By Guest writers Joel Rosen and Kavita Goyal, Rosen & Goyal, P.C.
Dental professionals are held to high standards and are subject to oversight by the Board of Registration in Dentistry. The Board’s function is to protect the public, not to punish dentists for misconduct. The Board investigates when it receives a complaint. These complaints often come from patients or state agencies, or even members of your own staff!
Some common reasons dentists and dental specialists are investigated:
- Inadequate Standard of Care. This is usually what we think of as malpractice. It can involve misdiagnosis or maltreatment. Examples could include: leaving a fragment of a file in the canal, misreading an X-ray, failing to refer a patient for treatment of an abscess, placing an abutment incorrectly, or any other mistake that harms a patient. Malpractice is just a mistake. It can happen to anyone. But remember that not every bad outcome constitutes malpractice.
- Fraud and Billing Irregularities. Insurers, including MassHealth, have fraud divisions who respond to patient complaints or to dentists deemed “outliers” due to unusually high billing of a particular code. The investigators also have the right to audit patient files and may attempt to recoup payments if an individual case, in hindsight, does not meet the insurer’s standards. A finding of fraud, particularly from the Medicaid Fraud Division of the Attorney General’s Office, may be reportable. The MFD will generally file a complaint with the Board. Again, fraud allegations need to be proved, and you may have very good reasons for the conduct that causes concern.
- Licensing Violations. We have never seen a dentist forget to renew their license. However, we have had cases where dental assistants did not renew, or never obtained licensing. That requirement is recent. Licenses need to be posted, and it is not only the dental director who is responsible when a subordinate misses a renewal date. Any dentist in the office where an unlicensed person is practicing is subject to discipline. An isolated case in an office will usually not result in serious sanctions.
- Office standards. The Board’s position is that every dentist in an office can be held responsible for noncompliance with CDC infection control regulations, OSHA violations, or even minor local infractions like failing to have fire extinguishers inspected. Be especially careful that your office has written records of spore testing, has no expired or missing items from its first-aid kit, and disposes of sharps as required.
- Legal issues outside of dentistry. Criminal charges are reportable, and the Board considers violations to undermine public confidence in the integrity of the profession. Typical cases involve OUIs, domestic disputes, possession of unlicensed weapons or drugs, fights with third parties, domestic disturbances, and other criminal matters. If the police get involved in something you did, you should ask yourself whether the interaction is reportable.
- Continuing Education Requirements. Several years ago, the Board began randomly auditing dentists for compliance with CEU requirements. And every time there is an investigation, the Board routinely asks for CEU certificates. The failure to have these becomes a new basis for discipline. This problem is easy to avoid. You can meet most of your CEU requirements at Yankee Dental once a year.
- Failure to Self-Report. Dentists are required to report certain events to the board, which may include anything that would be listed on the National Practitioner Data Bank, any criminal charges, malpractice settlements and other conduct listed in the regs. The failure to self-report is a basis for discipline.
- Unprofessional Conduct. This usually refers to inappropriate contact with a patient, such as flirtatious comments, but also includes discourteous or disruptive behavior. Unprofessional conduct with staff may also result in complaints.
The fact that there is an investigation does not mean you will be disciplined. Most of our cases are closed without a finding. The important thing is to respond quickly with a clear explanation of what occurred. Your malpractice insurance will cover most BORID defenses. When an event occurs that may result in a problem, you should immediately speak with a lawyer who has experience in this area. You may also file a claim with your insurer, who can recommend a lawyer or, if the claim is covered, can assign one to your case.
For more information about information included in this article, please email jrosen@rosengoyal.com.