WHAT ARE THE 10 WORST THINGS THAT A DENTIST CAN SAY OR DO?

 

by

 

Kenneth J. Glasner, Q.C.

 

Over the past decade I have had the opportunity to act for a number of dentists.  The advice generally took the form in assisting them in the incorporation, purchase or sale of their practice, employment problems, commercial leasing problems, and acting on their behalf on a complaint or disciplinary matter.  The area which caused the greatest concern dealt with the latter. 

 

Patient expectations, associate and auxiliary staff concerns, increased administrative costs and competition greatly impacts on the stress level for dentists.  From time to time Dr. John Palmer, Director of the Dental Profession Advisory Program (DPAP), for the Association of Dental Surgeons of British Columbia kindly provides me with articles addressing the problems visited upon dentists.

 

Dr. David J. Kenny, Dentist-in-Chief, of The Hospital for Sick Children in Toronto, in his professional development program (1996) ¹ discusses concerns of patients:

 

Patient desires                            

 

The output of any service company (dental practice) is produced and judged right at the time of delivery.  This makes the service industry far more sensitive to the instantaneous delivery of its product than the manufacturing sector.  This concept applies equally to a dental restoration, a haircut or a restaurant meal.  Manufacturers can inventory their product, test it for quality later, and correct any deficiencies before it is delivered to the customer.

 

In today’s service industry it appears that good service not product superiority or low prices determine ongoing success.  The health care industry in the United States knows that it is failures in perceived service rather that problems with actual care that lead patients to move to another doctor, clinic, or hospital.  The critical moments occur when the dentist, the staff and the service meet the patient.  It is at these many “moments of truth” that numerous standards must meet or exceed patient expectations.  These expectations include perceived quality, cleanliness, timeliness, and the cost of service provided.

 

My comments centre on two factors namely, the quality of service and the nature of complaints visited upon dentists as a result of what they say and what they do.

 

In considering the format of this article the practical concern was how to get across to the reader on how they get themselves in trouble.  I decided to adopt David Letterman’s approach - “What are the 10 worst things that a dentist can say or do?” - Here goes.

 

#10 - “Don’t worry about it - your insurance plan will cover it”

It is my understanding that in Canada there are many “insurance plans”, each with its own protocols, fee guides, schedules and idiosyncrasies, including maximums.  To the best of my knowledge there is no software available to coordinate the terms and conditions of each insurance plan such that the dentist can have immediate access to an answer posed by the patient.  If you wish to encourage a complaint then send a bill to a patient who has relied upon your statement only to find that they must now shell out $1,500.00, or more because of the lack of coverage.   A dissatisfied patient moves on bad-mouthing their previous dentist.

 

#9 - “I just need a standard agreement”                 

In most cases there is no such document as a standard agreement.  There are similar agreements, but each agreement must be adjusted to meet the circumstances of the situation.   For example, in a Principal/Associate agreement, is the payment to the Associate based upon 40% of what is billed or 40% of what is billed and collected?   If the Associate brings in the patients are they the Associates patients or the Principal’s patients (or the Principal’s operating company)?   What are the terms relating to work which may or may not require redoing - and who decides.  I invite you to review such an agreement and consider all of the variables.

 

Does the Principal provide a “taxable supply” under the Excise Tax Act, such that GST is applicable?   Does the Associate work for only one dentist such that the Principal is liable for source deductions (in spite of what the agreement says). 

 

I have learned that there is no standardization in the community. 

 

One more example.  Does the release between the dentist and the patient also cover the

dentist’s corporation or is it limited to the dentist.  Has the release been modified to cover a situation where the patient is a minor.  Is the release worded to protect the Dentist as much as possible?

 

#8 - “We have a verbal agreement”

Agreements should be reduced to writing.  In addition like all good agreements they require execution.  It simply benefits no-one to rely upon an unsigned agreement.

 

 

It is not sufficient to rely upon an agreement to agree.  For an agreement to agree is no agreement at all.  Neither should you rely upon a “gentleman’s agreement”.

 

 

#7 - Dentist  - “I just want to give the patient her money back.  I don’t need her to sign a legal document.  I don’t like legal documents”

 

 

An empathetic and complete explanation by Dr. Thompson to Mrs. Jones, coupled by a 1 page well-crafted release (not signed in the dentist’s office by the patient) in exchange for the $2,200.00 refund may well have solved most of the forth-coming problems.  

 

#6 - “All I have to pay my CDA after I terminate her services is the minimum required under the Employment Standards Act” (you substitute your own provincial legislation)

Each province in Canada has its own employment legislation.  In British Columbia the Labour Relations Code governs the relationship between unions, its members and the employer.  The Employment Standards Act governs the relationship for those employees outside of a collective agreement.                                           

 

In the case of an indefinite term hiring (where there is no written agreement that the person is being employed for a fixed term) there is an implied term that the employee is entitled to reasonable notice of a termination.  The exception to this rule is where the employee’s behaviour has given the employer just cause for terminating a contract in which case the employee may be dismissed summarily without notice.  In the vast majority of cases dentists do not have a written agreement with their auxiliary staff.

 

Notwithstanding that the Employment Standards Act sets a minimum notice package for employees who are terminated for reasons other than just cause, the courts in each province governed by the common law assess the appropriate reasonable notice based upon a number of factors.

 

I can do no better than to cite the decision of Bardal v. Globe and Mail Ltd., [1960] 24 D.L.R. 140 (Ont.H.C.), McRuer, C.J.H.C. said at p. 145:

 

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.  The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

 

Let me set out two further examples of cases from our Courts.   In 1992 the Ontario Court of Justice dealt the appropriate notice period in a case called Poole v. Shanks.  The Plaintiff, Ruth Poole, was employed by the Defendant, Dr. Shanks, an orthodontist, as a receptionist/dental assistant from May 1964 until February 1989 when her employment was terminated with two week’s notice.  At the end of February 1989 she was paid eight weeks salary in lieu of notice.  She brought an action for damages for wrongful dismissal. 

 

The Court taking into account the nature of the Plaintiff’s position and responsibility, the

length of service and the experience with the Defendant, the age of the Plaintiff and her experience and qualifications and the appropriate notice period in the circumstances, the Court found was seven and one-half months. 

 

In 1999 the British Columbia Court of Appeal dealt with a similar wrongful dismissal in Cox v. Robertson.  In this case the Defendant was a dentist.  The fifty-five year old Plaintiff was the Defendant’s three day a week “chairside” or “head-to-head” dental assistant for eighteen years prior to being terminated on one month’s notice effective October 15, 1997.  The Defendant had responded by paying holiday pay and severance in accordance with the minimum specified by the Employment Standards Act, which included an additional one month’s salary.

 

On January 8, 1998 upon learning that the Plaintiff was still unemployed, the Defendant offered to re-employ her on the same terms and conditions as she had previously enjoyed until she found other employment.  The Plaintiff declined this offer and continued with her action.  She eventually found alternative employment in June 1998.  The British Columbia Court of Appeal found that the Plaintiff was entitled to nine months notice, less amounts already paid or earned during that period.

 

I suggest as a prudent employer you should consider having any agreement with Associates and support staff reduced to writing.  You can also set out in that agreement the amount of reasonable notice, provided that the reasonable notice is better than that which is set out in the provincial legislation. 

 

#5 - Classic Situation - Dentist, “I see no reason to call Mr. Brown this evening.  I know he has more than the usual discomfort after the surgery and that perhaps the surgery has not gone as well as expected.  If he needs help he can call me during office hours”

In my experience nothing promotes a patient’s complaint as much as a dentist who is standoffish and lacks empathy for a patient who has suffered excessive pain, coupled with less than the satisfactory outcome at the hand of their dentist.  A simple call by the dentist (not their staff) in the early evening to the patient displays not only a degree of care but also a degree of personal service that goes a long way in ensuring a continuing dentist/patient relationship.

 

#4 - Informed consent

Lorne Rozovsky, Q.C. discusses informed consent to treatment in his book, “Canadian Dental Law”.  All too often consent is based upon some perfunctory comment made by the dentist to the patient on the forthcoming procedure.  No consent is valid unless the following criteria are fulfilled. 

 

1.         Mental capability.

2.         Legal capacity.

3.         Voluntary.

4.         Consent to the treatment being performed.

5.         Consent to the person performing.

6.         Full information on the treatment.

7.         The criteria also includes that a valid consent may not be given unless the patient is advised of a number of matters including:

i)          the risks of undergoing treatment;

ii)         the risks of not undergoing treatment;

iii)         the benefits of the treatment;

iv)        the nature of the treatment; and

v)         reasonable alternatives.

8.         If possible, an acknowledgment by the patient in writing.

 

There is a plethora of information available on informed consent.

 

#3 - “I have a licence to practice dentistry in this province and I have been at it for 22 years.  There is no reason to send this difficult root canal procedure to a specialist.  I am sure I can do almost as good a job as any Endodondist” (no particular reason I picked this speciality)

Injury to patients can often arise as a result of a dentist treating a patient where the dentist is exceeding his or her competence.  The dentist should be careful to avoid being pressured by the patient or by the dentist’s economic circumstances to undertake a procedure outside of his or her competence.  We all have limitations on our competency requiring us to act in the best interest in the patient (client) and in doing so ultimately in the best interest of the professional and of the profession.

 

In large urban centres where specialists are available this rule is especially significant.

 

#2 - Dentist - “I don’t have 20 minutes at the end of the day to ensure that I have made full notes on the patient’s charts”

Originally this was #1 but after hearing Dr. Ron House recently speak about the relationship between dentists and hygienists I have moved this point to the #2 position. 

 

As a Dentist’s lawyer, there is nothing more satisfying than to get a copy of a letter from the Deputy Registrar addressed to the complainant which ends with the following words:

 

I should note, however, that Dr. ____’s detailed records strongly suggest he was at all times interested in your well-being and was anxious to be available to you and to provide as much advice as possible.

                                                                                                           (I was very proud of this dentist)

 

Equally, it is frustrating to hear a dentist say, “I didn’t make notes of what I said to the patient but I know I followed my standard procedure advising the patient”.  The latter quotation doesn’t “cut it” when as legal counsel I am preparing a submission to the Regulatory Body without having clear, complete and accurate notes made contemporaneous with the event. 

 

A recent decision (January 24, 2002) of the Court of Appeal for British Columbia dealt with a patient claiming the extraction was done in a negligent manner and caused pain.  The patient was unsuccessful at trial level.  She was successful in her appeal when the British Columbia Court of Appeal ordered the parties to re-litigate the issue of liability.  In their decision the Court at paragraph 10 made reference to note-taking as follows:

 

The respondent kept incomplete notes of the procedure and could not remember it at all.  Nor could his assistant.  The respondent testified concerning his standard procedure for extractions and referred to the brief notes he had made of the extraction of the appellant’s tooth.

 

While the Appeal Court upheld the appeal in effect overruling the trial judge (and making comment of the dental expert’s reports), it is of some import that the Court made comments of the defendant’s practice. 

 

Again, there is a body of material available to dentists on how to record notes.  I know that the College of Dental Surgeons of British Columbia has prepared an excellent paper for its members on this subject matter.  I suspect that other Colleges have similar material. 

                                                                             

And now we come to #1

 

#1 - Picture this scene: The hygienist has just taken the appropriate radiographs, scaled and polished the teeth and completed the examination.  The dentists walks into the operatory, acknowledges the patient lying in the chair and says those magic words of abdication to  their auxiliary staff - the hygienist, “Did you find any problems?”

 

What is wrong with this scenario?

Answer:

 

The dentist has just acknowledged to his or her patient that the primary health giver is the hygienist - not the dentist.  The hygienist becomes the gate-keeper, the determiner of whether there is a problem, the finder of problems - the diagnostician.   From the patient’s point of view any further involvement by the dentist will be based upon the information and advice given by the hygienist to the dentist. 

 

If the dentist fails to understand this transfer of responsibility, the hygienists in due time may find themselves running their own clinics and referring patients to dentists of their own choosing.

 

Risk Management to Prevent Malpractice Suits or Complaints before a Regulatory Body, or Both:

 

Apart from some patients who wish to avoid paying their dentist’s account there are basically three areas which promote lawsuits and complaints.  They are:

 

1.         Patient injury, perceived or real.

2.         Insufficient or invalid consent.

3.         A severing of the dentist/patient relationship.

 

Lorne Rozovsky Q.C.sets out a number of factors on how to prevent malpractice suits.  They are:

 

1.         Keep accurate, well-organized, legible records of the patient’s condition and treatment. 

2.         Read records or letters before signing them. 

3.         Keep a record of any advice given to the patient.

4.         Find out what the patient expects and record it.

5.         Do not make off-the-cuff comments regarding the treatment.

6.         Keep the patient informed as to the progress of the treatment.

7.         Do not exceed competence.

8.         Encourage second opinions.

9.         Take a through medical history of each patient and ensure that it is kept up-to-date.

10.       Continuing education is a necessity.

11.       New techniques should not be used without proper training.

12.       Do not delegate duties to those not trained to carry them out.

13.       Dentists must respond to hygienists’ questions and comments.

14.       Read the file before working on a patient.

15.       Diagnoses should not be made over the telephone.

16.       Answer patients’ questions openly and honestly.

17.       Dentists should not adopt a take-it or leave-it attitude.

18.       Practice good office management.

19.       Maintain patient confidentiality.

20.       Communicate.

 

Conclusion:

The purpose of my comments is to acquaint you with observations I have made over the past decade in dealing with what I consider members of a very hard-working and respected profession.  Each of us when practicing our profession fail to realize that we fall into a pattern which is not in our best interest.   At times we must “take a view from the balcony” and survey what we do and how we do it. 

 

In each of our professions we are risk-managers considering two factors when assessing a risk.  They are the cost when things go wrong and the probability of occurrence.  If the cost is high, the probability must be minimized.  If the cost is low, the probability may be allowed to increase according to the risk manager’s personal assessment of “acceptable risk”.

 

As one who has progressed from knowing the four quadrants of the mouth to the difference between mesial and distal; lingual from buccal (and a little bit more), I sincerely hope that my comments assists you when you take that view from that balcony.

 

 

 

1.             “Dental Risk and Quality Management”, A Professional Development Program of ODA developed by David J. Kenny.