After attending a lecture by Dr Len D’Cruz and Dr Reena Wadia on Periodontal Litigation at the BDA, my colleague Dr Oberai and I decided to write a Blog post on this very current topic.
Dr Keerut Oberai is a general dental practitioner who is working in a mixed NHS and Private practice whilst also studying for a Masters in Medical Law and Ethics at Kings College University of London.
Up to 90% of the population will experience some attachment loss during their life. Of these, approximately 25% will lose one or more teeth as a result of periodontitis. Unfortunately, until the point of facing tooth loss, many people will be unaware that they have had periodontal disease for some years. As a result, irreversible damage will have occurred which could have been predictably prevented or treated if identified at an early stage.
Periodontal dento-legal claims frequently involve failure to diagnose the disease, or a failure to adequately treat it. Increasingly claims are also being brought against dentists for failure to offer specialist care and a failure to refer appropriately.
In the last few years, complaints have been increasing by 25-30% on a year on year basis in all sectors of dentistry.
When considering the top UK claims by value, figures from 2015 included: Perio 44.7%, Implants 28.8%, Implants and Perio 5.5%.
This shows that even the ‘riskier’ specialities such as maxillofacial surgery had less claims than Perio.
The average award for a perio case is £25,600. The largest award so far has been £170,000.
Why is Perio such a problem?
Perio cases cover extended periods often stretching back many years, involving more than one practitioner and hygienist.
More than half DLPs high value perio cases included treatment carried out in the 1980's and 1990's.
Law firms place "advertorials" in the local papers naming the dentist whom they have won perio claims against and invite other such patients with bleeding gums to contact them.
The end of fee-per-item service and the detailed fee scale narrative that went with periodontal claims for treatment disappeared with the current UDA system we have.
The SDR narrative required BPE scores and other indices to be measured for different levels of exams and perio treatment.
10 years’ worth of 2006 contract and the unintended consequences of it will cost millions to resolve.
Future treatment costs are large and there are more of them. Most claims cost between £25,000 and £75,000 to settle but many of them cost £100,000 or more.
Record keeping does not match what the dentist and hygienists say they told the patients about OHI, smoking, risk factors and progression of the disease.
Few clinicians can be entirely confident that no such cases are lurking in their filing cabinets from 10-20 years ago.
Common Allegations:
Failure to diagnose periodontal disease and taking adequate radiographs to assess bone levels.
No evidence of periodontal monitoring or risk assessment made.
No periodontal treatment carried out.
No referral made/ offered at the appropriate stage of treatment.
What is expected of a GDP:
Adequate Screening – BPE and subsequent 6PPC if required.
A Diagnosis and INFORMING the patient of their condition. - It is important that this is made using the new periodontal classification as it is foreseeable that those who have not done so could be seen to be negligent to the current guidelines recommended by expert bodies. With the new periodontal classification, it is important to ensure that appropriate radiographs are taken at recommended intervals to aid the diagnosis process and to allow for monitoring of the disease progression. See related Blog Post on New Classification.
Reasonable standard of NSPT.
An assessment of the treatment outcome and a risk assessment of the patient.
A long-term care plan constructed with the Patient.
Referral if necessary.
A high standard of record keeping.
Dento-Legal Risks for the GDP:
No BPEs
No detailed measurements for codes 3 and 4.
Lack of and poor quality radiographs.
15 min scale and polish is not adequate RSI.
Poor quality OHI and lack of smoking cessation + discussion of other risk factors such as diabetes and certain medications.
You must not just refer to hygienist. The GDP needs to take control and oversee care.
NHS vs Private Hygiene appointments
No definitive decisions or assessments made about where the patient is going.
Ignoring Implants.
Referring for Specialist Care:
A recurring theme in litigation is failure to offer a timely referral to a specialist. BSP recommends referral for cases of complexity 3.
Informed refusal – make sure the patient understands the consequences of what they are not accepting. E.g. if you don’t have further treatment, the disease may progress, you may lose teeth and you may need dentures. – It is vital to accurately and contemporaneously record this in the patient’s clinical records.
Letters can be useful especially for informed refusal.
Notes/Documentation:
In regard to medical law failure to diagnose, treat and inform the patient of periodontal disease could be seen as negligent and it is therefore imperative that the patient is fully informed and that the information is accurately recorded in their notes. In a court of law or litigation if the information given is not recorded in the patient notes appropriately then it is incredibly difficult to defend the clinician’s actions.
Your notes should include discussions such as explanations of the consequences of untreated disease. It’s helpful to use templates but these should be bespoke. Back up what you say with written information and document in your notes that you gave the patient written information.
“OHI given” is not ideal – add more detail on what you did exactly e.g. Modified Bass brushing technique shown in the mouth, use of yellow and green interdental brushes demonstrated.
Perio is largely a lifestyle disease and compliance is a huge part of successful outcome. If there is an obvious lack of compliance, it can be powerful to document their words e.g. “I just cannot get on with these little brushes”. It is also prudent to make them aware of their role in managing the disease and stressing the idea that management of periodontal disease is a partnership between dentist and patient. The patient also needs to be aware that there is no cure to this disease and we cannot get back what has been lost already.
Any risk factors must be discussed. If the patient is a smoker it should be recorded how many a day they smoke and you should make sure to offer smoking cessation. In regard to periodontal health they should be aware of the impact that smoking has (this goes for any other habits such as chewing tobacco) as well as the local oral and general systemic effects this has.
Be objective not subjective, for example, whilst stating levels of plaque control. Furthermore, when describing treatment “NSPT URQ” is not enough detail. It is recommended that you should add whether it was supragingival/subgingival. Were there hand/ultrasonic instruments used? Did you use LA?
If a prescription is made to the hygienist, “Ref Hyg” is inadequate. It is a formal requirement to include an LA prescription if required and more detail of what you’d like the hygienist to do is recommended.
If any radiographs are taken it is important to justify the exposure, report on the radiograph and its grading and make sure that any findings are communicated to the patient.
When reassessing or reviewing the patient, describe the current periodontal status, not just ‘patient reviewed’. If abbreviations are used, they need to be widely recognised. Furthermore, from the outset of treatment the patient needs to be aware that they will require treatment long term and regular reviews.
Patients may not have been aware of their periodontal diagnosis and may inquire whether they have been inappropriately treated by previous clinicians. It is important to address such concerns diplomatically – as a clinician we cannot be sure what has or has not been told to a patient and it is important to make the patient aware of this and on the fact that you cannot comment on previous consultations with other dental professionals.
Much of the above is vitally important so that you can show that the patient had informed valid consent for treatment as outlined in GDC standard 3.1.3:
“3.1.3 You should find out what your patients want to know as well as what you think they need to know. Things that patients might want to know include:
Options for treatment, the risks and the potential benefits;
Why you think a particular treatment is necessary and appropriate for them;
The consequences, risks and benefits of the treatment you propose;
The likely prognosis;
Your recommended option;
The cost of the proposed treatment;
What might happen if the proposed treatment is not carried out; and
Whether the treatment is guaranteed, how long it is guaranteed for and any exclusions that apply.”
Not only is it important to make sure that you have given the patient this information but you must check that they have understood the information being provided. Often in practice we have little time to convey this information but it is well worth taking time to ask the patient if they have understood the information you have given them but also allow them time to ask questions. In this vein, it can also be helpful to provide a leaflet or consent form for the patient so they have the information in writing and can consider it further outside of the appointment. Furthermore, it should be added to the clinical notes that you have done so. Medico legally this also puts you in a stronger position to defend any complaints by patients in regard to the periodontal care they have received.
We hope this post has help alleviate some common errors we make every day that may put us at risk of litigation. We welcome any comments.
Incredibly useful content, great work Payvand!