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9th
Practice Management
Risk Management Strategies for S6800 – Lavern's Law
By Donnaline Richman, Esq. Fager Amsler Keller & Schoppmann, LLP Counsel to Medical Liability Mutual Insurance Company
On January 31, 2018, Governor Andrew Cuomo signed S6800, also known as “Lavern’s Law,” a bill that extends the statute of limitations by applying a date of discovery rule to medical and dental malpractice actions where there is an alleged failure to diagnose cancer or a malignant tumor, whether by act or omission. This is a significant issue for MLMIC policyholders because with a longer statute of limitations, memories will fade, witnesses will become unavailable, and the standard of care may change, so thorough documentation is more important than ever. The best defense for dentists who face an extended statute of limitations under Lavern’s Law for the misdiagnosis of cancers/tumors is to maintain complete, detailed, timely and relevant dental record documentation. Thorough documentation is crucial, and in the electronic health record (EHR), all check boxes must be marked positively or negatively to confirm that the physical examination was complete and that certain conditions/types of cancer relevant to the patient’s complaints were considered. If the templates or check boxes on the computer are not appropriate for such documentation, you should discuss with your vendor adapting the program to the needs of your particular specialty and eliminate irrelevant items on the templates. The following strategies are offered to address the risks inherent with an extended statute of limitations for misdiagnosed cancer cases: 1. Document the patient’s history, which should include the following: a. The patient’s complaint and whether it is a repetitive complaint. b. Relevant information contained in the records of a prior treating dentist. c. A family history of cancer, including the type and age of onset. d. Risk factors for cancer, including, but
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BULLETIN NINTH DISTRICT DENTAL ASSOCIATION
Mark Ambrose, RN, MBA Risk Management Consultant Medical Liability Mutual Insurance Company
not limited to: diet, exercise and obesity; alcohol consumption; and tobacco use (current, past, and present) in terms of packs per day or use of e-cigarettes for “vaping"; and chemical and environmental exposures. 2. Document the positive and significant negative findings of the dental examination. 3. Document a differential diagnosis, ruling out more serious diagnoses, if appropriate. 4. Document the diagnostic tests and consultations that are ordered. 5. Review the incoming diagnostic tests and consultation reports in a timely manner and document both the review and the notification of the patient of both positive and negative findings: a. Implement a tickler system to make sure test and consultation reports are received. b. Document all patient follow-up efforts if reports of tests/consultations are not received because the patient failed to comply as recommended. 6. Document the patient’s understanding of positive results and the proposed treatment plan. a. Follow up by telephone, then mail, on missed or cancelled appointments after positive findings/ results are disclosed to the patient. The telephone calls should be made by the dentist if the patient has an increased risk of cancer. b. Document attempts to get the patient to comply with the treatment plan. 7. Document patient education, including the patient’s understanding of recommended cancer screening tests and examinations for oral and other related types of cancer (including genetic testing): a. Document the patient’s compliance or informed
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