Dento-legal Medicine

Abstract

Dento-legal medicine concerns both medical and dental practitioners in that they both have a duty of care to a patient to provide appropriate examination, investigation, diagnosis and treatment, or referral to a specialist, of oral conditions. All health-care professionals must take a comprehensive medical/dental history and keep complete and accurate records. They must provide this service at a minimum standard as would be expected by the average well-trained practitioner and as decided by the relevant medical or dental board. In the case of a medical practitioner, he/she would be expected to know the basic structures of the oral cavity, how normal (healthy) structures should appear, and to recognize abnormality. If the abnormality is of the dentition (teeth) or periodontium (gums), then immediate referral to a GP dentist is appropriate. If the abnormality is with the soft tissues (including tongue and cheeks), then a specialist oral surgeon or oral pathologist should be consulted. A doctor must be aware of and warn the patient of any oral side effects of a diagnosed systemic condition (e.g., diabetes) or medications prescribed (e.g., antidepressants). A dentist must take a thorough medical history (including all medications) and refer to or consult with an appropriate medical practitioner, particularly where he/she suspects oral side effects of medical treatments or medications. A dentist must be aware of the oral signs of common systemic medical conditions and refer to the patient’s managing GP with an appropriate covering letter of referral. The dentist has a duty of care to follow up the patient’s medical management after referral. The dentist has a duty of care to refer all oral pathology where diagnosis or treatment is not within his/her capability/training, to the appropriate dental specialist. A dentist must keep sufficient records (including OPG X-ray) to enable forensic or criminal identification. All health-care professionals may be called upon to provide a medicolegal report and need to be familiar with the process.

Appendices

Appendix A

Model Privacy Policy (Suggested Text)

Courtesy of DPL Australia Pty Ltd (DPLA) a part of the Medical Protection Society (MPS) group of companies

In this practice, we want to provide you with the best possible care and treatment. To help us to do this, we need to find out more about you, about your general health (including any medication you might be taking), and about your concerns and preferences.

Every time we see you, we make notes relating to your consultations and treatment here, which include dates and details of any discussions we have with you and of treatment provided. There may be exchanges of correspondence between this practice and other health-care professionals involved in your care and treatment. Our administration staff will also keep financial records relating to our professional fees for services you receive from us. Where necessary, this further information might need to be shared with people outside the practice to assist the practice with fee collection.

We collect this information, and we keep it safely in confidential records within the practice. At this practice, we keep some of these records on paper and others on a computer (delete or amend as appropriate). Your records include any X-rays we might take for you, any special reports we might request (e.g., from a specialist), and correspondence with specialists and other third parties relating to your care and treatment.

In order to safeguard your interests, we recognize our responsibility to treat all this information as confidential and to respect your privacy and your right to know what information we are holding, who might see it (and under what circumstances), and what we use it for. Within this practice, we have a privacy policy which is as follows:

• 1. Information such as your name and address is used when we need to write to you about your treatment or to process accounts or for other administrative purposes relating to the treatment you receive here. It may be seen or used by members of our practice staff, or by third parties who assist or advise the practice, but only for the above purposes.

• 2. Information about your health and other information of a personal nature may be shared or disclosed with other health-care professionals where we believe this is necessary for reasons connected with your treatment.

• 3. Every effort is made to keep your personal and health information up to date. You can help us by letting us know of any changes in your personal details (name, address, etc.) or health/medication.

• 4. Various precautions are taken to keep your records safe, secure, and confidential while they are stored here. We would be happy to explain these to you upon request.

• 5. You can ask to see the records we hold about you, and other people can make such a request on your behalf, with your prior agreement. We will do our best to explain any parts of your record and to help you to understand what they mean.

• 6. If, upon seeing your record, you think that any of the information is incorrect or inaccurate, you can ask us to change it.

• 7. Although all the records we keep about you (including X-rays) remain the property of the practice at all times, you do have a right to request a copy of any part of or all of your records. There is a formal process for this, which will be explained to you at the time your request is made.

• 8. A fee may be payable in several of the situations at (5), (6), and (7) above. This fee might vary according to the amount of time/administration involved in dealing with your request.

• 9. There may be certain situations where we might be required to release information about you, your health, and your treatment, such as emergency situations, or to satisfy legal or contractual requirements (e.g., if any of your treatment is being provided through a health fund).

• 10. Case studies, lectures, and professional meetings form an important part of the ongoing training and development of dentists and practice staff, for the ultimate benefit of all the patients we treat. Steps are taken to ensure that the identity of any patient whose records might for used for this purpose is not revealed outside the practice.

If you have any questions about the way we keep and use your personal and health information and records, please feel welcome to ask us. Further information on your rights under national privacy legislation is available from the Office of the Federal Privacy Commissioner. www.privacy.gov.au/aboutus/contact

Appendix B

Annexure 1

Summary of Record Keeping

• 1. Clinical records are an essential part of good clinical practice and good practice management. They are now covered by federal legislation in the form of the Privacy Act.

• 2. Dentists and staff alike must understand the legal significance and importance of records and realize the serious problems that can arise from a casual approach to records and record keeping.

• 3. Even the best clinical records are of little use without an effective filing system and organization, and even this will not solve your problems unless everybody follows the rules.

• 4. Clinical notes should, as a general rule, never leave the practice premises. This could violate NPP4 (Data Security) unless special precautions are taken.

• 5. Clinical records are confidential, but dentists and staff should appreciate the significance of the new Privacy Legislation. The dentist is the “holder” of the record, and only the dentist should ever give a patient access to their dental records.

• 6. The original records and X-rays are the property of the practice and should never be released direct to a patient. They may be provided on request to a protection organization such as DPL, or to DPL’s lawyers, who may then copy the records and X-rays, keeping the originals safe. Whenever you forward original record cards or X-rays to DPL or anyone else, always use a secure form of recorded delivery for this and/or request a written acknowledgement of delivery. Requests for copies of the records may be received from patients, a child’s parents, the patient’s solicitors, and occasionally even the police – see (8) below.

• 7. In certain health funds, records (the originals) must be provided to the fund on request, for audit purposes. Always take copies of records before releasing the originals to anyone.

• 8. In some States, there is additional, directly related legislation which places further obligations upon clinicians. In Victoria, for example, the Health Rights Act imposes a specific requirement for dentists to keep clear, accurate, and up-to-date information about their patients and the treatment they receive.

• 9. Poor or inadequate record keeping is no longer a private matter or simply an ethical/performance issue; a dentist can face triple jeopardy because he/she can face challenge, investigation, and statutory fines from the Health Services Commissioner (or equivalent agency in certain states and territories), as well as the Federal Privacy Commissioner. Additionally, the Dental Practice Board in Victoria published a policy on standards for clinical record keeping (Dental Board Bulletin, May 1998, issue 1/98) which will be the point of reference in any investigation before the Dental Board which involves clinical record keeping. Similar guidance will have precisely the same effect in one or two other states.

• 10. If in doubt about any circumstances when the release of records has been requested, contact ADA for advice.

Annexure 2

Common oral side effects of drugs

• Reduced resting salivary flow

  • Dental caries

  • Dental erosion and tooth wear

  • Cervical dentinal hypersensitivity

• Oral mucosal lesions

• Oral pigmentations

  • Tetracyclines

  • Anti-retrovirals

• Tooth discolouration

  • Tetracyclines

• Gingival enlargement

  • Calcium channel blockers

  • Phenytoin

  • Cyclosporin

• Reflux

  • Dental erosion and tooth wear

• Tardive dyskinesia

• Burning mouth syndrome

• Taste dysfunction

• Sugar-containing medicines

  • Dental caries

Medications with hyposalivatory effects

• Narcotic analgesics

• Anti-convulsants

• Anti-emetics

• Anti-nauseants

• Anti-Parkinsonian agents

• Anti-psychotics

• Anti-depressants (TCA)

• Diuretics

• Monoamine oxidase inhibitors

• Anti-pruritics

• Anti-histamines

• Anti-hypertensives

• Anti-spasmodics

• Systemic bronchodilators

• Skeletal muscle relaxants

• Cardiac anti-arrhythmics

• Anxiolytics

• Expectorants

• Decongestants

• Tranquillisers

• Sedatives

• Anti-neoplastic agents.

Annexure 3

Dento-legal Considerations in Implant Treatment

Trying to understand the legal system can be similar to trying to decipher a foreign language. Ignorance of the legal requirements for dentistry, and specifically dental implants, unnecessarily exposes today’s dental practitioner to malpractice suits that are very costly to defend – both financially and emotionally.

Nearly every Oral Surgery and Periodontology text published since 1995 contains some discussion of dental implants. Solicitors representing patients who have suffered iatrogenic tooth loss have embraced implants because they have been accepted in many cases as the best alternative for subsequent retreatment involving tooth replacement. The wealth of dental literature supports implants as a well-established form of long-term dental restoration, as reliable as bridges and preferable to removable appliances.

Duty of Care

A dentist has a duty to obtain the informed consent of a patient before providing or declining to provide treatment. Informed consent can be simply defined as a process of education and communication that enhances the dentist-patient relationship and prepares the patient for the potential of a less-than-ideal outcome. The dentist has a duty to disclose all material information to enable the patient to make an informed decision regarding the proposed operation or treatment. “Information is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if given the information, would be likely to attach significance to it…” [2]. This includes information about risks, complications, and the chances of success inherent in the treatment being discussed. When a procedure inherently involves known risk of serious bodily harm, it is the dentist’s duty to disclose the possibility of such an outcome and to explain, in lay terms, the complications that might possibly occur.

The failure of the dentist to inform the patient as stated previously, before obtaining consent for a procedure or treatment, is likely to be found negligent. This duty of informed consent includes the doctrine of informed refusal [13]. Put simply, a dentist has an obligation to advise the patient of the ideal treatment plan, not just the ones he or she thinks the patient can afford, and advise of the risks and benefits of the alternatives of those plans. Such discussions should be documented in the patient’s records. Today, a dentist can be liable for problems experienced by a patient who either was not told of a potential alternative treatment or was not told the risks of refusing a recommended treatment.

In the past, when a patient lost a tooth due to either trauma or decay, the traditional replacement was a three-unit bridge. This required preparing the two abutment teeth with the risk of endodontic damage. Bone atrophy would occur over time, and good oral hygiene practice would often necessitate the use of a floss-threading device. Each subsequent replacement of the bridge increased the risk of endodontic complications and further loss of tooth substance.

Today, a patient can have a dental implant with minimal risk to adjacent teeth and potential bone preservation with better oral hygiene.

Where appropriate, implants must be offered to the patient. If the patient declines implant treatment and chooses a more traditional restoration, the prudent practitioner should obtain and document informed refusal, just as one would document informed consent. Many practitioners are not sufficiently comfortable or familiar with implants to discuss them with their patients. However, practitioners can no longer avoid the discussion of implants for these reasons as the law requires that an appropriate discussion of alternative treatments as well as the risks of treatment takes place.

Case Example

A patient attended a general dentist for replacement of a broken upper central incisor which was endodontically compromised. The dentist recommended extraction and replacement with a three-unit bridge, spanning the upper right central to the upper left incisor. One of the proposed abutments was a virginal tooth, while the other had mesial and lingual composites. There were no discussions about an implant as an option.

Subsequently, a bridge was placed spanning the upper right central to the upper left lateral. Four months later, endodontic complications ensued in the upper lateral incisor necessitating root canal therapy. Unfortunately, a file fractured during treatment. The fragment was not able to be removed by the dentist, and in the attempt to do so, he pushed the file fragment through the apex. The patient was advised and told that the area would be monitored, but no record of this was made on the card.

Three months later, the patient experienced severe pain and saw another dentist. This second dentist referred the patient to an endodontist who performed apical surgery. About the same time, the patient contacted a solicitor and subsequently learned that she could have had an implant and avoided the need for any treatment of the upper lateral incisor. A Statement of Claim resulted, and the case was settled out of court on the basis of treatment complications arising and a failure to advise of these complications or the alternative of dental implants.

Relevant to the above case, the law recognizes that a dentist has a duty to refer to a specialist, if under the circumstances, a reasonably careful and skilful practitioner would do so. A failure to fulfill such duty may lead to a finding by the courts of negligence.

Documentation

Several studies have found that patients can suffer from genuine amnesia regarding pretreatment discussions, including those involving informed consent [4]. Modern technology in the form of computers with their word-processing programs and e-mail have made consent forms easy to use and obtain, so much so that they are seen by some to be the “standard of care.” However, in the author’s opinion, the consent form is not a practical or legal substitute for the discussion that should take place between the dentist and the patient. That duty cannot be delegated to a form nor to staff who are not licensed to perform the treatment at issue. In the words of Prof. John deBurgh Norman, “Consent is a process, not a form.”

In fact, overseas experience suggests that patients seldom prevail in claims of lack of informed consent where the record of the consent discussion is well documented and a signed, dated, and witnessed consent form utilized [14]. A standard consent form for implant treatment might include the following:

“I have read all the written material provided and I understand the advice contained. I hereby give my consent to having the discussed implant treatment. I accept all risks involved in such procedures. I have had the potential risks and complications fully explained to me, and I have been given an opportunity to ask questions. All my questions have been answered to my satisfaction. I understand that, should I have any further questions after reading the brochures and documents provided to me, I can contact my surgeon prior to surgery.”

ADA NSW members can download a couple of examples of more complete implant consent forms at the Member’s Portal www.adansw.com.au.

The Implant Team

Good risk management for dental implants suggests that, in an ideal setting, implant teams must be formed and well organized before implant patients are taken on. Published guidelines [15] state that “cooperation should exist between the prosthodontist and surgeon during the assessment, and treatment planning be maintained through the various stages of treatment, and prevail through the follow-up care of the patient.”

Roles must be clearly identified. Informed consent should be a process that starts with the implant team and results in obtaining a reasonable and well-documented consent via patient education during consultation [16]. The team members should share documentation of the informed consent process used by each member. In that way, the patient will experience consistency in discussions, which will reflect highly on the practitioners concerned and give the patient confidence in what is being proposed.

The general practitioner must recognize his or her limitations and be prepared to consider referral to a specialist or dentist with more experience or training. For instance, a court is likely to view the use of a sinus lift or nerve repositioning procedure to be outside the area of training and competence of a general practitioner [3]. It may be said that few individuals have sufficient training, experience, and expertise in both the surgical and prosthodontic disciplines to provide a comprehensive range of treatment necessary to rehabilitate the patient and deal with complications [15].

Indeed, Statements of Claim sighted by the Dental Defence Advisory Service (DDAS)* have included allegations that the patient was not given the opportunity to consult with a specialist through referral. In some cases, this allegation is justified if, as the case progresses, it is obvious to the court that the practitioner has acted outside their area of experience and training. “Having a go” is not likely to be viewed sympathetically by the courts. In a recent paper, David Sykes opined: “Placing oneself in the position of the patient is always salutary. The rhetorical question ‘Would I like my mother to be treated by myself in this case’ can be useful” [3].

It is often far more prudent for the inexperienced practitioner, who is new to implants, to seek out a mentoring relationship with a more senior and helpful colleague. In the author’s experience, most experienced practitioners are more than willing to share what they have learned (often through hard-won experience!).

While there are many risk management strategies that can be applied to avoid dento-legal complications, none are as important as making good treatment records. Implant treatment places a much greater requirement for meticulous records on the clinician. For implant treatment, the record should include a pretreatment letter sent to the patient and copied to each team member. The letter should state the following:

• 1. The recommendations of the team for treatment

• 2. The potential alternative treatments

• 3. Risks of treatment and the alternatives

• 4. Treatment schedule, costs, and funding considerations

• 5. Obligations of the patient

The record should include a detailed account of treatment events and include detail such as components used, as well as relevant discussions held with the patient. After the treatment is complete, the patient should be sent a posttreatment letter regarding the long-term management with roles of members of the team.

Key Learnings

• Today, dental implants have matured to the level of having become a standard of care alternative to fixed prosthodontics.

• The courts ultimately will evaluate claims of negligent practice by evaluating the pretreatment alternatives and potential referrals given to patients before treatment is initiated.

• Therefore, documentation becomes essential, including a record of informed consent, as to the risks, benefits, and alternatives to any treatment.

• The prudent practitioner can no longer allow “presumed” patient finances to dictate the nature of the treatment plans offered. Rather, implants must be offered as another accepted alternative for the replacement of the dentition.

• Failure to consider these obligations and to document the patient’s selection and reasons therefore creates vulnerability to claims of violation of the “standard of care.”

• Nevertheless, with reasonable pretreatment planning and documentation, the careful clinician can avoid such claims, expand the alternatives offered to patients, and enjoy the satisfaction of adoring patients and the avoidance of the interference of lawyers in his or her practice!

*In 1999, the ADANSW established the Dental Defence Advisory Service (DDAS) to act as the first point of contact for members who are confronted by professional indemnity (PI) complaints, claims, or potential incidents.

Ready Reckoner

Dentists’ Duty of Care to Patients

• Do no harm (assault and battery) – a dentist must not cause injury to a patient through negligence. If “best practice” procedures are being followed and injury occurs, the term “misadventure” is used, and the dentist is not guilty of negligence.

• Keep proper records.

• Medical history.

• Confidentiality of records

• Informed consent (Rogers v Whitaker – Justice Kirby).

• Thorough soft-tissue examination (throat, under tongue).

• Recognition of oral signs of medical conditions (diabetes, cancer, anemia, autoimmune, blood dyscrasias, viral, medications, X-rays).

• Referral (timely) to Medicos for investigation.

• Follow-up (keep the Medicos honest!).

• Expert witness reports.

Dentists have a clear professional obligation to diagnose and manage oral mucosal pathology or to appropriately refer. Failure to act has resulted in legal action (Professor Richard Logan – Uni. of Adelaide – ADJ – June 2010)

Doctors’ Duty of Care to Patient’s Oral Health

• Recognize oral disease and refer (poor oral hygiene).

• Recognize xerostomia (dry mouth syndrome – many causes).

• Warn patients of possible oral manifestations of systemic disease.

• Recognize these manifestations (especially xerostomia) and refer.

• Warn patients of oral side effects of medications (especially analgesics and antidepressants) and treatments (especially chemotheraphy and radiotherapy) and refer for prevention.

Forensic Medicine (Dentist as Part of the Identification Team)

Identification of Deceased Patients

• Duty of care to keep records

• Detailed records (charting – electronic- e-mail?)

• X-rays (OPG – mandatory?) and photos

Identification of Criminals

• Occlusal records (bite)

Australian Dental Association Victorian Branch Inc.

49 Mathoura Road, Toorak, VIC 3142

Telephone (03) 9826 8318 Facsimile (03) 9824 1095

www.adavb.com.au

Australian Dental Association

South Australian Branch Inc.

Unit 2, 62 King William Road, Goodwood, SA 5034

Telephone (08) 8272 8111 Facsimile (08) 8272 4357

Australian Dental Association Tasmanian Branch Inc.

91 Nowra Road, Roches Beach, TAS 7170

Telephone (03) 6248 7788 Facsimile (03) 6248 1546

Australian Dental Association NSW Branch Ltd.

71–73 Lithgow Street, St Leonards, NSW 2065

Telephone (02) 8436 9900 Facsimile (02) 8436 9999

www.adansw.com.au

Cross-References

Forensic Identification in the Australian Defence Force

Legal Medicine and Dentistry