When sleep physicians and dentists do not refer patients to each other when indicated, malpractice claims could ensue, argues a lawyer-dentist.

Many articles have been published extolling the benefits of qualified dentists and sleep physicians partnering to provide treatment for their patients with sleep-disordered breathing. However, after all these years and a multitude of articles on the subject, there is a disconnect between dentists and physicians. There are many reasons for this disconnect; however, it should be noted that dentists and physicians approach referrals from completely different directions.

Dentists are accustomed to retaining control of the treatment provided to patients when they refer them to specialists such as endodontists and periodontists. They dictate the treatment to be provided, and if the specialist wishes to vary significantly from that treatment plan, a conference call is expected.

Physicians don’t generally approach referrals that way. Instead, when a referral is received, they provide treatment based on their experience—so if the physician has had little or no positive experiences with dental sleep medicine practitioners or oral appliance therapy, the patient is extremely unlikely to be returned to the referring dentist for a mandibular advancement device (MAD) even if the patient refuses or fails CPAP. This lack of mutual referral has resulted in many dentists refusing to include sleep physicians in the treatment of their patients.

As a dentist/attorney who is boarded in dental sleep medicine, this lack of reciprocal referrals has me extremely concerned. Frequently, I represent dentists with board issues and malpractice cases, and dental sleep medicine complaints are on the rise. My concerns are now exacerbated because this lack of reciprocal referral places dentists and physicians at legal risk for lawsuits based on the concept of “negligent failure to refer.”

Negligent failure to refer is a malpractice cause of action that can apply when a reasonable and prudent practitioner would refer a patient to another healthcare professional for therapy but fails to do so. The law places a burden on healthcare practitioners to provide referrals when that practitioner is not qualified to provide certain therapy or their therapy has been ineffective and a reasonable alternative exists. In the latter case, if any alternative therapy exists, a patient should be informed 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 and juries frequently rely on those protocols to establish the standard of care.

In sleep medicine, I see sleep physicians and dentists refusing to refer to each other for seemingly selfish reasons—and patients may be suffering because of our collective negligence.

Two questions need to be asked:

  1. Are dentists who refuse to refer patients to sleep physicians for face-to-face examination and diagnosis guilty of negligent failure to refer?
  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?

The Supreme Court of South Dakota delivered an important decision defining when a physician’s failure to refer a patient to another doctor constitutes malpractice. In St. John v. Peterson, —N.W.2d—(S.D. 2015), 2015 WL 3505401, the Court decided 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.

Additionally, it should be stated that for a sleep physician to achieve informed consent for the treatment of obstructive sleep apnea (OSA), the law would demand the patient be informed of the reasonable alternatives for treatment. The simple fact that many OSA patients are not informed of oral appliance therapy before CPAP is initiated raises the legal question of adequate consent for treatment.

Courts are always looking for a way to address social problems. In my home state of Arkansas, legislation was passed in April 2013 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 hypotheticals.

Hypothetical 1. Mr. Jones is a 62-year-old male, with a body mass index (BMI) of 38 and an Epworth Sleepiness Scale score 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.

My Concern. When Mr. Jones is sued by the parents of these children, could he then counter-sue his sleep physician for malpractice? The good news is that lawsuit has not occurred in sleep medicine…yet. This type of lawsuit is called third party liability. But if the damages (3 dead children) are 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. Therefore, the sleep physician could be legally responsible for the damages caused by the automobile accident.

Hypothetical 2. Mr. Jones is a 62-year-old male, with a BMI of 38 and an Epworth Sleepiness Scale score of 18. He was diagnosed with moderate obstructive sleep apnea after his dentist provided a home sleep apnea test (HSAT) that was read by a sleep physician working for the HSAT company. He did not receive a face-to-face physical examination by the 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 MAD. During the adjustment phase, Mr. Jones complains that his sleepiness is NOT improved. After the dentist titrates the oral appliance, another HSAT is performed, which shows Mr. Jones’ AHI to be 16 with an oxygen saturation nadir of 82. Mr. Jones 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.

My Concern. When Mr. Jones is sued by the parents of these children, could he then sue his dentist for malpractice? Again the answer is yes! My fear is that all the local sleep physicians will show up in court to testify against this defendant. Here also the dentist could be legally responsible for the damages caused by the automobile accident.

With the introduction of oral appliances 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, oral appliances have proven to be an effective treatment for patients with sleep-disordered breathing. Therefore, dentists and sleep physicians must find a way to cooperate for the good of their patients.

Cooperation can take many forms, but in my view, the most exciting is combination therapy (where CPAP is utilized with a custom fabricated oral appliance). This potentially allows for reduced CPAP pressures, and if the CPAP interface is removed during the night, 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. To put that plainly, referring dentists are going to be ticked off when patients they refer with an AHI of 7, and no comorbid diseases, are placed on CPAP without being given the option of oral appliance therapy.

Ken Berley, DDS, JD, DABDSM

Ken Berley, DDS, JD, DABDSM

As of October 2017, dentists are now required by the American Dental Association to screen all patients for sleep-disordered breathing. Therefore, all sleep physicians need to realize that each dentist in your area likely has 250 OSA patients, or more, in their practice. 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 these dentists to make appliances when appropriate for patients with mild disease. Also, if sleep physicians would simply inform referring dentists why certain referred patients needed CPAP and are not good oral appliance candidates, dentists would then feel like they were a part of the treatment decision and collaboration would be improved.

At the same time, if dentists would refer all screened patients who show signs of sleep-disordered breathing to a sleep physician, patients will benefit.

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.

Together we are better; it is time we figure that out.

Ken Berley, DDS, JD, DABDSM, is licensed to practice dentistry in Arkansas and law in Arkansas and Texas.

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.