Protect yourself from the threat of litigation

How you can protect yourself from the rising threat of litigation

Tina Wixon CQC, Practice Management Leave a Comment

Tina Wixon, Regional Support Manager at Practice Plan, talks to Tracey Jarrett, a practising dentist who holds a Master Dental Law and Ethics degree, about the rise of litigation and the importance of consent and having the time needed with patients…

The risk of complaints and litigation against dentists is not only ever-present but also increasing. A report* last year revealed that in 2014 the GDC received 3,099 FtP complaints and referrals, an increase of 4% on the previous year. The report also stated that this represented only a quarter of the 12,000 dental-related complaints made to organisations such as the CQC, NHS England and the Dental Complaints Service.

In light of these figures, and additional statistics from Practice Plan’s Dental Confidence Monitor survey which showed the majority of NHS (95%) and private (67%) dentists have some level of anxiety about the risk of complaints/litigation, I spoke to Tracey Jarrett, a practising dentist who is one of the first cohort to complete a Masters of Dental Law and Ethics degree.

Tina Wixon (TW): Can you share a little bit about what the course was like and why you wanted to undertake it?

Tracey Jarrett (TJ): Dento-legal issues are becoming much more prominent and it’s now a big problem, unlike when I qualified 27 years ago, so I wanted to find out more about it. I can’t recommend it highly enough, it is the first course in the UK that is dedicated to dental law and ethics and covers topics such as building an ethical dental team, coaching your staff to get the best out of your team and applying the law in practice.

TW: How has completing the Master’s changed the way you practise?

TJ: I qualified in 1991 and we had very poor teaching on record-keeping with a view to legal problems that might arise from not keeping good records. Since then the GDC has changed its regulations to try to improve good record-keeping, so I should imagine that students coming through now have much better training on this area, but doing this course gave me more awareness into potential issues and real insight into keeping records, particularly around obtaining consent.

The importance of recording everything in the notes is stressed time and time again as, from a dento-legal point of view, if it’s not in the notes, it didn’t happen! It is so important to protect yourself by keeping good, detailed contemporaneous notes.

TW: Why do you think litigation and complaints seems to be on the rise?

TJ: I think it’s a combination of lots of things; there’s more pressure on dentists to deliver and patients are more aware about what treatments are available to them, but the NHS has not adapted to meet these changes and patients don’t necessarily understand that.

NHS dentists feel under much more time pressures, and as a profession we’ve got much more regulation and compliance than we ever had, such as the CQC, and the GDC’s FtP is always a worry in the background. All of these additional pressures mean less time for the patient, which is no good for anyone – not least because studies have shown that patients don’t sue people in the medical profession if they like them and feel they’ve spent time with them.

Not spending enough time with patients also causes difficulties in obtaining valid consent. Lack of consent leaves dental practitioners open to complaints and litigation. As a private practitioner without the time constraints of the NHS, it is easier to spend that important time with your patients.

One of the other issues is the proliferation of no-win no-fee law firms that almost encourage patients to sue their dentists. We live in a litigious society, and that combined with all the other factors I’ve mentioned means we all work in an environment that does contain quite a bit of anxiety and stress.

TW: Speaking of anxiety, our Dental Confidence Monitor survey found that both NHS and private dentists are anxious about the risk of complaints/litigation, although the figure was almost 30% higher for NHS. What are your thoughts on this?

TJ: I’ve not worked in the NHS for a long time but have spoken to colleagues, and an NHS dentist is not only juggling the clinical problem, offering the treatment plans and pros and cons of each, and getting consent from the patient – as private dentists do – but they’ve also got to deal with NHS regulations. They have additional stresses, such as feeling as though they have limited time to conduct appointments and the pressure of meeting UDA targets.

In a private practice a practitioner can charge for time adequately and hence feel able to spend longer with the patient.

TW: In light of this, is there anything you think dentists can do to protect themselves from the risk of complaints?

TJ: You must make time for obtaining proper consent and good record-keeping; if you feel under time pressure this can be a tricky balance, but it is so important. Also, as soon as a patient even hints at being dissatisfied I think you should be straight in there and dealing with it from the beginning. Don’t let it fester and hope they won’t complain; if the patient isn’t happy you need to be willing to sit down with them and find out why. If you do that within your practice environment I think you will find that you’ll have far less problems with patients trying to go through the legal system to complain. I don’t get many patient complaints by any stretch, but when I have we’ve dealt with them quickly and in-house and those complainants are still our patients today, and even recommend us to others.

TW: It seems like spending time with patients and building rapport is key…

TJ: It really is, I don’t see how you can get good consent from a patient without spending time with and getting to know them well – without knowing what’s important to them you can’t get good consent. There is a legal case called Montgomery vs Lanarkshire Health Board, which really highlights the importance of valid consent. For example, if you don’t know that your patient plays the trumpet, and therefore their incisors are very important for this, how can you get proper consent if you’re talking about removing one of them and providing implants? You can’t, it’s impossible.

TW: Thanks Tracey, for a really interesting discussion. The risk of complaints and litigation is clearly a concern for all dentists and you’ve really highlighted the importance of building relationships with patients and good record-keeping in mitigating this possibility. I know we could probably say more on this topic, but we’ll have to leave it there for now.

*Analysis of fitness to practise case date for the General Dental Council by the Plymouth University Peninsula Schools of Medicine & Dentistry

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