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DENTAL LAW UPDate - 2014

Raleigh Wake County Dental Society May 20, 2014 Patrice Walker, Attorney at Law PO Box 16157 Chapel Hill, NC 27516 919-933-1325 wlkrlaw@gmail.com pwalkeratty.com. DENTAL LAW UPDate - 2014. 1. HIPAA update 2. Ethics/licensure update 3. Malpractice cases. Outline .

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DENTAL LAW UPDate - 2014

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  1. Raleigh Wake County Dental Society May 20, 2014 Patrice Walker, Attorney at Law PO Box 16157 Chapel Hill, NC 27516 919-933-1325 wlkrlaw@gmail.com pwalkeratty.com DENTAL LAW UPDate - 2014

  2. 1. HIPAA update 2. Ethics/licensure update 3. Malpractice cases Outline

  3. 1. New reg’s require changes in Notice of Privacy Practices (NPP). • 2. BAA agmnts must be updated. • 3. Data breach rules amended. • “Loose lips sink ships.” HIPAA Update

  4. In event of breach, your attorney should prepare an internal report addressing: A. The nature and extent of the data involved including types of identifiers and likelihood of re-identification, B. The i.d. of the unauthorized person who used the info or to whom the disclosure was made, Response to data breach

  5. C. Whether data was actually acquired or viewed by unauthorized person, and D. The extent to which the risk to the data has been mitigated. Response to data breach - continued

  6. If your practice engages in: • Fundraising • Marketing • Research • Sales of pt info ( other than in connection with sale of practice) • There are numerous other regulations – check with your legal counsel. Other changes

  7. 1. OCR still relying on breach notifications to trigger prosecutions. In 2012 more than 19,000 were filed. 2. Fed’s are contracting out HIPAA prosecutions – including to state AG’s office. 3. Failure to have adequate risk analysis is typical and dangerous. 4. Safe harbor for encrypted data remains. Note

  8. Dental ins. co. mails info containing pt’s SS#’s. Envelope arrives having been opened with numerous pages missing. 14k pts affected. Dental practice dumps pt records in recycling bins. 7K pts affected. Medical group’s back up tapes stolen from e’ee’s car. 4.9 million pts affected. Class action lawsuit requests $4.9 billion in damages. Be careful mailing/destroying records

  9. 1. Unencrypted laptops stolen in hospital break-in. 70K pts affected. 2. Shredding co tosses hospital microfiche records. They were found in public areas. 3. Programming error results in misdirected bulk mail re 188k patients. 4. K’er sells x-ray films for their silver instead of destroying them. Other mishaps

  10. Encrypt – encrypt – encrypt. Encrypt laptops, thumb drives, tablets, cell phones. Consider “Kill Switch.” Password ≠ encryption. Properly prepare Risk Analysis. Be sure your web page contains your updated Notice of Privacy Practices. BOTTOM LIne

  11. US Supreme Court to review NCBDE v. FTC in tooth whitening case. Board to revise anesthesia/sedation rules in wake of 2 deaths. Webb v. Wake Forest, (NC, 2014) – Pt under general anesthesia for oral surgery for 8 hours – is sent home day of procedure– dies – apparently from pneumonia. Held – Court allows case to go to jury. Ethics/Licensure

  12. Walker v. St. Bd. (Ind. 2014) – Dentist pulls wisdom teeth under anesthesia – uses hand over mouth to “calm” patient. Leaves her in room alone after procedure. RDH is in adjoining room treating other pt. D in violation of Ind. rule requiring “direct supervision.” Also hand over mouth is not OK to use with adults. NC requires dentist to be physically present in bldg. and “continuously aware of pt’s” status. Ethics continued

  13. A. Do you specifically ask patients about sleep apnea and other conditions that may impact anesthesia/sedation? • B. Do you document monitoring of patient after procedure is completed? Thoughts

  14. In Re Butler (Mich. 2014) – Dentist • 1. Provides ill-fitting dentures, • 2. Fails to check extracted teeth for roots, • 3. Fails to suture post extraction when needed, • 4. Per his own dental notes, he screams at “out of control” pt , • 5. Abandoned pts when he did not advise them that he was closing his office, Ethics/Licensure

  15. 6. Fails to document specific units of anesthetic used, • 7. Fails to adequately chart treatment, • 8. Gives erroneous info to pt – Held: pt’s consent to extraction based on that info is invalid, and • 8. Says “Medicaid made me do it” – Because gov’t wouldn’t pay for restorations, that’s why I pulled teeth that could have been restored. • Held: 6 mo license suspended. Ethics continued

  16. In re Weber (N.J. 2014) Dentist banned from practice for at least 3 years, fined $250,000, and must repay ripped off patients. D gave employees bonuses to recommend most expensive braces. Had them sign his name to documents. Recommended unnecessary tx. Helped pts apply for credit, took $, and did not provide treatment. Ethics continued

  17. Board disciplines dentist who did not document reason for pain meds in several charts. NC Dental Bd and documentation

  18. I have not covered the hundreds of cases involving impaired dentists or hygienists. Note – re ethics

  19. Holder v. Schwarcz (Mich. 2014) File tip breaks off during RTC. D made no note of the broken file and did not tell pt. 6 mo later she has infection – D rx’s antibiotics. They don’t work so she sees another dentist. Learns of file tip. $200k awarded. Court admits prior BDE discipline as evidence in malpractice case. Malpractice Claims

  20. Cantor v Marder (N.Y. 2014) – After prosthetic restorations, pt says she has pain, occlusal disharmony, TMJ, periodontal breakdown etc. Wants punitive damages. D says no evidence of evil intent here. P says you never wore gloves. Also no proof that D advised P of risks, benefits, alternatives to treatment. Ct allows case, including punitive damages claim to go to jury. Malpractice - continued

  21. Dien v. Seltzer (N.Y. 2014) In November, dentist refers pt to defendant endodontist for RTC. RTC done in Dec and Jan. 6 month’s later general dentist notices sore on left side of her tongue. Pt says both Ds should have noted the sore earlier and made the referral for biopsy. Her expert MD and dentist say the lesion had to have been there when Ds treated her in Nov. - Jan . Court allows case to go to jury. Malpractice – oral cancer

  22. Tischio v. Simonow (Conn. 2014) During RTC, pt complains of loss of feeling on side of face and ear tingling. No evidence D gave P tx options – including referral to endo. No evidence that D told P of material risks. Court allows case to go forward. Malpractice continued

  23. Lubell v. Cohen (N.Y. 2014) – Implants in upper and lower arches fail. Claims for negligence and lack of informed consent. Pt. has epilepsy and takes anti-seizure meds. He has had heart valve surgery and has been toothless for 20+ years. D relies on pre-printed form and his office notes “fully discussed pt’s options + alt tx.” Pt “k/u his treatment and possible infection, rejection, and/or pain.” “Discussed Malpractice – consent form not enough

  24. fully and in detail the treatment plan and options.” Per court, pt’s hx of antiseizure meds = possible hyperplasia of the gum. No indication that this was discussed. Also a patient “that was toothless for more than 20 years would” have bone atrophy. Ds’ expert “never addresses the particulars of” pt’s medical and dental history. Informed consent must be “specific to the” pt. Lubell - continued

  25. Armstrong v. O’Hare (Mich. 2014) Ps paid $2 mill. for good will of dental practice. O’Hare is RDH who worked for Ps. She copies names, addresses, and recall dates of P’s patients. She begins working for competing practice. Patients start leaving to go to the other practice. HELD: Absent a written agreement between P and D, P doesn’t have a case. “Patients are not property.” How to lose $2 million

  26. Johnson v. Great Expressions (Fla. 2014) Pt co-ordinator sues for wrongful termination. “Record reflects” she had problems with dentist, co-workers, and pts. Two separate formal warnings. Fired her when she left work early over e’er’s objection, showed up late the next day inappropriately dressed, with “bad attitude.” Also, “engaged in shouting match with” a pt. E’ee loses. More Employee problems

  27. Woolard v. Puleo (N.Y. 2014) Pt sues over MVA. Dentists treat pain and “crunching sound” in pt’s jaw post accident. “The Court will not consider” the records of the treating dentists. They are “indecipherable as they contain illegible handwritten notes.” Court throws out illegible dental notes

  28. Rahbar v. Batoon (Cal. 2014) Pt submits bad Yelp review. Dentist sues for defamation, privacy, and outstanding dental bill. Held: suit improperly filed to “silence critic.” P to pay $43k in D’s atty fees. D to pay dental bill of $454. P refiles the lawsuit and has to pay another $13k in atty fees. P then files 3rd suit claiming preceding j’ments obtained by fraud. This suit also dismissed – P to pay costs. Suing for bad internet reviews

  29. This workshop is for informational purposes only. Be sure to check with your office attorney on all legal questions. Patrice Walker Thank you for attending

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