The Ten Commandments of Dental/Legal Charting

Added: 03/02/05 

The Ten Commandments of Dental/Legal Charting
Boyd W. Shepherd, D.D.S., J.D.

The following are the first five of a series of "Ten Commandments of Dental/Legal Charting," which represent some, but certainly not all, important aspects of dental charting from a legal point of view.  These commandments come directly from the input of patients, doctors, juries, and insurance carriers, and are a collection of simple ways to practice "defensive and preventive" dentistry.  Becoming a superior note taker requires work, and it is never easy to reverse long-standing, ingrained Routine.  But the benefits in terms of time and expenses may well be worth integrating the suggestions which follow.

COMMANDMENT I
Thou Shalt Never Alter Nor Amend Thy Patients Charts

While most dentists know this most important concept and charting commandment, it often is ignored and, when violated, the results are disastrous.  To illustrate, dental malpractice lawsuits may involve several legal theories of recovery - the most common being "negligence."  Broadly defined, "negligence" is the (1) violation or breach of (2) the applicable standard of care (3) which proximately or directly causes (4) damages to the plaintiff.  The recovery for professional negligence, alternatively called malpractice, is for "general" damages, which are intended to make the plaintiff "whole" and may include the return of fees, the cost of corrective dental treatment, past wages, future wages or lost business opportunities, loss of consortium or marital relations, and pain and suffering.   A second and unrelated type of recovery is "punitive" damages.  As the name implies, these damages are measured not to compensate the plaintiff but to punish the defendant.  They are awarded in addition to general damages.  Although state requirements vary punitive damages generally are granted when the defendant acted with an evil mind, a conscious disregard to patient safety or similar types of irresponsible conduct.   The single most common cause of punitive damages in a dental malpractice case is altering the chart, as well as the more subtle, but no less compensible form of alteration, which is the later adding of entries to make them appear contemporaneous with the events in question. Juries, who may look kindly toward the compassionate yet careless practitioner, will often see this as the deliberate act of altering the evidence.  Because they are intended "to send a message," the amount of the award necessarily depends on your financial strength.  The theory is that the more money one earns, the greater the verdict needed to properly punish the wrongdoer.  In some instances, your personal financial statement will become an exhibit, be published to the jury and now be included in the public record.   Additionally, in keeping this first commandment, the following suggestions should be applied to your office charting routine:

A. Rid Your Office of Paper Correction fluid
Nothing raises a jury's natural curiosity quite like an erased or concealed entry.  Even if innocent in nature, it introduces the specter of a cover-up.  This includes billing records.
B. Cross Out so the Underlying Message Is Readable
The alternative to correction fluid is the cross-out.  Use hash marks in such a way that the mistaken information is still discernible.
C. Do Not Mark in Margins
At least half of all dental charts I see violate this precept.  Apparently the temptation to finish an office-visit entry on a single page outweighs the urge to reach for new paper.  Again, juries wonder why the text was not formatted within the lines and whether the extraneous marks were added later.  This is a prime example where the plaintiffs' bar has set a trap for the unwary.

COMMANDMENT II
Chart Thy Patient's Compliments of Thee Using Quotation Marks

Fact: juries absolutely believe entries in quotation marks.  While other parts of your chart may be scrutinized or subject to varied interpretations, the quoted portions are inviolate.  Armed with this knowledge, the savvy dentist can use this tool to her or his advantage.   There are two instances where quotations seem especially appropriate.  One is made by the staff during the follow-up telephone call after an invasive or important procedure.  The next opportunity comes during the next office visit.  Even though the patient may be experiencing expected post-operative discomfort, it is important to note the overall prognosis.   For example, suppose a subperiostal implant is placed on day one.  The usual day two telephone entry memorializes only the soreness, swelling and discomfort.  While important, a note that "Pt says she knows that this will eventually help me eat better" is good defensive dentistry.  During the next appointment, say day 21, similar comments of progress toward the treatment goal are equally meaningful.

COMMANDMENT III
Thou Shalt Chart Thy Patient's Noncompliance

A poor result, whether induced by you or an inherent sequela of your treatment, naturally will be second guessed.  Plaintiff's counsel will argue to the jury that the standard of care required either a less-risky or more comprehensive approach.  But, noting the patient's refusal to see a specialist is the general dentist's all-inclusive defense.  Any act which occurs after the referral, and which arguably could have been addressed by the specialist, exonerates the general dentist.   In making the chart notation of non-compliance with a referral, the use of a specific surname is more persuasive than the specialist's title alone.  For example, "Pt referred to Dr. Johnson" is more powerful than "Pt should see periodontist."  This is especially true if Dr. Johnson later will testify on your behalf that timely prophylactic treatment would have prevented any damage.   Also, the patient's failure to follow specific recommendations can end up as their malpractice complaints which usually allege that the dentist failed to recognize or address various types of chronic problems.  For example, periodontal problems are a recurring area of patient neglect.  Often good dental procedures are compromised by poor oral hygiene, continued smoking, failure to regulate diabetes, or failure to follow specific instructions ("don't chew on the right side for a few days").  Most practitioners will chart the first few instances of neglect, but then tire of the endless repetition.  A quick referral to previous charting is an efficient alternative: "pt. again warned on l0-4-94."  If the October 4, 1994, entries contains a complete list of explanations, then use this shorthand entry.

COMMANDMENT IV
Thou Shalt Spend an Extra Five Minutes Charting Bad Or Unanticipated Results

As a general concept, unsuccessful results occur to each dentist several times a year. While this, by itself, is not malpractice, it nevertheless may form the basis for a civil or dental board complaint.  Too often, the dentist records these consequences with the same nonchalance as routine matters, which them leads to the practitioner at some point wishing he or she a spent a few more minutes detailing those results.  When special conditions occur; special rules apply. Therefore, consider these alternatives:

A.  Chart in Private at the End of the Day
There truly are the times when "an ounce of prevention is worth a pound of cure."  Contemporaneous charting is the norm and still good practice; however, under unusual circumstances it is contraindicated.  Take time to gather your thoughts alone and unencumbered by other distractions.

B.  Consult with Key Personnel
Memories fade quickly, so integrate the current thoughts of your entire staff.  This includes your hygienist and assistant to be sure, but consider the front office personnel as well. First, they may have overheard stray comments that can be vitally important.  These direct statements should be charted with quotation marks.  Second, some patients are non-confrontational and may be more comfortable venting their anger at someone other than the dentist.

C.  Chart in Draft First
Scribble your thoughts on scrap paper and then revise.  Remember that the end result should be a solid entry that explains (1) what happened, (2) why it occurred, if known, and (3)what future options were given to the patient.  Then, when you are ready to make the permanent entry, try to make your writing appear natural and not contrived.  It should not look so perfect as to arouse suspicion.

D. Consult Your Attorney, Not Your Colleague
As a final measure, have your attorney review the proposed entries.  He or she is a "second pair of eyes" and can view this potential evidence absent the emotions carried by the dentist.  Avoid the temptation to discuss these matters with follows dentists.  Unlike attorney-client discussions, no privilege attaches to these stray conversations. During your deposition, you will be asked to list all persons who have any knowledge of these events.  When you identify your colleague, he or she may be the next person examined. Any soul-searching remarks, no matter how pure or --cathartic-"Between you and me, I sure wish I had never treated her"-are discoverable.  Even innocent comments can be twisted to appear as admissions. 
The above admonition does not apply to potential referral discussions with specialists. These meeting are for the legitimate purpose of the patient's continued dental care and should be charted.

COMMANDMENT V
Thou Shalt Make Thy Chart Entries Consistent With Thy Appointment Book

Discrepancies between the chart and the appointment book is a waiting ambush for the more sophisticated plaintiffs' attorneys who know that a dental malpractice case can be won by driving a wedge between the dentist and his or her staff. An initial event in any civil lawsuit is a production of records.  Each party will request that copies or the originals of specific documents or other tangible items be produced.  In the malpractice arena, the dentist can expect this list to include the chart and all attendant documents, billing records, X-rays, study models, all non-privileged correspondence, and, occasionally, the appointment book.  Because of the dentist/patient confidentiality statutes in most states, the appointment book is produced only showing those times when the plaintiff appeared.  The other patient names are sanitized. 
These documents will be analyzed and cross-referenced for the slightest discrepancy.  In the overwhelming majority of cases, some dentist chart dates will differ with the appointment book entries.  This presents some unique and additional problems, totally aside from the merits of the case. Most dentists are unfamiliar with the appointment book entries and methodology used for scheduling.  Moreover; manual entries are usually made in pencil.  The frequent re-scheduling is erased and changed.  The end result is a listing that may not bear an accurate relationship to the patients actually seen on that day. Usually, the appointment book shows more entries than the chart.  This information is passed from attorney to client in advance of the plaintiff's deposition.  This provides a tremendous advantage to the unscrupulous claimant at the time of their deposition, which is an examination under oath where the witness is questioned by the adverse attorney about all relevant events.  For the plaintiff's part, he or she is compelled to revisit all dental visits. Frequently, the patient recounts certain events that are inconsistent with lie written record.  
When queried further about these matters, the deceitful witless may reply, "Oh, I specifically remember that happened on March 15." Of course, this is the date that appears in the appointment book but not in the chart!  The enemy now has a convenient escape-one actually provided by the dentist. After all, the inconsistency lies in the defendant's records.  To prevent this travesty, the appointment book and chart dates must conform. Aside from your office management requirements, these facts should be included somewhere in the written record for each patient visit: 

A.  Note Whether the Appointment is Regularly Scheduled or An Emergency
To note an emergency designation, when applicable, will help to justify the lack of otherwise required patient history and any other routine dental charting entries.

B.  Note Cancellations
This graphically shows patient noncompliance, and is the primary basis for the legal defense of contributory or comparative negligence.

C.  Note Any and All Rescheduling, and by Whom
Allowing the patient the right to reschedule on-going treatment legally may be considered "abandonment" without a second follow-up telephone call.

D.  Note Any and All Failures to Appear

Failed appointments can be cast in a light most favorable to the dentist.  The patient must have been satisfied and pain free to miss a long-standing scheduled visit.   If the plaintiff complains nonetheless, then at a minimum he or she must admit that other matters took priority over the dental condition.  Juries have little sympathy for an individual who complains about health problems, yet fails to rectify the situation.

COMMANDMENT VI
Thou Shalt Use Dental Lab Personnel For Difficult Crown and Bridge

Typical dental malpractice cases usually involve crown and bridgework.  From the plaintiffs' perspective, this type of suit is simultaneously tangible, easy to explain, lends toward real-world experience, and has the all-important glamour of damages (past fees, present costs, and future replacement).  Most of these cases involve some dissatisfaction level at the onset, and multiple try-ins are the norm rather than the exception.  Even well-drafted records usually show that the patient was less than pleased or that some additional or corrective measures were taken. When this occurs, the defensive-minded dentist anticipates a lawsuit and heightens the use of precautionary charting. Always remember that a critical element in jury deliberations is the amount of care shown to your patients.  When several unsatisfactory attempts are made to provide bridgework, plaintiffs' counsel will suggest that this was a difficult case or that you were "in over your head." In such instances, it is important to involve both an outsider and a second pair of eyes.  These two criteria neatly meld into a single person- your dental lab provider.  Therefore, if the second try-in is unsuccessful, then invite this provider to your office or the next visit.  Since any lab covets your business, availability should pose no problem.  Instruct the lab person to listen attentively to the patient's complaints.  Depending upon communication skills, it is best to let him or her interact with the patient.  Most importantly, show concern! After all, this procedure was to have been completed months ago.

COMMANDMENT VII
Thou Shalt Make Follow-up Telephone Calls

A superior method to demonstrate that you truly care about your patients is follow-up telephone calls, especially following difficult or invasive procedures.  The question often is asked whether you or the staff should perform this function.  A good rule of thumb is this:  if the procedure concluded as planned-the staff;  if the results were unexpected-the dentist.  Examples of the latter would include excessive bleeding, buccal or lingual paresthesia, unacceptable prosthetics (in your opinion) or any other situation where your "gut" tells you something is a miss.  Regardless of who telephones, certain events always should be recorded:  date, specific time, place, speaker; any pain, unexpected complications, the office/answering service telephone number, and a reminder that the dentist is always available. Where the less than favorable outcome occurs, the record should be informative.  The dentist should institute follow-up calls, and draft the self-defensive entry with an eye toward litigation.  Irrespective of the final medical outcome, a jury will look more kindly upon the practitioner who demonstrates compassion.  At the same time, a dentist can reduce the risk of the patient actually filing a lawsuit and, if the matter ultimately ends in litigation, minimize damages.  Depending upon the result and the patient's response, more than one telephone follow-up may be needed.  This is one area where "more is better."  Well-documented serial calls best show your effort to assist the patient.

COMMANDMENT VIII
Thou Shalt Chart Alternative/Recommended "Treatment Plans"

Once litigation is underway, a rather startling allegation typically finds its way into the complaint.  The patient now claims that the dentist failed to explain other treatment modalities. As the story goes, she would have chosen a different option had the alternatives been properly presented.  This encompasses one aspect of informed consent, which legally requires that the patient understand the "advantages, disadvantages, risks, and alternatives" for each procedure, which may be abbreviated "ADRA."  Only then can a patient choose which method is preferable. A thorough charting of this lengthy dialog would consume valuable clinical time and subsume multiple pages.  By using ADRA, the dentist minimizes charting, yet fulfills the legal requirements.  If later called upon at trial to explain the particulars discussed with the patient, the dentist is free to detail the lengthy discussion that preceded the patient's choice of carefully explained options.

Another time sensitive charting tip is to liberally use the word "etc." when describing patient options.  Plaintiffs' attorneys love to limit a dentist to the literal and rigid reading of the record.  For example, if three options are outlined, then a jury is hard pressed to believe a fourth alternative was reviewed.  Such "phantom" charting often is a prelude to large damages. Fortunately, a dentist can use "etc." as an escape.  It allows the author to expound on the many tangibles reviewed during the visit.

COMMANDMENT IX
Thou Shalt Review Charting From Assistants/Hygienists

Most charts contain four separate authors: hygienist, assistant, receptionist/office manager, and dentist.  The order can be critical.  The hygienist and assistant must always chart before the dentist.  Equally important, the dentist must read what is written before he or she begins charting.  Different nomenclatures can lead to confusion and ultimately to disaster.  The classic example is non-uniform abbreviations.  Juries assume that in-house and universal charting methods are discussed between the dentist and the staff.  In reality, staff members often work for other practitioners and learn different charting methods before becoming your employees.  Make sure that everyone uses the same words and phrases.  Again, the best audit of the record occurs when you, the dentist, chart last.

COMMANDMENT X
Thou Shalt Update the Patient's Medical Status for Each Visit

When it concerns the patient's medical history, all dentists are created equal.  Almost All practitioners take a comprehensive health history in the initial visit or work-up.  Most dentists ever inquire about the patient's health thereafter.  Is it the patient's responsibility to alert the dentist to medical changes that affect oral condition?  Or, must the health care provider inquire? As a health care provider held to a higher standard of care, the importance of initiating this follow -up information is clear.  In actual charting, "NCMH" is a helpful abbreviation to designate "No Change in Medical History."  If there is any question about a medical condition, the dentist should be notified and the hygienist/assistant should chart accordingly. Boyd W. Shepherd is licensed to practice law and dentistry in the state of Texas, and is a member of the GHDS, TDA, and ADA.

REFERENCES: Jeffrey J. Tonner, J.D.:  Malpractice: What They Don't Teach You in Dental School, 1996.