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Are You Prepared for a State Board Complaint?

by Kyle Wallace

“So, Kyle, I got a call from a patient and they’re upset that their root canal failed and they want me to pay for an implant and restoration. They’ve threatened a State Board complaint. What do I do?”

You can substitute root canal with dozens of other circumstances and you can also insert an element of emotion, primarily fear and anger, but in general this is a question I get asked weekly, sometimes even more than once a week. It’s a good question and needs to be considered carefully. It could also be the very best motivation I can think of to have your patient records complete and in order. We’ll talk more about that later.

You’ve sat through countless risk management courses and you’ve certainly been told that orderly records are key to the defense of a malpractice lawsuit. It’s a valid point, but in reality, the majority of disagreements you might have with a patient won’t generate enough damages (dollars) to war rant the involvement of a plaintiff attorney.

If a case won’t generate at least $40,000 in total damages there is little chance of a patient finding an attorney to represent them. If the case appears small, a plaintiff attorney will often refer a would-be client to the State Board to appear helpful and avoid having to send them away empty handed.

So, when the patient can’t sue you and you are not willing to give them what they want, the result is often a State Board complaint. Pretty much every dentist I know is willing to bend over backwards to make their patients happy, so when this issue arises, it almost always has to do with an unreasonable expectation on the part of the patient. Malicious or not, it pretty much becomes a shake-down.

It’s all about the record

When a client asks me some version of the question I began this article with, the conversation turns pretty quickly to the patient record. Honestly, the record is the key.  If your patient record is poor, it doesn’t matter that much if you’re 100% right and your patient is 100% wrong.  I know that might not sound fair but it is the reality.

Just a little bit of information about how the State Board works – any complaint made to the Texas State Board of Dental Examiners will be investigated to conclusion. It does not matter how ridiculous that complaint may be. Once made, the complaint cannot be withdrawn. Even if you and the patient who made the complaint have now become the very best of friends, the complaint can’t be retracted. When you receive notification of a State Board complaint, you’re asked for a complete copy of all records regarding the patient in question and a brief narrative. Initially, these two components make up your entire defense. From experience, I can tell you that this is where you will want the complaint to end and end in your favor.

The investigation

The investigation involves essentially two parts, the first part being to determine the validity of the patient’s complaint. In other words, did you actually make a clinical error with regard to treatment or diagnosis? I’ve read hundreds of these complaints over the last 20 years. To be kind, all I’ll say is that the average person on the street doesn’t really understand very much about clinical dentistry. Maybe that’s the reasoning behind the State Board’s decision beginning January 2014 to stop sending an actual copy of the patient complaint as part of the notification process. That is the only part of the State Board’s 2014 reorganization of the complaint process I didn’t really understand. Anyway, the clinical part of the complaint is often dismissed rather quickly.

The second part of the complaint has to do with your records. In many cases, this is where things can get unpleasant for the dentist. The Texas Dental Practices Act identifies the components of a proper patient record. These elements are defined in detail and this requirement is the real reason a dentist should make certain their patient records are complete and in order. The State Board investigator will look for a complete and updated medical history form, procedure specific consent forms, treatment plan and clear, accurate and complete progress notes that chronologically detail the treatment performed.

The outcome

Missing or incomplete elements often lead to fines, requirements for additional hours of CE and even permanent sanctions against the dentist. Often the out- come is a combination of all three. I’ve never seen a fine less than $1,000 and I’ve never seen the requirement for additional CE to be less than six hours.

The permanent sanction is of course the worst of the possible outcomes and I’ve seen permanent sanctions given for something as relatively minor (arguably not minor at all) as failing to record the patient’s blood pressure in the progress notes. This doesn’t mean that a blood pressure reading wasn’t taken, only that it wasn’t recorded. If it’s not in the record, as far as the state board is concerned, it didn’t happen. Keep in mind, a permanent sanction is public record and permanent means forever. Anyone armed with a computer and a dentist’s name can go to the State Board website and easily find out if that dentist has been sanctioned. They can even read the details of the disciplinary action. My staff is instructed to check this website anytime a dentist makes application for professional liability coverage. Most credentialing processes include this step, too. It’s a big deal.

So, if a patient makes the threat of a State Board complaint unless you give them whatever it is they want from you, the first thing you want to do is take a look at your records. That’s going to give you a really good idea of how you’re going to need to respond. I’ve seen far too many dentists backed into a corner over this issue in recent years and that’s a really uncomfortable place to be. Better yet, take a look at your patient record protocol now, before anything has happened. There are many simple little fixes you can implement that will produce the record that you want to have when the issue does arise. Changes now could save you a lot of heartache later.