The Scope: Guidelines for Protecting Your Dental Practice from Liability Claims Related to COVID-19

This article by William Hassett, Esq., was originally printed in our Fourth Quarter 2020 issue of The Scope: Dental Edition. Read more articles from the publication here.

At the outset of the COVID-19 pandemic, New York State declared a public health emergency that allowed Governor Andrew Cuomo to take swift action to mitigate the spread of the highly contagious coronavirus. This was followed by subsequent executive orders that focused on reducing social interactions and included the closure of all dental practices throughout the state. Subsequent directives clarified that dental offices could remain open for the purposes of emergency treatment from March 20, 2020, until offices were permitted to fully reopen on June 1, 2020. As a result of the temporary closure of many dental practices, numerous ongoing treatment plans were disrupted and routine examinations were canceled, resulting in the postponement of dental treatment that did not rise to the level of an emergency.

As a result of the re-entry into practice on June 1, 2020, a concern has arisen about claims related to COVID-19 exposure made by patients who may contract the virus. While this concern is certainly legitimate, an overlooked, likely greater concern is the potential for claims related to delays in diagnosis and treatment that could stem from the closure of dental practices during the peak of the pandemic in New York State.

This article will briefly explore and discuss liability claims associated with diagnosis and treatment related to the closure of dental practices, as well as provide guidance relative to communication and documentation to prevent breakdowns in the continuity of dental care.

There Is No Qualified Immunity from Liability Claims

Pursuant to Executive Order 202.10, qualified immunity for civil and criminal liability was given to medical professionals who provided services in support of the state’s response to the COVID-19 outbreak. These protections were subsequently passed into law by the Emergency Disaster or Treatment Protection Act (EDTPA). The EDTPA codified that healthcare professionals were entitled to qualified immunity from liability claims arising from COVID-19. The act also extended immunity to apply to the “care of any other individual who presents at a healthcare facility or to a healthcare professional during the period of the emergency declaration.” However, a subsequent amendment of the act rolled back this broad immunity and limited its application to the care and treatment of COVID-19 patients. Regardless of the scope of the immunity provided, dental professionals were omitted from the act’s definition of healthcare professionals and therefore not provided the protection of immunity from claims arising during the crisis.

The lack of immunity under the EDTPA notwithstanding, the frequency of claims arising from the contraction of the coronavirus in the dental office will likely be minimal. A dental professional’s substantial compliance with guidelines from the Centers for Disease Control and New York State Department of Health in conjunction with proximate causation issues will make such claims difficult to prove and unappealing to personal injury attorneys.

Apart from coronavirus contraction cases, a lack of immunity protection for dental professionals could result in an increase of dental professional liability claims arising from breakdowns in communication, delays in treatment and diagnostic failure related to the two-and-a-half-month period of office closures caused by the pandemic. As practices resume the performance of nonemergent services, dental professionals must take steps to ensure continuity of care and prevent patients with existing dental issues from falling through the cracks.

Importance of Active Patient Chart Review

Prevention of breakdowns in treatment starts with a review of active patient records. Prior to the pandemic, studies have shown dental professionals saw on average 70 patients per week. It is impossible for a dental professional to remember the status of every active patient prior to their practices being shuttered. A brief review of dental records for active patients, those seen within one to two months before the March 20 closure, will help identify patients who may have had treatment plans disrupted or who may have ongoing dental issues that require follow-up treatment or evaluation. A claim based on a failed dental appliance, infection or other dental issue is far more likely to be viable than one based upon contracting the coronavirus.

Patients who were in the course of ongoing treatment prior to the pandemic should be contacted and notified that the practice is operating with appropriate safety measures and that they require continued dental treatment. These efforts, as well as the substance of conversations with patients, should be documented in the dental record. If a practice is unable to contact a patient, a notification should be sent in writing (via regular mail and certificate of mailing) that outlines the patient’s status at the last encounter, the outstanding treatment and the risks associated with failing to resume dental care.

Emergent Dental Treatment During the Period of Temporary Closure

Executive Order 202.6 required the closure of all nonessential businesses. A subsequent clarification by New York State mandated that effective March 23, 2020, dental practices could remain open only for the purposes of emergency treatment. This mandated closure remained in effect until Governor Andrew Cuomo announced dental offices could reopen statewide on June 1, 2020. The American Dental Association has defined an emergency to include potentially life-threatening conditions requiring immediate treatment to stop ongoing bleeding or to alleviate severe pain or infection. Dental providers were also instructed to use their professional judgment in determining a patient’s need for emergent care during the period of required office closure.

During the time that dental practices were ordered closed, some practitioners ceased operations completely, suspended their liability insurance coverage and directed patients with emergencies to contact dentists who remained operational for emergent encounters only. In these instances, dental practitioners should follow up with the patient, as well as the dental provider to whom they were referred, to confirm the condition was addressed and to determine if any follow-up care is required. These conversations should be documented in the dental record. Dental professionals should also make sure the initial conversation with the patient concerning the emergent referral to an open dental practice is documented in the dental record. If not, the follow-up with the patient will provide an opportunity to document the history leading to the referral that transpired during the closure.

Dental professionals should also address any requests for treatment they may have received during closure that did not meet the standard of “emergent” and were deferred until after the office was opened for all circumstances of dental care. Where treatment was deferred as nonemergent, the dental record should contain documentation to support the practitioner’s judgment including the aspects of the patient’s symptomology to support their reasoning. Of course, now reopened, dental professionals should make efforts to coordinate an evaluation with the patient.

Routine Examinations Not Performed

As a result of the 72-day period of dental practice closure, how many appointments for routine examinations and/or cleanings were canceled that have not been rescheduled or followed up by the practice? Diagnostic errors account for the second highest number of liability claims against dentists, of which oral cancer claims [link related blog post when published] account for the majority of indemnity payments made. Oral cancer screenings missed as a result of the lack of routine examinations, and the delays in following up with patients whose appointments were canceled, could potentially give rise to liability claims. Most practices have sent out notifications via mail or email informing patients that their practices are open. However, it is recommended that additional steps are taken to specifically notify patients to reschedule routine examinations that had been canceled. This can include a telephone call with appropriate chart documentation, or, if necessary, a letter sent with certificate of mailing to confirm the efforts to contact the patient.

Referrals to Specialists

Dental professionals should also be mindful of situations where patients were referred for endodontic, periodontal, or even surgical treatment or evaluation prior to the closure of dental practices. Communication breakdowns between providers [link related blog post when published] are always one of the leading causes of professional liability claims, and dental practitioners should take steps to confirm that any referred treatment or evaluation was completed. If so, this should be appropriately documented in the chart and should include a report from the specialist relative to their findings and any need for follow-up care. Any discussions with the patient or the specialist concerning the evaluation should also be documented in the chart. Finally, if the evaluation or treatment has not taken place, the patient should be notified immediately to address this.

Changes in Circumstances for Patients

As a result of the COVID-19 pandemic, patients may have changes in insurance coverage, loss of income/employment or even increased fears that visits to dental offices could result in contracting the coronavirus. These changes could result in patients transferring care to another dental professional, electing not to proceed with treatment or simply being noncompliant with a dental professional’s recommendations.

If a patient has switched providers, it is important to memorialize in writing that they have elected to place themselves under the care of another dentist and offer to provide a copy of their dental record in compliance with state and federal privacy regulations. Similarly, missed appointments or episodes of noncompliance must be documented in the dental record. Finally, in the unfortunate situation where a dental professional finds it necessary to discharge a patient from their practice, it is important to take appropriate steps to prevent claims of abandonment and to mitigate the potential for a claim arising from treatment that may be incomplete. The withdrawal from patient care notification should be undertaken in writing. When appropriate, reference should be made to noncompliance on the part of the patient, the need for continued dental treatment and the risks associated with the patient’s failure to seek dental attention. Of course, dental professionals should always consult their liability insurer or counsel to provide guidance and assistance concerning the withdrawal from care process.

Patient Abandonment

Lastly, it bears mentioning that these potential areas of liability exposure could equally serve as a basis for a professional misconduct claim based upon patient abandonment. New York State regulations define unprofessional conduct to include “abandoning or neglecting a patient or client under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care, or abandoning professional employment by a group practice …without reasonable notice and under circumstances which seriously impair the delivery of professional care to patients or clients.” This provides further emphasis to dental professionals on the importance of dentist-patient communication and documentation to ensure that continuity of care has remained effective following the temporary closure or restriction of their practice.

Conclusion

The coronavirus and efforts to contain its spread have created disruption and changes in practice unlike any other in the era of modern dentistry. As a result, dental professionals who have reopened their practice in New York State must be aware of potential breakdowns in patient care caused by the disruption of the patient-dentist relationship stemming from the extensive period of state-mandated office closure. By undertaking a review of active patient dental records, coupled with communication and documentation, dental professionals can identify issues in treatment and minimize the risks of professional liability claims arising from delays in treatment or failures in diagnosis.