Sleep Medicine Malpractice Negligent Failure to Refer

by Ken Berley, DDS, JD, DABDSM

I write this article out of concern for Sleep Medicine. The treatment of Sleep Disordered Breathing is undergoing a revolution. As with any revolution, passionate patriots are taking up arms to defend their turf. On one side of this conflict we have dentists who are now screening for SDB and wishing to participate in the treatment of their patients. They have taken courses in Oral Appliance Therapy for the treatment of OSA and they have seen oral appliances change the lives of their patients. Many dentists are convinced that MAD therapy is as effective as CPAP with much better compliance and they do not understand why sleep physicians refuse to refer CPAP failures for therapy. Entrenched on the other side of this conflict we have Sleep Physicians who seem to view dentists as a threat (joke) and are not a fan of MAD therapy. Frequently these Sleep Physicians only prescribe CPAP and don’t offer mandibular advancement devices to their patients as a treatment option. Many of these sleep physicians do not even refer their patients for MAD therapy after failing CPAP. So, the fight is on! Yes! Dentists and Sleep physicians seem to be at war. Both sides are refusing to give ground and neither willing to admit that they are wrong. What a mess! How did we get to this point? Dentists and sleep physicians should be working together but many are stubbornly refusing to allow the other to participate in the treatment of their patients.
Seven years ago, I started screening my patients for airway issues and began referring my patients to the sleep physicians in my area for evaluation of SDB. I sent letters to the local sleep physicians and referral information. I sent brochures and oral appliance models. As I referred, I impatiently waited for the physicians to begin to reciprocate. The first year of screening for SDB, I referred 82 patients to local sleep physicians and all were placed on CPAP. None of my patients were even offered oral appliance therapy. I visited the offices and called and could not get past the receptionist. I did not make an appliance until my patients started failing CPAP. This lack of reciprocal referrals resulted in a significant level of resentment on my part. I saw my patients who had an AHI of 7 placed on CPAP without being offered any alternatives. I purchased home sleep testing equipment with the intent of obtaining OSA diagnosis from remote sleep physicians. I was mad! I wrote an article for publication in Dental Sleep Practice magazine entitled “The Elephant in the Room” where I blasted sleep physicians for refusing to refer my patients back to me after diagnosis and interfering with the treatment of MY patients. Fortunately, my friend Steve Carstensen did not publish the article.
Luckily, I never stooped to dispensing HST testing equipment out of my office for the diagnosis of SDB. I continued to refer my patients for a face-to-face examination with local sleep physicians. This is despite the many home testing companies that were encouraging me to go to the dark side. As my completed Oral Appliance Therapy patients began to return to the local sleep physicians for final titration PSGs, I began to receive some referrals. The referrals only happened after the local sleep physicians were convinced that I could get good results with appliance therapy. Since that time, I have attempted to cultivate continued cooperation with the sleep physicians in my area, but establishing a referral network seems to be very difficult for most DSM providers. So, they go to the dark side. They utilize home sleep testing and maintain control of their patients. This action seems to be a direct response to sleep physicians refusing to allow dentists to participate in the treatment of the patients that they have referred.
My personal experience accurately outlines the disconnect that exists between dentists and physicians. Dentists are accustomed to referring our patients to specialists and still controlling the treatment provided. In our referrals we dictate the therapy we deem necessary and if the specialist wishes to vary significantly from our treatment plan, a conference call is expected. Physicians don’t practice that way. When a referral is received, they provide treatment based on their experience. If the physicians have had little or no positive experiences with Dental Sleep Medicine practitioners or Oral Appliance Therapy, why should dentists expect patients to be referred for MAD therapy? On the other hand, dentists frequently look at CPAP therapy and wonder how any reasonable sleep medicine practitioner would chose that device as first-line therapy for patients with mild or moderate OSA. While the degree of patient compliance with CPAP can be debated, I think we can all agree the wearing CPAP is a struggle for many patients. The simple fact that 4 hours of usage per night is considered compliant speaks volumes. Therefore, many dentists do not understand when CPAP is always the only option presented for treatment OSA.
I share my concern because the lack of reciprocal referral is placing dentist and physicians at legal risk for “Negligent Failure to Refer.” Negligent failure to refer is a malpractice cause of action that can apply when a reasonable and prudent practitioner should refer a patient to another healthcare professional but fails to do so. The law places a burden on healthcare practitioners to provide referrals when you are not qualified to provide certain therapy, or your therapy has been ineffective. In that case, if an alternative therapy exists, a patient should be informed of the alternative and a referral offered, even if the alternative therapy is not the most effective treatment. Generally, the decision to refer is controlled by protocols and scope of practice. In court, evidence is introduced regarding the protocol governing the treatment in question. Juries frequently rely on those protocols to establish the standard of care.
In Sleep Medicine, we now have sleep physicians and dentists refusing to refer to each other for seemingly selfish reasons and our patients are suffering because of our collective negligence.
Question number 1: Are dentists who refuse to refer patients to sleep physicians for a face to face examination and diagnosis guilty of Negligent Failure to Refer?
Question number 2: Are Sleep Physicians who fail to offer oral appliance therapy to their patients and fail to refer patients who cannot wear CPAP all night guilty of Negligent Failure to Refer?
Let’s look at the law.
The Supreme Court of South Dakota delivered an important decision on when a physician’s failure to refer a patient to another doctor constitutes malpractice. St. John v. Peterson, — N.W.2d —- (S.D. 2015), 2015 WL 3505401.
The Court decided that a physician has a duty to refer her patient to another doctor when she is not competent to carry out the procedure the patient needs or when the referral is part of the customary practices and protocols followed by her peers. The availability of other, more experienced, better skilled and better performing doctors is not, however, a good reason in and of itself for imposing a referral obligation on the physician.
The Court had very good reasons for making that decision. In South Dakota and everywhere else in the United States, a physician/dentist commits malpractice when she fails to conform with her specialty’s customary practices and protocols. However, juries will apply a reasonable practitioner standard to determine if a referral should have been made. Protocols are evidence of the standard of care, but juries will determine the reasonableness of any actions or omissions. Protocols are not necessarily binding on a jury. However, for a sleep physician to achieve informed consent for the treatment of OSA, the law would demand that the patient be informed of the alternatives for treatment. The simple fact that many OSA patients are not informed of oral appliance therapy before CPAP is initiated raises the question of adequate consent for treatment.
Attorneys are always looking for a way to address social problems. In my home state of Arkansas, legislation has recently been passed criminalizing fatigued driving. This places renewed emphasis on controlling daytime sleepiness. With the legal principle of Negligent Failure to Refer and criminalization of fatigued driving, let’s look at the following hypothetical:

Case Number 1

Mr. Jones is a 62-year-old male, with a BMI of 38 and an Epworth Sleepiness Scale of 18. After a split night PSG, he was diagnosed with moderate obstructive sleep apnea syndrome and a prescription was written for CPAP. The diagnostic portion of his PSG showed him to have an AHI of 28. Mr. Jones attempted to wear CPAP for 6 months, trying different masks. He returned to his sleep physician for help after developing a sinus infection that he was unable to control. The sleep physician recommended that he see a surgeon for possible surgical correction of his apnea, but Mr. Jones stated that he was not interested in surgery and asked for other alternatives. The sleep physician recommended that he exercise and lose weight and continue to wear the CPAP as much as possible. No additional referrals or recommendations were made. Mr. Jones was not placed on recall to monitor his condition. One year later, Mr. Jones falls asleep while driving and hits a school bus killing 3 children and injuring 6 others.
When Mr. Jones is sued by the parents of these children, could he then sue his sleep physician for malpractice? The good news is that lawsuit has not occurred in sleep medicine YET! But if the damages were significant enough, I can certainly see a personal injury attorney collaborating with a malpractice attorney to bring this lawsuit. In that situation, the legal principle of joint and several liabilities could place the entire economic burden on the physician. I believe this case would survive summary judgement and go to a jury.

Case Number 2

Mr. Jones is a 62-year-old male, with a BMI of 38 and an Epworth Sleepiness Scale of 18. He was diagnosed with moderate obstructive sleep apnea after his dentist provided a home sleep test that was read by a sleep physician working for the HST company. He did not receive a face-to- face physical examination by a sleep physician. He complains of restless sleep and his wife states that he moves his legs constantly during the night. He is diagnosed with moderate sleep apnea with an AHI of 28. He is fabricated a Mandibular Advancement Appliance. During the adjustment phase, Mr. Jones complains that his sleepiness is NOT improved. After the dentist titrates the oral appliance another HST is performed, which shows Mr. Jones AHI to be 16 with a nadir of 82. Mr. Jones told the dentist “I’m not going to wear a CPAP” so he is not referred for any additional care and he never sees a sleep physician. He is not placed on a recall to monitor his condition. His daytime sleepiness is never resolved. One year later, Mr. Jones falls asleep while driving and hits a school bus killing 3 children and injuring 6 others.
When Mr. Jones is sued by the parents of these children, could he then sue his dentist for malpractice? The answer is YES! This type of lawsuit is called third party liability.
With the introduction of Mandibular Advancement Devices as an alternative to CPAP, dentists are now an integral part of the team of professionals providing treatment for OSA. In the hands of a well-trained clinician, Mandibular Advancement Devices have proven to be an effective treatment for patients with Sleep Disordered Breathing. Therefore, dentists and sleep physicians must find a way to coexist for the good of our patients.
Working together we are better. Dentists and sleep physicians should work together to improve patient compliance with therapy. This can take many forms but the most exciting is combination therapy where CPAP is utilized with a custom fabricated oral appliance. This potentially allows for reduced CPAP pressures and typically during the night if the CPAP is removed, the oral appliance may continue to be used.
Additionally, sleep physicians should understand that dentists generally expect their patients to be referred back to them for therapy when indicated. Sleep physicians should be aware that dentists are ticked off when patients they refer with an AHI of 7 are placed on CPAP, without being given the option of OAT.
Sleep physicians should be aware that each dentist in your area likely has 250 OSA patients in their practice. If physicians want a steady stream of new sleep patients, develop good working relationships with dentists. As of October 2017, dentists are now required by the ADA to screen all patients for SDB. If sleep physicians want those patients to be referred to their offices, they must treat the referring dentists with respect and be willing to allow the referring dentist to make appliances on easy cases. Mutual respect and reciprocal referrals will solve many problems. Additionally, if sleep physicians would simply inform referring dentists why certain patients needed CPAP and not an oral appliance, dentists would then feel like they were a part of the treatment decision and collaboration would be improved.
By reciprocal referrals, dentists and sleep physicians can share liability with each other and reduce their potential risk by informing patients of all options for treatment. By referring appropriate patients, the possibility of a suit for negligent failure to refer is eliminated.
If sleep physicians would just refer patients who are struggling with CPAP to a qualified dentist in your area, patients would benefit from that referral and relationships would be developed. If dentists would refer all screened patients who show signs of sleep disordered breathing to a sleep physician, patients would benefit. Severe OSA patients would constiently receive the best therapy. Together we are better, it is time we figure that out.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome to any litigation. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

Dr. Ken Berley is a practicing general dentist with over 30 years of private practice experience focusing on complex reconstruction and 20 years of experience as an attorney licensed to practice law in Arkansas and Texas. He has extensive experience as a litigator and was a full partner in Travis, Borland and Berley, Attorneys’ at Law before moving to Northwest Arkansas. Dr. Berley is a Diplomate of the American Sleep and Breathing Academy and a Diplomate for the ABDSM. He lectures in the area of sleep medicine risk management. He has provided TMD treatment for many years and has incorporated Sleep Medicine in his office for the last 3 years.

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