Wes Barkley, DMD, was an experienced general dentist who strived to provide affordable and accessible primary dental care to his community. He had referral relationships with several specialists in the area, including a periodontist.

Posted in Dental Insights on Thursday, August 20, 2020

Dr. Barkley and his dental hygienist, Rosa, had a routine for managing and treating periodontal disease in-house. Rosa was responsible for obtaining and documenting health history, screening procedures, radiographs, periodontal probing, and dental prophylaxis. She provided Dr. Barkley with copies of the health history form and radiographs, and verbally reported pocket depth measurements and other clinical observations. However, she did not complete any clinical documentation of her own.

Dr. Barkley analyzed the information Rosa collected, including the health history form and her verbal report, and confirmed the details with his patients. He also performed his own examination and documented his findings.

While Dr. Barkley carefully evaluated his patients for periodontal disease, his custom was to “chart by exception.” He did not typically make specific notations about the patient’s pocket depths if the patient’s overall periodontal condition was within normal limits.

When necessary, Dr. Barkley performed scaling and root planing on patients with pocket depths up to 6 millimeters. He considered advanced periodontal disease to be outside his realm of practice, and would immediately refer patients to a periodontist if they had pocket depths above 6 millimeters or if scaling and root planing proved ineffective.

Patient with Epilepsy Sees Dr. Barkley

Trevor Michaline, age 55, saw Dr. Barkley for three visits between March 2017 and April 2018 for exams, fillings and cleanings. Rosa completed the health history form during Michaline’s initial visit in March 2017. This form indicated he was epileptic, and listed Tegretol, an anticonvulsant medication, as an active prescription.

According to Dr. Barkley and Rosa, they would ask Michaline at each visit whether he was taking any new medications or had changes to his existing prescriptions. However, he always denied any changes to his Tegretol prescription. Unfortunately, these denials were never documented on Michaline’s chart, and the health history form was not updated after Michaline’s initial visit.

Rosa obtained four bitewings during Michaline’s initial visit. Dr. Barkley determined these X-rays showed normal bone levels. Upon examination, Dr. Barkley documented that Michaline’s periodontal health was “within normal limits,” other than “localized marginal gingivitis.” There was no additional documentation as to Rosa or Dr. Barkley’s periodontal evaluation.

Michaline was placed on a six-month recall and continued to see Dr. Barkley for routine dental care. Rosa took another set of bitewings during Michaline’s last visit in April 2018. His bone levels were still normal, but his periodontal condition was not otherwise recorded in the chart.

Dr. Barkley later recalled that Michaline’s condition remained stable and the patient denied any updates to his medical history. Based on Dr. Barkley’s custom and practice, he would have documented any updates or deviations from the March 2017 baseline.

Dr. Barkley did not hear back from Michaline until November 2018, which was when he was expected for six-month recall. In an irate phone call, Michaline complained about his gum condition. Unbeknownst to Dr. Barkley, Michaline had just returned from a visit with a periodontist who diagnosed him with severe periodontal disease. He threatened to sue Dr. Barkley and ceased all communication with him after that phone call.

State Board Allegations Ensue

Though Michaline ultimately did not sue Dr. Barkley, he filed a complaint with the state’s licensing board alleging that Dr. Barkley failed to perform regular periodontal evaluations. The board initiated an investigation and found grounds to discipline Dr. Barkley’s license if Michaline’s allegations were true.

Dr. Barkley cooperated with the investigation and appeared with counsel for an informal board hearing. As expected, their primary concern was the lack of periodontal charting.

Dr. Barkley was prepared to discuss his customary practice for charting and referrals, as well as his recollection that Michaline’s periodontal status was stable through April 2018. However, the board surprised him with a photograph of Michaline’s mouth dated October 2018, which clearly showed advanced periodontal disease.

Clearly, Michaline’s subsequent dentist, the periodontist, had provided these pictures to the board, and this periodontist had been critical of Dr. Barkley’s prior care. It was not helpful that one of the board members was a periodontist, who opined that “charting by exception” fell below the standard of care for periodontal evaluations. This board member specifically referenced the lack of any pocket depth charting in Dr. Barkley’s chart.

Michaline’s mouth had markedly deteriorated since the last time Dr. Barkley saw him in April 2018. Dr. Barkley insisted he would have referred Michaline to a periodontist if he would have presented in this condition.

Patient’s Medication Complicates Situation

Another contributing factor was that despite Michaline’s verbal confirmation that his health history form was still accurate at his last visit in April 2018, his anticonvulsant prescription had actually changed from Tegretol to Dilantin in March 2018. Dr. Barkley was not informed of this change until the board hearing.

Dr. Barkley knew that Dilantin, unlike Tegretol, could rapidly affect a patient’s dentition, and the board agreed. It was a consensus that taking Dilantin could cause a patient’s gums and teeth to deteriorate from stable to advanced periodontal disease within six months.

On one hand, the Dilantin prescription explained how Michaline could have left Dr. Barkley’s care in April 2018 with stable gums and presented with severe periodontal disease by October 2018. On the other hand, if Dr. Barkley had learned that Michaline had switched to Dilantin, he may have placed him on a three-month recall, allowing for more prompt diagnosis, referral and treatment, allowing Dr. Barkley to educate the patient on the adverse dental effects of Dilantin.

Hindsight is 20/20 and while the board agreed that Dr. Barkley could not be faulted for Michaline’s failure to disclose a new prescription, they were displeased with Dr. Barkley’s charting. Dr. Barkley did not do himself any favors by failing to document that:

1. He performed an updated history and physical examination at every visit.
2. He inquired as to any changes that may have occurred in the patient’s health history since the last visit, including a change in medications.
3. The patient denied any changes in medications and verified that his prescription list was still accurate.
4. He performed a detailed periodontal evaluation for each visit.

Ultimately, the board was less concerned with the progression of Michaline’s disease than with Dr. Barkley’s scant documentation. It seemed apparent that the board likely would not have initiated disciplinary hearings if Dr. Barkley’s documentation been thorough and complete in the first place. Instead, Dr. Barkley sat before the board with little more than his word to stand on, and for that, he was harshly criticized.

Dr. Barkley recognized that he could have done better. The board accepted that Dr. Barkley agreed to adjust his protocols to comply with the standard of care, including periodontal charting. They recommended he complete additional continuing education courses specific to the areas of periodontics and dental recordkeeping. Dr. Barkley agreed, and signed a nondisciplinary consent order.

Although Dr. Barkley’s license was not formally disciplined, he was still under risk of immediate suspension if he did not meet all conditions specified in the consent order. This included providing documentation of his completed continuing education courses to the board.

What Can We Learn?

Accurate, detailed and regular charting of a patient’s dental conditions, with the basis for the diagnosis, the specific treatment plan recommended and agreed to, the rendering of the care, and communications with the patient are critically important in both the disciplinary and the legal setting. In the periodontal context, poor or inadequate charting of periodontal probings, as well as sequential and periodic probings, is fertile ground for attack and criticism of a practitioner’s care.

Just as important are the detailed and regularly updated inquiry and documentation of a patient’s medications and underlying medical conditions that may impact dental care. If Dr. Barkley had Michaline review, sign and date the medical history form at each visit, he could have shown the board that he took the proper steps to update Michaline’s health history, but Michaline failed to give accurate information regarding his use of Dilantin.

Thorough documentation is also the first line of defense against a malpractice action. Timely and detailed documentation assists the defense of a practitioner by using hard evidence to prove the practitioner acted appropriately. If Michaline had filed a lawsuit for dental malpractice, the subsequent treating periodontist likely would have acted as an expert against Dr. Barkley.

It is unfortunate fact that subsequent dental providers criticize previous dental care, often without knowing the details of prior treatment. Detailed charting and a simple phone call would have caught the omission of Dilantin in Dr. Barkley’s recall visit and allowed the subsequent provider to understand the previous care. Instead, in the absence of documentation, the subsequent periodontist was critical of Dr. Barkley and likely wanted to advocate for his patient. Moreover, if Michaline’s periodontal condition progressed to the point of loss of teeth, the damages could also have been significant.

State law will often determine who should make entries in the patient chart. Dentists may delegate to an assistant if the law allows, but they should know the rules and that they are ultimately responsible for what goes into the chart. Every dentist should know and be familiar with the dental practice laws and regulations that govern in their state.

Being contacted by a state dental board or associated employee is a serious event. Any such contact should be the basis of a prompt call to a carrier or counsel for guidance and advice.

Linda J. Hay is a partner in the Chicago office of HeplerBroom, LLC. Ms. Hay has practiced in the professional liability defense arena for more than 25 years and has tried numerous cases to verdict. She is actively involved in a variety of defense bar, professional liability and risk management organizations. Ms. Hay can be reached at Linda.Hay@heplerbroom.com.

Lauren F. Crissie is an associate attorney in the Chicago office at Heplerbroom, LLC. Ms. Crissie focuses her practice on the litigation of professional liability cases, with an emphasis on the defense of complex dental and medical care. Ms. Crissie can be reached at Lauren.Crissie@heplerbroom.com.