Dentistry Uncensored with Howard Farran
Dentistry Uncensored with Howard Farran
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922 Dental Sleep Medicine Update with Ken Berley, DDS, JD & Patty Berley : Dentistry Uncensored with Howard Farran

922 Dental Sleep Medicine Update with Ken Berley, DDS, JD & Patty Berley : Dentistry Uncensored with Howard Farran

1/16/2018 3:22:37 PM   |   Comments: 0   |   Views: 249
922 Dental Sleep Medicine Update with Ken Berley, DDS, JD & Patty Berley : Dentistry Uncensored with Howard Farran

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922 Dental Sleep Medicine Update with Ken Berley, DDS, JD & Patty Berley : Dentistry Uncensored with Howard Farran

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A graduate of University of Tennessee, College of Dentistry and UALR School of Law, Ken has practiced dentistry in Arkansas for over 35 years and practiced law for over 22 years.  He is a member of the Bar in Arkansas and Texas.  His dental interests vary, but over the past 10 years he has increasingly focused his practice on the treatment of Sleep Disordered Breathing and TMD.  He is the only DDS/JD/Diplomate of the American Board of Dental Sleep Medicine in the world.  This fact keeps him very busy lecturing and consulting on Oral Appliance Therapy and the successful implementation of Dental Sleep Medicine. 

Ken is on the editorial board of Dental Sleep Practice Magazine and writes a legal column for each edition.   His consent forms are widely used in dentistry and dental sleep medicine and are included in two of the major software programs for dental sleep medicine.  He provides consulting services for various insurance companies and actively defends and consults dentists who are facing legal challenges.

Patty Berley has been the office manager for Ken for over 25 years and has gained a wealth of experience in the legal and managerial aspects of the practice of dentistry and Dental Sleep Medicine.    She provides consulting and training services for dental offices in the implementation of dental sleep medicine focusing on the business team to screen and educate the patients on the serious health consequences of Obstructive Sleep Apnea as well as insurance and medical billing.  Her prescription form for OSA has been approved by a representative from Medicare and is used in dental sleep medicine practices across the US.


Howard: It is just a huge honor today to be podcast interviewing Ken Berley, who is a DDS and a JD, and his lovely wife, who should be sitting in the middle to make us look better, I don't know why we threw her at the end, Patty Berley. 

So, we'll start with the ladies first. Patty Berley has been the office manager for Ken for over twenty-five years, has gained a wealth of experience in the legal and managerial aspects of the practice of dentistry and dental sleep medicine. She provides consulting and training services for dental offices in the implementation of dental sleep medicine, focusing on the business team to screen and educate the patients on the serious health consequences of obstructive sleep apnea, as well as insurance and medical billing. Her prescription for OSA, obstructive sleep apnea, has been approved by a representative for Medicare and it's used in dental sleep medicine practices across the United States. And for the record, has your husband ever sued you? 

Patty: No, sir. 

Howard: Not yet. Did you make him sign a waiver or something? 

Ken Berley, I want you to know that... He was going to be here speaking before Rose Nierman, who I think was one of the first ten I did, and the same time I asked her, I asked you. I've been chasing you to come on this show for two years, for basically 950 episodes. He's a graduate of the University of Tennessee, College of Dentistry and School of Law. Ken has practiced dentistry in Arkansas for over thirty-five years and practiced law for over twenty-two years. He is a member of the Bar in Arkansas and Texas. His dental interests vary, but over the past ten years he has increasingly focused his practice on the treatment of sleep-disordered breathing and TMD. He is the only DDS/JD/Diplomat of the American Board of Dental Sleep Medicine in the world. This fact keeps him very busy lecturing and consulting on oral appliance therapy and the successful implementation of dental sleep medicine. Ken is on the editorial board of Dental Sleep Practice Magazine and writes a legal column for each edition. His consent forms are widely used in dentistry and dental sleep medicine and are included in two of the major software programs for dental sleep medicine. He provides consulting services for various insurance companies and actively defends and consults dentists who are facing legal challenges. 

So, Ken, when I got out of school... My dental office's just turned thirty years old, it was September 20th. I graduated May 11, 1987, we just had a party at my office last week, September 21st, so it's thirty years. When I got out of school, I had never even heard of sleep medicine. So, what I'm wondering is - when did it really arrive and how long did it take the lawyers to find it and start suing dentists? 

Ken: Oh, goodness! Well, dental sleep medicine has actually been around for quite a while. It started basically in the early nineties with some very, very crude appliances, mostly model blocks that weren't adjustable. However, since basically 2005 we had a new set of practice parameters, where the practice of dental sleep medicine was then recognized by the American Academy of Sleep Medicine and kind of since that time it's exploded. We've started gaining credibility within the medical profession and over the last four or five years we've started now having some, I guess, complications of dental sleep medicine that are beginning to rear their ugly head. 

The legal profession is always about twenty years behind any new technique. 

Howard:t takes them twenty years to find it? 

Ken: It takes them twenty years to figure out there's something new, and then they have to get somebody almost within the profession to spill the beans as to what's going on and they have to figure out how to legally address it. So far there's only been a handful of lawsuits in dental sleep medicine and right now they're kind of concentrated in the areas of TMD issues, secondary to this, but the big deal is tooth movement. We obviously have the possibility of tooth movement and jaw movement, which goes back to having really good consents and making sure the patient is aware that this is a real possibility. 

Howard: And then right here in Arizona we just were blessed by the Arizona State Board of Dental Examiners, they told us that consents can no longer be in writing and given by the assistant or the hygienist to sign, they have to be orally presented before they're signed. You have to give an oral explanation, doctor-patient, before they sign the consent. And then you have to note in your chart that you orally explained this consent they signed. 

Ken: Howard, you should have talked to me earlier. That's always been the law. 

Howard:  Really? 

Ken: Consent has nothing to do with a piece of paper. The piece of paper is for the attorneys, OK? Consent is having a discussion with the patient. I call it having a PARQ discussion. P - what's the Procedure, OK? You've got this? 

Howard: [00:05:37] P is the procedure. 

Ken: What's the Alternatives to that procedure? What's the Risk of that procedure? And do you have any Questions? Q as the PARQ. That is the quick acronym that I use in all my courses that says, "OK, you've got to have this discussion." Some states actually go in and have statutes that deal with what constitutes informed consent, but most states only have a handful of things that have to be in writing. Obviously, I practiced in Arkansas. The things that have to be in writing are things where you're dealing with somebody that maybe has AIDS and you're testing them for it, or you're doing some procedure that might result in the sterilization of a young lady. That is statutorily required to be in writing, but consent doesn't have to be in writing. But you're stupid if you don't put it in writing. The document itself is strictly to codify the fact that some level of discussion actually happened. Obviously, in our writings, we put a whole lot more in them than what we actually do in our PARQ discussion. 

Our PARQ discussion in dental sleep medicine is really very simple. I grab an appliance and I say, "Howard, how much do you know about these things?" And you say, "Obviously, not much." And I go through it and I say, "Well, there's three real complications, OK? The number one - if I move your jaw out, your joints can get sore. The good news is - most of the time that gets better. Most of the time it's very transient. However, there are some patients that have a level of soreness for quite a while. The second thing that's going to happen - if I move your jaw out and I hold the whole weight of your jaw basically on the front teeth, your teeth can get sore. Usually that's transient on in nature. The third complication is a real complication and that is something we have to deal with the rest of your time that you wear this appliance. If this is your upper front teeth and lower front teeth, if we move the bottom jaw out here, your jaw is literally going to want to slowly move progressively out. Not only that, your upper front teeth and lower front teeth can flare. The upper front teeth come in and the lower front teeth go out." So, in my office, we make them not only one appliance, we make them two. We make them the one that moves them out and then a morning repositioning appliance that they put either on the upper arch or lower arch, depending on the type that I make, that is a bite exercise jig for them to use to actually recapture that bite. So, that's the risk, OK? 

I describe the procedure, meaning I hold the appliance in my hand and I say, "Well, if I move the bottom jaw out, the tongue is attached right behind the front teeth, and when I move the jaw out, it moves the tongue out." I don't tell them about the hyoid bone coming out and all the other things, but it moves the tongue out, therefore, the tongue won't, hopefully, collapse on the airway. So, that's the procedure. The R - the risk we've discussed. 

Alternatives - I go and say, "Well, you know the alternatives", because most of my patients have failed CPAP. Mine are referred by physicians. So, I say, "You know CPAP, you know that we can do that, you know weight loss, sometimes positional therapy helps, but the only real thing that will fix this is surgery. You can do mandibular and maxillary advancement and 90% of the time that works and 100% of the time the tracheotomy works." Usually most of my patients are freaked out by that point, so, that doesn't go much further. 

So, that's obviously the alternatives and I sit there and say, "Howard, do you have any questions?" You're supposed to ask me questions. You're not supposed to just sit there, you're suppose to say, "Well, Ken, is this going to work for me?" 

Howard: So, a couple of questions. I remember the first time I ever went on a fishing trip and the buddy next to me got out a CPAP. It was loud, it was like sleeping next to a mini refrigerator. And then ten years later I didn't even know he was using it until in the morning I saw him putting it away. They've gotten really small. 

Ken: They're small and quiet now. 

Howard: Yeah, I couldn't believe it. A couple of my boys were in that room too, it was in Louisiana. We were fishing red, what was it, red fish? 

Ken: Yes. 

Howard: What percent, if a hundred people are treated with the newer, smaller CPAPs a day, how many of them aren't unsuccessful? 

Ken: The research is all over the place, depending on who did the research and depending on how you define success. If you mean by success where's the CPAP all night every night, that number is very small. Certainly less than 25%. And that number goes down, believe it or not, as time goes. When you look past one year of use, most people think that number's less than 25%, but actually the research says it's anywhere from 18% success to 83% success, and by success they mean four hours a night, five nights a week. In my office that's not success. If I have a patient that that's all they're doing, I certainly don't take them off the CPAP, but I go in and recommend an oral appliance to be used in conjunction with the CPAP. They still wear their CPAP or nasal-pap, whatever they're using, and yet, when they take it off at two o'clock in the morning, they have an oral appliance in their mouth, that steel is being effective. 

Howard: So, how successful is oral appliance? 

Ken: That depends on who's doing it. In my practice it depends on how much they know about titration. My protocol is totally different than probably any dental sleep medicine practitioner you'll talk to. I don't know if you know it or not, but in Arkansas we have an obesity epidemic. We have a lot of large people and many of the people that make it to my office are referred after a very unpleasant time trying to learn to wear a CPAP and they're very severe. They have numerous comorbid diseases and they know that this is either controlled or they're not going to be with us long. 

Howard: What are the other comorbid diseases? 

Ken: Oh gosh! The most common ones are the heart attacks, stroke, diabetes, high blood pressure, all of that kind of stuff. By the time they get to me, they've already had two or three strokes, not all of them, but some of these people. 

Howard: You're in Rogers, Arkansas? 

Ken: I'm in Rogers. 

Howard: Which to me is sacred territory. I kid you not. My dad was very poor delivering bread for ten years, and his friends in the bread delivery room, GoBread, a couple of them started buying these new franchises and bought aside a giant franchise. And my dad bought that, it just rocked our whole world, it was a game changer. I was his only boy, because my brother wasn't born till I was seventeen, I had five sisters. One day he said to me, "Howard, all Muslims try to get back to Mecca or Medina once in their lifetime. The birth of capitalism was Sam Walton in Rogers, Arkansas, the first Wal-Mart. Why don't we drive down there and go see it and go to trout fishing?" I thought, "Cool!" So, we got my dad's Lincoln and we drove, I think it was six hours door-to-door, got there, stood in front of it. It was like my dad was at Mecca. He told me Sam Walton stories the whole way there and Ray Kroc stories all the way back and we went trout fishing. I can't remember if it was the White River or the Brown River. 

Ken: White. 

Howard:  It was the White River? That was some of the best trout fishing ever. It was so beautiful. My sister lives in Fayetteville. There's two states that doesn't get any media attention about how beautiful they are. It's Arkansas and North Carolina. You've got four seasons, completely gorgeous. I have a weird twist on why the obesity epidemic is. 

Ken: When you walk into a restaurant in Rogers, you open up the menu and it says, "If it's fried, we've got it." 

Howard: When I was little, only upper class and rich went to eat fast food, and they did it maybe one time a week, because food cost was 30% of disposable income. It was hard to feed the family. Faster, easier, cheaper, that falls from 30% to 10%. So, the price of food is down two thirds and poor people can go get a thousand to fifteen hundred calories for a few bucks. 

Ken: Exactly. 

Howard: So, the only way you can actually get rid of it is, you have to get rid of all agriculture subsidies and you would have to get the price of food to double or triple, because telling someone you shouldn't eat a whopper or a cheeseburger is a pretty hard sell. I don't know if you've ever eaten a whopper or cheeseburger or a Sonic Drive-in foot ong chili-cheese dog. 

Ken: What do you think? 

Howard: The only thing that makes people stop eating foot long chili-cheese dogs is when they don't have the money. And that is the same argument on why they tax cigarettes, because in every state where they double or triple the price of cigarettes, what happens to smoking rates? They plummet. And I have stood in Circle Ks and 7-Elevens at least three or four times in the last thirty years, right across the street from my office, and listened to two teenage kids sit there and say, "Wow, you know, Johnny, for seven bucks...", they're looking at a pack of Marlboro, "for seven bucks or we could go to McDonald's, we'd get two Big Macs, two large fries" and they're sitting there thinking about it and they go, "Yeah, let's go to McDonald's." So, if that cigarette would've been a dollar a pack, what would they've done? They would have bought both. 

Ken: Well, if you look at the obesity rate, there's a direct correlation between the obesity rate and the severity of the apnea. It's not necessarily linear, but there's a direct correlation. Most people think, "That's very sad to be living in an area with a lot of obese people." I personally look at it - that's as a business opportunity. Obviously, that's probably a bad joke, but it's one I use all the time. 

Many times these people get to our office and we are literally their last hope. In fact, I just had a young lady in the office who had been referred to Stanford Medical, who wanted to do MMA surgery on her and her insurance company wouldn't... 

Howard: What is MMA? 

Ken: Maxillomandibular advancement surgery on her. She had an AHI of seventy-seven, which anything over thirty is severe. 

Howard: Let's talk about AHI. 

Ken: AHI - apnea-hypopnea index, that's the number of times an hour she was stopping breathing. Anyway, she also had the aerophagia. Aerophagia is a condition where, when you put a CPAP on them, the air goes directly into the belly and it causes bloating and pain and all that. She literally could not wear a CPAP. So, we have these very severe, sometimes obese, patients. So, in Arkansas, or in my practice, slowly but surely we've developed protocols to handle some of the severe patients. The good news is most practices don't have that. They have people that have relatively mild or moderate apnea and oral appliances are a very good fix for it and fairly easy. 

[00:18:56] The problem, and this is something that I want to talk about, since other people are listening, the problem that we have in dental sleep medicine is that we are truly a house divided. On the right hand, not necessarily right as in being right, but on the right hand we have the American Academy of Dental Sleep Medicine. 

Howard: Is that the one here in Scottsdale? 

Ken: No. The American Academy of Dental Sleep Medicine is out of Chicago. They are a sister organization with the American Academy of Sleep Medicine. So, you have the physicians organization and the dental organization that are putting out protocols that say dentists shouldn't be testing, dentists shouldn't be trying to diagnose obstructive sleep apnea. Their position is we shouldn't be screening with anything that is any type of a sleep test. I'm talking about home sleep testing or high-resolution pulse osx. So, we have that side of the profession and they're writing protocols based on that mentality, and on the other side we have dentists that, maybe they have a fairly large practice; they're screening all of these patients; they know that 25% of all, especially the males, have obstructive sleep apnea; they're purchasing homes sleep testing equipment; they're sending their test off to a sleep physician that's never seen the patient; they're getting a diagnosis from what I call a doc-in-the-box and they're re going around the physicians and going around the American Academy of Dental Sleep Medicine protocols to get a patient diagnosed. Now, the good of that is that it opens up access, because many times if you refer that patient to a sleep physician, they may be a mild or moderate, they may be a really good candidate for oral appliance therapy, and yet they're put on CPAP. 

When I first got into dental sleep medicine, I actually referred eighty-two patients to the four sleep physicians in my immediate area before I ever got one to treat. So, we have this disconnect between sleep physicians on the right-hand side, that many of them don't think oral appliance therapy is very effective, they're not embracing the dental profession being a part of sleep medicine, and then on the other side we have many commercial interests, IDTAs, that are independent diagnostic testing facilities, that are contracting with dentists. 

Howard: IDTAs? 

Ken: IDTAs - Independent Diagnostic Testing Association, I think it is. Anyway, these are companies that can contract with dentists or with physicians, for that matter, to do the testing for their patients. Anyway, the big problem in my world that is coming in dental sleep medicine is, the vast majority of dentists that are out teaching dental sleep medicine are not encouraging dentists to establish solid relationships with sleep physicians. As I told you before, all of my patients come by referral. All of my patients come from the sleep physicians that I work hand-in-hand with. Now, that took me a long time to establish it. But once it's established, sleep physicians tend to be very loyal. Once they know that you can fix the patient and once they know that you're going to communicate with them and send your SOAP notes and your intake notes and all of that, play the the medical game. Additionally, you have to know how to bill medical insurance. Additionally, you have to be a Medicare DME participating dentist. 

Howard: What does DME stand for in Medicare? 

Ken: Durable Medical Equipment. One of the problems that we have in dental sleep medicine is that, when it was first established, the sleep physicians were worried about us working independently. So, for us to get medical insurance or Medicare to reimburse us to pay for these appliances, we're filing as a DME provider, a durable medical equipment provider, just like any other medical equipment provider, where you go get a wheelchair or a hospital bad. That's what we're doing. Those oral appliances, even though they are custom made, even though they're not something that anyone that doesn't have some dental training, we have to have dental training to do that, even though we're acting as doctors, we're functioning as medical equipment suppliers. That requires a prescription by a physician and a letter of medical necessity. 

So, over here you've got dentists that are going in and they're doing the testing. They might be hooked up with an IDTA or they may buy the equipment on their own, they're doing the testing, they're sending the results to a physician that's never seen the patient and they're getting a diagnosis back and they're treating the patient without a physician ever seeing them. The problem with that is, if you go in and put an oral appliance in that patient's mouth, some oral appliances, if they're not appropriately done or appropriately titrated, they can make the sleep apnea worse. And if that patient's never seen a physician and they have a heart attack that night, we're going to be in serious trouble. That is my big fear. We have over here dentists that are trying to play by the rules, and over here we have the majority of dentists doing dental sleep medicine and they're the lone rangers. I know you live on Tonto, they're being the lone ranger or the lone stranger. And if they don't have a face-to-face physical examination with a sleep physician or with a physician, the risk of doing this is more than they need to take. 

There's another thing that, thank the Lord, has never happened. In the legal world there's a thing called third-party liability. And it's kind of interesting, because Arkansas has a really, really famous case on this. A dentist went in and he really didn't sedate the patient. Patty's poking me. I don't know what I did. He really didn't sedate the patient, he actually went in and only gave him two Halcions. He never really lost consciousness and the end result was, he left the office, got in his car and drove it through his neighbor's waiting room. And the patient didn't sue the dentist. The neighbor sued the dentist. 

Howard: The neighbor was a dentist? 

Ken: The neighbor was a dentist. That's called third-party liability. The negligence of dentist number one caused a patient to injure an innocent third party. If you're taking all the responsibility for this patient, the sleep physician isn't controlling EDS or he isn't controlling any of the other issues associated with sleep apnea, you're taking all that responsibility yourself, and yet we don't typically prescribe Provigil or any of the things to control daytime sleepiness. So, you're taking all that responsibility and yet, every time the patient comes in and maybe you're not doing an Epworth Sleepiness Scale to see if they're excessively sleepy, and if that patient, that you're potentially negligently treating, goes out, falls asleep and hits a school bus, the negligence of the dentist caused a patient to injure eight kids on a school bus. If the parents of those eight kids sue that dentist, that's third-party liability. I actually presented that scenario to a circuit judge in Arkansas and I said... His name is Judge Scott, I said, "Judge Scott, I want to paint a picture for you, a hypothetical." I said, "If this were to happen, could those eight parents of the eight dead kids sue the dentist for negligence, for malpractice, even though they've never even seen the dentist?" And you should have seen him, his face almost went white and he said, "Oh my God, I've never thought about that, but yes, they could." So, the problem is, if I figured this out, all it's going to take is the right accident where there's enough damages, and all of those parents thing go to an attorney, who looks at the patient and.. In Arkansas you can get a driver's license to drive with twenty-five thousand dollars worth of liability insurance. Well, twenty-five thousand dollars worth of liability insurance isn't going to take care of eight dead kids. So, the problem is they're going to find out the patient has sleep apnea and they're also going to find out he was treated by a dentist and then they're going to start looking at protocols and credentials and those sort of things. That's my big fear, that if that ever happens, we're dead. But other than that, everything's great in dental sleep medicine. 

Howard: Podcasters are usually young. All my friends... 

Ken: They mirror you. 

Howard: Dentists that are fifty or sixty don't listen to podcasts. They're millennials. I would shout out, "Drop me an e-mail to, tell me who you are." Shockingly, 25% are still in dental school and all the other ones are under thirty in all two hundred countries. So, one of the things they complain about is, they just got out of dental school, and they always say, "God, I feel bad because I graduated in dental school, we didn't place one implant, we didn't do anything with sleep apnea." I have to tell them, "If you are going to play football, the first several years is a block, a tackle, a pass, a catch. They teach you basics." But when they set out to learn about sleep apnea or even implants, they are always seeing on Dentaltown that most of the implant courses are sponsored by a manufacturer. They almost feel like they got to pick the implant before they take the train. When it comes to sleep apnea, they can't tell if this curriculum is because they're trying to sell you a piece of equipment or they're trying to sell you sleep apnea. Have you heard of this complaint? 

Ken: I hear it all the time and it's true. 

Howard: [00:32:29] So, she's twenty-five years old, she's podcasting. Well, millennials don't do that, we do, we listen to the radio in the car, they don't. Radio is dying. She tells us, "I can't drive an hour to work listening to thirty minutes of commercials and then all this stuff about Hillary and Putin and ISIS." They're listing things on quilting, cooking, dentistry, no commercials. So, she's twenty-five, she's driving to work, she's an associate. How would you guide her to get into sleep apnea? Where does it start? What baby steps? Step one? 

Ken: Step one - join the American Academy of Dental Sleep Medicine. 

Howard: American Academy of Dental Sleep Medicine. But what if she's one of them Canadians? 

Ken:  I would say 15% to 20% of the membership of the American Academy of Dental Sleep Medicine is Canadians. 

Howard: They let them in because (inaudible) North America? So, they let the Canadians in on a legal technicality? 

Ken: Not only that, we have diplomats that are Canadians. 

Howard: You won't believe this, but you're in Phoenix. 10% of the people in Phoenix retired from Canada. 

Ken: I can understand that. 

Howard: They're all from Alberta, Saskatchewan. 

Ken: It gets cold up there. 

Howard: Yeah, it gets cold up there. So, one in ten homes. So, they serve the American Academy of Dental Sleep Medicine, which is based out of Chicago and is in with physicians. 

Ken: Exactly. The other thing that they need to do is get some good reading material. You don't necessarily have to go to the courses, you can go in on PubMed and start looking at published documents and published articles in dental sleep medicine and all of that's free, OK? I'm on the editorial board of Dental Sleep Practice. It's not a free journal, but... 

Howard: What's the website of that? 

Ken: I don't know, maybe. I don't know. 

Howard:  Can you find Dental Sleep Practice Magazine? 

Ken: That is a wealth of knowledge and I think the subscription is maybe, I don't know what it is, it's less than a hundred dollars a year. So, I write a legal article in each magazine and it goes from start to finish on titration and billing. All of the people that, I guess, are moving this profession forward, occasionally... Steve Carstensen is the managing editor, it's a great journal. And all of these things are inexpensive. Once they get comfortable with the verbiage, a great place to start is the American Academy of Dental Sleep Medicine, it does introductory courses, additionally. Now, obviously, it's a corporate sponsored event, but Nierman Practice Management, which I lecture for, they do events all over the country. 

Howard: You comment this lady right there? 

Ken: Yes, of course! 

Howard: She was podcast number forty. You were supposed to be forty-one. Thanks for waiting nine hundred shows. 

Ken: You could have come to Rogers and we'd have made it happen. 

Howard: I would, you know why? Because my sister lives in Fort Smith. How close is that to Rogers? 

Ken: Forty-five minutes south. 

Howard: My God! Last time I lectured, I forgot where I lectured, but me and Ryan, I was still driving a Cally, and we drove there, I just can't say it enough, it's one of the most beautiful places in the world. My sister, Kelly, just loves it. 

So, I went to Dental Sleep Practice, I don't see a Share button, it doesn't have... 

Ken: They have an online version and they have the printed version. I don't have one here. 

Howard: Tell them that your bold buddy in Phoenix told them they need to get a Share button for Twitter and Facebook. 

Ken: I will do it. 

Howard: They're communing their works, they're not supposed to be taking us. So, let's go to the American Academy of Dental Sleep. 

Ken: American Academy of Dental Sleep Medicine. 

Howard: See how they have this Twitter/Facebook? 

Ken: Yes. 

Howard: So, I just hit the Twitter and then it opens to their site. So then, eight hours ago they said, "A single employee with obstructive sleep apnea can cost the employer more than $3,000 in access healthcare." Then I just hit that. Is it the Sleep Review Magazine? 

Ken: Exactly, yes. 

Howard: So, I just retweeted your magazine from the American Academy of Dental Sleep Medicine, but you should put that on the magazine, too, the Twitter button. 

Ken:  Lisa Moeller, I don't know if you know Lisa, here in Phoenix. 

Howard: Absolutely! 

Ken: She's the publisher of that. 

Howard: Nice! 

Ken:  So, that's where all of that comes from. 

Howard:  She has three magazines, one in ortho, one in implants... 

Ken:  And one in endo, isn't it? 

Howard: So, she has ortho, implants and dental sleep medicine? 

Ken: Yes. 

Howard: Will you tell Lisa Moeller... She's in my phone, I shouldn't text her. 

Ken: You should, she's local. So, anyway, there's lots of places that you can... It's really sad that many times these guys willing to get into dental sleep medicine get the hard sell, if you will. 

Howard:  For equipment? 

Ken: For equipment. And there's very, very little equipment that you need to do this. Now, it is much easier if you have software, but you can do this without software, but you'd be writing letters all day long. Software is a nice thing, but really, all you need is impression materials and an impression technique and a little bit of knowledge. 

Howard: You and I are old school. You're in Rogers. How many people live in Rogers? 

Ken:  Oh God! We have about sixty thousand inside the city, but from Fayetteville to Bella Vista there's five towns that function as one. So, there's about four hundred thousand in that area. 

Howard: I'm fifty-five, when I went there forty-five years ago, I don't think there was ten thousand people. 

Ken: Oh no. 

Howard: I don't think so. 

Ken: That is the biggest metropolitan area in Arkansas now. 

Howard: Ryan, how many doctors and business owners have you seen in this house with me? 

Ryan: Three hundred. 

Howard: They don't network. When I got to town, I was a twenty-five-year-old punk kid and I would go to the physicians, I would walk in there and I'd invited them all to my house for dinner. And then we'd chuckle and talk and this and that and I always thought... We're in Phoenix right now, but no one in this part of Phoenix... So, Phoenix is this big square and the largest city park from 48th Street to 51st Avenue, a hundred blocks long, cuts off this little sliver at the bottom of Phoenix. So, there's just this little sliver of about eighty-five thousand people and we're legally, the lawyers would say we're Phoenix, but all the locals (inaudible). When I got here, I knocked on every health care provider, pharmacist, physician, chiropractor, veterinarian, invited every one of them over to this house for dinner and establish relationships. And I can't tell you how many of my patients, I'd say, "Why did you come here?" "Well, I went to the pharmacist and I talked to the pharmacist, Brad." I tell them, "What should I put on the tooth there, would you put on an Anbesol or would you take Motrin or Excedrin, what would you take?" And he'd say, "I go over there and see Howard Farran. You know where Stapley is? He's right there. Just walk in there, he calls it Today's Dental, just walk in there and tell him Brad sent you." Sleep medicine is very dependent on physicians and these people think they're going to build those relationships by posting memes on Facebook and Twitter. Could you build all those relationships on Facebook and Twitter? 

Ken: It doesn't work that way. Everyone thinks there's a big mystery in developing a very successful dental sleep practice, and it's really not a mystery. And people look at me and say, "Well, Ken, you haven't been doing that long. How can you possibly see the number of patients you see?" Well, we were struggling. I mean, I was screening all my patients, referring them, not getting them back and then I had a patient, and of course, I had brochures and stuff sitting around, a patient in the hygiene room and they said, "Ken, I know I see all this stuff on sleep medicine." And he said, "I know you make these appliances, but why haven't you made one for me?" And I sat there and said, "Well..." A little skinny guy, not somebody that I would have thought had OSA. And I said, "Well, I didn't know you had OSA." He said, "Well, my CPAP has been in the closet for five years. I can't wear the thing. I need you to make one." And the light came on, the light came on that in my practice I had patients that had failed CPAP and then a whole bunch of patients that were only wearing it an hour or two or three or maybe four a night. And I started treating them. I still screened and I still referred, but I started... We actually found, I think it was seventy-two patients total, twenty-two that had totally failed CPAP and the rest of them were patients that were partial failures. We started treating them. Then I started referring them back to the sleep physician for a final sleep study. The difference is, I called the sleep physician's office and said, "I want to go. I want to be in the sleep lab and I want to titrate that patient in the lab." All of a sudden, I met every sleep tech in Northwest Arkansas, because there's four sleep labs and I go to them all. I'm a full staff member of one hospital and the rest of them I have, one of them I'm a visiting student, the other I'm a visiting professor. But anyway, they get me in. And the point is, I made friends with the techs. My number one referrals are from the sleep lab technicians, because they're in there trying to titrate these patients on CPAP and at two o'clock in the morning the patient's throwing the thing across the room. And they go in there and say, "You need to go see Dr. Berley." So, we get referrals from them, but when you titrate those patients in the sleep lab yourself, you get great results. 

Howard: My job is to ask questions, if someone is trying and working it out. You keep saying "titrating the patient". 

Ken: Yes. 

Howard: Explain that. 

Ken: Adjust. I go in, I put the appliance in the mouth and it's really sad. Many people doing dental sleep medicines, they are taking two impressions, a bite, throw in these things in the patient's mouth and saying, "Go!" It doesn't work that way. You literally have to adjust these to the point where you get all of the subjective symptoms resolved and then you go to the sleep lab and in your office you titrate out the objective symptoms, which are the apneas and the hypopneas and the excessive daytime sleepiness. So, we're going to the sleep lab. The best night that I ever had in the sleep lab, people listening to this won't believe this, but I had two patients in the lab, one had an AHI of 140. 

Howard: AHI means? 

Ken: Apnea-Hypopnea Index. This person was stopping breathing a hundred and forty times a minute. 

Patty: An hour. 

Ken: Excuse me, an hour, I'm sorry. Stopping 140 times a minute, and by the time we were finished, we got him down to 0.4. The other patient we had in the sleep lab that night had an AHI of 47 and we got her down to 1.2. I've been up all night adjusting these patients, we were actually driving, Patty was driving, we were going to South Arkansas to see my mother, and I got a phone call from the sleep physician saying, "How did you do that? These things aren't supposed to work that well." So, you get good results, you get the sleep physician's attention. The next day he referred five patients to us. 

Patty: It was a Sunday. 

Howard: Who generally is a sleep physician? 

Ken: A sleep physician is a pulmonologist, anesthesiologist, EMT, internist, neurologist. 

Howard: A neurologist? 

Ken: Yeah. It can't be a PCP. But anyway, one of those groups, and then they do a year residency just in sleep. There is a board exam just for sleep, but very few of them just do sleep exclusively. The sleep physicians in my area, they'll be pulmonologist half the time and a sleep physician the other half the time. But anyway, it's a subspecialty of those disciplines. 

Howard: So, 70% of the health care dollars fund, I'd say, it's for four diseases: cardiac, cancer, diabetes and pulmonary. 

Ken: Exactly. 

Howard:  And the first one you mentioned was pulmonary and then EMT. 

Ken:  Yes. 

Howard: Well, how did neurologists get in that game? 

Ken: Think about it. When you sleep, we actually are using EEGs to measure and to classify sleep. We stage sleep all night when you're in the sleep lab. And the sad thing is that many of these patients will be misdiagnosed as being depressed or any number of conditions, and many times there would be a neurological component to that, but it's a natural thing. 

Howard: I've seen these questions a lot where she's young, she's out of school, she's talking to this patient and she really thinks he's a candidate, but he said he got tested like six years ago and he was fine. But weight changes, age changes. I can't believe I went from age twenty-seven to fifty-five in six months. How good is a test on a human in America before you're thinking, "Maybe we should retest you." 

Ken: It's really sad that we're stuck with sleep tests to diagnose this, because a sleep test is almost like taking a pie with 365 slices, grabbing one slice, pulling it out and counting the cherries, because how well you sleep that night is directly proportional to what that sleep study looks like. I got my first patient, I think it was two or three weeks ago, that went through a sleep study and sat there the whole night and didn't sleep a wink. Sat there, looked at the ceiling, because of all of the stuff that was attached to her and the fact that somebody was behind that camera watching her. She said, "I couldn't sleep". 

Howard:  I went and had one done, that was one of the bizarrest things, what is it, like fifteen electric cords. So, then I wouldn't go to that. Do you recommend that she's sent out to a sleep lab, that she takes home the equipment? And now a lot of patients are saying, "Oh no, my new Fitbit does all that." 

Ken: You're following into this category over here. Do I determine how a patient is tested and diagnosed? No. In my area a patient comes to me, usually they've already been diagnosed, but let's say you come to me as a dental patient and I look at you and I say, "He's got a pound or two extra." 

Howard: I'm actually pregnant with twins. 

Ken:  He's got a little extra girth about him. He's over forty. All of those things that make me think that you have OSA. Same reason I have OSA, same reason Patty has OSA. You get to the point where you can diagnose them across the room. The problem me is getting an accurate test. But if we follow protocol the way we actually should, we should refer you, once we've screened you adequately, we should refer you to a sleep physician. He then determines how you should be tested. Now, depending on the part of the country you come from, many parts of the country you get a home sleep test. You don't go to a sleep lab, you don't have all the stuff attached to you and you get a home sleep test. In Northwest Arkansas you get a in-lab test. But it really doesn't matter, because frequently, even with an in-lab test, we get a terrible test and we know it's terrible. We had a patient the other day that came in, he was diagnosed off of fifty-two minutes of sleep. No RAM, never got into stage three. We had stage one and stage two sleep and I'm supposed to use that to treat the patient. Now, people think that, because I want sleep physicians to diagnose them, because I want them to have a face-to-face with a physician, many patients or dentists think that I'm opposed to testing equipment and I'm actually not. We have three home sleep testing units in my office and a lot of high-resolution pulse oximeters, but I don't use those to diagnose patients with. I strictly use them to adjust appliances. But you had a sleep test in the sleep lab, you came to me and it's obvious your test is a bad test. Frequently, I'll have the sleep physicians write me a letter and say, "Ken, this is as good as we can get. Why don't you test that patient before you treat them?" And we'll go in and do a home sleep test, because, if they had a bad diagnostic test, I will do that, send it to my sleep physician, let him diagnose off of it. But it really doesn't matter, as long as I am working hand-in-hand with a sleep physician and I am sharing liability with him. He's the quarterback. If he thinks the patient needs to try a CPAP first, I'm perfectly OK with that. Many dentists sadly aren't. Because I know that a big portion of those patients are going to fail CPAP anyway. That just means I'll treat them in a year from now. 

So, many times dentists are getting the cart before the horse. Let the sleep physician do what he does. Let him diagnose. Let him determine the treatment path for these patients. Let the patient fail CPAP, if they're going to fail CPAP. We're there to catch the patients when they fall. If I sat and told you the volume of sleep patients we do, you would be amazed, because it's almost staggering. 

Howard: Will you share? 

Ken: I probably shouldn't. 

Howard: It's Dentistry Uncensored. 

Ken: Let's put it this way. We have four sleep labs in Northwest Arkansas and they diagnose an average of forty patients a day with OSA. And we know, out of those four sleep labs, that more than half of them are going to fail CPAP. And if they fail CPAP, they're going to end up getting referred somewhere or going to end up somewhere. So, there's plenty of patients out there and that's just Northwest Arkansas. I can't see enough patients to keep up with the patients that are failing, much less make up for all of the ones that have failed last year and the year before. For the people that are listening, they need to develop relationships with sleep physicians. If they don't know how to do it, they can contact me or contact Patty. 

Howard: One thing they tell me all the time is this, "Well, you don't understand, Howard, I'm shy." 

Ken: It doesn't matter. 

Howard: And I'm like, "Well, do you know how many actors in Hollywood are actually shy and when they go on stage at Broadway, they're really not that Scrooge strong or the cowboy or the murderer, they go on stage and perform." You can walk into a physician and turn on your sales mode, press the flash, run for mayor, go to lunch and when he leaves, then you can collapse, go home and get under your blanket with your cat. 

Ken:You don't even have to do that. Find the CPAP failures in your practice, do an intake on them, treat them. Send your intake to the sleep physician, send your prescription and your letter of medical necessity for him to sign. Impress that sleep physician with your professionalism, your documentation, the skill that you used to treat this. Frequently I have patients thank sleep physicians for referring them to me. 

Howard: What percent of your dental office work is now sleep apnea as opposed to root canals, fillings, crowns? 

Ken: First thing you have to understand, we have two totally different practices. They're in the same building, they're in the same office, but we have the back part of the office that's all sleep medicine and it's primarily run basically by four people, but they do their own thing. They really don't let me go in there that much, because I slow them down. I go in and I do the informed consent, I talk to the patient and introduce myself, do the informed consent thing and then I get up and leave. And in Arkansas, assistants can take impressions, they can take master impressions and bites and things of that nature. So, the vast majority of this stuff is being run by staff and it makes it very lucrative, because there's very little doctor time that actually has to be donated to that. So, we still have a general practice, but it's kind of secondary, I guess, if you will. I don't know how long we'll continue to do that. I still enjoy it, but sleep is... 

Howard: Do you mostly send those to one lab? 

Ken:  You mean one sleep lab? 

Howard: To make appliances. 

Ken: No, no. 

Patty: We've got a favorite. 

Ken:  We've got a favorite, but we use several different labs. 

Howard: Well, share your favorite. Is that OK? 

Ken: Sure. 

Patty:  We use Great Lakes Orthodontics. 

Ken: Great Lakes primarily. 

Patty: Out of New York. 

Howard: Great Lakes Orthodontics out of New York? Ryan, can you send me Great Lakes Orthodontic out of New York? 

Patty: And then True Function out of California. 

Howard: And who owns Great Lakes, what's it called? 

Ken: It's Great Lakes Ortho, but it's actually employee-owned. It's a lab that's employee-owned out of Buffalo, New York. 

Howard:  Oh, Buffalo, New York. That's next to Ivoclar, Amherst. 

Ken: Yes. 

Howard: University of Buffalo. 

Ken:  Yes. 

Howard: That's actually one of the greatest dental schools. 

Patty: In fact, it's actually in Tonawanda, it's some little town right there, outside of Buffalo. 

Ken: But we really enjoy that lab. 

Howard: So, have you visited the lab? Did you go to Niagara Falls to sleep in the heart-shaped beds that vibrate for a quarter? 

Ken: We actually wanted to, but when we were there it was freezing and snowing. 

Howard: If you haven't slept in a heart-shaped bed where you can put a quarter in the machine... 

Patty: I remember those from when I was a kid. 

Howard: And the other one was called True Definition? 

Ken: True Function. True Function is a great lab. 

Howard: And that's in California? 

Ken: Yes. 

Howard: See, they've got that Twitter button? 

Ken: Yes. 

Howard: So, you get that Twitter button. So, that's how millennials work. 

Ken: You are not a millennial. 

Howard: But I have four boys - twenty-two, twenty-four, twenty-six. Before you go to a restaurant, do you look at the Yelp review? 

Ken: No. 

Howard:  I never have, one time in my life. And I've never been to dinner with anybody my age. It's not that. But if you're under thirty, they have to go get a social confirmation. So, I will retweet, "Join us this weekend in Scottsdale, Arizona." And then True Function, what part of Cali are they in? 

Patty:  Southern Cali, but I'm not sure exactly. 

Ken: I haven't been there. 

Howard: La Mesa. That's another thing, that's why I can't speak of California. When you grow up in Kansas and you learn geography, California has three cities, that's San Diego, L.A. and New York, and then you go the rest of your entire life, you'll never meet anyone from those three cities. So, then they say, "I'm from Shlonga Wonga town." I'm like, "OK, now, is that close to San Diego or L.A.? Please, tell me where you're from." But it's La Mesa, California, wherever the hell that is. Very good. Here's the tricky part. You can't bill this stuff, Blue Cross Blue Shield. 

Ken: Sure you can. 

Howard: You can? 

Ken: Yes. 

Patty: Medical. 

Ken: Medical. 

Howard: Medical? 

Ken: This is a medical procedure and you have to bill medical. That's why Patty's so valuable to my practice. She bills medical insurance for me and many of this has to be pre-authorized and pre-approved and when a dentist first starts billing medical, they will be on medical review. It's sometimes frustrating getting that going if you don't have somebody knowledgeable holding your hand. 

Howard: Is that what you're doing? You're going in and teaching offices how to do it? Are you teaching the clinical how to do this? 

Ken: I'm teaching the clinical, I'm teaching the legal, providing the what and the how. 

Howard: And you have a meeting down here in Scottsdale? Is it Scottsdale? You're lecturing on the legal aspects of it? 

Ken:  This weekend I am. 

Howard: What percent of the dentists there, you think, have already tripped up a legal claim? 

Ken: I know of one that's coming, that has an issue. I know of one other that is trying to do some clinics and has some legal issues with that. So, I don't know anything other than those two. 

Howard: And what percent of this OSA is all billed to medical? 

Patty: All of it. 

Howard: So, he's out there listening, he says, "I'm in Fort Scott, Kansas." Do you really think Shirley and Lorain can learn this or does the dentist have to learn it? 

Ken: Absolutely! 

Howard: So, talk about that. You just can't sit there and look pretty the whole time. You got to say something. 

Patty: When Ken first got started, I knew that he would know how to do his part faster than I would. I knew I would be the stumbling block. Because when you think about medical billing, you look at all of those... We hear about medical billers and all of the codes. Everything that you do in medical has a diagnosis code, there's just all of these codes and codes and codes. So, I was looking at the possibility of having to maybe go and do some extensive billing training. What I found out is, it's very simple. There's one diagnosis code. You don't worry about any of the other things, you don't worry about TMD codes or anything. For obstructive sleep apnea billing, there's one diagnosis code. Right now it is G, as in girl, 47.33. That is obstructive sleep apnea. 

Howard: Girl, G... 

Patty: Yeah, 47.33. 

Howard: I want to back you up a little bit. Why should they learn that if they can just have some other company do all the billing for them? 

Ken: 10% of your money goes to that other company. 

Howard: So, you say the rate's too high? 

Ken: Yeah. 

Patty: And some of the third-party billers, as what they call them, they take a percentage. So, it just depends. 

Howard: Is it usually 10%? 

Patty: I think it depends. There's some that I've heard that are seven, but the one that we at first started with, because when we first got started, I didn't want to slow him up, so we've signed up with a medical biller, and I think at that time ours was 10%. But one of the things that I find... You're still responsible as the doctor, just like on a dental claim. When I file a dental claim for Ken, his license is on the line. So, if you've got a third-party biller out there, they don't know exactly what documentation that you have, because they are off somewhere else, they may be doing it out of their home and you're communicating with them electronically. But it's difficult for them to understand exactly what documentation they need or that you've got, in order for them to go in and bill that claim for them. Once I found out that it really wasn't that difficult, that I didn't have to know all of those volumes and volumes of numbers and diagnoses. One diagnosis code and then a handful of hick-pick codes, those are procedure codes and stuff. 

Howard:  What do they call them, diagnose, D? 

Patty: One of them is a diagnosis code, which is your G47.33, then you've got what is called hick-pick codes, and please don't ask me to tell you what that is, because they've got acronyms for everything. 

Howard: I know. It's DRGs, right? Diagnostic-Related Groups. 

Patty: I think so. 

Howard: What services do you provide? Do you fly to their offices and teach them, do they come to you? 

Patty:  I go to their office. They call me, I figure out exactly what they're needing and I like for them to send me a list of questions, of things that they want to go over. 

Howard: So, this is at your website,

Patty: I'm not on there. 

Howard: What's your website? 

Patty: I don't have one. 

Ken: [These are always students of mine and they are people that have taken my courses. We're probably unlike many of the people that lecture. Just because you come to my course, when it's over, it's not over for us. We try to keep in contact and we try to be available to assist in any way that people need help. It's really unfortunate that people that take dental sleep medicine courses are notoriously unsuccessful at getting this started. And we like to think that our students are much better than the average. 

Howard: When you say your students, you told her first that she should learn the American Academy of Dental Sleep Medicine, she should join them and take courses there. If she goes to, are there courses there? 

Ken:  No. 

Howard: So, you're not teaching over the shoulder in Rogers? 

Ken: It's kind of interesting. I never really intended to do this much lecturing, it kind of happened accidentally. I lectured for Rose and I lectured for Spear and many of them, I've lectured the last couple of years for the AADSM. Anyway, I'm available, but I don't just go out and do lectures. 

Howard: Do you like traveling and lecturing? Or is it exhausting? 

Ken: I don't mind it. It's not something that I've never... I never really intended to do that that much. 

Patty: I'm sorry? 

Howard: Do you like traveling? Do you like leaving Rogers and flying here and lecturing, traveling, staying in hotels or do you find it exhausting? 

Ken: We're going all the time. We go all that time. 

Patty: [Asking that question right now, I find it exhausting, because we have been so busy, especially this last year, we have been gone an incredible amount. 

Howard: Do you know who the podcast before you was? 

Ken: Who's that? 

Howard:  The president of the American Dental Association. He's been home five days a month for his one year term and he is counting the seconds till the ADA meeting in October. Five days a month. And they recommend that, when you become the president of the ADA, to sell your practice. Could you run what you're doing and be in Arkansas five days a month? 

Ken: No. Not even. I can't run the way we're doing it now. You asked do I like lecturing. I was the MJR Award winner in trial advocacy in law school. I love getting up in front of people, I love interacting with people and people tell me I lecture kind of like a Southern Baptist preacher. I'm here and there and everywhere and I like... Think about our professions. You go to school when you're young and you learn, you develop techniques and you develop knowledge, but the natural progression is, when you get to our age, you share what you've learned. Because wouldn't it be a shame if we died and didn't get the opportunity to share what we've learned to the next generation of dentists. Patty and I've talked about it. It's almost like I feel a sense of obligation to the profession to go in and help, in particular in dental sleep medicine, when our parameters really aren't established in. 

Howard: So, go back on the journey, go back in the day, because a lot of times these millennials get out of school and they say, "I'm a dentist now." They've been working for a year in office and they're kind of thinking, "Should I go become..." Back to school we had an orthodontist, a periodontist, I had my MBA, and some would think, "Should I become a lawyer, too? Like you." What happened on your journey? There's not many people that got a DDS and then a JD. What was going on your journey that made you go to law school? That's a huge commitment. 

Ken: My personality is, I've always been ticked off if I thought you knew something I didn't know. I'm just that personality and I've always been fascinated by the study of law. Now, we'd have to have much longer time to talk about all that for you to understand, but if you look at how the whole woman's right of privacy developed and how that came from constitutional amendments or amendments against quartering troops and Fourth Amendment against search and seizure, those rights, in the bill of rights, morphed into a right to privacy and that morphed into a right of personal privacy and that morphed into the right of having an abortion. If you make that study, you know what I'm saying, Howard, it's fascinating. So, I was always the guy that enjoyed learning. When I've got out of college, I took the DAT and the LSAT, the Law School Admission Test, right then because I thought I would end up going to law school. And personal tragedies happen in your life and good times and bad times. And University of Arkansas at Little Rock, which is where I went to law school, had a night program. Now, I had multiple dental offices in multiple counties and got a wild hair and said, "I'm going to law school." Little did I know how time consuming that was going to be. 

Howard: So, how many nights a week? 

Ken: I went five nights a week. I went from 6:00 in the afternoon till 9:00 or 10:00 and then I studied till 2:00 and got out and did it all over again. 

Howard: Oh my God! 

Ken: But that wasn't the tough part. 

Howard: What was more expensive, the tuition or your coffee tab? 

Patty: My Dillard's bill, because I would drive him to school and go shopping while he was in law school and take him home. 

Ken: That wasn't the the tough part. I never really planned on practicing law. I have very successful dental practices and associates and those things, I never intended to practice law, but I actually got the award for trial advocacy, plus I graduated fairly high in my class, and then all of a sudden offers started coming and I call it my Superman time. There was a period of time where I had all of the dental offices I had and I was also a full partner in a law firm. I learned a lot about sleep deprivation and I ended up having a physical collapse. You just can't not sleep for long periods. So anyway, one thing led to the next and I had a physical collapse and I decided, "This isn't going to work." 

Howard: There's a few speakers on the circle, whose everybody name I would recognize, that passed out in the lecture on the floor or just collapse. 

Ken: Yeah. 

Howard:  But I want to do this... My job in trying to be a leader for these young kids come out of school, I wanted to stay out of trouble. 

Ken: Sure, me too. 

Howard: You're a dentist and a lawyer. Where is most of the lawsuits out? Is it in Invisalign, is it implants? 

Ken:  No. 

Howard: Well, go through where she should have some red flags and warnings. 

Ken: It's kind of interesting, because the best advice I can give to a young dentist is - make friends with your patients. Friends do not sue friends. If you're not a friendly person, hire somebody that is. Develop a relationship, develop things in common. Always talk to your patient, always treat them with respect. Bend over backwards to please them, even if they cost you money. You could always remove that patient from your practice after the fact, if you think they've taken advantage of you. But if you look at the general areas of lawsuits, they all involve things where dentists should have known better, and yet did things that maybe they didn't have the skill to do or they refused to refer the patient when they got in over their head. And they many times tried to cover up. If you treat patients with empathy, they don't expect you to be perfect, believe it or not. If you make a mistake, take care of the patient. I don't care what it cost you. I don't care if you have to pay for them to go to a specialist, whatever it is, make it right. Believe it or not, there is also, I think in virtually every state in the country, there's the ability to apologize to the patient, and if it's done within thirty days of a bad outcome, it's not admissible in court, showing empathy, apologizing, apologizing for the bad outcome. You don't have to take the blame, but just, "I'm sorry that this happened." Believe it or not, it's not admissible and statistics have shown that, if you do that and actually act sympathetic, don't get antagonistic at that point, act with remorse, that the instance of lawsuit goes way down. 

Howard:  I saw once, it was something like - 3% of the MDs were having like 80% of all lawsuits. 

Ken: Yes. 

Howard: And it was like - you either never had one or you had like six, because these guys just had character flaws, they were condescending, mean, aggravating, arrogant. 

Ken: Many of them are just people that have a terrible bedside manner. They treat patients arrogantly or as though they don't have any empathy, and patients frequently will sue over the most trivial things, because they don't like you. If they truly like you, they won't sue you. This is going to be hard to believe, but I know of a dental office that had two deaths. The dentist used Seconal to sedate and had two deaths and zero lawsuits, because the patients literally loved him. So. I'm not suggesting that people try that. I'm saying that there is this imbalance between damage or the maybe the quality of dentistry and whether or not the dentist gets sued. Most people think, "Well, if I do great dentistry or if I make sure that everything is of this quality, I'll never get sued." You're going to have great quality and a terrible attitude, and you'll get sued. 

Howard: Practice management in two words is patient management. And in every business, except for health care and government, the incoming call is that they're managing the whole business. Say I've get ten people that are dentists and every time you do five root canals, three of them call up and they're sore and complaining, and neither one of doctors aren't. And then it's up to the receptionist to really keen on that. I can't believe how these things move along, and she called up, she told the receptionist she was very upset, she didn't like the way everything happened, this and that, and the receptionist didn't take that football, give it to the doctor and have the doctor get on the phone. I tell dentists, "Every day you're running for mayor." And you got to train your receptionist that, "Your radar needs to go off." "Hey, Doc, you did a root canal on Sally Q. And her right eye went open, there's blood coming out of her ear and she's mad. Oh God! You need to go pick up the phone and call them. 

Ken: Exactly. 

Howard: And then I've seen patients over thirty years that they were so pissed, because you take an X-ray and you're looking at it and the root canal fell and there's a broken file and she's insulted because no one told her. 

Ken: Right. 

Howard: It wasn't that... I mean, bicycles get flat tires, anybody who's driven a car knows it, parts fall off. There's nothing wrong with it. There's a refrigerator repairman in my house right now, as we're doing (inaudible), but she was so livid that he didn't tell her. Not that it broke, but that he didn't tell her. 

Patty: It was the violation. She felt violated because nobody bothered to tell her what happened. 

Howard: And you use the word "empathy", a lot of people and millennials ask, "What is really the difference between empathy and sympathy?" Why did you say "empathy", not "sympathy"? 

Ken: I think you can be sympathetic and not display it. Howard, you have my sympathy that you have no hair. That doesn't mean that I mean it. When I use "empathy", I mean I'm crying with you because you have no hair. I am literally showing that I am hurt because of it. And maybe that's just a Southern way of looking at things. 

Howard: You think that's why, when we were little, all the OB-GYNs and OB-GYNs were men. And now they're kind of all women. 

Ken: Maybe. 

Howard: [01:23:12] Back in the day, I remember as a little kid, I forgot who it was, but some woman, she said, "Tell me if we're being hysterical." Hysterical is great (inaudible), that blankety-blank-blank. She wanted to hurt him. And you see now that... If any man told me he wanted to go to an OB-GYN, I'd say, I don't think anybody... Because you can't really be empathetic. 

Ken: You can't identify. And patients now are more aware that there's a disconnect. It's amazing. I can see it and I'm going to do this the next two days. I'm going to tell a room full of dentists, "Do this, this, this and this to keep from being sued." And a lot of it is documentation and a lot of it is how to get appropriate consent. Obviously, I've got a ton of forms that they use, especially in dental sleep medicine, because we really don't know what the standard of care is now. Like, for example, how many teeth, upper/lower, does it take to hold this appliance? We really don't know. There hadn't been any research. And of course, when you talk about teeth, which teeth? Because they're not all the same. So, in my practice, I have specific forms, because informed consent cannot deal with every conceivable thing that can show itself. So, how much perio is too much? Is any too much? So, there's been a lot of things that haven't been answered. So, it's all about communication, it's all about your patient understanding that they have things that are going to compromise this case, especially if they don't keep their perio under control and keep their maintenance going and all of those kind of things. So, it's all about documentation, but more than anything else, it's about talking to the patient, doing a great examination, find the problems and develop the defense before you need it. 

Speaking of root canals, we've got a periapical lesion on a molar. We go in and throw an oral appliance on it that puts pressure on that and all of a sudden a failing root canal blows up. You've got to document that stuff ahead of time and have the conversation with Ms. Jones that your dentistry isn't as good as perfect. But there is this issue that could come up and cause problems in the future. So, all of those things are things that dentists, we're used to doing, but we're not used to putting pressure on teeth. You may have a crown that doesn't have great retention. And you go in and throw an oral appliance on it, that's putting pressure on that crown, and now you're popping it off every time you turn it around. You've got to have that talk beforehand, not afterwards. 

Howard: You're a dentist and you always see cases on TV and you're like, "Why are these doctors on these cases?" (inaudible) Today you can't even get a periodontist to agree on the class, on the diagnosis and treatment and recommend treatment of peri-implantitis. If you put a set of peri-implantitis to every periodontist in Phoenix, Arizona, you get that many. So, it seems like everybody's a doctor, but courts can go a different way. 

Ken:  It doesn't matter. 

Howard: And the main thing he's saying is, "Just keep the patient on your side." 

Ken: Keep the patient on your side. Document the fact that you've found something that is worrisome, OK? If you put pressure on a less than perfect implant or pressure on a less than perfect tooth, you may have trouble in the future. That's all about informed consent. 

Howard: And Ryan is saying we have to go. That is a wrap. He said that an hour and a half is the max. I want to tell you guys, seriously, you guys are so dedicated, you flew in, where did you go, Rogers, Dallas, Phoenix? 

Patty: That's exactly what we did. 

Ken: We actually did this time. 

Howard: [01:28:05] (inaudible) 

Ken: We'll be back in Phoenix in two weeks. 

Howard: And you flew on United or American Airlines? 

Patty: American. 

Howard: American Airlines. I've flown with you once. I just think (inaudible) how you fly into town late at night, it's very dark out with a full moon, and you came by my house to talk to my homies before you take your lovely bride to the resort. And you've got a lecture next day, but seriously... And it only took me two years to get you. I feel ahead of schedule. Don't wait two years before you come back. 

Ken: I won't. 

Howard: Some time when you're down here speaking again at the Spear or any of those, just come back and see us. 

Ken: In the future, if your members will present questions, things that they want me to deal with... Now, obviously, there are state laws that are problematic. In other words, I don't know every state law that's applicable. But I certainly don't mind giving them direction and guidance. 

Howard:  And how do they contact you? 

Ken: Well, I was going to let them contact you. 

Howard:  He told me off the record that all laws are just merely suggestions. 

Ken: That's true. 

Howard: They were just suggestions. But seriously, thank you so much. 

Ken: Howard, it's a pleasure. 

Patty: Thank you so much. 

Howard:  Thank you so much. 

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