FAQ- Dental
Frequently
Asked Legal Questions - Dental
Should
professional fees be waived or refunded when a
patient is dissatisfied?
Not always. It depends on the particular situation.
First give the patient the opportunity to describe
the reason for their dissatisfaction. Attempt
to correct the situation, if possible. If the
patient demands a refund, waiver of fees, or the
issue cannot be remedied, contact FPIC's Risk
Management Department or personal counsel for
specific guidance. What some may interpret as
an act of accommodation, others may view as an
admission of liability.
Are
x-ray films the property of the patient?
No. X-ray films are the property of the originating
physician, dentist, or radiology group. By law,
the patient may access their films and upon
request, be furnished a copy. However, original
films should never be released. The patient
may be charged the cost of reproducing x-ray
films.
May
records be furnished to an HMO/MCO without an
authorization from the patient?
No. However, most HMO/MCO providers require
such authorization as a condition of coverage.
Therefore, the HMO/MCO should be asked to furnish
a copy evidencing the patient's authorization.
What
action should be taken when a summons and complaint
is received?
Immediately notify FPIC by calling the Claims
Department at 800-741-3742, ext. 3293. If you
are served, FPIC only has a limited number of
days to assign a defense attorney and prepare
a response to be filed on your behalf. It is
important to not discuss the case with the patient,
the patient's attorney, or other parties involved
in the care and treatment of the patient. You
should also gather and secure the patient's
records immediately.
What
action should be taken when a patient is noncompliant
or refuses to undergo diagnostic studies, care,
or treatment?
Document your recommendations and the patient's
noncompliance. Advise the patient of the potential
consequences their noncompliance or refusal
may cause and document your discussion. Confirm
the patient's noncompliance, your subsequent
discussion, and the potential consequences in
a letter to the patient sent certified mail,
return receipt requested. Send a copy of the
letter by regular mail as well. Consider withdrawing
from the patient's care, but first review the
language of any managed care contracts that
may apply to the situation and seek guidance
from FPIC's Risk Management Department or personal
counsel. If you practice in a group setting,
it may be necessary to withdraw on behalf of
others in the group as well as the practice.
Does
state law pertain to sample medications?
Yes. Most state laws view the distribution of
sample medications as dispensing medication.
The sample medication should be dispensed in
the original manufacturer's labeled package
with the practitioner's name, patient's name,
and date dispensed.
What
is the appropriate way to make charting corrections?
Errors or mistakes in charting should be corrected
by drawing a single line through the incorrect
portion, initialing, and dating the correction.
Additions to the chart should be dated contemporaneously
with the entry and when appropriate, an explanation
given for the addition.
What
procedures should be followed when actual or
suspected biological/chemical exposure is encountered?
Dentists should follow current guidelines issued
by the Department of Health, Centers for Disease
Control, and county medical societies. Carefully
document in the patient's chart the severity
of symptoms, your clinical examination and findings,
and adhere to current guidelines.
Is
a dentist responsible for the negligent acts
of an employee?
Most employers are responsible for the acts
of their employees. While specific statutory
provisions may hold the employee directly responsible,
it is the dentist who is primarily responsible
for all delegated procedures. Depending on the
allegations made, a dentist may also be held
vicariously liable for the acts of others, including
the dental practice or professional association.
Does
a dentist have the right to have legal counsel
present when being deposed?
Yes. A deponent has the right to legal counsel
at the time of deposition. Always contact FPIC's
Claims Department or Risk Management Department
before providing a deposition in order to determine
if legal counsel is necessary and if an attorney
will be assigned to represent you at the deposition.
Are
sign- in sheets in waiting rooms prohibited
by the HIPAA privacy rule?
No. However, a sign in sheet or registration
log that solicits the reason for the visit or
other personal health information should not
be used.
Do
state or federal laws set forth a specific manner
in which obsolete patients records must be destroyed?
No. The manner selected must protect patient
confidentiality. Under HIPAA provisions, it
is recommended that obsolete patient records
be shredded for disposal. If a service is contracted
for this purpose, it is not only wise to verify
in writing that the contractor or entity agrees
to maintain patient confidentiality but also
to require that a written Business Associates
Agreement be executed pursuant to HIPAA requirements.
It is suggested that providers require that
such entities include indemnification and hold
harmless language in the contract and/or written
agreement.
Is
it against the law to refer to a medical assistant
as a "Nurse" in the office practice
setting in the State of Florida?
Yes. Florida Statute 464.016, paragraph (2)(a)
indicates that "using the name or title
"Nurse," "Registered Nurse,"
"Licensed Practical Nurse," "Advanced
Registered Nurse Practitioner," or any
other name or title which implies that a person
was licensed or certified as same, unless such
person is duly licensed or certified" constitutes
a misdemeanor of the first degree, punishable
as provided in s.775.082 or s.775.083.
Are
there laws that govern the legibility of written
prescriptions?
Yes. Effective July, 1, 2003 Florida Statute
456.42 requires that all written prescriptions
must be legibly printed or typed and must be
signed by the prescribing practitioner on the
day of issue. Further, the prescription must
contain the following:
Name of the prescribing practitioner
Quantity of the drug prescribed in both textual
and numerical formats
Date of the prescription with the month written
out in textual letters
Directions for use of the drug
Name and strength of the drug prescribed
Failure to issue prescriptions as set forth
by the new requirements is a violation of Florida
law and will subject the practitioner to disciplinary
action of their license to practice.
What
are the most prevalent conditions entailing
diagnostic error in dentistry?
Ranked in descending order: gingival and periodontal
disease; disorders of pulp and periapical tissues
of teeth; disorders of hard tissues of teeth,
including caries; malignant neoplasms of the
mouth; temporomandibular joint disorders.
What
action should be taken when an error is suspected
or occurs?
Contact FPIC's Risk Management Department for
guidance as soon as possible. make no admissions
of liability. Federal and/or State reporting
requirements under strict time constraints may
apply. Always attempt to discuss the situation
with personal counsel of FPIC before meeting
with any third parties.
Does
the HIPAA Security Rule require that patients
be provided a privacy notice?
Yes. Effective April 14, 2003, patients
must be provided with a privacy notice detailing
the rights and responsibilities of the patient
and the practice in protecting the privacy and
confidentiality of protected health information.
The privacy notice should be shared with patients
upon delivery of service, or as soon as feasible
in an emergency. Ti must be available to patients
in print, written in clear language, and be
posted at each service site - ideally the waiting
room. The patient's acknowledgement that the
privacy notice was provided must also be contained.
The privacy notice, the patient's acknowledgement,
and each notice revision must be retained for
a six-year period. Upon their request, patients
must be furnished a copy of the privacy notice.
May
the dental records of a deceased patient be
furnished to the surviving spouse?
Not automatically. Under Florida statutes,
dental records may only be furnished to the
patient of the patient's "legal personal
representative." In the case of a deceased
patient, it is required that the person seeking
the record be appointed as the "Personal
Representative of the Estate" of the patient.
Alternatively, a party seeking production of
the decedent's dental records may file a "Pure
Bill of Discovery" to obtain a Court Order
to produce the records. A standard authorization
for release of dental records is sufficient,
providing that the requesting party executes
the authorization "As Personal Representative
of the Estate of (patient name), Deceased."
Should
professional fees be waived or refunded when
a patient is dissatisfied?
Not always. It depends on the particular
situation. First give the patient the opportunity
to describe the reason for their dissatisfaction.
Attempt to correct the situation, if possible.
If the patient demands a refund, waiver of fees,
or the issue cannot be remedied, contact FPIC's
Risk Management Department or a personal attorney
for specific guidance. What some may interpret
as an act of accommodation, others may view
as an admission of liability.
Who
is a "covered Entity" under HIPAA?
A health plan or payor, a healthcare clearing
house, such as a billing service, or a healthcare
provider such as a physician, dentist, hospital
or pharmacy of any healthcare provider who transmits
any healthcare information in electronic form,
which includes telephone, fax, and computers.
Do
Florida Statutes set forth requirements pertaining
to emergency equipment in dental practices?
Yes. Pursuant to FS 466.017(4) "...Each
dental office which uses any form of anesthesia
must have immediately available oxygen and other
resuscitative drugs as are specified by rule
of the board [of Dentistry] in order to manage
possible adverse conditions."
Do
mandatory reporting requirements set forth by
Florida statues pre-empt HIPAA privacy provisions?
Generally, yes. A good example would be
FS 381.003 which requires a physician that diagnoses
or suspects the existence of a disease of public
health significance to immediately report the
fact to the Department of health. However, because
the legal waters pertaining to most HIPAA privacy
provisions have yet been tested, it is wise
to seek legal or risk management guidance when
uncertainty may arise.
What
is meant by the legal phrase res ipsa loquitur?
A Latin phrase meaning "the facts speak
for themselves." Res ipsa loquitur is a
rule of evidence under which an individual is
deemed, under certain specific circumstances,
to be negligent by mere occurrence of the incident,
and where the law presumes that the injury could
not have occurred by tort negligence. An example
of a res ipsa loquitur case would be a retained
foreign body claim.
Are
inadequate patient records grounds for disciplinary
action?
Yes, under Florida Administrative Code 64B5-13.005(3)(p)
a dentist is a subject to disciplinary action
for "…Failure to keep written dental
records and medical history records justifying
the course to treatment of the patient including,
but limited to, patient histories, examination
results, test results, and X-rays, if taken…"
