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

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

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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.”

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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,

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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?

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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,

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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.

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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.

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Board disciplines dentist who did not document reason for pain meds in several charts.

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I have not covered the hundreds of cases involving impaired dentists or hygienists.

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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.

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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.

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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.

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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.

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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

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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.

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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.”

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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.

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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.”

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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.

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This workshop is for informational purposes only. Be sure to check with your office attorney on all legal questions.

Patrice Walker

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