Protect your doctor in a dental malpractice lawsuit with Dr. Mitchell Gardiner


In this conversation, dental practice management expert Dayna Johnson discusses the importance of documentation in dental malpractice lawsuit cases with Dr. Mitchell Gardiner and attorney Ryan Donihue. They emphasize the significance of dental records in supporting the standard of care and defending against malpractice claims. They also discuss the impact of electronic communication on documentation and the role of dental hygienists in thorough note-taking. The conversation highlights the importance of comprehensive and accurate medical histories and the need for regular updates. Dr. Gardiner also stress the significance of informed consent discussions and the documentation of these discussions in protecting dentists from negligence claims.


00:00 Introduction and Background
01:03 Introduction of Special Guests
03:02 Importance of Dental Records in Malpractice Cases
04:00 The Role of Documentation in Malpractice Defense
05:22 The Impact of Electronic Communication on Documentation
06:21 The Difficulty of Answering Questions without Documentation
07:45 The Importance of Thorough and Accurate Medical Histories
09:13 The Role of Dental Hygienists in Documentation
10:35 The Significance of Medical Histories in Dental Malpractice Cases
12:28 The Importance of Reviewing Medical Histories at Every Visit
14:49 The Frequency of Updating Medical Histories
17:22 The Role of Technology in Medical History Documentation
19:27 The Importance of Reviewing Online Health History Forms
21:22 The Significance of Informed Consent Discussions
22:49 Determining the Need for Informed Consent for Different Procedures
24:40 The Documentation of Informed Consent Discussions
26:29 Conclusion and Final Thoughts

Listen on Apple Podcast:

Listen on Soundcloud:

Full Transcript provided by Riverside AI (please ignore any and all grammer errors)
Hey there, I’m Dayna Johnson, dental practice management expert, certified Dentrix trainer and founder of Novonee, revolutionizing the dental industry through innovation and strategic leadership. It wasn’t long ago that I lived in your shoes, navigating the daily challenges of managing a dental practice with the hopes and dreams of having a productive schedule, money in the bank.

and getting home on time to my sweet daughter. After 25 years working in the dental practice and 17 years as a certified Dentrix trainer, I found my life’s work helping dental teams one -on -one optimizing their systems and software. If you are looking to create the thriving dental practice you have always dreamed of and empower your high performing dental team, you are in the right place.

Let’s get started. To the High Performing Dental Team and we are podcasting live from the Rocky Mountain Dental Convention. And so if you hear a little bit of background noise, it’s just because there’s a lot of people roaming around our podcast pavilion today. And, but I have two special guests with us today with a really critical, important topic. And so I’m excited to introduce, I have Dr. Mitchell Gardiner who presented.

Yes, did you present yesterday and today? No, I presented yesterday on a redone oligomal injection. Oh, okay. And today, along with some wonderful attorneys, I had Ryan Donihue from Hall Booth Smith in Atlanta and also Colorado and the Western States of me and this Joe J. Also another partner in the firm. We did a simulated mock dental malpractice trial. Oh, that sounds.

You make malpractice sound fun. We had a good time this morning and it’s always much more fun to do it in a classroom environment than in the courtroom, which we don’t ever want to show up in it. For sure. And then you brought your counterpart, Ryan Donahue, who is an attorney, a dental and medical malpractice attorney from all over the country. And welcome. Thank you. It’s always an honor to be here. I think we were here a couple of years ago.
Yeah, thank you both for being here. So since you presented this morning, I love the idea of doing a mock trial if you talk about malpractice. So if I was sitting in your class, what would be the top three things that I’d be able to take back to my practice and really make some good changes to help protect my doctor? What would be the top three things I could take away from your course?

As a clinical, as the clinical dentist, I’m going to start. And I would tell you what we tried to show, we showed an actual malpractice case. It all centered around the records. The dental records of the case are really the evidence that has to either support standard of care of the part of the dentist or they don’t, they don’t support that. And then we have a problem defending in court.

And the reason that I took part in this is I do expert witness work as well as my clinical dentistry. So my job is to understand the standard of care and try to teach jurors that in these cases. The three most important things that I think people, and today, believe it or not, there were probably as many hygienists as dentists in the course, and it was a sold out course. So there were a lot of people there who wanted to hear this.

Ryan and I and Joe wanted to do this because it’s so much more, one, informative, two, fun, and three, anxiety -free to do it in the environment we did it in. What we tried to show is how important really the evidence in supporting us in saying that we have met standards of care are and having ancillary professional people like dental hygienist there who do so much good documentation work.

is very important. So they saw it today in this particular mock trial. How the first interbees of what we talked about was on the records themselves. And I want Ryan to comment somewhat about that too, because as a defense attorney, these are the most important foundations that he will do to build his defects.
Yeah, documentation is so critical. Yeah. Yeah, I think one of the most important things that we’re seeing now, and I think people walked away from, was not just documenting the medical records, but also the text messages, the electronic forms of media that are out there that the devs are using to communicate, and how those can be used against them, and how they should be sometimes part of the chart. So we have to be careful with what we text, what we look at as colleagues. Oh, interesting.

So do you feel, let me kind of add on to that a little bit. Do you feel like the practice is missing the documentation or are they documenting it wrong? No, I think they’re documenting it in most cases appropriately. It’s just now they’re supplementing it with a text message or sending it with an email, all those electronic forms of media out there. Okay. In some of those times, the doers should make their way to the chart and the other times they shouldn’t, but you got to be careful with what you’re seeing with other colleagues. Okay. Because praise letters are asking for those. Yeah.

Okay, interesting. That’s really a good point. So to add what you asked, you asked me Dana, what are the other several points that we wanted to have people understand today when we did a mock type of trial? I wanted our dentists and our staff people to understand the type of questioning that we’re going to face when we get to trial and the difficulty in answering questions when we don’t have the documentation to back it up.

because our memories will not serve us properly with that. And we did that today and that they saw Ryan questioned me quite extensively and quite at length about the deficiencies in the treatment that I supposedly provided to this dentist. And a couple of people commented, many people commented after. They said, well, that was a pretty torturous time that you spent. And I said,

And it’s not torturous when we do it in the classroom environment. It’s audible when we do it in the courtroom environment. And Ryan, I’m sure, can add to that. Yeah. I think one of the most popular sayings that we hear in the dental office is, if you didn’t write it down, it didn’t happen. Yeah. And we talked about that today, how that’s a misnomer. And people always think that. But if you’re documenting the essentials, whether it’s electronic or written or something else, I think you’re fine.

is just, you know, that’s a preconceived idea that a lot of clerical lawyers put out there. Okay. And they’re always asking depositions of trial. If it wasn’t documented, it wasn’t done. Yeah. I know healthcare providers, dental providers cannot put everything possible in the chart. It’s just that that’s really essential, of course, in treatment. Okay. Thank you for clarifying that, because I do feel that that’s kind of a saying that we say a lot, and I appreciate you clarifying that for us. But I would tell you, Dana, that I work under the premise…

that that’s not a true statement. Because I review an awful lot of dental records for malpractice cases and saying if it’s not in the chart it didn’t happen, we know that it’s not true. However, it’s now a much more difficult part of our job to prove that it is true. Now remember, the documentation is the memorialization of exactly what happened in the office between the patient and the doctor.

And it incorporates so much. It starts with the medical history, which is a real foundation of a good dental record. And I teach courses in documentation, medical histories. And I pretty much try to challenge dentists every time that I teach a course in medical history, asking them, are your medical histories thorough, complete, honest?

forget whether we read them or not. Let’s just start with the premise, are they complete, honest, and thorough? Now, most dentists will answer that to me. I try to make them so, so I think they are. And then I’m going to spend the next half hour showing them why that is a really inaccurate statement, that our medical histories are only the very beginning. Once we have the patients, fill them out.

And then we have to really investigate how true, honest, and accurate and thorough they are. And most dentists will find, well, they are lacking in so many areas. I don’t know if Ryan would agree, but I’m curious to hear what he has to say. I just want to add on to that, Dr. Dardner, that I love that you brought up the health history, because all of you know how much I stand on, you know, a stool and preach about health history.

One of my biggest pet peeves about the health history is the word no changes. If I see the word no changes on your health history, oh my gosh, the wrath of Dana will come down. That’s part of what we talked about half the trial today was the documentation contained within the health history, whether or not this particular patient was allergic to a particular drug or not, and it was an incomplete record. And so I find…

significantly over. Had a gloss over the medical history, dental history. They just kind of focused on what’s the patient’s complete and not really focused on any of what really has happened before. So I think it was very educational to me. I think the jury really saw that or that we had a mock jury then we had the real one. But I think they really saw that, don’t you, pretty much. I would certainly agree with what you said and Dana, I’m glad that you said that this is, it stresses to anybody who’s in this arena whether it be…

with defense attorneys like Ryan or me as an expert witness. The medical history is the solid rock solid foundation for treating patients safely. I cannot tell you how many serious cases we have that center on incomplete, unsigned, unread, undated medical, on up to date medical histories and.

For me, that is where everything starts in the dental documentation. Thank you. Oh my gosh, I’m so happy to hear you say that. Well, there is, if you really want to see how bad it can happen to you, we take for granted that almost all of our patients do room care in the dental office. But all you need is one episode. Yeah. One episode where something goes wrong and you look back at the medical history and said,

or excuse me. No, it’s okay. Gee, why didn’t I see that? Why didn’t I understand that? Why didn’t I call a specialist? Why didn’t I get a referral? Why didn’t I get medical clearance? And then all of a sudden you said to yourself, I could have saved everybody off for a world of grief and it really starts and right with the medical history. That’s the documentation. If it’s there, we know we can at least practice safely with our patients. Do you agree with that?

I would, and we can also defend the case. Based on that is the starting point all the way through. So, I mean, when I get a case, I start at the very beginning, what am I looking at? Looking at the medical history documentation that supported it, and then kind of regress there. It is key to the entire successful defense of the case. And I… Oh, go ahead. Well, Dana, what I was going to say is, you know, our office staff people, our dental hygienists, our registered dental hygienists…

are typically the best note takers. Yes, absolutely. They communicate better than dentists do typically because they typically will spend even more time than we do and for some reason patients are more comfortable than them. They’re not as nervous with a dental hygienist. They are more open, more honest. Dental hygienists get an awful lot of information that dentists don’t get and it’s not because dentists aren’t entitled to that information.

is because run, dentists don’t use their ears as much as they should, and hygienists do, and hygienists spend the time to do them. And it’s very funny, I always do this to see what people will do. In the courses that I teach, I’ll say, now listen, I want you to be able to spend enough time to take a good medical history, which takes time, it takes a great deal of time, and I want you to get paid for it.

So I’m going to give you a dental insurance code, but you can write down, and you’ll get paid for taking a medical history. And everybody’s got their pens out, ready to write it down. I love it. And I’ll tell you the quote. Tell us. D0000. And they laugh like you, because they know I’m being facetious. I’m being sarcastic. We do not get paid to take a good medical history, but it pays us back.

He’s had times over, well, a hundred times over it. You want to comment on that, Roy? No, I think you’re 100 % right. I mean, just think of taking a very detailed and comprehensive dental medical history versus how much time you’re going to spend at trial sitting next to me at the test tape. agree. Where you’re away from your practice and you’re not going to be able to see patients during that period. Yeah. The headache, the stress, everything associated with it. So the penny off his tongue called just a document. And like you said, just do it. Yeah, agree. So.

Oh my gosh, this is such good information and I have a couple follow -up questions. Now, do you have a recommendation as to how often the office should have the patient do a health history and sign it? All right, so I present this anyways in my medical history and documentation forces and let’s see if Ryan agrees with me. Okay.

Medical histories need to be reviewed at every visit. Agree with that. And they need to be documented at every visit, meaning reviewed medical history. Yes. And there are three cardinal questions to ask your patient to get a complete update, because patients sometimes are not on the same page with us. They don’t understand that maybe going to the hospital for a stent in their heart is important to us. Many times…

They’ll say, oh, by the way, I went to the hospital and I had a stent put, but that’s not important to you. Well, yes, it is. We need to educate our patients about that. But the three signature questions you ask, have you been, don’t say physician, have you been to a doctor since you’ve been to my office last? Because many of them, they don’t know what a physician is. They know what the doctor is. Have you been to a doctor since I’ve seen you last? Okay. That’s number one. All right.

Have you changed or taken any new drugs or medications or for that matter supplements? Okay. Since I have seen you last. That’s question number two. Question number three.

Dana and well, I was gonna say talk about medications and then number three Have you been in the hospital since I’ve seen you? Hey, that’s different than how do you seen a doctor? That would be another separate question. Okay, first one. Have you seen a doctor to have you changed any drugs? Medications or supplements since I’ve seen you last. Okay number three. Have you been to the hospital?

since I’ve seen you last. And let them spend a little time answering each one of them, because many times they will forget, oh, yes. Exactly. And that’s the door that opens for you to go through it, to then get them to complete that medical history on a review basis. OK. Ryan, anything there? Completely agree. Just make sure you document that particular conversation in the medical record, because it’s key. Because when litigation starts,

The dentist, of course, is going to say, I had that conversation. And the patient or the plaintiff is going to say, we never talked about it. And then it goes back to what we talked about before. If it wasn’t documented, it wasn’t done, which is what’s going to be argued by the plaintiff’s attorney. So the document, I can’t stress enough that particular review or renewal of the medical history of dentists. I love this. And the second question you asked me, Dana, was what would be the standard of care for getting a complete updated new medical history?

Well, I would want our dentists and our staff people who are listening to think about the following. Every single time you go in the hospital, if you’re unfortunate enough to have to go, they will make you fill out a brand new medical history. It doesn’t matter if you’ve been there a month ago. Now, the standard of care should be no more than two years in the dental office. You need to have a completely new medical history not reviewed.

but filled out by your patients and then reviewed by you and put into the part of the dental record. If you do not, and I can tell you, if you do not follow that, I have seen it in court, and I want to ask Ryan what he thinks about it, but I have seen in court where even though doctors have said, dentists and doctors have said, reviewed medical history, no changes, without a new complete…

medical history filled out by the patient in a quick turnaround of no more than two years, it will be considered not a updated medical history. Ryan, what do you say about that? Good advice. Yeah, I completely agree with that. Every two years there should be some type of documentation completed full -on. It’s there in the chart that we can see it. You know, the only other thing I would add, too, is we’re starting to see some of these dental practices now are doing the dental forms.

on iPads? Yes, yes, that was going to be my next question. And I think we need to be ensured that that is tri -assert over into the chart, it’s preserved, and everybody’s getting hacked these days. Ensure that there’s a backup, and that’s all it would affect too, because one good hack and all that’s gone. Okay, good. Good to know. So yeah, so I had a follow -up question about we are gathering form information, health history information, on a link or an electronic form.

So it gets synced into the software, but then it is really important that the hygienist or the doctor reviews it, reviews that information that the patient filled out online with the patient in the chair. And Dana, what I’m going to tell you, my experience, most dentists who are busy will give very short shrift to the medical history. We’re dental hygienists, we’ll spend more time doing so. And my advice to you as a dental…

Hygienist, if you work closely with your doctor, which I would hope you do, or if you’re a dental assistant and you work closely with your doctor, you must make sure that the doctor spends enough time to review it. My dental assistant who has been with me 35, 36 years now will look at the medical history and ask me, doctor, are you aware that the patient can have epinephrine? Are you aware that this patient…

is on this or is on that. And that is what I highly recommend because in a busy day there is somebody who will slip by that you won’t see that and that is the real, that is the keystone for making your entire professional staff work as a team to help you to really protect your patients as best as we can when we do their dental work.

The only thing I would add very quickly is you got to remember as technology advances and previous lawyers are getting smarter on this, they’re asking for audit trails of that technology. So they will know when you accessed it, if you accessed it, how long you accessed it, and what you do with it. So there’s actually, they go back and there’s the metadata, the data behind that. And they ask for that. So they will know whether or not you could say you accessed it, but the document would be something that… Oh, okay. Good to know. That’s really good. Thank you so much. Oh my gosh.

This has been so incompletely. Oh my gosh, what do you want to talk about? What else do you want to talk about? Well, I want to tell you the other area that I want to see if Ryan agrees. The other area of documentation and discussion that is not documented in the records that really is essential for us as dentists is the informed consent discussion. Okay. The informed consent discussion helps to protect us as dentists from deviating from standards of care.

when risks that we are supposed to discuss with patients actually take place. Because the law will stay, and I’ll see what Ryan says, but the law says that if we have not had a valid informed consent discussion with the patient, and if one of the risks, the inherent risk of what we do happens, then we have deviated from the standard of care. Now if that risk has on the patient, we could be found guilty of negligence.

So it is essential that the informed consent discussion is documented in the dental record, right? Yeah, the only other thing I would add is, some states, you know, you don’t necessarily have to do it, but why wouldn’t you? Yeah. Get the four, you know, and don’t just write discussed risk, benefits, alternatives in your clinic note. You know, having informed consent is narrowly tailored to what the procedure you’re doing. They put it in there. It just shows that you’re really actively discussing things with the patient. Now, do you…

Let me ask you a follow -up question. Do you recommend having an informed consent for every procedure that you perform or just certain procedure, invasive type of procedures? That’s a really difficult gray area question to answer, but what I would tell you my experience as an expert witness and I’m curious to hear what Ryan says, is that the pertinent patient rule is the standard for us and what that means is that what is…

the patient expected here from the dentist about the risks, possible risks, possible complications of any procedure. So let’s say we’re doing a class two restorative treatment or we’re going to use an inferior alveolar nerve blocker. The chances are pretty good that the inherent risks are going to be rather small. So we’re not looking at having to go through an informed consent discussion.

with the patient about that. But if you’re going to take out a third molar, if you’re going to place an implant in the area of missing tooth number 20 where we know we could have nerve damage, we know in a third molar we could have a fractured jaw, we could have infection, we could have several different nerves could be involved. The inherent risk is significant enough that that is when you must have the conversation.

So you need to use your clinical judgment about a procedure and about the inherent risks of that procedure. And if you use good clinical judgment, you’ll know when you need to have that informed consent discussion. Great. We agree. Great advice. Great advice. Thank you so much. My gosh, thank you for your time. Well, we squeezed a one -hour course into whatever time we had. I know. I know.

We try and keep it about 15 to 30 minutes, because that’s about a commute into the office, you know. And any last words? If somebody wanted to reach out to you, how could they find you? Well, Ryan, you don’t want to find Ryan. Ryan will find you. Ryan is one of the preeminent defense attorneys in the country defending malpractice for hospitals, physicians, and dentists.

So you don’t need to look for him. Though, you know, it would be cool if you… You don’t want to find Diane. As far as me, I let you run over the country. I had some of the biggest meetings on all kinds of things like standards of care. And I, you know, we’re always expanding what we teach by what we see. When it happens to somebody somewhere, and I’m involved with it, I want to teach it to somebody else so that person can learn from it. Yeah. And, you know, as a profession.

We really are education -based. That dentists around the country and their staffs. I’m amazed when I travel around the country how many professional staff members come to meetings. Sometimes their dentists should be there and I’ll say to the staff people who I’m teaching with, I’ll say, where is your dentist today? Well, he or she didn’t come today. They told me to learn about it for you.

And I always tell them the same thing. You go home, tell your dentist next time, show up yourself. But you know, it’s our staffs, they’ll protect us. It’s our education and continuing education that protects our patients. 100%. Thank you so much for your time today. Oh, my head is spinning. I got so much information today. And I know that my audience is just going to eat.

eat up this information and implement what you talked about and I’m going to help them with their health history forms and their consent forms. It is an art and science getting a good medical history. I agree with you. It really is. Don’t forget what you learned in dental school. I They taught you how to do it and then you kind of forgot. I know. Listen, it’s a privilege to be with you Dayna. Thank you so very much. Thank you. Thank you Ryan. Thank you Dr. Gardiner and thank you to all of you. Now we will have more discussions about health history and informed consents and

We are coming to you from the Rocky Mountain Dental Convention. Thank you so much for spending some time with us. And I look forward to watching your journey of becoming a high performing dental team.