serious and life-threatening situation. Apart from being more vigilant in following his procedures, the dentist now ensures his nurse routinely double checks when any medications are administered.

Case 4. Fractured Alveolus During Extraction

In this case the patient was referred to general practitioner Dr B by a local dentist for extraction of his abscessed tooth 43 under general anaesthetic.

The surgery was performed two weeks later at the local hospital. During the extraction, Dr B placed the forceps on the 43 root, applied some rotational movement and heard a loud bang. The alveolar ridge had fractured from 43 to 41, loosening teeth 41 and 42. 43 was removed and the loose section of ridge was sutured with black silk. The patient was informed of the outcome upon his recovery from the general anaesthetic and advised to attend Dr B's rooms the following day for follow-up care. At that appointment, further explanation was given as to the suspected cause of the fracture (bone sclerosis/ankylosis) and teeth 41, 42 and 44 were splinted with composite resin.

The sutures were removed one week later, and two weeks after that, the splint was removed and the teeth scaled and fluoride applied. At this appointment, the patient reported considerable pain from his left TMJ. Two weeks on, the pain had spread down the left side of the face and along the jaw with swelling around the left TMJ/ parotid region. Analgesics were required at night for pain relief. Dr B was unsure as to whether the symptoms were due to the occlusion affecting the TMJ (there were no molars on the left side) or perhaps arising from the parotid gland. She prescribed anti-inflammatories and antibiotics and referred the patient for an OPG and consultation with an oral surgeon.

When the patient presented to the specialist one month later, the medication had resolved the swelling but there was still pain in the left TMJ, and on palpation of the left masseter and temporal muscles. Oral opening was limited although it had always been somewhat restricted the patient said, and 41 and 42 were in premature contact. Both teeth were firm. The specialist concluded the pain was TMJ in origin (the patient also had a very heavy overbite) and prescribed muscle relaxants and referred the patient back to Dr B for easing of 41 and 42.

Three weeks later the symptoms had lessened significantly and mouth opening was improved. The patient admitted to considerable stress at work which had not helped the muscle pain, and he was advised to look at what he could do to minimise that. Some further occlusal adjustment was required on 41 and at this point (4 months postoperative), the patient opted to return to his original referring dentist for all ongoing treatments, with the explanation that other family members were under his care. All the patient's post-operative appointments with Dr B had been carried out for no charge as a gesture of goodwill and without admission of liability. Nine months after his final appointment with Dr B, she had not heard again from the patient.

Case Comment:

The alveolus fracture was a most unexpected outcome in this patient who had had numerous successful extractions previously. When the unusual happens, good recordkeeping and prompt specialist referral (when appropriate) become particularly important.

Key learnings:

• It bears repeating - honesty is the best policy! The patient's response may well be better than you fear.
• If something untoward occurs during treatment, inform the patient and assure him/her that you will work together to rectify the problem. You may wish to schedule a separate appointment to discuss the issues in detail - this will also allow you time to rethink the treatment plan, seek advice from colleagues if necessary, and prepare for your discussion with the patient.
• An honest and apologetic approach coupled with a willingness to assist the patient deal with the issues can greatly assist in defusing any negative emotions which the patient may initially express and avoid a claim being pursued.
• If remedial treatment is required, discuss the options of you carrying it out yourself (if you feel confident and competent to do so) or referral elsewhere. Leave it to the patient to decide which path to choose. It is desirable that cost be eliminated as a factor in this decision. Offers of financial assistance, when appropriate, often help minimise any friction with the patient.
• For your own protection, in other than simple situations, consult the DDAS or the relevant body in your state, for advice prior to making any such offers. It may be prudent to follow up your discussions with a letter to the patient. Of course you should document your management of the problem and all discussions with the patient in your records, and in a level of detail which is commensurate with the level of complexity of the incident.

The Dental Defence Advisory Service (DDAS) ADA NSW