MDIS Quick Bites

by Marc R. Leffler, DDS, Esq.

Recording events with friends and family members is an entirely commonplace happening in many people’s daily lives, with some of those recordings ending up on social media platforms. The same might be said for conversations in general, albeit to a much lesser extent. So, it isn’t beyond the realm of likelihood that patients might want to record dental procedures and conversations with their dentists, for a variety of reasons. Here, we will explore a number of issues relating to recordings in dental offices, with the underlying caveat being that, although legal concepts are discussed, this article is not meant as legal advice, but rather as a dental risk management tool; formal legal advice should be obtained only from attorneys licensed in Missouri.

An initial point to address is the fact that Missouri is a “one-party consent” state when it comes to recording conversations, which means that only one party to any given conversation must consent to its being recorded in order for that recording to be lawful. In this context, that concept comes into play when a patient surreptitiously records a conversation between a dentist (or hygienist or dental assistant) and that patient. Whether the recording of a dental procedure falls into the same category as the recording of a conversation is murkier and likely subject to specific court rulings, but for the purposes here, we will go by the created assumption that both follow the one-party rule, thereby taking the legality question away.

To state the obvious, dental offices are places where patients get healthcare treatment, so those offices are subject to the privacy protection constraints set forth by HIPAA. Because patients in dental offices might be physically close to one another, and because audio and visual recording devices can be extremely sensitive to picking up sights and sounds, dentists are obligated to take reasonable precautions against the invasion of any patient’s privacy rights, and such an invasion might occur if Patient A records their own conversation with the dentist but that recording device also “picks up” a conversation between Patient B and their dentist in an adjacent treatment room: Patient B might well point an accusatory finger at the dental office for not protecting their privacy, by having allowed Patient A to record, if the office staff was aware of that recording. So, from a privacy/HIPAA standpoint alone, allowing recordings should be seen as elevating a dentist’s risk exposure, making that dentist more likely subject to a HIPAA violation or a privacy-violation-based Dental Board inquiry and possible sanctions.

Now, let’s suppose that a dentist considers recording a particular conversation — such as a treatment plan proposal or an informed consent discussion — even in an environment where the privacy of all is protected. 

In the informed consent process, for example, there is ideally a back-and-forth between dentist and patient during which the goal is for the dentist to make the patient an informed consumer, so that they know the foreseeable risks, benefits and alternatives before making decisions about undergoing treatment. In this setting, recording such a conversation can be a real positive, effectively serving as an amplified signed consent form, because a patient later claiming during a malpractice lawsuit that they were not told of a particular risk can easily and successfully be confronted with the recording, proving that the risk was explained and that they voiced understanding. 

On the other side of the coin, if the dentist being recorded during that process were to forget to transmit a particular risk to the patient, or if the dentist did not view that risk as important or common enough to disclose, and that risk were to come to fruition, that would make the dentist’s position virtually indefensible if a suit were to arise, because irrefutable proof of the omission would exist.

The same set of issues exists for the recording of dental procedures. While dentists might wish to show recordings of procedures they perform on their websites or social media platforms or when presenting case studies to dental groups, that is an excellent way to promote and build a practice … if the procedure goes as planned. But if a mistake occurs and that leads to an injury or other bad result, that well-intended recording now becomes a convincing piece of malpractice evidence for a judge and jury to see, in real time. And it is no different if it is the patient rather than the dentist who does the recording.

In the world of risk management, many issues come to a weighing of pros and cons. Is it worth the risk to record, or allow recordings of, conversations and procedures in the office? 

If the answer is no, then the dentist needs to decide how to have the greatest chance of preventing patients from recording. A dentist in private practice can reasonably take the “my house, my rules” approach, and make it known by posted notices, papers given to patients to read and sign, or verbalized statements from staff, that recordings of any kind are not permitted in the office due to privacy concerns. 

But if the answer is yes, the dentist might provide immediate gratification to patients who post online their own dentistry before they even leave the dental chair, while simultaneously increasing their own risk, from various perspectives. Ultimately, given the wide array of tech now available, there is essentially no way to prevent the occasional surreptitious recorder — even with the best precautions taken — so a self-protective rule of thumb is to always consider that somebody might be recording everything that goes on, so act only in ways that will not later come back to bite.

To address the issue that some patients might argue that their rights are being violated by preventing in-office recordings, those patients are well within their rights to leave and go to another office that will allow recordings.

Marc Leffler is the MedPro Group Dental Risk Solutions Lead and Head of the Dental Advisory Board. Dr. Leffler wrote this article for MDA based on an actual member inquiry received about this issue. Find risk management resources at medpro.com/dynamic-risk-tools. 

by Lindsey Kutscher

Have you ever received a demanding letter from the state of Missouri requiring you to provide proof of workers’ compensation insurance for your business in the next 10 days or face penalty? It happens; you are not alone. 

Aside from being required by Missouri law, there are multiple advantages for a practice owner to purchase workers’ compensation insurance. My goal is to provide a better understanding as to the purpose of workers’ compensation coverage and its role in your practice. The reasons outlined in this article are not ranked in order of importance, as value may vary by employer and circumstance.

Advantages of Workers’ Compensation Coverage 

No. 1: To avoid being charged with a Class A misdemeanor and paying a fine of up to $50,000, Chapter 287 RSMo states that employers with five or more employees must carry workers’ compensation insurance. This total number would include you, as the employer, and family members on payroll. However, there are circumstances in which a practice owner may exclude themselves and any family member within the third degree of consanguinity. 

For example, counting yourself, there are five workers in your office; therefore, you must have workers’ compensation insurance in place but may exclude yourself, as the owner. While MDIS does not recommend excluding yourself, as you are just as likely as an employee to sustain a work-related injury (and cost savings is minimal), it is an option. 

No. 2: Providing coverage for employees in the event of a bodily injury, by accident or by disease, is an important benefit an employer can offer by way of workers’ compensation coverage. Four benefits are found within the policy: medical, disability, rehabilitation and death (or survivorship).

Medical benefits will provide payment for necessary and reasonable medical treatment. Despite what you may think, health insurance will not cover work-related injuries. Without workers’ compensation insurance, you may be liable for the cost of medical expenses incurred by an injured employee—out of your own pocket.

Disability benefits are structured to compensate employees for lost wages due to their inability to work with respect to an employment-related illness or injury. After a waiting period of three business days, employees receive a percentage of their pay through each week they are unable to work. There are four types of disability: temporary total, permanent total, temporary partial and permanent partial. In some cases, a disability can result in a lump-sum settlement. 

Death or Survivorship benefits can be paid if an employee dies because of a job-related incident. A burial allowance and income benefit to compensate the dependents for the deceased employee’s lost wages are customary as well. 

No. 3: Employers liability insurance is another feature of workers’ compensation coverage. This part is designed to pay damages (other than those outlined in No. 2) resulting from a claim or lawsuit if an employer is found legally liable. Minimum limits in the state of Missouri are as follows:

• Bodily injury by accident: $100,000/each accident
• Bodily injury by disease: $500,000/policy limit
• Bodily injury by disease: $100,000/each employee

With a lawsuit against you, if a court judgement for damages exceeded any of the limits shown, you may still be liable for the difference. The cost to increase limits for a dental practice is minimal. Instead of opting for the state minimum coverage, consider looking into the cost to raise your limits, for your own financial protection. 

No. 4: Fortunately, workers’ compensation rates are affordable for dental practices, unlike labor trades or other professions who are faced with much higher rates due to the potential for injury on the job.  A dental practice is a reasonably safe place to work, so carriers rate accordingly. Premiums are estimated at a rate per $100 of payroll. Therefore, because workers’ compensation premiums are estimated, the state requires an audit to be completed at the end of each policy year. 

Why Audits Are Important

A workers’ compensation audit provides an opportunity to report your actual payroll as compared to the originally estimated payroll at the beginning of the policy period. This helps ensure you are not over or underpaying for your exposure. These audits are required by the state, and it’s your responsibility as the insured to make sure you comply with the terms of your policy by completing your audit when requested by the carrier. Keep in mind, an audit may result in an additional premium to reflect new hires or raises, or it could generate a refund if your employee count dropped, or payroll was reduced for any reason. 

Failure to comply with a carrier’s audit request will likely result in a penalty assessed by the carrier. This is called an audit noncompliance charge and is intended to compel you, the insured, to comply with the requirements necessary to conduct an audit on your workers’ compensation policy at the end of the policy period. Failure to cooperate with the audit process could result in a penalty assessed by the carrier (usually a significant increase in premium) or cancellation of coverage. These audit reports are easy to complete by using your 941 quarterly reports and following their instructions, which typically take 15-20 minutes to complete. 

Workers’ Compensation insurance is there to protect your practice and your employees; are you protected? 

Contact Lindsey at MDIS to review your workers’ compensation coverage or to get protected today. She is a licensed agent and the MDIS Practice Insurance Manager. Call 800-944-7550.  

Can You Survive a Loss with Your Current Policy?

by Lindsey Kutscher, MDIS Licensed Agent

As a dentist, you face a fair amount of liability in your day-to-day practice and if you own a practice, you face additional liabilities you may not have previously considered. While you probably already realize the importance of professional/malpractice liability, how much do you know about your business owner’s policy and its liability coverages?

Often, we notice our clients use the term liability or general liability interchangeably when referencing premises liability or professional liability. 

General liability from a commercial standpoint is typically in reference to premises liability. If you are a practice owner and/or independent or sub-contractor, make sure you have general liability in place. In the event a patient or other third party were to be injured on the premises, this is the only way to insure your exposure. For example, a patient falling on their way to an operatory: Whether you own the practice or are working as a sub/independent contractor, your premises liability is the same. A patient was in the office to see YOU. Therefore, you or your legal entity can be held liable for an injury on the premises. Because this is not a treatment related issue, professional liability would not come into play. However, general liability does because the incident occurred in/on the premises in which you practice. 

If you are a practice owner who also owns the building your practice occupies, you have an even greater exposure! In this instance, your liability is not limited to the office space in which you practice, but extends to common areas of the building, space occupied by other tenants (if applicable) and even the parking lot.

You’ve heard it before: you get what you pay for. That said, not all business owners’ policies are created equal. While most captive agencies are hyper focused on property, contents and general liability coverage, MDIS knows these are just a few of the many coverage considerations you should be aware of to protect your practice from what could be detrimental loss. Some of the most utilized coverages by our insureds aren’t even included in a captive agency’s policy and when they are, the limits tend to be insufficient. Such as: 

Business Interruption 

What would you do if your practice sustained a tremendous physical loss, such as a fire? Would your current policy provide business interruption coverage helping to pay overhead expenses for your practice while you’re not able to work? It’s likely if you have a loss, you’ll need to find a temporary practice location while restorations take place. This type of coverage will help pay rent, utilities, staff salaries and other business-related expenses when your practice suffers a physical loss. 

Computers and Media 

Does your policy have a separate limit of coverage for computers and media? If not, it should. The replacement of computers and media (i.e. digital x-rays) could be time-consuming and costly. Some agencies might tell you that these items are covered in your business personal property (or content limit) but may not increase your limit of coverage accordingly. If your policy does have coverage outlined for computers and media, make sure your business owners/contents limit will suffice.

Reimbursement for Legal Expense Coverage for Court or Review Boards 

While most carriers do not offer this endorsement as part of their business owners policy, MDIS’ carriers do! This is an important coverage to have if you’re called in front of a court or review board for issues other than treatment of patients and it does just what it says: reimburses you for legal expenses.

Tenants Improvements and Betterments 

Do you lease your office space? If so, check your current policy to see if you have coverage for leasehold improvements (otherwise known as tenants’ improvements and betterments). Often, we learn that our insureds (as tenants) are responsible for the improvements they make to their office space. Unsure? Check your lease agreement. Tenants’ improvements and betterments or leasehold improvements would include items such as operatory cabinets, light fixtures, paint, flooring, etc. If you don’t have insurance protection for items such as these, you may end up paying out of pocket to restore these enhancements.

As an insured, you may or may not realize commercial property insurance rates are often based on the property value in which your practice is housed, as well as overall location, building type (age, construction, condition of building), and not only your own loss history but losses nationwide. Due to widespread losses across the nation, we saw significant increases in property rates over the last year. Especially for building owners. This is yet another reason to take the time to look over your policy. We know this task may seem daunting but it’s important to make sure you have adequate coverage and that your liability exposures are being addressed. If you are not sure where to start, MDIS is happy to review your current policy, offer suggestions or even provide a no-obligation quote. MDIS is here to help!