DISPATCH MAGAZINEARTICLES
PROFESSIONAL LIABILIT Y PROGRAM
04/14_3585
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DENTAL RECORDS
Altering Dental Records – Don’t Go There!
Daily Progress Notes: Details Make the Difference
Proper Procedures and Appropriate Safeguards for Dental Records When a Dentist Passes Away
Dental Records Storage and Recovery of Damaged Records
The Importance of a Complete Medical History
Release and Transfer of Records
Patient Records: Transfer and Release
RISK MANAGEMENT
Top Five Steps to Avoid a Lawsuit or Complaint
What you need to know about liability for invasion of privacy
Patient Centred Care: A dentist’s paramount responsibility
What Price Perfection? The personal and professional costs of being too hard on yourself
WORKING WITH OTHER ORAL HEALTH PROFESSIONALS
Dentists and denturists working together under one roof
How do dentists and denturists work together to provide implant-supported dentures?
Questions about providing an order for the performance of orthodontic procedures
Responsibilities for patient care in principal-associate arrangements
ADVERSE EVENTS
OOPS! Accidents, Procedural Mishaps and Other Untoward Events Can Happen to You!
College Code of Ethics Consistent with New National Disclosure Guidelines
Disclosure of Adverse Events and Apologies in Dental Practice
COMMENTING ON THE CARE OF OTHER DENTISTS
Making Comments about Another Colleague’s Work
My Patient is Unhappy with Another Dentist’s Work… Should I Call PLP?
Acting as an expert: Another way of giving back
DEALING WITH PATIENTS
Defending Your Reputation
The Difficult Patient: Don’t Ignore the Warning Signs
Handling the Difficult Problem of Dismissing a Patient
Patient Selection – Ignore Red Flags at Your Peril
Treating Non-Resident Patients
PLP ASSISTANCE
Considering Making a Refund? Call PLP First!
Will PLP assist me if I am sued for an employee’s act or omission?
PRIVACY
Sharing Personal Health Information for Health Care Purposes
The Circle of Care Concept in Action in The Dental Office Context
Privacy Commissioner expects health sector to encrypt all health information on mobile devices: Nothing short of this is acceptable
Best practices for the secure destruction of personal health information
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ENSURING CONTINUED TRUST DISPATCH AUGUST/SEPTEMBER 2011
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OUNCE OF PREVENTION
Altering DentalRecords – Don’t Go There!
Scenario #1Dr. A received a statement of claim alleging that he failed to properly
diagnose and treat periodontal disease for a longstanding patient, Ms. M.
He immediately called the Professional Liability Program to report the
matter and was advised to send his records to PLP.
While reviewing the dental records in preparation for sending them off,
Dr. A discovered that there was no periodontal charting and no record
that he had informed the patient about her periodontal health. The
treatment notes contained only brief descriptions of the services rendered
and the fees charged for each visit.
Dr. A recalled discussing Ms. M’s condition with her on several occasions
and suggesting a referral to a periodontist, which the patient refused.
However, there were no entries about this in the chart.
Dr. A realized that the records did not put him in the best light. So he
decided to retroactively make them more complete. He added some
additional information, using the same ink colour. He assumed that no
one would notice, and even if they did, he doubted that the
repercussions could be any worse than what would happen if he
submitted the original records.
QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle aparticular situation with a patient, do not hesitate to call the College.
PLP Claims Examiners
416-934-5600 • 1-877-817-3757
Practice Advisory Service
416-934-5614 • 1-800-565-4591
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OUNCE OF PREVENTION
Scenario #2Mr. C lodged a complaint with the
College about his former dentist, Dr. R.
He had some crown work done about
one year earlier and it was now failing.
According to Mr. C, his new dentist had
advised him that the teeth in question
were not suitable for the type of
treatment rendered and that
conventional bridgework or implant
supported crowns should have been
presented as more viable treatment
options during the informed consent
process.
As soon as he received the letter of
complaint from the College, Dr. R
reported the matter to PLP on a
precautionary basis due to the possible
financial implications of the case.
Then Dr. R began preparing a letter
to the College in order to respond to
Mr. C’s concerns. On reviewing the
patient’s dental records, Dr. R found that
they were silent regarding the treatment
option discussion taking place. Since he
seemed to recall part of the discussion,
he added “p.s. patient cannot afford
bridgework or implants” to the records
to justify the treatment that had been
rendered.
Unfortunately for Dr. R, it was very
obvious that this entry was added
afterward. In fact, he even used a
different type of pen than used for the
other entries on the same date.
Scenario #3Ms. J wrote a letter to her dentist, Dr. P,
alleging she had been negligent by
failing to adequately diagnose and treat
her during the 30 years she had been in
her care and that her new dentist had
advised her that she needed extensive
restorative treatment.
On reviewing Dr. P’s records, PLP staff
were encouraged to see numerous chart
entries reflecting Ms. J’s failure to attend
dental appointments, her refusal to have
x-rays taken, her poor oral hygiene
despite numerous discussions regarding
its importance and her refusal to have
decayed teeth treated.
Because of the completeness and
thoroughness of the records, PLP
believed there was a very good defence
in this case. However, Ms. J denied that
any of this had happened.
Defence counsel was retained, a
Statement of Defence was filed, and the
litigation process commenced. It was not
until after the discovery process that
Dr. P eventually confessed to having
rewritten the entire chart to include
notations of missed appointments and
general lack of compliance.
Of course, PLP had no choice but to
settle the claim with Ms. J.
KEY POINTSAltering records is about the worst thing that a dentist can do to cause
damage to his or her defence in a malpractice claim or complaints
investigation. While it is difficult to defend a dentist who has
inadequate records, it is almost impossible to successfully defend a
dentist who alters the patient’s records, especially since a dentist’s
credibility is almost as important as that of a supportive expert witness.
Judges and juries will likely equate someone who alters a record to
someone who has something to hide or, even worse, someone who
does not tell the truth.
If the experienced claims examiners/adjusters at PLP suspect that dental
records have been altered by the dentist, every attempt is made to
settle the matter rather than risk exposure of these alterations to the
scrutiny of the patient’s lawyer.
It is important to note that the courts may even award punitive or
exemplary damages in cases where the patient’s records have been
altered. Punitive damages are damages awarded to reform or deter the
professional from pursuing a course of action, not to compensate the
patient. The key point to remember is that these punitive damages are
not covered under the malpractice policy.
COLLEGE CONTACT Dr. Judi Heggie – Dental Claims Advisor 416-934-5605 [email protected]
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Professional, ethical and legal responsibilities require that detailed
patient records documenting all aspects of each patient’s dental care are
maintained. A crucial component of a patient’s record is the daily
progress notes.
Progress notes describe the treatment rendered for a particular patient.
However, in addition to a concise and complete description of all services
rendered, the progress notes should also document all recommendations,
instructions, advice given to the
patient and any discussion with the
patient regarding possible
complications and/or outcomes.
In general, dental progress notes
usually contain adequate
information about treatment
rendered. However, there is often
little or no recorded detail of
discussions with the patient
regarding his/her treatment.
Dentists often comment that it is
too time consuming to document
details of discussions with patients.
Remember that short forms are
acceptable provided the dentist is
able to provide a “key” to the short
forms.
This article presents some
examples of good progress notes
for a number of dental procedures
and a description of the
importance of each entry. To assist
in the understanding of the chart
entries, explanations of the short
forms used in the examples are
shown on this page.
28 DISPATCH • November/December 2010 Ensuring Continued Trust
OUNCE OF PREVENTION
DAILY PROGRESS NOTES…Details Make the Difference
This feature is prepared tooffer guidance to membersabout the prevention ofmalpractice claims orcomplaints and thelessening of the magnitudeof an existing claim or acomplaint.
COLLEGE CONTACT Dr. Judi HeggieDental Advisor, PLP 416-934-5605 [email protected]
C/C Chief complaint
DNS Did not show
EN Endodontist
IC Informed consent
LA Local anaesthetic
MB Mandibular block
MHNC No change in medical history
MHU Medical history unremarkable
N/A Next appointment
NALM No answer, left message to call
NIS Not in service
NP New patient
O/E On examination
PD Periodontal disease
PE Periodontist
PT Patient told
Q Questions
R/C Risks/possible complications
RD Rubber dam
S/N Short notice
WCU Will call us
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CASE #1: ENDODONTIC FILE SEPARATES IN CANALDuring endodontic treatment, an endodontic file separated in a lower molar.
From the progress notes, it was clear that the patient was adequately
informed of the separated file and of the recommendations and possible
consequences associated with it.
DAILY RECORD ENTRY
Record entry clearly shows the patient was informed that:
– A file had separated in a canal.
– The endodontic treatment could not be completed.
– Referral to an endodontist was necessary for the removal of the file.
– Additional treatment might also be required.
CASE #2: CONSULTATION FOR WISDOM TEETH EXTRACTIONBelow are the details of a consultation appointment where extraction of teeth
18 and 48 is contemplated. The progress notes clearly show that informed
consent for the extractions was obtained.
DAILY RECORD ENTRY
Record entry clearly shows that:
– The extraction of 48 was necessary.
– The patient was warned of risks and possible complications of surgery.
– Options were discussed, consequences of no treatment were discussed and a consent form was provided.
– The treatment procedure was discussed.
– Costs were discussed.
– Informed consent was obtained.
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OUNCE OF PREVENTION
Aug. 16/10 1.8 ml Lido (1:100,000 epi) – MB; RD
Cont’d RCT tx 46. Filed D to #30 @ 21mm.
File sep in MB canal. Unable to bypass. PT file separated,unable to seal canal, should see EN for file removal andfinish RCT. PT if EN can’t remove file, might need surgery.Pt agreed. Refer to Dr. GP – appt. made for Sep 8, 3pm.
June 16/10 MHNC; C/C: pain O/E: 48 partially erupted, pericor. PA –impacted, tipped M against 47. Roots not close to mand.canal. Recom exo 48, 18. Disc’d optn: leave as is but 48 willnot erupt due to position. Symptoms will persist, inf’n maydevelop. If leave 18, will likely overerupt. Disc’d procedure,R/C, as per 8’s IC form, provided cost est. No Q. IC obtained.N/A: 4u – exo 48, 18 LA
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CASE #3: NON-COMPLIANT PATIENT WITH PERIODONTAL DISEASE
This is an example of a non-compliant periodontal patient. The progress notes,
over an 18 month period, clearly show that the dentist informed the claimant of his
poor oral health, warned him of the consequences of periodontal neglect, and tried
to convince the patient to schedule appointments for treatment and to see a
periodontist for evaluation.
DAILY RECORD ENTRIES
Record entries show that:
– Complete periodontal charting was done.
– The patient was advised of periodontal condition.
– The patient was referred to a periodontist.
– The patient was told of consequences of failure to treat periodontal condition.
– Patient was non-compliant.
Claims often arise when a patient, who has been non-compliant and who has
periodontal disease, becomes the patient of a new dentist. When the second
dentist advises the patient of his or her poor periodontal condition, the patient
looks for someone to blame. Detailed progress notes demonstrate that the patient
was aware of his/her condition and is responsible for the periodontal deterioration
that occurred over time.
30 DISPATCH • November/December 2010 Ensuring Continued Trust
OUNCE OF PREVENTION
DAILY PROGRESS NOTES… Details Make the Difference
Feb 3/09
Feb 24/09
March 25/09
Sept. 24/09
Oct. 27/09
April 30/10
June 4/10
Aug. 15/10
MHNC; Perio exam: Mild-mod bone loss in BWs, deep pockets esppost. OH poor. OHI. Discussed PD. PT needs referral to PE. “Will thinkabout it.” N/A 4u scale
S/N cancel’n. WCU to rebook.
Called pt. Busy at work right now. WCU when not so busy.
MHNC; C/C “want check-up.” Reminded did not come back forcleaning. Ging. puffy, red, deep pockets in post. PT must come backASAP for cleaning and needs to see PE. Expln’d if PD not broughtunder control bone loss will likely con’t. and teeth could be lost!Promises to book hyg appt. today.
No show for hyg. appt. Called – NALM.
Pt. presents on emerg. C/C pain 46. PA.-bone loss to furc’n. Told ptMUST see PE. Pt agreed. Refer to Dr. S for complete eval.
Dr. S office called. Pt. DNS. Called pt. Forgot. WCU to rebook.
TCF Dr. S. Pt. did not rebook appt. Called pt. Home #NIS Calledwork, no longer works there-moved to BC.
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OUNCE OF PREVENTION
Deep Restoration
DAILY RECORD ENTRIES
Record entries show that:
– The initial treatment was required.
– The patient was told decay was deep and RCT might be required.
– The tooth subsequently became symptomatic and RCT was necessary.
– The option of extraction was discussed.
– The patient was told post/core/crown would be required following RCT.
– The patient accepted revised treatment plan.
IN CONCLUSIONCourts usually take the view that if there is nothing in the chart to
support a dentist’s contention that a certain action took place,
e.g. patient informed of certain risks, then that action is deemed
not to have taken place.
For this reason alone, it is vitally important that all interaction
with patients – discussion, information provided, advice/
instructions given, treatment recommended or performed, etc. –
be clearly set out in the progress notes and that all entries be
dated and attributable to the treating practitioner.
The examples given in this article demonstrate that it is relatively
easy to record detailed, accurate and timely progress notes that
will serve you in good stead if or when a complaint is lodged or a
lawsuit commenced.
QUESTIONS ABOUT APARTICULARSITUATION?If you have questions about howto handle a particular situationwith a patient, do not hesitateto call the College.
PLP Claims Examiners 416-934-56001-877-817-3757
Practice Advisory Service 416-934-56141-800-565-4591
Oct. 12/09
Nov. 2/09
NP emerg. MHU. C/C pain to sweet, cold LL (points to 34-35 area). PA-deep recurrent decay 35D, no PA path. PT decay very close to nerve,may need RCT. If RCT, post/core/crown also nec. If no RCT other optionis exo. PT RCT not always successful, may need add’l tx and/or surg.Pt understands, wants RCT if nec. Discussed costs of all.
1.8 ml lido (1:100,000epi) MB; RD, Deep DOV decay but no exposure. “X”liner and “Y” comp. PT decay very deep, RCT may still be req. Call ifsymptoms.
Emerg. C/C spont. pain 35, up all night last night. O/E 35 P+++,C+++. Dx: irrev. pulpitis PT needs RCT as disc. last appt. PT can starttoday. 1.8 ml lido (1:100,000 epi) MB; RD, pulpectomy. File to #20K@22m. 1PA NAOCl, dried. Closed with cotton, cavit.
N/A 3-u complete RCT 35
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When a dentist dies, what is theresponsibility of his/her estate toretain patients’ dental records? Under privacy legislation and the regulations
made under the Dentistry Act, 1991, the
dentist who is the owner of a dental practice
is deemed to be the custodian of his/her
patients’ dental records.
When a dentist passes away, the estate
trustee or the person who has assumed
responsibility for the administration of the
deceased dentist’s estate assumes
responsibility for retaining the dental records
until the records can be transferred to
another dentist.
If my estate is able to find anotherdentist to transfer the records to, howshould patients be notified of thechange of ownership of the records?The College’s Practice Advisory on Change
of Practice Ownership and the guidelines
and checklist from the Information and
Privacy Commissioner/Ontario provide
guidance on how to deal with this situation.
The notification of the change of ownership
of the dental records can either be done by
the estate trustee or by the dentist who has
assumed ownership of the dental records.
Under the Personal Health Information
Protection Act, a patient’s health records can
be transferred to a successor if the health
information custodian makes reasonable
efforts to give notice to the patient before
transferring the records or, if that is not
reasonably possible, as soon as possible after
transferring the records.
If the estate trustee finds a dentist to assume
custody and control of your dental records,
that dentist will retain the records and
provide copies of the records to the patients
at their direction or request.
Estate trustees also have obligations as health
information custodians to provide access to
and copies of dental records to patients as
directed or requested.
What sort of agreement needs to be inplace with the dentist who assumesownership of the records? The College recommends that when the
ownership of a deceased dentist’s records is
transferred to another dentist, there be an
agreement or understanding that:
• The records will be retained for the
retention period described in the
College’s Guidelines for Dental
Recordkeeping.
• The records will be available to the
previous dentist’s estate should they be
required in the case of a complaint or
claim.
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PROFESSIONAL PRACTICE
Proper Procedures andAppropriate Safeguardsfor Dental Records Whena Dentist Passes Away
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If the estate trustee is not able to find anotherdentist to transfer the records to, is thereanyone else the records can be transferred to?The only regulated health professional who can be a
successor health information custodian for dental
records is another dentist.
On the death of the dentist, it is the responsibility of the
estate trustee, or the person who has assumed
responsibility for the administration of the deceased
dentist’s estate, to arrange to transfer the custody and
control of the dental records to another dentist.
If this is not possible, they need to be transferred to a
person whose functions include the collection and
preservation of records of historical or archival
importance, provided that the person who assumes
responsibility for the records fulfills the requirements set
out in the Personal Health Information Protection Act.
If, in the meantime, a patient requests in writing that
his/her records be transferred to their new dental
practitioner, it is permissible for the estate trustee to
transfer the original dental records to that dentist.
The College advises that there be an agreement as above
regarding the retention of records and access in the case
of a complaint or a claim.
I am preparing my will and want to knowwhether I can leave my private dental practice,including my patient records, to my spouse.No. While non-dentists can own dental office premises,
supplies and equipment, non-dentists cannot own
dental records or profit from the practice of dentistry.
The conflict of interest sections of the professional
misconduct regulations made under the Dentistry Act,
1991, which dentists must abide by, prevent non-dentists
from employing dentists, having dentists as associates, or
being partners with dentists.
For these reasons, the non-dentist members of the family
or the estate of a deceased dentist cannot own and
operate the dental practice of a deceased dentist or
employ dentists to provide care to patients for the long
term.
The College does allow the estate trustee limited time
(no more than one year) to sell a deceased dentist’s
practice following the death of the dentist and to enlist a
locum to provide urgent and ongoing dental care to
patients until the dental practice is sold and dental
records transferred to another dentist.
The College advises that it is usually best to arrange for
another dentist’s assistance in operating the practice and
to have the practice valuated as soon as possible.
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PROFESSIONAL PRACTICE
MORE INFORMATIONPractice Advisory on Change of Practice Ownership - College website atwww.rcdso.orgGuidelines on Dental Recordkeeping – College website at www.rcdso.orgHow to Avoid Abandoned Records: Guidelines on the Treatment ofPersonal Health Information, in the Event of a Change in Practice -Information and Privacy Commissioner/Ontario website at www.ipc.on.caChecklist for Health Information Custodians in the Event of a Planned orUnforeseen Change in Practice - Information and Privacy Commissioner/Ontario website at www.ipc.on.ca
COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor, Quality Assurance416-934-5614 [email protected]
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How long do I have tokeep dental records?The required retention
period depends on the age
of the patient. For adult
patients, dental records
must be retained for at least
10 years after the date of
the last entry in the record.
For a child, dental records
need to be kept for 10 years
after the child reaches or
would have reached the age
of 18.
I don’t have room inmy office to store all of my archived records.Can they be stored off-site? Yes. The only proviso is
that privacy legislation
requires that dental records
of patients must be stored
in secure premises to
prevent unauthorized
access. You must also take
reasonable steps to protect
the records from theft and
damage from fire or flood.
This might mean, for
example, storage in water-
proof plastic bins with lids.
It is also recommended that
stored records be kept in a
systematic fashion so they
can be easily retrieved if the
patient returns to the
practice or if they are
needed for another
purpose.
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PROFESSIONAL PRACTICE
Dental Records Storageand Recovery ofDamaged Records
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If I decide to store myarchived records off-site, do I need to notifymy patients or formerpatients?It is not necessary to notify
patients if the records are
archived in the basement of
the dental office or in some
other area controlled by the
dentist. However, if the
records are moved to
premises that are not under
the control of the dentist,
such as a private record
storage facility, provincial
privacy legislation requires
that patient consent be
obtained before the records
can be stored in such a
facility.
There was a flood/firein my dental office andmy dental records weredestroyed. What do Ihave to do?The first step is to see
which records can be
retrieved or salvaged.
There are companies that
specialize in recovery/
reconstruction of paper
records and data recovery
for electronic records. Your
general liability or office
overhead insurance policy
may cover some of these
costs.
As for electronic records,
the College does
recommend that they
be backed up on a routine
daily basis and stored in
a physically secure
environment off-site.
In addition, your recovery
procedures should be
periodically tested to
ensure that all patient
records and critical data
can be retrieved and
reliably restored from the
backup copy.
If the system cannot be
restored from a backup
copy, it may be possible
to recover data from a
damaged hard drive.
Do I need to notifypatients that theirrecords were damagedor destroyed?The College advises dentists
to notify patients currently
in treatment and other
active patients about what
has occurred and what
records may need to be
recreated. For example,
this might include
examinations or
radiographs or other
diagnostic records and
medical histories required
to provide sufficient
information to deliver safe
and appropriate dental
care. Patients can be
notified verbally, by
posting a notice in the
office, or in writing.
Should I notify theCollege of this mishap?If your records have been
destroyed by fire or flood,
you can notify the College
that this has occurred. This
information could be
helpful if later on there is
an investigation of a
complaint or a lawsuit
(claim) filed against you.
In any report that you
might make, you should
describe the steps that you
have taken to salvage or
reconstruct the dental
records and what records
are remaining; for example,
electronic records of
treatment provided in the
patients’ financial records.
Your notification should be
in writing and you can
request that it be placed in
your permanent file. These
files are retained
indefinitely at the College,
even after you are no
longer registered or are
deceased.
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PROFESSIONAL PRACTICE
COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor, Quality Assurance416-934-5614 [email protected]
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ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2012
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OUNCE OF PREVENTION
The Importance of a CompleteMedical History
Every year, PLP receives reports of
claims or potential claims in which
inadequate medical history-taking
and/or failure to update a patient’s
medical history have been pivotal
factors in the treatment outcome.
The following scenarios involving
inadequate history-taking that lead
to serious consequences illustrate
the importance of medical histories
to providing safe and appropriate
dental care.
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OUNCE OF PREVENTION
QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle aparticular situation with a patient, do not hesitate to call the College.
PLP ADVISORS
416-934-5600 • 1-877-817-3757
PRACTICE ADVISORY SERVICE
416-934-5614 • 1-800-565-4591
SCENARIO 1
Mr. H presented to his dentist, Dr. B, regularly for 12 years.
He required very little dental treatment, other than
routine cleanings.
After scaling had been completed at a recall appointment,
Mr. H mentioned to Dr. B that he’d had a diseased heart
valve replaced with a prosthetic one four months earlier.
Dr. B explained the importance of premedication to
Mr. H and prescribed antibiotics to be taken prior to his
next appointment.
Eight months later, Mrs. H called to say her husband had
passed away. An autopsy confirmed that her husband had
developed prosthetic valve endocarditis (PVE), reportedly
caused by the dental cleaning.
DISCUSSIONIn reviewing Dr. B’s records, PLP staff had the following
concerns:
• While there was a medical history form in the record,
completed on Mr. H’s initial appointment with Dr. B,
there was no evidence that the claimant’s medical
information had ever been discussed or updated after
that.
• It was clear from the records that the discussion about
Mr. H’s prosthetic heart valve occurred after the
scaling appointment, not before.
• Having discovered that the patient had a prosthetic
heart valve and had just undergone dental cleaning,
Dr. B took no immediate action, such as consulting
with Mr. H’s cardiologist, referring him back to his
physician, or immediately prescribing a post-exposure
regimen of appropriate antibiotics.
SCENARIO 2
Ms. S presented to Dr. A on an emergency basis for
extraction of an infected tooth. Dr. A extracted the tooth
under local anesthetic and he told Ms. S she should make
an appointment for a new patient examination. She said
she would do so.
A week later, Ms. S’s son called to report that his mother
had developed a serious infection and was in hospital on
IV antibiotics.
DISCUSSIONIn reviewing Dr. A’s records, PLP staff had the following
concerns:
• The medical history questionnaire form used by
Dr. A did not include important questions that would
elicit critical information in assessing a patient’s true
medical status.
• There was no evidence that Dr. A had reviewed the
scant medical history with Ms. S or that he had
investigated her positive responses to “Do you have
any illnesses or medical conditions?” and “Do you
take any medications?”
• There was no evidence that the tooth needed to be
extracted. Dr. A hadn’t taken an x-ray. There was no
information in the records about why the tooth
required extraction, although Dr. A said the tooth was
severely broken down and non-restorable.
Unfortunately, this was not documented.
• There was no evidence of any discussion about the
risks and benefits of extraction or the alternatives.
• There was no informed consent for treatment.
• There was no evidence that Ms. S was provided with
any post-operative instructions, verbal or written, or
that she was told to call the office if she experienced
any complications.
• Review of Ms. S’s full medical records demonstrated
that she was severely medically compromised. She was
a very poorly controlled Type II diabetic and was
suffering from many complications of the disease.
• Because he failed to investigate the positives on the
medical history form, Dr. A was not aware that
Ms. S was a poorly controlled Type II diabetic on
insulin. Further, he did not know that she needed
specific instructions post-operatively or that she
probably required prophylactic antibiotics.
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OUNCE OF PREVENTION
COLLEGE CONTACT Dr. Judi Heggie – Senior Dental Consultant, Professional Liability Program 416-934-5605 [email protected]
Understanding the relationship between oral and
general health is an essential component in
providing safe dental care. Treating the medically
compromised patient requires that the dentist be
knowledgeable about medical diseases and
conditions and familiar with the implications of
medications used to treat these diseases. It also
requires the ability to assess the significance of
these diseases before, during and after dental
procedures.
On our website at www.rcdso.org, the College
provides members with a “Medical History
Recordkeeping Guide” comprised of four parts:
• the Medical History Questionnaire
Companion;
• a sample of a Medical History Questionnaire;
• a patient information pamphlet entitled
“When it Comes to Your Medical History, Tell
Your Dentist Everything”;
• a sample Recall History Questionnaire.
The Companion section of the guide points out
that a medical history questionnaire can be
worthless if the dentist cannot interpret the
answers and, when necessary, seek out and obtain
additional information.
The questionnaire provides a starting point to
elicit information from the patient. It assists the
clinician in identifying a patient whose medical
history is uncomplicated, and whose treatment
may be conducted safely with a minimum of
treatment modifications.
The questionnaire can also assist in identifying a
patient whose medical history is complex or
clouded, and when further information is needed
to clarify any positive or unclear responses before
initiating care.
Additional information may be acquired through
a dialogue with the patient and by conducting an
appropriate physical examination (head, neck and
intra-oral examination, and taking and recording
vital signs) and/or consultation with the patient’s
physician.
In Scenario 2, had Dr. A discovered that Ms. S had
diabetes, there were a number of follow-up
questions he should have asked.
The Medical History Questionnaire Companion
explains that, when it is determined that a patient
suffers from diabetes, the dentist needs to
establish the type and severity of the disease and
the presence of complications, which are often
related to the duration of the disease. For
example, diabetic patients are more likely to suffer
from atherosclerotic heart disease, kidney disease,
blindness, xerostomia, periodontal disease,
burning mouth syndrome, and to have problems
related to impaired healing and infection.
As important as it is to be able to appropriately
interpret the medical history questionnaire and to
investigate the positive responses, it is equally
important that the medical information is
updated and followed-up on a regular basis.
Two methods can be helpful to ensure the
medical history is updated and the information is
accurate. One is to have the patient review the
information previously obtained and advise the
dentist of any changes. The other is to ask specific
questions of the patient. On page 11 of the
Medical History Questionnaire Companion there
is a list of appropriate questions to be asked at
recall appointments and also a sample
abbreviated Recall History Questionnaire.
LEARNING POINTS
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QMy patient says that she haspaid for the x-rays and isentitled to them. Can I givethese to her?
What the patient has paid for is the
diagnostic services that you have
provided on the basis of the radiographs
and the regulations require you to retain
these. Your patient is entitled to
diagnostic quality copies of the
radiographs.
QCan the patient pick up theirdental records or have thesemailed to their home?
Yes, the patient can pick up copies of
their dental records from your office or
request that these be mailed to their
home. Most dentists have the patient
sign in the patient’s record that they
have received the records if the patient
picked up the copies. If someone else
arrives to pick up the patient’s records
from your office, you should ensure that
you have the patient’s consent to release
them to this person. The patient can
indicate this in advance with their
signed consent.
QMy patient wants to pick upthe records of their childrenwho are at university. Is thispermitted?
While there is no legal age for consent
to the release of health information, the
College and the Information and
Privacy Commissioner of Ontario
consider that age 16 is a reasonable age.
This means that in most cases, parents
can request and are entitled to copies of
the dental records of children up to 15
years old. However, you will require the
ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2011
28
Release andTransfer of Records
If someone else arrives to
pick up the patient’s records
from your office, you should
ensure that you have the
patient’s consent to release
them to this person.
“ “
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consent of children 16 and older to
release records to their parents. You
should contact the children to ensure
that you have their consent to release
the copies of their records to their
parents.
QIf I do not have a duplicator orprocessing solutions because Ihave switched to digitalradiography, can I give thepatient original filmradiographs?
Because dentists are required to keep
original records, the easiest way to
comply with your legal requirement to
provide patients with copies of the
dental records that they request is to
have facilities to make copies in your
office.
If you no longer have processing
solutions, you could investigate how to
scan film images to convert these to
digital files. Then you could send these
electronically with appropriate privacy
safeguards, or provide them to the
patient on a CD or USB key.
Alternatively, you could arrange to have
the radiographs duplicated; for example,
at a faculty/school of dentistry.
QDoes the request have to comefrom another dentist?
No. Dentists will often help their patient
to request their dental records from
another dentist, but the request can also
come directly from the patient. Patients
have the right to have copies of their
records.
While the College suggests that patients
put their requests in writing, indicating
what they would like to have copied and
where they would like the records to be
sent, the dentist does not require
consent to release information from a
patient’s record to the patient.
Dentists require the patient’s consent to
release information to someone other
than themselves and the College advises
written consent in most cases.
QWhat if the written requestdoesn’t specify which recordsare required?
If the request is very general, you could
contact either the patient or the dentist
to whom the records will be sent to find
out what is required and whether there
is an appointment booked or other
urgent need for the dental records.
QI have purchased a dentalpractice and a patient wouldlike his notes from the previousowner’s dental record. Am Irequired to provide this to himand does it make a differencewhether or not I have treatedthe patient?
In the sale of a dental practice, typically
the purchaser assumes the legal
responsibility to retain patient records as
required by the regulations. This means
that the purchaser has to keep the
originals and provide copies to the
patients, if requested.
If a patient continues treatment at the
office, whether or not the same charting
format is used, the patient’s record will
normally be considered a continual
record. You have to retain the records
for adult patients until at least 10 years
after the date of the last entry in the
patient’s record and for children, until
ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2011
29
s
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at least 10 years after they turn 18. You
should not give patients their original
record until the legally required
retention period has ended.
QMy patients are havingdifficulty obtaining copies ofdental records from anotherdental office. How can I helpthem?
You can assist your patients by preparing
a request for the release of information
that specifies which records the patient
requires copies of, your office address,
and indicating if this is where the
records are to be sent. The patients
should sign these requests. Note that
children 16 years of age or older should
sign the requests for their own dental
records.
QMy associate has left the officeand has sent out a notificationto patients. If the patientsdecide to follow him, do I haveto provide the associate withthe patients’ records?
If you receive a written request that is
signed by the patient directing you to
do so, you should provide copies of the
dental records to the associate. The
associate is not entitled to the patient’s
original records, unless that is in
accordance with a written contract, for
example, an associate agreement where
the associate is the designated owner of
specified patient records, or if there is a
written agreement between the dentists
specifying that, at the end of the
associateship, the transfer of original
records with the consent or written
direction of the patient takes place
so that the associate assumes the
responsibility to retain these as required
by the regulations. The College does not
provide legal advice and dentists should
consult with their own lawyer before
entering or executing such agreements.
QCan I charge the patient for theduplication of dental records?
According to the College’s Practice
Advisory on the Release and Transfer of
Patient Records, you can pass on any
out-of-pocket expenses incurred in
duplicating and releasing records. This
could include mailing costs, charges
from a dental laboratory or radiograph
duplicating facility, and materials costs.
This cannot include an administrative
fee for your staff time.
QWhere can I get moreinformation?
The Guidelines for Dental
Recordkeeping and the Practice Advisory
on the Release and Transfer of Patient
Records are available on the College
website at www.rcdso.org under
Professional Practice.
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30
Release and Transfer of Records
COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor 416-934-5614 [email protected]
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Q: Who owns the dental records,the patient or the dentist?Dentists are required to retain original patientdental records for ten years after the last entryin the chart. Patients are entitled to see theirrecords and to receive copies.
Q: If I receive a request from apatient for copies of his/herrecords or receive writtenauthorization by the patientfrom another dental office, mustI comply?Failing to provide copies of patient records andradiographs when requested by a patient orher or his authorized representative may beconsidered as professional misconduct underthe Dentistry Act, 1991.
A Supreme Court of Canada decision alsostated that patients either have the right ofaccess to their health records at a timeconvenient to the practitioner or they areentitled to be provided with copies of theirhealth records, including copies ofradiographs.
Q: Are patients entitled to theiroriginal dental records?No. The dentist must keep the original recordsbut the patient can have copies.
Q: What would be considered areasonable time frame forproviding copies of patientrecords?The professional misconduct regulationsmade under the Dentistry Act,1991 speak tothe transfer of records and/or reports within areasonable time.
It is the College’s view that, in most cases, thisshould be accomplished within one to twoweeks of receipt of the request. The Collegealso recommends that dentists use personaldelivery, a courier service or registered mail toensure that the records safely reach theirdestination.
Q: A patient has requested tohave the records sent to his/herhome, rather than to the newdentist. Is it acceptable to dothis?A patient can give direction as to where he orshe would like the records sent. They do notnecessarily have to be sent to a dental officeonly.
Q: What records should normallybe provided?If a patient or his or her lawyer request copiesof all dental records and radiographs, you
DISPATCH • November/December 2008 53
COLLEGE CONTACTDr. Don [email protected]
PRACTICE CHECK
Patient Records:Transfer and Release
MENU
must comply with this request. However, ifthe request is not specific, the most usefulrecords would be current x-rays and the mostrecent full mouth survey/panoramic view, anda copy of the current treatment plan andprogress notes.
Q: Is it permissible to levy acharge for the duplication ofpatient records?It is the College’s view that in fulfilling his orher legal and professional obligations toforward records and/or reports that have beenrequested by a patient or agent, a dentist mayconsider charging a fee consistent with thedirect costs incurred in doing so.
This fee would include the costs ofphotocopying paper records, duplication of x-rays or models and transfer costs. Anadministrative fee for this service is notconsidered appropriate.
The College recognizes that, in some cases, theburden to members to provide records justifiescost recovery. In others, a dentist may chooseto provide copies of records as a professionalcourtesy as assessing such a fee might furtherinflame an existing conflict with a patient.
Q: Can a dentist refuse to complywith a patient’s request for thetransfer of his/her dental recordsto a new dentist until theoutstanding account balance hasbeen paid? No. The release and transfer of records is aprofessional responsibility and unrelated towhether or not the patient still owes the dentaloffice any money. Dentists have othermechanisms available to them to recoverunpaid balances.
Q: If the police come to thedental office requesting therelease of dental records of aparticular patient of thepractice, must I comply with thisrequest?You cannot release any patient records withoutthe authorization of the patient or his/herauthorized representative, i.e. parent,guardian, legal representative, trustee, or asrequired to do so by law.
In order for a dentist to be able to comply withthe police officer’s request, the officer wouldhave to produce a Coroner’s Warrant or a courtauthorized Search Warrant. Without suchwritten authorization, the dentist would beunable to comply. In this situation, it might bewise to contact the College’s Practice AdvisoryService at 416-934-5614 or toll-free at 1-800-565-4591 for assistance.
Q: Where can I get moreinformation?The College’s Practice Advisory on the Releaseand Transfer of Patient Records can be foundon the RCDSO website at www.rcdso.org byclicking on Professional Practice in thenavigation bar on the left-hand side of thehome page, and then on Practice Advisories inthe drop down menu.
54 DISPATCH • November/December 2008 Ensuring Continued Trust
PRACTICE CHECK
Transfer and Release of Patient Records
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DDr. Bert Greene is a general practitioner in a busy dental office. A patient,Wendy Smith, attended at his office complaining of severe pain in tooth27. After examining her, Dr. Greene recommended root canal therapy.He explained the treatment and discussed the other options. Ms. Smithchose to go ahead with root canal therapy and Dr. Greene initiatedtreatment on the same day.
Very early in the procedure, a file separated in the middle third of themesiobuccal canal. Dr. Greene made no attempts to remove or to bypassthe separated file. Instead, he proceeded to complete the treatment,obturating the palatal and distobuccal canals fully and obturating themesiobuccal canal in the coronal half of the canal only, up to the level of the separated file.
He charged Ms. Smith the full fee for endodontic treatment of a tooth withthree canals.
A week later, Ms. Smith attended at another dentist’s office complaining of pain and this dentist discovered the separated instrument and informedMs. Smith.
This situation could quickly escalate into a complaint filed about Dr. Greene to the College or the commencement of a lawsuit. However, there are a few precautions that could have been takento decrease the chance of a complaint or lawsuit.
42 DISPATCH • November/December 2008 Ensuring Continued Trust
This feature is prepared tooffer guidance to membersabout the prevention ofmalpractice claims orcomplaints and thelessening of the magnitudeof an existing claim or acomplaint.
COLLEGE CONTACT Dr. Judi HeggieDental Advisor, PLP 416-934-5605 [email protected]
OUNCE OF PREVENTION
TOP FIVE STEPSto Avoid a Lawsuit or Complaint
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DISPATCH • November/December 2008 43
Step OneASSESS THE SITUATION
1When a complication occurs duringtreatment, it is important to take thetime to carefully assess the situation. Inthis way, decisions about what to do
next can be made with careful considerationand with the patient’s best interests in mind.
In this situation, Dr. Greene, with the patient’sconsent, could have attempted to retrieve theseparated file. If this wasn’t possible, he couldhave bypassed it and successfully sealed thecanal. If neither of these attempts waspossible, he could have referred Ms. Smith toan endodontist to attempt file removal and/orbypass and to complete endodontic treatmenton all of the canals.
Step TwoCOMMUNICATE WITH THE PATIENT
2You have a responsibility to informyour patient when a complicationarises during treatment. As soon as Dr. Greene realized a file had
separated in a canal, he should havediscontinued treatment, sat Ms. Smith up inthe chair, and explained what had happenedand what the options were on a go forwardbasis, including the option of referral to anendodontist, before continuing with anytreatment.
A patient is able to make an informed decisionabout the course of treatment when she or hehas all of the relevant facts.
As well, patients appreciate opencommunication with their dentist, and thisfosters a relationship of trust between thedentist and patient. If patients feel they arebeing misled or their concerns aredisregarded, then how or why the actualcomplication occurred may becomeirrelevant.
Very often, what a dentist does after anuntoward incident occurs plays as much apart in what happens next as the incidentitself. Showing care and concern, as well ascommunicating and taking appropriateaction, often prevents further action on thepart of the patient against the dentist.
Step ThreeTAKE APPROPRIATE ACTION
3Do something to correct the situation.In this case, if Ms. Smith had accepteda referral to an endodontist, Dr.Greene should have immediately
referred her and should not have proceededwith obturation of the other canals.
Also, Dr. Greene should have stronglyconsidered waiving all fees for theappointment as a goodwill gesture to thepatient.
If Ms. Smith chose to have Dr. Greene attemptto remove or bypass the file, then he couldhave gone ahead with that treatment. If hecould not safely remove or bypass the file, heagain should have immediately referred Ms.Smith to an endodontist and definitelyconsidered waiving his fees.
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44 DISPATCH • November/December 2008 Ensuring Continued Trust
OUNCE OF PREVENTION
Step FourDOCUMENT
4Put it in writing. Regardless of thecourse of action chosen, Dr. Greeneshould have made a note in thepatient chart about the incident and
what was done to resolve it. Thisdocumentation should have included a noteabout what the patient was told, includingtreatment options and possible outcomes andrecommendations made, as well as anycomments made by the patient. If there is acomplaint or lawsuit some time later, thesenotes serve as an important reminder of whathappened.
Step FiveGIVE NOTICE
5If an upset or angry patient indicatesthat she or he wants somecompensation, threatens a lawsuit, orissues a Statement of Claim, the
dentist should contact the ProfessionalLiability Program in order to protect his or hercoverage under the College’s errors andomissions policy.
If something untoward occurred and thedentist wishes to offer to correct the procedurewithout charge or to waive any fees as agoodwill gesture, PLP can assist the dentist inresolving the matter by providing anynecessary documents so as not to admit anyliability.
SUMMARYThe practice of dentistry is both an art and ascience, and sometimes accidents, mishapsand/or untoward events occur. The fivesuggestions in this article can assist you inhandling difficult situations, bolster or regaintrust, and defuse anger and upset. Even if thepatient decides to commence a lawsuit orcomplain to the College, it may beadvantageous to be able to show that thesituation was managed with the utmostprofessionalism.
QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle a particular situation with apatient, call the College.
PLP Claims Examiners 416-934-5600 • 1-877-817-3757Practice Advisory Service 416-934-5614 • 1-800-565-4591
Top Five Steps to Avoid a Lawsuit or Complaint
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ENSURING CONTINUED TRUST DISPATCH MAY/JUNE 2012
18
INTRUSION UPON SECLUSION
What you need to know aboutliability forinvasion of privacy
TOOTH OR CONSEQUENCESRISK MANAGEMENT ADVICE FROM PLP
HHistorically, privacy rights in Canada have been protected by a
patchwork of legislation designed to shield individuals from
unauthorized use or disclosure of personal information by
prescribed entities or groups, including health care providers.
While the remedies for a statutory breach of privacy may include
an award of damages, until recently, no jurisdiction in Canada
had ever recognized a common law right to sue for invasion of
privacy. All of that changed in January of this year with the
Ontario Court of Appeal’s landmark decision in Jones v. Tsige.
Jones and Tsige did not know each other, but both were
employees of the Bank of Montreal. Tsige was in a common-law
relationship with Jones’ ex-husband, and in order to confirm
information received from her partner about his finances, she
surreptitiously accessed Jones’ personal banking information at
least 174 times over four years. She did not publish or distribute
any of Jones’ financial or personal information, and Jones did not
suffer any economic harm as a result of the intrusion.
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After discovering the
unauthorized intrusion, Jones
sued Tsige for invasion of
privacy. A motion judge
dismissed the action on the
ground that there was no
such common law tort in
Canada.
On appeal, the Court
canvassed the law in Ontario
and the other provinces and
determined that the
protection available under
privacy legislation does not
preclude common law relief.
Following U.S. precedent, it
imported a cause of action for
“intrusion upon seclusion”
into Canadian law, defined as
follows:
One who intentionally intrudes,
physically or otherwise, upon the
seclusion of another or his
private affairs or concerns, is
subject to liability to the other
for invasion of his privacy,
if the invasion would be
highly offensive to a
reasonable person.
The Court clarified that a
reckless invasion of privacy
would be included in this
definition, but it expressly
declined to adopt a broader
one which would encompass
inadvertent disclosure of
sensitive personal
information.
After concluding that Tsige’s
acts satisfied the elements for
establishing liability, the
Court granted judgment in
favour of Jones and awarded
her $10,000 in damages.
The decision to acknowledge
the importance of privacy by
creating a cause of action for
its deliberate violation is not
terribly surprising, and one
can expect other jurisdictions
to follow suit.
Moreover, it is very likely
that Ontario courts will
recognize a right of action
for unintentional breach of
privacy sooner rather than
later. In fact, a class action
for damages arising from
the loss of a USB key with
unencrypted personal health
information for over 83,000
people was certified last year.
While certification itself does
not mean the claims
advanced in the pleadings are
sustainable, it is noteworthy
that one of the common
issues for trial is whether the
defendants owed a common
law duty to the class members
to protect their privacy.
Since most breaches of
privacy in dental practice are
accidental rather than
deliberate, it is unlikely that
there will be a flood of actions
against Ontario dentists for
intrusion upon seclusion.
But the spectre of civil
liability for negligent breach
of privacy looms for health
care practitioners who have
not changed their ways
despite the possibility of
complaints to their regulatory
bodies or the Office of the
Information and Privacy
Commissioner/Ontario.
As custodians of personal
health information, dentists
are held to a very strict
standard of confidentiality.
Unfortunately, it is all too
easy to forget that even the
fact that someone is a patient
is private. Many dentists
casually share treatment
information about one person
with other family members
without consent.
Ignoring the risk of theft or
loss, some dentists still
transport computers, smart
phones, and other electronic
devices containing
unencrypted patient
information. Some dentists
engage in e-mail exchanges
about treatment or even send
patient records electronically,
which, while convenient, is
dangerous without proper
safeguards. The time to
change such practices is now,
before the reputational and
financial consequences
escalate.
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19
QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle aparticular situation with a patient, do not hesitate to call the College.
PLP ADVISORS
416-934-5600 • 1-877-817-3757
PRACTICE ADVISORY SERVICE
416-934-5614 • 1-800-565-4591
TOOTH OR CONSEQUENCESRISK MANAGEMENT ADVICE FROM PLP
COLLEGE CONTACT René Brewer – Manager, Professional Liability Program416-934-5609 [email protected]
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ENSURING CONTINUED TRUST DISPATCH AUGUST/SEPTEMBER 2012
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Patient CentredCareA dentist’s paramount responsibility
TOOTH OR CONSEQUENCESRISK MANAGEMENT ADVICE FROM PLP
MMost dentists know that, like other health care practitioners, they
owe a duty of care to meet the prevailing standards of practice in
treating their patients and that they may be held civilly liable if
they breach that duty.
What they may not know is that, even if there are no deficiencies
in disclosing the risks of treatment or in the treatment itself, they
may be exposed to a finding of liability if they fail to put their
patients’ interests ahead of their own.
Because of their special position in society, some professionals
have a legal and ethical obligation, called a fiduciary duty, to act
for the sole benefit of the people they serve.
While power imbalance is a feature of many fiduciary
relationships, the key criterion is the discretion of one person to
affect the interests of another.
A fiduciary must meet the strictest standards of conduct, and may
be held to account if his personal interests conflict with his duty
or if he profits from his position without the beneficiary’s
consent.
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Dentists, physicians, lawyers and teachers have been found to
be fiduciaries to their patients/clients/students. As emphasized
in the RCDSO’s Code of Ethics, this means that: “The
paramount responsibility of a dentist is to the health and well-
being of patients.” Therefore, while there is nothing illegal or
unethical in earning a living or making a profit from the
practice of dentistry, dentists must always ensure that their
financial interests do not take precedence over doing what is
best for their patients. Consider whether the dentists in the
following two scenarios met this obligation.
SCENARIO 1 Ms. Y told Dr. P she didn’t like the silver fillings in her mouth
and wanted to know if he could replace them with white ones.
On examination, Dr. P noted she had large, multisurface
amalgam restorations on most of her molar and premolar
teeth, but there was no clinical evidence of a need to replace
them.
He took bitewing radiographs that showed no evidence of
decay. Dr. P informed Ms. Y he would be happy to replace the
resins and discussed the fees for doing so.
Dr. P proceeded to replace all the amalgams over the next two
weeks.
SCENARIO 2Ms. A told Dr. C she was a budding actress and wanted a dental
makeover. Dr. C recommended that all 28 teeth be restored
with porcelain crowns.
Dr. C was just starting out in practice, and had little experience
with providing crown and bridge treatment and no experience
with porcelain crowns. Nonetheless, she felt confident in her
ability to carry out the treatment plan.
Dr. C permanently cemented all of the crowns.
DISCUSSIONWhile Dr. P and Dr. C faced different clinical situations, there
were some common threads. Treatment was of questionable
benefit to their patients and there were clearly less extensive
and expensive alternatives. As well, the treatment provided by
Dr. C was beyond her scope of expertise.
Had Dr. P and Dr. C asked themselves the following questions,
they may have acted differently:
• Is treatment necessary at all?
• Is this particular treatment appropriate?
• Is this treatment in the best interests of the patient?
• Are there other options that should be considered?
• Is this treatment within my scope of expertise?
• Might it appear to others that I recommended or providedthis treatment primarily for personal gain?
Instead, both left themselves open to allegations of breach of
fiduciary duty. The fact that the patients specifically requested
the treatment would not shield them from liability if a court
were to conclude that their failure to explore alternatives was
financially motivated.
There is no doubt that most dentists would try to do what is
best for their patients even if there were no legal obligation to
do so. Using the above checklist can help avoid any appearance
to the contrary by ensuring that patients’ interests remain the
paramount consideration in any treatment decision.
ENSURING CONTINUED TRUST DISPATCH AUGUST/SEPTEMBER 2012
23
QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle aparticular situation with a patient, do not hesitate to call the College.
PLP ADVISORS
416-934-5600 • 1-877-817-3757
PRACTICE ADVISORY SERVICE
416-934-5614 • 1-800-565-4591
TOOTH OR CONSEQUENCESRISK MANAGEMENT ADVICE FROM PLP
COLLEGE CONTACT René Brewer – Manager PLP416-934-5609 [email protected]
MENU
DDentistry tends to attract people with particular personality traits.Succeeding in dental school and in practice requires discipline,determination, intelligence, drive and a certain amount ofcompetitiveness. Like others in demanding professions, dentists areusually high achievers with high standards for others, but mostespecially for themselves. Many were drawn to dentistry over otherhealth professions because of their desire for independence andcontrol over their careers and financial futures. Theirs is a healingprofession, and most dentists care deeply about their patients’welfare and strive to provide the best care possible, so they aredevastated when their best efforts aren’t enough.
But the flipside of these attributes can lead dentists into trouble.Some overestimate their abilities or are reluctant to admit any limitson their skills or training to their patients. They may be reticent,even ashamed to ask colleagues for advice or assistance. Somehave difficulty acknowledging or dealing with patient dissatisfactionor less than ideal treatment outcomes. They may go into denial orrefuse to accept defeat, often making matters worse.
ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2013
24
What Price Perfection?The personal andprofessional costs of being too hard on yourself
MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
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All of these behaviours andattitudes increase the likelihoodof patient complaints and legalactions. The following are a fewtips for avoiding such pitfalls:
KNOW YOUR LIMITS. Many PLP files arise fromsituations in which the memberstrayed into areas beyond his orher level of experience andcompetency. The fact that apatient asks you to perform theservice for financial or otherreasons will not be a defence toa complaint or a claim if you didnot have the appropriatetraining.
KNOW WHEN TO SAY WHEN. Sometimes the best responsewhen a complication occurs is torefer the patient to a colleaguefor assessment or remedialtreatment. Mistakes are morelikely to occur when you arepersonally invested in fixingyour own problem.
DON’T PRACTISE IN ISOLATION. Forge relationships with otherdentists; find and/or be amentor; join or create studyclubs; become a member of aprofessional association.Connecting with other peoplefacing similar challenges andsituations will help you workthrough them.
PHONE A FRIEND. Don’t be embarrassed to admityou don’t know something.Reach out for help and advice.You’re not perfect, and acting asif you were is a sure-fire way toensure you will be sued if thingsdon’t turn out as planned. Andby the way, your colleaguesaren’t perfect either.
GET USED TO GIVING BAD NEWS. Things go wrong. Admit it, dealwith it and move on. Mostimportant is that you tell thepatient right away. Not only is it your legal, ethical andprofessional obligation todisclose an adverse event to
your patient in a timely fashion,but failure to do so significantlyincreases your risk of a lawsuitand the potential for an award ofpunitive damages against you,for which PLP does not provideindemnification.
GET USED TO SAYING “I’M SORRY.”Studies have demonstrated thatempathy from the healthpractitioner can positively affecta patient’s reaction to acomplication. And in Ontario, an apology cannot be used asevidence of liability in a civilproceeding, so there is nothingto lose in making a heartfeltexpression of sympathy for apatient’s suffering.
ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2013
25COLLEGE CONTACT Dr. Judi Heggie – Senior Dental Consultant, PLP
416-934-5605 1-877-817-3757
MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
WHILE PERHAPS EASIER
SAID THAN DONE,
FOLLOWING THESE
SIMPLE RULES WILL
HELP AVOID THE STRESS,
ANXIETY AND EVEN
DEPRESSION ASSOCIATED
WITH THE INEVITABLE
UPS AND DOWNS OF ANY
DENTAL PRACTICE.
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1. Different levels ofprofessional responsibilityDentists and denturists have different
scopes of practice and different
controlled acts, as described in the
Dentistry Act, 1991 and the Denturism
Act, 1991. That is why it is the College’s
view that dentists and denturists have
different levels of professional
responsibility for shared patients.
If a dentist refers a patient to a denturist
to perform specified services as part of
an overall treatment plan coordinated
by the dentist, the dentist has a
professional responsibility to be aware of
the qualifications of the denturist. This
is the same responsibility a dentist has
in referring a patient to any health care
provider.
If a denturist refers a patient to the
dentist for rest preparations and other
tooth preparation for partial dentures or
for the placement of implants that the
denturist will later restore with a
removable denture, such as an
overdenture, the dentist’s responsibility
does not begin and does not end with
this stage of the patient’s treatment.
In fact, the responsibility to make the
decision if a patient is a candidate for a
specific prosthetic treatment plan rests
with the dentist. Dentists are the only
regulated dental health professional in
Ontario authorized to communicate a
diagnosis identifying a disease or
disorder of the oral-facial complex as the
cause of a person’s symptoms.
The formulation and communication of
diagnosis and the treatment plan is an
integral component of the informed
consent process for prosthetic dentistry.
So too is the suggestion of reasonable
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Dentists anddenturists workingtogetherunder one roof
Dentists sometimeswant to enter into businessrelationships withdenturists thatwould have eachprofessionalproviding servicesto patients underthe same roof.
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treatment alternatives, some of which
are outside the scope of practice of
denturists.
The patient’s record must document
the dentist’s discussion with the
patient and must show evidence of
adequate consultation with all the
professionals involved in the treatment
process. The patient’s record should
document the alternative treatment
options discussed and the choice of
treatment made by the patient.
In addition to these general
requirements, with partial dentures the
dentist must agree to the specific
denture design.
For implant supported removable
overdentures, the dentist should
mount the fixed hardware to the
implants before referring the patient
back to the denturist.
The dentist is also responsible for the
placement of any implant-supported
crown if it is serving as a precision
attachment for a removable partial
denture.
Once prosthetic treatment is
completed, the dentist will be
responsible for ongoing evaluation by
clinical and/or radiographic
examination and for providing or
arranging for periodontal and
preventive maintenance of the
abutments for implant supported or
conventional fixed prostheses.
Because there is no procedure code in
the Ontario Dental Association’s
Suggested Fee Guide for tooth
preparation for a partial denture, if the
denture is provided by the denturist,
fees for the dentist’s time in
preparation of the teeth might not be
reimbursed by dental insurance.
Patients must be advised of this before
proceeding.
A word description in the dentist’s
note section of the insurance claim
form would be required to submit an
insurance claim for these services
provided by the dentist.
2. Business relationshipsThe preferred business relationship is
for the denturist and the dentist to
operate independent and separate
practices, with each maintaining
his/her own patient records. The
dentist and denturist bill patients for
treatment independently. Insurance
claims are submitted separately using
their own provider numbers and the
procedure codes of their own
associations – the Ontario Dental
Association and the Denturist
Association of Ontario.
A denturist can pay rent to a dentist to
work in the dentist’s office. However, if
a dentist wishes to rent space from a
denturist, the only permissible
financial arrangement is for the dentist
to pay rent on a flat fee basis, not as a
percentage of the fees charged to
patients.
A dentist is only permitted to fee split
with another dentist or with a dental
hygienist working in the dentist’s
practice. Dentists cannot engage in any
form of fee or income sharing or profit
share with denturists.
3. Employer-employeerelationshipDentists cannot be employed by
denturists. The College permits dentists
to employ denturists and this
arrangement is not prohibited under
the regulations made under the
Denturism Act. In this situation, there
would be a single set of patient records,
similar to the requirement with dental
hygienists who are employed by
dentists. The dentist would bill or
charge patients for the dentures
provided by the denturist.
Dentists are advised to provide the
denturist with access to the patient
records if the denturist requires access
to those portions of the dental records
pertaining to denturism services
provided by him/her to respond to a
complaint filed with his/her regulatory
college, to comply with quality
assurance program requirements, or to
respond to a lawsuit in which the
denturist is named.
In the case where the dentist employs a
denturist, the College considers it
permissible for an insurance claim to
be submitted under the dentist’s name,
as long as there is an explanation that
the denture services were provided by a
denturist and the denturist is named in
the dentist’s note section of the dental
claim form.
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9COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor, Quality Assurance416-934-5614 [email protected]
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How do dentists anddenturistsworktogether toprovideimplant-supporteddentures? QCan denturists fabricate
implant-supported dentures?
Under the Denturism Act, 1991, the scope of
practice of denturism is the assessment of arches
missing some or all teeth and the design,
construction, repair, alteration, ordering and fitting
of removable dentures. Denturists have only one
authorized act and it is “to fit and dispense
removable dentures.”
This means that denturists may fabricate implant-
supported dentures that are removable by the
patient, including complete overdentures retained
by implants and removable partial dentures
retained by implant-supported crowns that have
been fabricated for, and cemented by, dentists.
Denturists may not fabricate fixed prostheses
retained by implants, e.g. bridges that are
cemented or screwed onto implant abutments.
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QCan dentists place implants on a referralfrom a denturist who is planning tofabricate an implant-supported prosthesis?
The decision as to whether a patient is a candidate for
dental implants and, if so, the number and positioning
of the fixtures rests with the dentist. Dentists are trained
to make these types of decisions. They are the only
regulated dental health professional in Ontario
authorized to communicate a diagnosis to a patient
identifying a disease or disorder of the oral-facial
complex as the cause of a person’s symptoms.
The formulation and communication of diagnosis and
subsequent treatment plan is an integral component to
obtaining a patient’s informed consent to treatment for
implant dentistry. As part of this informed consent
process, in cases where implant-supported removable
prostheses are considered, alternative treatment options
may include conventional removable prostheses, fixed
implant-supported prostheses, or fixed conventional
prostheses. The latter two options are outside the scope
of practice of denturists.
In an implant team composed of a dentist and denturist,
it is the dentist who is responsible for obtaining the
patient’s consent to treatment. The College’s Guidelines
for Educational Requirements & Professional
Responsibilities for Implant Dentistry posted at
www.rcdso.org outline the dentist’s responsibilities for
obtaining the patient’s informed consent to treatment.
The patient’s record must document the dentist’s
discussion with the patient and must show evidence of
adequate consultation with all professionals involved in
the treatment process. The patient’s record should
document the alternative treatment options discussed
and the patient’s choice of treatment.
QWho is responsible for the maintenance and assessment of the implants?
According to the guidelines on implant dentistry, once
treatment is completed, a member of the implant team
should be designated as the ongoing care provider. This
practitioner will be responsible for general maintenance
of the implant(s) and the supporting prosthesis, and for
informing the patient of the ongoing preventive
requirements. If difficulties arise with the prosthetic
portion of the treatment, other members of the team
should be consulted. The ongoing evaluation by a
clinical and/or radiographic examination and the
maintenance of implant abutments must be performed
by a dentist.
COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor, Quality Assurance416-934-5614 [email protected]
h
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The College’s Practice Advisory Service has received an increasing
number of calls from members asking about their responsibility
when providing an order for dental hygienists to perform
orthodontic procedures in their offices.
In January 1999, the College Council approved Standards of
Practice of the Profession Relating to the Performance of
Orthodontic Procedures by Third Parties. While these Standards
were never approved by government, they represent the will of
Council and, therefore, remain the position of the College.
The Standards state that when a dentist provides an order for a
dental hygienist to perform orthodontic procedures: “The
member shall be present in the office suite while the procedures…
are being performed.”
While it is up to the discretion of the dentist to determine the level
of supervision that the orthodontic procedures require, it is the
College’s expectation that dentists will be present in the office
suite while these procedures are performed by a dental hygienist.
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PROFESSIONAL PRACTICE
Questions aboutproviding an order for the performance of orthodonticprocedures
COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor, Quality Assurance416-934-5614 [email protected]
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IIt is not uncommon for the
owner or owners of a dental
practice to engage the
services of associate dentists,
whether general practitioners
or specialists. The practice
owner or principal may own
more than one office, and may
or may not practise at any of
these locations.
In these principal-associate arrangements, it is not
unusual for questions to arise about the responsibilities
for patient care, access to dental records, and records
retention in such arrangements.
Dental practice in a group practice setting should
emphasize quality and continuity of care, where the
patient’s history, expectations, stage of treatment and
necessary follow-up are all of paramount importance.
This may be compromised in a setting where a principal
is absent and/or no particular practitioner is able to act
as the most responsible dentist.
As associates enter and leave the practice, it may become
difficult to provide multiple phase treatment, and it is
entirely possible that necessary or urgent care will be
delayed or neglected.
Whether or not the principal practises in a given office,
the associate is still responsible for meeting his/her
professional obligations to patients and providing
appropriate care that meets the standards of practice.
Ideally dental services will be provided in the context of
comprehensive treatment planning.
In all cases, it is important to maintain thorough
documentation to facilitate communication with front
office staff and other practitioners in the office. The
patient’s dental records should clearly indicate which
practitioner has provided dental services and every
dentist should ensure the accuracy of any insurance
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PROFESSIONAL PRACTICE
Responsibilities forpatient care inprincipal-associatearrangements
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claims that are submitted for dental treatment that he or
she has performed, ordered, or authorized.
The associate may consider referral to a more experienced
practitioner in the office in order to provide certain
aspects of the treatment that are beyond their level of
expertise, or perhaps in order to accommodate the
patient’s schedule. Although the principal may prefer for
as much patient care to be provided within the practice
as possible, it may still be necessary and appropriate in
some cases for an associate to refer a patient to a specialist
or other colleague outside of the office.
Termination of a principal-associate relationship or
disputes between dentists must not be allowed to impact
the ongoing treatment of patients or adversely affect their
right to receive care from a dentist of their choice. As a
result of problems between dentists, the patient may end
up receiving only intermittent emergency management
rather than consistent, properly sequenced treatment.
Unless requested by the patient or alternate arrangements
are made, discontinuation of dental services without
reasonable cause must be avoided and the patient should
have an opportunity to arrange for continuing care,
including any dental emergencies, in the event that there
is a breakdown of a principal-associate relationship.
It may be prudent to include transition terms in a written
principal-associate agreement, with particular reference to
such issues as completion of treatment in progress,
handling changes to a treatment plan and/or how
re-treatment needs will be addressed. These terms would
be especially important in the event that the principal
or other associates in the practice are unable to
accommodate additional patients or in situations where
a patient is in the midst of a complex treatment plan at
the termination of a principal-associate arrangement.
Regardless of whether there is a previous written
agreement, at the end of a principal-associate
arrangement, it may be possible for the associate to be
accommodated at the principal’s office for a specified
period of time or for the patient to attend at the
associate’s new location for completion of some or all of
the treatment.
It may also be helpful for the associate to have the option
of negotiating contractual rights of access to original
patient records to facilitate completion of certain cases.
Should patients elect to seek treatment at an office that
does not have direct access to their records, the patients
would be required to consent to their release.
If a written principal-associate agreement prohibits any
form of patient notification by the associate, the onus
would be on the principal to take responsibility for
arranging ongoing care of the patient following the
associate’s departure.
It is always best for patients to be informed if they will be
seeing a different practitioner than planned prior to their
next scheduled appointment.
The principal must provide the associate’s new practice
location to any patients who request it.
It is important that patients are informed of any changes
in the treatment plan and/or financial agreements and in
the arrangements that have been made for the
completion of their treatment.
The associate is responsible for care he or she has
provided to a patient, and if the patient has concerns or
complaints about treatment that the associate has
provided it is best for the patient to have the opportunity
to address these directly with the associate.
NOTE: Please note that the College does not provide legal advice.
Dentists are encouraged to obtain their own independent legal advice
from counsel experienced in providing business advice to dentists
and who understand the regulatory framework for the practice of
dentistry in Ontario.
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PROFESSIONAL PRACTICE
COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor, Quality Assurance416-934-5614 [email protected]
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INCIDENTS IN THE DENTAL OFFICE
Incident #1 – Impression Material Ingested
While a dentist was taking a polyvinyl siloxane impression of the
patient’s maxillary arch, some of the impression material dislodged from
the tray and was ingested by the patient. Neither the patient nor the
dentist realized what had happened.
Five days later, the patient presented to hospital complaining of nausea,
vomiting and abdominal pain. A CT scan confirmed the presence of an
obstruction in the small bowel, secondary to the presence of a foreign
body.
On the same day, surgery was performed under general anesthetic and
the foreign body was removed, along with three inches of the patient’s
bowel. The pathology report described the foreign body as resembling
rubbery, soft plastic material.
28 DISPATCH • August/September 2010 Ensuring Continued Trust
OUNCE OF PREVENTION
OOPS! Accidents,Procedural Mishaps andOther Untoward EventsCan Happen to You!
This feature is prepared tooffer guidance to membersabout the prevention ofmalpractice claims orcomplaints and thelessening of the magnitudeof an existing claim or acomplaint.
COLLEGE CONTACT Dr. Judi HeggieDental Advisor, PLP 416-934-5605 [email protected]
The practice of dentistry is both an art and a science so
sometimes accidents, mishaps and/or untoward events
do occur. While not necessarily “negligence,” patients
can be injured as a result of these occurrences and may
deserve compensation for corrective treatment, as well
as for pain, residual damage and future treatment.
In this article, let’s look a number of real incidents and
then zero in on risk management strategies to prevent,
to the extent possible, these kinds of accidents and
mishaps from occurring.
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Incident #2 – Sodium Hypochlorite Injected
In order to anesthetize an upper anterior tooth
to facilitate endodontic treatment, a dentist
inadvertently infiltrated the area using an
anesthetic cartridge that had been refilled with
sodium hypochlorite. The patient suffered
excruciating pain, as well as severe swelling
and bruising; however, fortunately she
eventually recovered fully.
Incident #3 – Lip Cut
While removing a matrix band a patient’s lip
was cut. The dentist referred the patient to
hospital where he received three sutures to the
lip. The patient suffered a permanent scar.
Incident #4 – Needle in Cheek
While suturing the wound following extraction
of a lower wisdom tooth, the needle was lost in
the cheek tissue. The dentist attempted to
remove it but was unable to do so. He referred
the patient to an oral/maxillofacial surgeon,
who removed the needle uneventfully. The
tissue subsequently healed normally.
Incident #5 – Denture Ingested
A dentist provided a patient with a small
unilateral denture to replace three missing
teeth. Soon after, the patient inadvertently
swallowed the denture and it lodged in her
stomach, requiring surgical removal.
Incident #6 – Cornea Scratched
While the dental hygienist was removing an
orthodontic wire, it grazed the child patient’s
eye. She did not inform the patient or his
mother about what had happened.
The following day the patient presented to his
physician who noted there was a corneal
abrasion and referred the patient to an
opthamologist. The opthamologist examined
the patient three days later and diagnosed a
bacterial corneal ulcer. He prescribed
antibiotic ointment and the ulcer eventually
healed with no permanent damages.
Incident #7 – Tooth Aspirated
While performing a full mouth clearance, a
tooth came out unexpectedly and the dentist
assumed it had dropped on the floor. Shortly
afterwards the patient began coughing
violently. When the coughing eased up
somewhat, the dentist continued with the
extractions but was interrupted by the
patient’s persistent coughing.
The following day the patient returned
complaining that he felt like something was
stuck in his throat. The dentist examined the
patient and noted no evidence of
complications.
The patient presented again four days later
with similar complaints and then again one
week later, when he indicated the lodged piece
felt like it had gone down further. Now there
was blood when he coughed. Again, the
dentist noted no evidence of complications.
Four days later, the patient’s wife called and
advised he was in hospital and, after three
separate attempts under general anesthetic, a
tooth had been removed from his lung.
DISPATCH • August/September 2010 29
OUNCE OF PREVENTION
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Incident #8 – Syringe Tip Ingested
While drying a tooth prior to restoring it, the
air/water syringe tip (3½ inches long)
detached and the patient swallowed it. The
patient required surgery to remove the tip
from her stomach.
Incident #9 – Lip Burned/Laser
While a dentist was performing laser curettage
in the patient’s upper arch, her lip was burned
with the laser. The patient was left with a
permanent scar.
Incident #10 – Lip Burned/Hot Instrument
During obturation of a lower molar, the patient
moved unexpectedly and a hot spoon
excavator came into contact with, and burned,
her lip. The patient was left with a permanent
scar on her upper lip.
Incident #11 – Instrument Aspirated
While inserting a post, the dentist lost his grip
on the screwdriver and the patient aspirated
both the post and the screwdriver. The patient
underwent a bronchoscopy procedure and the
post and screwdriver were successfully
removed from the lung with biopsy forceps.
Incident #12 – Instrument Ingested
While placing a pin during restorative
treatment, the dentist dropped the hand
wrench and the patient swallowed it. In
hospital, an endoscopy was performed but the
instrument had passed into the stomach and
could not be retrieved. The patient was
followed and, 11 days later, the instrument
passed naturally. An endoscopy performed
three months later revealed no permanent
damages.
Incident #13 – Instrument Ingested
While tightening the healing abutment on an
implant, the dentist lost her grip on the
implant screwdriver. The patient, who was
sedated, swallowed the screwdriver.
The screwdriver did not pass and, one month
later, it was located in the patient’s appendix.
The patient underwent appendectomy and
recovered fully.
30 DISPATCH • August/September 2010 Ensuring Continued Trust
OUNCE OF PREVENTION
QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle a particular situation with a patient, do not hesitate to call the College.
PLP Claims Examiners 416-934-5600 • 1-877-817-3757
Practice Advisory Service 416-934-5614 • 1-800-565-4591
OOPS! Accidents, Procedural Mishaps and OtherUntoward Events Can Happen to You!
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DISPATCH • August/September 2010 31
OUNCE OF PREVENTION
PREVENTATIVE STRATEGIESAccidents occasionally do happen despite our
best efforts to prevent them. Unfortunately,
accidents, however unintentional, can cause
harm. That is where the Professional Liability
Program comes in. Here are some suggestions
to help avoid preventable accidents:
To prevent aspiration or ingestion of dentalinstruments or materials
• Whenever possible, use a rubber dam.
• When use of a rubber dam is not possible,
consider protecting the throat with gauze.
• Tie small instruments with floss to allow for
easy retrieval.
• Sit the patient upright when performing
procedures where there is a risk of
ingestion/aspiration.
• Take extra precautions if the patient is
sedated. Sedated patients may have
decreased gag reflexes.
To prevent soft tissue injuries
• Whenever possible, use a rubber dam. This
can dramatically reduce iatrogenic injuries
to the lips, tongue and oral mucosa.
• Use shields or guards to prevent hot
instruments from contacting skin or
mucosa.
• Avoid the use of cotton rolls for moisture
control when using caustic materials. These
materials can leak into cotton rolls and
cause mucosal injury.
• Ensure instruments and equipment are in
good working order and materials used are
the appropriate ones.
• Have the patient wear safety glasses to
protect the eyes.
IF AN ACCIDENT DOES OCCUR• Advise the patient of what has happened.
• Follow up with the patient appropriately.
• Refer the patient to a dental specialist or for
medical follow-up as necessary.
• Document all advice given and referrals
made.
• Call PLP for advice, assistance and to
protect your right to coverage.
In many situations, an acknowledgement that
harm has been done to a patient with a
heartfelt apology can be key to the patient’s
healing process. Studies of patients who have
filed malpractice suits show that almost half of
those said they might not have filed suits if
they had been given an explanation and
apology.
With the 2009 passage of Ontario’s Apology
Act, it is now possible for health care
practitioners to apologize for an accident or
wrongdoing, without it being used as evidence
of liability in a civil legal proceeding under
provincial law.
Remember, your policy of insurance states
that, upon becoming aware of any occurrence
which might reasonably be expected to be the
basis of a claim, you must notify PLP.
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PROFESSIONAL PRACTICE
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DISPATCH • May/June 2008 57
COLLEGE CONTACTDr. Lesia Waschuk Practice Advisor416-934-5614 1-800-565-4591 [email protected]
COLLEGE CODE OF ETHICSCONSISTENT WITHNEW NATIONALDISCLOSURE GUIDELINES
The Canadian Patient Safety Institute (CPSI) has announced the releaseof its collaborative document, the Canadian Disclosure Guidelines.
These guidelines are intended to assist and support health-care providers,interprofessional teams, organizations and regulators in developing andimplementing disclosure policies, practices and training methods across
Canada. They promote a clear and consistent approach to disclosure,emphasize the importance of interprofessional teamwork, and support
learning from adverse events.
The principles in the CPSI guidelines, namely the right of patients to opencommunication about adverse events and the responsibility of health-careproviders to provide information to patients about their conditions, areconsistent with the requirements for informed consent and the ethical principlescontained in the RCDSO Code of Ethics available on our website atwww.rcdso.org.
The College has always advised dentists that they are required, both legally andethically, to inform their patients whenever a misadventure or unexpecteddevelopment or outcome occurs.
The College also advises dentists to discuss further treatment options with theirpatients and to make appropriate referrals to other practitioners as necessary, ifthe remedial or further treatments that the patients require are beyond theirexpertise.
The College also believes that open communication and support when things gowrong is a good risk management strategy and a way of strengthening thedentist-patient relationship.
The CPSI guidelines are now available at www.patientsafetyinstitute.ca
Disclosure of Adverse EventsIn generic terms, an adverse event is aninjury caused by clinical management ratherthan a patient’s underlying disease orcondition. Openness and transparency inresponding to such occurrences areconsidered key ingredients in improvingpatient safety. It is also just good practice.
Patients are partners in their own healthcare and they are entitled to know whenthings go wrong. Withholding informationcan cause patients to become angry orsuspicious, destroying the trust that is thecornerstone of any therapeutic relationship.And failing to disclose or even delayingdisclosure of an adverse event can impair apatient’s ability to obtain the treatmentrequired to mitigate its effects.
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Misadventures are an unfortunatereality in modern dentistry. Whensomething untoward occurs, a dentistmay wonder how much the patientshould be told about the incident andwhether being too forthcoming willincrease the chances of being sued.There may be a fear that expressingconcern for the patient will beinterpreted as an admission ofwrongdoing.
This article describes the professional,ethical, and legal issues surroundingdisclosure of adverse events and therole of apologies in dental practice.
Disclosure of AdverseEvents and Apologies in Dental Practice
MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
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For these reasons,timely and completedisclosure of adverseevents is an ethicalobligation for allhealth professionals,including dentists.RCDSO hasconsistently advisedits members of theirduty to informpatients ofunexpected incidentsand to discuss with
them any further or remedial treatmentthat may be required as a result.
In the May/June 2008 edition ofDispatch, RCDSO endorsed the Canadian Patient Safety Institute’sCanadian Disclosure Guidelines (updated version available atwww.patientsafetyinstitute.ca) as consistent with RCDSO’s requirements for informed consent and the principlescontained in its Code of Ethics(www.rcdso.org).
What many health care providers may not know is that the duty to disclose is also a legal obligation. Forthose practising in a hospital setting,notifying hospital administration of anyadverse event resulting in death orserious injury is mandated under thePublic Hospitals Act.
As fiduciaries, dentists and other healthprofessionals in any practice setting have a legal duty to act with the “utmostgood faith and loyalty” toward theirpatients, which extends to being honestand forthright in providing clinicalinformation. Any breach of this duty can give rise to liability for damages,including punitive, exemplary, oraggravated damages, for which PLP does not provide indemnification.
In order to comply with best practices,disclosure of an adverse event should:
•occur as soon as reasonably possibleafter the member becomes aware of it;
•be made by the treating dentist;
• include a discussion of the factsrelating to the incident;
• include a description of the actual orpossible consequences for the patient,together with recommendationsand/or referrals for further or follow-up care.
Members are also advised to documentthe details of any disclosure discussion(e.g. time, date, place, attendees, factsdiscussed, questions raised, answersgiven, treatment recommendations, etc.)in the patient chart.
The Apology Act, 2009While most health practitionersunderstand the rationale behind andaccept the duty to disclose adverseevents, there is ongoing reticence toapologize to patients when treatmentdoes not turn out as planned.
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DENTISTS AND OTHERHEALTH PROFESSIONALSIN ANY PRACTICESETTING HAVE A LEGALDUTY TO ACT WITH THE“UTMOST GOOD FAITHAND LOYALTY” TOWARDTHEIR PATIENTS, WHICHEXTENDS TO BEINGHONEST ANDFORTHRIGHT INPROVIDING CLINICALINFORMATION.
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MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
The benefits to disclosing and expressingsympathy for unexpected clinical developmentsare the same: both demonstrate respect for thepatient and may assist in the healing process.But the barriers are also similar. They includefear of a lawsuit or College complaint, loss ofmalpractice protection, diminished reputation,and shame, guilt, or embarrassment.
In 2009, the Ontario government passed a law aimed at eliminating some of theseimpediments. According to the Apology Act,2009, an apology, defined as “an expression of sympathy or regret, a statement that aperson is sorry or any other words or actionsindicating contrition or commiseration”:
•does not constitute an admission of fault or liability;
•does not, despite any wording to thecontrary in any insurance contract, void or otherwise affect any insurance orindemnity coverage;
•cannot be taken into account in determiningfault or liability;
• is not admissible in any arbitration, civil or administrative proceeding as evidence of fault or liability.
Dos and Don’tsPLP recommends that members be familiarwith the protection available under Ontario’sApology Act. However, it is important to notethat a bad apology can do more harm thannone at all. An expression of concern thatcomes across as insincere may only inflamethe situation. Being defensive or “blaming thevictim” undermines and may even neutralizethe value of an apology. A good apology istimely, heartfelt and unqualified.
That said, an apology does not have to includean acknowledgement of blame or responsibilityto be effective. Practitioners should be carefulto avoid language such as “malpractice,”“negligence,” or “liability” in either disclosingor apologizing for an adverse treatmentoutcome. Statements such as “I’m sorry thishappened to you” or “I regret that things didnot turn out as we had hoped” can go a longway toward maintaining or repairing thetherapeutic relationship without implyingculpability.
Any member requiring assistance indetermining an appropriate response to anadverse event should contact PLP or thePractice Advisory Service for guidance.
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16COLLEGE CONTACT René Brewer – Manager, Professional Liability Program
416-934-5609 1-877-817-3757
Disclosure of Adverse Events and Apologies in Dental Practice
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TThis can be a challenging professional dilemma for any dentist.
There are whole chapters in dental ethics textbooks devoted to
working through this ethical problem.
As clinical dentists, our primary obligation is to place the well-being
of patients ahead of our own personal interests. First and foremost,
we must give patients complete and truthful information about
their current oral health status.
However, when patients ask about the efficacy of another dentist’s
therapy, it is not unethical or unprofessional to remember that the
burden of proof regarding faulty or bad treatment, not just the
outcome of that therapy, is demanding.
It is important to draw the distinction between less than ideal
outcomes of appropriate treatment and bad outcomes attributable to
sub-standard work. We all know that bad outcomes can occur with
our therapy even when all proper methods are followed.
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ETHICS IN ACTION
Making Commentsabout AnotherColleague’s Work
I see patients who have had poor qualitytreatment, such as open contacts and poormargins. The patients complain of foodimpaction, sensitivity and costs. How do Irespond when patients ask me to commenton the work of their previous dentist?
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A prudent dentist must exercise great caution
before making comments about another
dentist’s treatment.
How a dentist responds to questions like these
from a patient can have both ethical and legal
implications.
The principles in the College’s Code of Ethics
state the following:
Only make evaluative remarksabout the work of others aftermaking reasonable efforts tounderstand the prior treatmenthistory of patients.
In other words, it is unwise to speculate on
when the treatment may be less than ideal or
is failing without the knowledge of all the
relevant facts and patient history. Any
comments should be objective in nature not
subjective nor unduly critical. Remember, you
most likely don’t have the necessary
information at hand to speculate on the cause
of the patient’s problems.
If a new patient presents with severe
periodontal disease, is the cause the
supervised neglect of the previous dentist or is
it because the patient smokes, habitually
misses appointments and has diabetes? Can
you take the patient’s word for their dental
history and base your opinion and criticism
on only one side of the story?
When you are faced with a request from a
patient for an opinion about why a treatment
has failed or requires repair or replacement,
the wisest course of action is to suggest that
the patient return to the dentist who provided
the treatment in question for an explanation.
Your legal and ethical duty is to advise the
patient of your findings, your treatment
recommendations and other treatment
alternatives, as well as the risks, benefits,
expected outcomes and costs.
Try putting the shoe on the other foot, as the
saying goes. If a patient was complaining
about your work to a new dentist, wouldn’t
you want the opportunity to discuss the
situation with the patient directly rather than
being blindsided by some hasty and
inopportune remarks made by the other
dentist?
Fairness is one of the core values outlined in
the College’s Code of Ethics to guide the
ethical behaviour of College members.
Fairness is defined as:Treating all individuals,patients and colleagues in ajust and equitable manner.
That fairness includes your interaction with
your patients and with your colleagues too.
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ETHICS IN ACTION
COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor, Quality Assurance416-934-5614 [email protected]
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My Patient is Unhappy with Another Dentist’s Work…
Should I Call PLP?From time to time, patients present at a
new dentist with poor quality dental
treatment or with undiagnosed, untreated
dental disease. They may ask the dentist to
comment on treatment provided by another
dentist, especially when it relates to the
question “Who is going to pay for this?”
When faced with the above scenario,
dentists will often call PLP for advice on
how best to handle these situations.
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COLLEGE CONTACT Dr. Judi Heggie – PLP Dental Advisor 416-934-5605 [email protected]
A longstanding associate recently left mypractice. At recall, I am finding that there are a number of patients with crowns, recentlyplaced by the previous associate, that have poormargins and require replacement. The patientsdo not want to have to pay for new crowns and I am not prepared to provide this treatmentat no charge. What can I do? Should I report this to PLP?
I am an oral and maxillofacial surgeon. A general dentist routinely refers patients to me,on an emergency basis to be seen the same day,after he has abandoned an attempt to extract atooth or teeth and clearly the treatment was notwithin the scope of her expertise. Should I tellthe patients to call PLP?
I purchased a dental practice. Many of thepatients in this practice have severe periodontaldisease. When I inform them of the need forperiodontal surgery and/or extractions many areshocked and very upset. It appears the previousowner dentist did not inform these patients oftheir periodontal diagnosis or recommendtreatment and/or referrals. What should I say tothese patients? Should I call PLP?
Obligation to ReportOne of the conditions of the PLP policy is a dentist’s duty to
report any occurrence that might reasonably be expected to be
the basis of a claim to PLP. Since failure to report an incident in
a timely fashion may jeopardize a member’s coverage, it is
important that PLP is contacted as early as possible.
The obligation to report rests with the practitioner who
performed or failed to perform the treatment in question, not
the subsequent dentist, the new practice owner or former
principal dentist.
Duty to patientIn these scenarios, the new dentist’s legal and ethical duty to
the patient would be to advise him or her of:
• his findings;
• the recommended treatment to address the deficiencies;
• the other aspects of informed consent including other
treatment alternatives;
• the risks, benefits, expected outcomes and costs.
These comments should be objective in nature, not subjective
or unduly critical.
If the patient asks questions about the previous dentist,
including his or her responsibility to pay for the remedial
treatment or alleged damages, the patient should be advised to
put the dentist on notice of their concerns, preferably in
writing.
The practice address of dentists can be obtained from the
Dentist Search – Register portion of the College website at
www.rcdso.org. If the current practice address is not known,
the letter should be sent to the dentist’s last known address.
Once put on notice by the patient, it would be the onus of the
former associate, former practice owner or former dentist to
report the claim to PLP.
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MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
What does it mean to be an expert?Experts play an important function in the legalprocess by helping the parties and the ultimatedecision-maker understand issues in thedispute beyond a layperson’s knowledge. Theymust have special skills, education, and/ortraining to be accepted by the court asqualified to comment on a particular topic.
Beyond that basic requirement, there are manyqualities that make an expert witness more orless effective. The following are examples ofwhat a good expert is not.
An expert should not be a hired gunLitigants and lawyers should be wary ofprofessional experts who abandon activepractice in favour of writing opinions andappearing as witnesses at trials all over thecountry, continent, or abroad. Judges tend toview such hired guns with skepticism,especially if they always act for one side.
Many dentists generouslyoffer their time, money, andclinical services as a way ofgiving back to theircommunity and profession.However, perhaps becausecompensation is involved,they may not view acting asan expert in the same light.
This article describes the roleof an expert in a dental-legaldispute and encouragesmembers to considerproviding expert assistanceto patients and colleagues.
Acting as an expert: Another way of giving back
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Ongoing engagementin the profession canbe critical to thestrength of anexpert’s opinion. Forexample, in actionsfor dentalmalpractice, expertevidence is oftenrequired to determinewhether thedefendant met thestandards of theprofession and
whether the treatment provided causedharm to the patient. Since the standard ofcare is evaluated by measuring thedentist’s actions against those of hispeers, the best standards experts are notprofessional witnesses with little or norecent clinical experience, but rathercompetent, well-regarded colleagues whopractise in the same or a similarenvironment as the defendant. Andwhile it is not uncommon to look to otherjurisdictions for expert input oncausation, opinions from foreigners onstandards of practice carry less weightthan those of local practitioners.
An expert is not an advocateExperts are expected to remain objective.Unfortunately, though, some experts feela duty to help their clients by strayingbeyond their expertise or offeringopinions that do not withstand closescrutiny. Ironically, this often prolongsproceedings rather than resolving them,resulting in increased cost, anxiety, andinconvenience to everyone involved,including the client.
Courts are becoming increasinglyintolerant of such witnesses. In Ontario,judges are more and more willing todisallow or restrict expert testimony onthe basis of inadequate qualifications,which can be devastating to the client’scase. An expert who exaggerates, isargumentative, or appears biased riskshaving her evidence rejected and causingirreparable damage to her professionalreputation.
An expert is not the judge or juryAt the other end of the spectrum, someexperts believe they are not bound by,and may even be morally or legallyobliged to ignore, the instructions of theperson retaining them. For example, anexpert may exceed the scope of hermandate out of fear that omittinginformation from her report is misleadingand could contribute to an injustice.
It is not up to the expert to decide whatthe outcome of the case should be orwhat the judge or jury needs to know.The issues in litigation are framed by theparties, and some of the facts an expertmay discover may not be relevant to theproceedings. It is neither unethical norunprofessional for an expert to accede toa request to limit her review and writtencomments, though legal counsel willusually want to know if the expert’sopinion on extraneous matters would beunhelpful to the client’s position. Thelawyer will determine whether theexpert’s concerns make her vulnerable asa witness at trial.
EXPERTS HELPENSURE THATWORTHY PATIENTSRECEIVE EARLY,REASONABLECOMPENSATION FORTHEIR INJURIES ORPROVIDE SUPPORTTO COLLEAGUESWHO HAVE DONENOTHING WRONG.
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MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
An expert is not a treatingpractitionerSimilarly, in the course of reviewing a matter,an expert may come across something shefeels should be disclosed to another party. Adental or medical expert for the defence might,for example, conclude that the patient/plaintiffis suffering from a previously undiagnosedcondition requiring treatment.
In such circumstances, the expert has no legalduty to advise the patient of her findings; shedoes, however, have obligations to her client,and she must be careful not to breach clientconfidentiality. An expert who believes she hasuncovered something about which the otherside should be made aware should thereforeadvise the instructing lawyer, who will decidewhat to do with the information. If the problemis potentially serious, the lawyer will likelyconvey the expert’s concerns to opposingcounsel.
Giving BackPatients and PLP sometimes have difficultyfinding dentists to comment on a case. Somepractitioners may feel they are not qualified tohold themselves out as experts or areuncomfortable reviewing another dentist’s care.Many say they are too busy, and others arelikely put off by the relatively low hourly ratessome patients and PLP can afford to pay.
A lawyer approaching a clinician to request adental-legal opinion has likely already doneenough homework to determine that she hasthe right qualifications and qualities tocomment on the matter. And although writingreports does not always come naturally, theinstructing lawyer will outline the questionsrequiring the expert’s attention and provideguidance on approach and format.
Importantly, dental experts perform a valuablepublic service. Since PLP only compensatesthose injured as a result of dental negligence,patients require expert input to advance theircases and PLP often needs expert commentaryto determine if a matter should be settled ordefended. Experts help ensure that worthypatients receive early, reasonablecompensation for their injuries or providesupport to colleagues who have done nothingwrong.
So the next time someone asks you to providean expert opinion in a PLP matter, give it someserious thought.
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COLLEGE CONTACT René Brewer – Director, Professional Liability Program
416-934-5609 1-877-817-3757
Acting as an expert: Another way of giving back
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DefendingYour
Reputation
MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
PPLP sometimes receives enquiries from members concerning
possible recourse against patients who post negative comments
about them on the internet. While such issues are beyond the
scope of PLP’s mandate, one member recently took matters into
his own hands to good effect. That member authorized PLP to
recount his story in Dispatch for the benefit of others.
In 2004, Ms. X presented to Dr. Y, who placed a restoration.
Ms. X returned two months later and a second restoration was
placed on another tooth.
Ms. X was dissatisfied with Dr. Y’s treatment and made a
complaint to the then Complaints Committee in 2006.
The Committee eventually directed that no action be taken
against Dr. Y and Ms. X’s appeal to the Health Professions Appeal
and Review Board was dismissed. A second complaint filed by
Ms. X in January 2010 was also decided in Dr. Y’s favour.
In February 2010, Ms. X sent the first of many disparaging e-mails
about Dr. Y to his practice. She also posted a video on YouTube
described as a “dental horror movie” showing the allegedly
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defective restorations. That same month, she
commenced a legal action against Dr. Y claiming
that he had “drilled and filled a totally healthy
tooth”, causing inflammation and years of pain.
At the request of defence counsel assigned by PLP
to assist Dr. Y, a deputy judge dismissed the
action a few months later and Ms. X’s appeal was
ultimately abandoned.
Still, Ms. X continued her crusade, sending
further derogatory e-mails about Dr. Y to him, his
colleagues, and even a PLP staff member. In 2011,
Dr. Y decided to commence his own small claims
court action against Ms. X for defamation.
In order to succeed in an action for defamation, a
plaintiff must demonstrate:
• that the impugned words are defamatory, in
the sense that they would tend to lower the
plaintiff’s reputation in the eyes of a
reasonable person;
• that the words in fact referred to the plaintiff;
• that the words were published, meaning that
they were communicated to at least one
person other than the plaintiff.
After trial in June 2012, Deputy Judge Winny
found that Ms. X had “engaged in a deliberate
campaign to harass Dr. Y and to smear him in the
eyes of a variety of parties associated with the
practice of his profession…” in 19 separate acts of
defamation. Although malicious intent is not
required to establish liability for defamation, it is
relevant to damages, and Deputy Judge Winny
considered the fact that Ms. X set out to harm
Dr. Y in assessing damages at $45,000; however,
because the limit in small claims court is $25,000,
Dr. Y was awarded the full amount of his claim
of $22,000 plus costs. In closing remarks, the
deputy judge urged Ms. X to end her campaign
immediately and noted that she was very
fortunate not to have been charged with
criminal harassment.
It turned out that Dr. Y was not the only object
of Ms. X’s ire and that she had commenced
proceedings against a number of other health
care practitioners and institutions. In May 2012
one of them was successful in having Ms. X
declared a vexatious litigant, as a consequence of
which she is not permitted to commence any
further legal proceedings in Ontario without
leave of the court.
Bear in mind that this was an extraordinary
situation and most patient complaints are not
defamatory. If you feel you are being harassed by
a patient, you should speak to your lawyer about
potential remedies.
Deputy Judge Winny’s reasons for judgment are
available through PLP.
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13
QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle aparticular situation with a patient, do not hesitate to call the College.
PLP ADVISORS
416-934-5600 • 1-877-817-3757
PRACTICE ADVISORY SERVICE
416-934-5614 • 1-800-565-4591
MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
COLLEGE CONTACT René Brewer – Manager, Professional Liability Program416-934-5609 [email protected]
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AAt some point during your practice,you will have a demanding,difficult patient who, in spite ofyour best efforts, is not happy withany of the treatment you provide.This type of patient usually has ahistory of dissatisfaction withprevious dentists. Sometimes, thismay be an early warning sign oftrouble ahead. Other times, it is notuntil major treatment is underwaythat you become aware of thepatient’s tendency to makeunreasonable demands.
In these cases, it is very important to keepexcellent records detailing the patient’sdemands, as well as all of yourrecommendations and explanations, and thepatient’s comments.
Also, it is critical that you don’t allow yourselfto be talked into providing unreasonable orunwarranted treatment. It is important toknow when to draw the line and refuse toprovide additional treatment or tounnecessarily redo procedures.
Sometimes, referring the patient for anotheropinion or even dismissing the patient fromthe practice may be the best course of action.
The following scenario describes a PLP caseinvolving a very difficult, demanding patientwith unreasonable expectations. In this case,the dentist allowed the patient to dictatetreatment and continued to treat the patientlong after he felt comfortable doing so. Thepatient eventually filed a claim against thedentist, which is when PLP became involved.
THE SCENARIOMr. Black presented to Dr. Foster with aneight-unit fixed bridge (15-14-13-P-P-P-P-23).The abutment teeth were all grossly decayedand could not be salvaged. Mr. Black chose tohave implants and a fixed bridge after adiscussion with Dr. Foster about the treatmentoptions. Dr. Foster referred Mr. Black to anoral and maxillofacial surgeon who placed siximplants. Then, Dr. Foster fabricated andinserted an interim partial denture.
All six implants integrated successfully and,six months after the implant surgery, Dr.Foster fabricated and inserted an eight-unit
40 DISPATCH • May/June 2008 Ensuring Continued Trust
This feature is prepared tooffer guidance to membersabout the prevention ofmalpractice claims orcomplaints and thelessening of the magnitudeof an existing claim or acomplaint.
COLLEGE CONTACT Dr. Judi HeggieDental Advisor, PLP 416-934-5605 [email protected]
OUNCE OF PREVENTION
The Difficult Patient: Don’t Ignore the Warning Signs
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DISPATCH • May/June 2008 41
implant retained bridge. Mr. Black was verypleased, but that didn’t last long.
Two weeks after insertion, Mr. Black presenteddemanding removal of the bridge, because hewas unhappy with the aesthetics. He said hisfriends told him the teeth didn’t look natural.Dr. Foster removed the bridge and fabricated anew one. A number of adjustments andcustom staining appointments were requiredbefore Mr. Black was satisfied, and a newbridge was permanently cemented.
Just over a week later, Mr. Black presentedsaying he couldn’t tolerate the bridge. He saidit didn’t feel right and he now wished he hadkept the original one. At Mr. Black’s insistence,Dr. Foster removed the bridge and had itremade. Mr. Black appeared satisfied with thenew bridge, so Dr. Foster cemented it.
Soon after that, without notifying Dr. Foster,Mr. Black went to another dentist, Dr. Smith,to have the bridge redone. Then Mr. Blackreturned to Dr. Foster demanding a refund. Dr. Foster refused, so Mr. Black said he wouldcontact his lawyer.
About one month later, Mr. Black returned toDr. Foster’s practice, saying he was veryunhappy with the bridge Dr. Smith had placedbecause he couldn’t eat properly. He beggedDr. Foster to replace it once more. Dr. Fosterreplaced the bridge, but told Mr. Black thiswas the last time he would do so.
Six months later, Dr. Foster received a letterfrom Mr. Black’s lawyer, advising him that Mr. Black intended to pursue a claim againsthim, alleging unnecessary, negligenttreatment and lack of informed consent.
learning pointsJust because a patient is unhappy withtreatment you have provided doesn’tnecessarily mean there is a problem withthe treatment.
If you do not believe that it is in thepatient’s best interests to redo thetreatment, you are not obligated to do so.Explain your reasons for refusingretreatment to the patient. Fully documentthat discussion. Consider referring thepatient to a colleague for another opinion.Or, call PLP for advice and assistance.Above all, never offer to refund fees fortreatment provided without calling PLPfirst.
Remember that if you wish to discontinuetreatment of a patient, you should followthe proper protocol for dismissing apatient as outlined in the Fall 2005 issueof Dispatch. This article is available onlineon the College’s website at www.rcdso.org.
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42 DISPATCH • May/June 2008 Ensuring Continued Trust
OUNCE OF PREVENTION
THE DIFFICULT PATIENT: DON’T IGNORE THE WARNING SIGNS
Dr. Foster called Mr. Black and offered torefund his fees. Mr. Black refused. Dr. Fosterthen called PLP to report a potential claim.
PLP PERSPECTIVEUpon reviewing Dr. Foster’s records, PLP staffhad the following concerns:
• The pre-treatment radiographs taken byDr. Foster did not show the extent of thedecay affecting abutment teeth 15, 14, 13and 23. There was no information in therecords about the condition of these teethor of the reason why their extraction wasnecessary.
• There was no evidence in the records thatinformed consent was obtained prior toinitiating treatment or that Dr. Foster haddiscussed the advantages anddisadvantages or the alternatives to animplant retained prosethesis.
• The records did not show that the bridgeswere replaced because of Mr. Black’sinsistence. In fact, the records were silentabout why any of the bridges werereplaced.
• Dr. Foster may have breached theprovisions of the malpractice insurancepolicy by failing to report the claim in atimely fashion and by offering to make apayment to Mr. Black.
Fortunately, PLP was able to convince themalpractice insurer that, although Dr. Fostershould have reported the matter when he wasfirst aware of the potential claim, neither hisfailure to do so nor his offer of a refund hadprejudiced its position.
PLP subsequently negotiated a settlementamount and obtained Mr. Black’s full and finalrelease in favour of Dr. Foster. This releasestated specifically that Dr. Foster had notadmitted liability.
CALL PLP WHEN:• You receive a call or letter from a
patient or patient’s representativeseeking compensation.
• You are threatened or served with a legal action.
• You rendered treatment to a patientwhere the result is adverse and notconsistent with the anticipatedoutcome.
• Your patient is unhappy with andcomplaining about the treatmentrendered.
• You are unsure whether or not tocall – if in doubt, call PLP. There isno downside to doing so.
IN ORDER TO PROTECTYOUR RIGHT TO COVERAGE:• Notify PLP immediately if your
patient wants or might want money. • Do not take any steps that may
jeopardize your right to coverage.
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DISPATCH • May/June 2008 43
what to consider beforewaiving/refunding/adjusting feesCall PLP for helpful advice before you offer to waive an outstanding fee orrefund fees already paid, as a means of resolving a dispute with a patient.The knowledgeable claims examiners in PLP can coach you on how toapproach patients about a refund in exchange for a release.
Early contact with PLP can ensure that you do not unwittingly admit liabilitywhen dealing with dissatisfied patients, and reporting potential claims to PLPensures your right to coverage.
Matters can usually be resolved on a mutually satisfactory basis for both youand your patient.
rememberIt is important that the details of any and all discussions with the patient bedocumented in his or her chart whenever you are giving consideration towaiving, refunding or adjusting dental fees as a result of a mishap or patientcomplaint.
The chart entry should clearly note it is being done for public relationspurposes and as a goodwill gesture. In many cases, some sort of writtenacknowledgement or release form signed by the patient may be justified.
QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle a particular situation with apatient, call the College.
PLP Claims Examiners 416-934-5600 • 1-877-817-3757Practice Advisory Service 416-934-5614 • 1-800-565-4591
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One of the least pleasant tasks that a dentist
may have to consider is the dismissal of a
patient. For a variety of reasons, a dentist-
patient relationship may begin to deteriorate.
Sometimes this results from a single incident;
however, more often, it is the result of a series
of problems. Finally, it may become apparent
that the relationship is no longer co-operative
and trusting; in fact, it may even be
antagonistic. When this occurs, it may be
beneficial to both parties to go their separate
ways.
Before coming to the conclusion that it is
necessary to dismiss a patient, it may be
worthwhile for the dentist to re-examine the
events that led to this point and to consider
whether or not all reasonable efforts have been
made to address any problems in the dentist-
patient relationship and with treatment.
Is the problem a result ofmiscommunication?
It may be useful to attempt to speak with the
patient directly and clarify matters.
Is there a disagreement regardingtreatment options?
It may be appropriate to refer the patient for a
second opinion.
Is the patient’s account in arrears?
New payment terms may be offered and
agreed upon.
Is the problem related to treatmentoutcome?
It may be possible and prudent to resolve the
patient’s concerns.
Following good recordkeeping practices, your
patient records need to include details of any
relevant problems and issues, as well as
notations of all communication with the
patient.
If your conclusion is that dismissal is the best
option, the patient should be informed in an
appropriate fashion, preferably in writing. The
College advises that any discussion with the
patient about dismissal be handled by the
dentist and that letters should be sent by the
dentist or in the dentist’s name.
Your letter should be polite, professional, and
to the point. It should avoid words or phrases
that might inflame the situation. (See the
sample provided with this story on the
opposite page.)
A well constructed letter should address the
following five areas:
1. Provide the patient with the reason for their
dismissal. For example, the patient is
demonstrating a lack of confidence in your
abilities, or is disruptive to office routine
and abusive to the staff, or is not complying
with agreed upon payment terms, etc.
2. Outline any treatment needs that the
patient should have attended to in a timely
manner. For example, the patient may still
require specified fillings or should have a
root-canal-treated tooth crowned.
3. Provide the patient with the means of
obtaining the services of a new dentist. Your
letter might provide the telephone number
of a local dental society or the Ontario
Dental Association so that the patient can
obtain a list of dentists in the area.
42 DISPATCH • August/September 2010 Ensuring Continued Trust
PROFESSIONAL PRACTICE
Handling the DifficultProblem of Dismissing a Patient
COLLEGE CONTACT Dr. Lesia WaschukPractice [email protected]
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4. Inform the patient that you will provide
copies of any records or radiographs that
may be of assistance to the patient or, with
the patient’s written authorization or
consent, to the new dentist. Remember,
dentists are required to retain original
records, including radiographs and
diagnostic study models.
5. Inform the patient that, until they have
obtained the services of a new dentist, you
will agree to attend to any true emergency
situation.
6. You might also provide the telephone
number of a local dental emergency
service. Note that this information may be
provided in addition to, but not in place of,
your offer to render emergency care.
DISPATCH • August/September 2010 43
SAMPLE PATIENT DISMISSAL LETTER
I am writing to you regarding your last scheduled dental appointment,which was on May 13, 2010. On this date, you were to attend my office tohave a lost filling replaced. When you failed to attend at the appointed time,my receptionist contacted you by telephone and you informed her that youwere too busy to leave work. This was the fourth time this year that you didnot keep a scheduled appointment.
You will remember that we have had several discussions on the subject ofmissed appointments. Additionally, I wrote to you and clearly provided myoffice policies regarding this subject in a letter dated April 30, 2010.
If a dentist-patient relationship is to be successful, co-operation is essential.Obviously, I cannot treat you if you do not attend your scheduledappointments. I can only conclude that either you do not value theappointment time that is set aside for you, or my office is not convenient toyour needs. Whatever the reason, it is with regret that I must insist you seekthe services of another dentist.
In order to prevent further damage to your lower left tooth, please arrangeto have your new dentist replace the lost filling as soon as possible.
If you require assistance in locating a new dentist, you may wish to contactthe Ontario Dental Association for a list of dentists in your area. The ODAtelephone number is 416-922-3900. I will be pleased to provide copies ofyour records at your written request.
Should the need arise before you find a new dentist, I am prepared to seeyou on an emergency basis or, if you prefer, assist you in makingarrangements at another suitable dental office.
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embers reporting problems
with patients to PLP sometimes
confess that signs the
relationship wouldn’t end well were
there from the beginning. When asked
why they ignored their gut instincts,
there are a number of responses: they felt
bullied; they genuinely thought they
could help, though others had tried and
failed; they didn’t know they could
refuse to treat someone. Unfortunately,
members may pay for their benevolence,
hubris, or naïveté in time, money, and
sleepless nights.
The purpose of this article is to dispel
the myths about a dentist’s duty to treat
and to describe cases in which it may be
appropriate, indeed wise, not to accept
a patient into your practice.
The situations in which a dentist is
obliged to treat a particular patient are
surprisingly few. A health care provider
may have a legal and/or an ethical duty
to treat in case of an emergency or when
a service is not otherwise readily
available (e.g., in geographically remote
areas). Once commenced, a dentist may
only discontinue treatment without
cause in limited circumstances. Finally,
health professionals are prohibited by
provincial and federal legislation and
codes of ethics from not treating a
patient on the basis of personal
characteristics, such as age, race,
disability, gender, sexual orientation, etc.
Otherwise, dentists have significant
latitude in deciding which patients to
take on. They may limit the number of
patients in their practices or restrict
themselves to a particular specialty.
According to the Canadian Dental
Association’s Code of Ethics, they may
refuse to accept a person as a patient
because of personal conflict or time
constraints. In short, while dentists must
treat all patients and potential patients
fairly and with compassion, there is
nothing that says they have to take
all comers.
It goes without saying that dentistry is
primarily about relationships – with
colleagues, staff, vendors, and especially
with patients.
Careful patient selection is important in
building a vibrant practice and in
securing peace of mind. Was the
prospective patient late to the first
appointment without explanation? Was
she rude to your receptionist? Does he
complain about previous health care
providers? Is she litigious? Are her
expectations unreasonable? Is he
demanding and inflexible? While some
of these traits might not be immediately
obvious, a proper new patient interview
may reveal red flags and save you hours,
days and even months of aggravation,
inconvenience, or worse.
Patient Selection –Ignore Red Flags at Your Peril
MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
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ENSURING CONTINUED TRUST DISPATCH NOVEMBER/DECEMBER 2012
11COLLEGE CONTACT René Brewer – Manager, Professional Liability Program
416-934-5609 [email protected]
Ensuring Continued Trust Dispatch February/March 2014
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MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
THE DANGERS OF TELEHEALTHHealth practitioners have no difficulty recognizingin-person consults as treatment, but many may not be aware that electronic communications mayalso qualify. Telephone or email advice provided to a patient inanother jurisdiction raises tricky questions aboutwhere the treatment is provided. Many provincesin Canada and countries around the world deemtelehealth to be rendered where the patient resides.If the practitioner is not registered in the otherjurisdiction, he or she could be guilty of practisingwithout a licence. If PLP’s insurer were to adopt that position,liability protection for such interactions would bedenied, since the contract only covers servicesprovided in Ontario.
THE PROBLEM OF FOLLOW-UP AND AFTERCAREOne of the problems in treating a non-residentpatient is that it may be difficult for the patient toattend follow-up appointments or to return to thetreating dentist in the event of a complication. A dentist who is unable to properly monitor apatient’s progress may not meet the standard ofcare required in the circumstances. Leaving thepatient to his or her own devices in dealing with anuntoward clinical event also exposes a healthpractitioner to liability, since he or she will have noinfluence over the ultimate outcome.
Ontario dentists occasionallytreat patients from otherprovinces or countries.American residents inparticular sometimes seekdental services in Ontariobecause of geographicalproximity and favourablecurrency exchange rates.While RCDSO members havemalpractice protection fortreatment provided to foreignpatients in Ontario, treatingnon-resident patients raisesa number of clinical andlegal issues.
The Perils of TreatingNon-Resident Patients
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Ensuring Continued Trust Dispatch February/March 2014
19
THE CHALLENGES OF DEFENDING AFOREIGN LEGAL ACTIONA non-Ontario resident may choose to commenceproceedings for alleged dental malpractice in his or herprovince or country as a matter of convenience or totake advantage of a more favourable legal climate in theforeign jurisdiction, including the potential for a higherdamages award. If an action against a College member were to bebrought outside Ontario, PLP would assign local counselto attempt to have it dismissed on technical grounds. Ifthat was unsuccessful, PLP would provide a defence.However, the defendant would likely be required toattend pre-trial proceedings in the foreign jurisdictionand would be obliged to be present for trial should it getthat far, resulting in considerable expense andinconvenience. The member would also be exposed topersonal liability for damages beyond the protectionprovided by PLP or the excess coverage purchased byhim or her.
MINIMIZING THE RISKSBecause PLP is not financially or structurally set up todefend foreign legal actions, it is our recommendationthat College members not treat non-Ontario residentselectively. Of course, emergency treatment should beprovided to foreign patients as required, but only insofaras is necessary to stabilize the situation.Except in emergencies, PLP members who do treat non-Ontario residents should have each foreign patientsign a Governing Law and Jurisdiction Agreement infavour of all members of the practice who mayparticipate in the patient’s care as part of the consentprocess and before commencing any new treatment.
The member wouldalso be exposed topersonal liability fordamages beyond theprotection providedby PLP or the excesscoverage purchased.
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MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP
Ensuring Continued Trust Dispatch February/March 2014
20
The Perils of Treating Non-Resident PatientsGOVERNING LAW AND JURISDICTION AGREEMENT
COLLEGE CONTACT René Brewer – Director, Professional Liability Program416-934-5609 [email protected]
Governing LawI agree that all aspects of the relationship between (add name of dentist, dental assistant,dental hygienist) and me, including but not limited to any dental treatment/service/advice provided to me, and the resolution of any dispute arising from that relationship,including any dispute arising from this Agreement, shall be governed by and construedin accordance with the laws of the Province of Ontario, Canada.JurisdictionI acknowledge that the dental treatment/service/advice I receive from (add name ofdentist, dental assistant, dental hygienist) will be provided in the Province of Ontario,Canada and that the courts of the Province of Ontario, Canada shall have exclusivejurisdiction over any complaint, demand, claim, proceeding or cause of action arisingout of the dental treatment/service/advice or from any other aspect of my relationshipwith (add name of dentist, dental assistant, dental hygienist). I agree that I will pursue anysuch complaint, demand, claim, proceeding or cause of action in the Province ofOntario, Canada and only in the Province of Ontario, Canada and hereby submit to thejurisdiction of that Province.__________________________________________________Signature of Patient/Substitute Decision-Maker
__________________________________________________Name of Patient/Substitute Decision-Maker (print)
__________________________________________________Date (month/day/year)
__________________________________________________Place (name of city/town)
__________________________________________________Signature of Witness
__________________________________________________Name of Witness (print)
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SCENARIODr. S fabricated six porcelain veneers for her patient, Mr. J. On the day ofinsertion, Mr. J appeared to be pleased with the results and paid the feesin full. However, a week later he returned and insisted on seeing Dr. Swithout an appointment. He claimed his friends had toldhim the veneers looked unnatural and his dentist hadreally messed up. Dr. S offered to redo the veneers to hissatisfaction. Mr. J argued that he wasn’t at all confident inher ability to do any better and he wanted to see a dentistwho had made his friend’s veneers because they wereperfect. He demanded that Dr. S pay for the cost of newveneers to be made by this other dentist. Dr. S agreed asshe was happy to be rid of this difficult patient.Unfortunately she did not think of obtaining a releasefrom Mr. J and her records were silent regarding thegoodwill nature of this refund.
A few months later, Dr. S received a statement of claim,alleging improper treatment and lack of informedconsent related to the veneers fabricated for Mr. J. Shecontacted the Professional Liability Program to report the matter, only tolearn that she may have compromised the case by making a refundwithout the risk management protection offered by a release and/or letterto the patient.
28 DISPATCH • November/December 2009 Ensuring Continued Trust
This feature is prepared to offer guidance tomembers about theprevention of malpracticeclaims or complaints and the lessening of themagnitude of an existingclaim or a complaint.
COLLEGE CONTACT Dr. Judi HeggieDental Advisor, PLP 416-934-5605 [email protected]
OUNCE OF PREVENTION
Considering Making aRefund? Call PLP First!
INSIDE VIEWRead the article on page 40called, “A Behind-the-ScenesLook at the ProfessionalLiability Program” that givesan inside view of how PLP canhelp you if you wish to refundfees to a patient or pay a smallclaim yourself.
QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle a particularsituation with a patient, do not hesitate to call the College.
PLP Claims Examiners 416-934-5600 • 1-877-817-3757Practice Advisory Service 416-934-5614 • 1-800-565-4591
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DISPATCH • November/December 2009 29
OUNCE OF PREVENTION
DISCUSSIONA refund of fees already received or waiving anoutstanding account could be an appropriate way tohandle the difficult situation when a patient isunhappy with the treatment results and chooses toattend another practitioner or when you want toexpedite the orderly dismissal of a patient from thepractice. However, if not handled properly, it maynot necessarily achieve the intended result ofplacating a problem patient.
When you are asked to or are considering returninga fee or a portion of a fee for dental services, youshould first contact the Professional LiabilityProgram. This reporting serves two purposes:
1. Informs PLP of the matter at hand as requiredunder the malpractice insurance programpolicy conditions.
2. Takes advantage of risk management assistance advice before the fact whendealing with a patient who wants a refund.
The benefits of this initial contact are to:
• reduce the risk of admission of liability on your part and avoid prejudicing yourposition with the insurer;
• fulfill the reporting requirement of the PLP policy;
• protect your interests with respect to the possible application of one of theconditions in the PLP policy, which states that: “The insured shall notvoluntarily assume any liability or settle any claim.”
risk management adviceIn order to protect your right to coverage, please notify PLP immediately if yourpatient wants or might want money or if you would like to offer a refund.Discuss the matter with a PLP staff member before proceeding. Do not prejudiceyour coverage by acting hastily. We can assist you by drafting a letter to yourpatient and providing the appropriate release statements and/or forms.
PLP POINTERSBefore you offer to waive anoutstanding fee or offer a refund offees already paid, as a means ofresolving a dispute with a patient,call PLP for helpful advice.
A knowledgeable claims examinercan coach you on how to approachpatients about a refund in exchangefor a release.
Early contact with PLP can ensurethat you do not unwittingly admitliability when dealing withdissatisfied patients.
Reporting potential claims to PLPensures your right to coverage.
Matters can usually be resolved on amutually satisfactory basis for bothyou and your patient.
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ENSURING CONTINUED TRUST DISPATCH MAY/JUNE 2012
9
The short answer is yes. PLP assistance extends to members
and their employees who are not regulated health
professionals for their own acts and omissions, often referred
to as direct liability.
Dentists and their health professions corporations are also
entitled to assistance when they are sued for vicarious
liability, i.e. for acts and omissions of their employees in
rendering professional services on or behalf of members or
their HPCs.
However, it is important that all employees in a dental
practice who are regulated health professionals have their
own professional liability protection in accordance with
recent amendments to the Health Professions Procedural
Code, since their policies would be expected to provide the
first avenue of recovery for patients injured as a result of their
actions.
Will PLP assist me if I am suedfor an employee’sact or omission?
COLLEGE CONTACT René Brewer – Manager, Professional Liability Program416-934-5609 [email protected]
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The term “circle of care” is not adefined term in the Personal HealthInformation Protection Act, 2004(PHIPA). It is a term commonly usedto describe the ability of certain healthinformation custodians to assume an individual’s impliedconsent to collect, use or disclose personal health informationfor the purpose of providing health care, in circumstancesdefined in PHIPA.
This article will clarify the circumstances in which a healthinformation custodian may assume implied consent and theoptions available to a health information custodian whereconsent cannot be assumed to be implied.
It should be noted that the assumed implied consent provisionsof PHIPA apply equally to paper-based and electronic recordsof personal health information.
DISPATCH • February/March 2010 5
CIRCLE OF CARESharing Personal HealthInformation for HealthCare PurposesReprinted with permission of Ann Cavoukian, PhD
Information and Privacy Commissioner, Ontario
Originally published online on September 2, 2009
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CIRCUMSTANCES WHEN YOU MAYASSUME CONSENT TO BE IMPLIEDA health information custodian may only
assume an individual’s implied consent to
collect, use or disclose personal health
information if all of the following six
conditions are satisfied:
1. The health information custodian must
fall within a category of health
information custodians that are entitled to
rely on assumed implied consent.
Most health information custodians may rely
on assumed implied consent to collect, use
and disclose personal health information for
the purpose of providing health care or
assisting in the provision of health care to an
individual.
A health information custodian is a person or
organization described in PHIPA with
custody or control of personal health
information as a result of, or in connection
with, the performance of its powers, duties or
work. For example, health information
custodians include:
◆ health care practitioners
◆ long-term care homes
◆ community care access centres
◆ hospitals, including psychiatric facilities
◆ specimen collection centres,
laboratories, independent health
facilities
◆ pharmacies
◆ ambulance service
◆ Ontario Agency for Health Protection
and Promotion.
However, it is important to note that some
health information custodians are not
entitled to rely on assumed implied consent.
For example, these include:
◆ an evaluator within the meaning of the
Health Care Consent Act, 1996
◆ an assessor within the meaning of the
Substitute Decisions Act, 1992
◆ the Minister or Ministry of Health and
Long-Term Care
◆ the Minister or Ministry of Health
Promotion
◆ the Canadian Blood Service.
2. The personal health information to be
collected, used or disclosed by the health
information custodian must have been
received from the individual, his or her
substitute decision-maker or another
health information custodian.
The personal health information to be
collected, used or disclosed must have been
received from the individual to whom the
personal health information relates, from his
or her substitute decision-maker or from
another health information custodian.
Personal health information is defined in
PHIPA as identifying information relating to
the physical or mental health of an
individual, the provision of health care to an
individual, the identification of the substitute
decision maker for the individual and the
payments or eligibility of an individual for
health care or coverage for health care,
including the individual’s health number.
A substitute decision-maker is a person
authorized under PHIPA to consent on
6 DISPATCH • February/March 2010 Ensuring Continued Trust
CIRCLE OF CARESharing Personal HealthInformation for Health CarePurposes
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behalf of an individual to the collection, use
or disclosure of personal health information.
If the personal health information to be
collected, used or disclosed was received
from a third party, other than the substitute
decision maker for the individual or another
health information custodian, consent
cannot be assumed to be implied. For
example, a health information custodian
may not rely on assumed implied consent if
the personal health information was received
from an employer, insurer or educational
institution.
3. The health information custodian must
have received the personal health
information that is being collected, used or
disclosed for the purpose of providing or
assisting in the provision of health care to
the individual.
The personal health information to be
collected, used or disclosed must have been
received for the purpose of providing health
care or assisting in the provision of health
care to the individual to whom it relates.
A health information custodian may not rely
on assumed implied consent if the personal
health information was received for other
purposes, such as research, fundraising,
marketing or providing health care or
assisting in providing health care to another
individual or group of individuals.
4. The purpose of the collection, use or
disclosure of personal health information
by the health information custodian must
be for the provision of health care or
assisting in the provision of health care to
the individual.
The collection, use or disclosure must be for
the purposes of providing health care or
assisting in the provision of health care to the
individual to whom the personal health
information relates.
A health information custodian may not rely
on assumed implied consent if the
collection, use or disclosure is for other
purposes, such as research, fundraising,
marketing or providing health care or
assisting in providing health care to another
individual or group of individuals.
5. In the context of disclosure, the disclosure
of personal health information by the
health information custodian must be to
another health information custodian.
A health information custodian may not
assume an individual’s implied consent in
disclosing personal health information to a
person or organization that is not a health
information custodian, regardless of the
purpose of the disclosure.
6. The health information custodian that
receives the personal health information
must not be aware that the individual has
expressly withheld or withdrawn his or her
consent to the collection, use or disclosure.
PHIPA permits an individual to expressly
withhold or withdraw consent to the
collection, use or disclosure of his or her
personal health information, unless the
collection, use or disclosure is permitted or
required by PHIPA to be made without
consent.
In most circumstances, if an individual
decides to withhold or withdraw consent,
PHIPA requires the receiving health
DISPATCH • February/March 2010 7
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information custodians or their agents to
be notified if the disclosing health
information custodian is prevented from
disclosing all of the information that is
considered to be reasonably necessary for
the provision of health care.
For further information about the ability of
an individual to expressly withhold or
withdraw consent to the collection, use or
disclosure of personal health information for
health care purposes, and the obligations on
health information custodians in this
context, please refer to the Lock-box Fact
Sheet produced by the Information and
Privacy Commissioner of Ontario at
www.ipc.on.ca.
FACTORS TO BE CONSIDERED IN RELYING ON ASSUMED IMPLIED CONSENTIn general, a health information custodian
must not collect, use or disclose personal
health information if other information will
serve the purpose and must not collect, use
or disclose more personal health information
than is reasonably necessary for that
purpose. These general limiting principles
apply even where a health information
custodian is entitled to rely on an individual’s
assumed implied consent.
OPTIONS AVAILABLE WHEN YOUCANNOT ASSUME CONSENT TO BE IMPLIEDWhen consent cannot be assumed to be
implied, health information custodians
should consider other options. Depending
on the circumstances, a health information
custodian may be permitted to collect, use or
disclose personal health information without
consent, with the implied consent of the
individual to whom the personal health
information relates or with the express
consent of that individual. PHIPA
distinguishes between implied consent and
assumed implied consent.
In the case of implied consent, health
information custodians must ensure that all
of the elements of consent are fulfilled;
whereas in the case of assumed implied
consent, health information custodians may
assume that all of the elements of consent
are fulfilled, unless it is not reasonable to do
so in the circumstances.
Without Consent
Health information custodians may collect,
use or disclose personal health information
without consent if the collection, use or
disclosure is permitted or required by PHIPA
to be made without consent.1
For example, health information custodians
are permitted to disclose personal health
information without consent to a medical
officer of health if the disclosure is made for
purposes of the Health Protection and
Promotion Act. In addition, in certain
circumstances set out in sections 37(1)(a),
38(1)(a), 50(1)(e) of PHIPA, health
information custodians may use or disclose
personal health information without consent
where it is reasonably necessary for the
provision of health care and the individual
has not expressly instructed otherwise.
8 DISPATCH • February/March 2010 Ensuring Continued Trust
CIRCLE OF CARESharing Personal HealthInformation for Health CarePurposes
1 Sections 36 and 37 of PHIPA, respectively, set out thecircumstances in which personal health information maybe collected and used without consent and sections 38-48 and section 50 set out the circumstances in whichpersonal health information is permitted or required to bedisclosed without consent.
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DISPATCH • February/March 2010 9
Implied Consent
Health information custodians may imply an
individual’s consent to collect and use
personal health information for most
purposes. They may also imply consent to
disclose personal health information to
another health information custodian for the
purpose of providing or assisting in the
provision of health care to the individual.
However, subject to limited exceptions,
health information custodians cannot rely on
implied consent when disclosing personal
health information to a person or
organization that is not a health information
custodian. This exception applies regardless
of the purpose of the disclosure.
In order to rely on implied consent, health
information custodians must be satisfied that
all the required elements of consent are
fulfilled.
Express Consent
In all other circumstances, health
information custodians may only collect, use
or disclose personal health information with
the express consent, (i.e. verbal or written
consent) of the individual to whom the
personal health information relates or his or
her substitute decision-maker.
In order to rely on express consent, health
information custodians must be satisfied that
all the required elements of consent are
fulfilled.
ELEMENTS OF CONSENTThe consent of an individual for the collection, use
or disclosure of personal health information by a
health information custodian:
◆ Must be a consent of the individual or his orher substitute decision-maker.
◆ Must be knowledgeable.
◆ Must relate to the information that will becollected, used or disclosed.
AND
◆ Must not be obtained through deception orcoercion.
For consent to be knowledgeable, it must be
reasonable to believe that the individual knows the
purpose of the collection, use or disclosure and
knows that he or she may give or withhold consent.
It is reasonable to believe that an individual knows
the purpose of the collection, use or disclosure if
the health information custodian posts or makes
readily available a notice describing these
purposes where it is likely to come to the
individual’s attention or provides the individual
with such a notice.
Although health information custodians are not
required to provide notice in those circumstances
where consent may be assumed to be implied,
health information custodians are encouraged to
do so as a best practice.
For more information, please visit the Office of the Information
and Privacy Commissioner of Ontario website at www.ipc.on.ca
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It is important that dentists carefully consider whether an individual requesting a
patient’s personal health information falls within the patient’s circle of care such
that the dentist can assume the patient’s implied consent to release the personal
health information in question.
When confronted with such a situation, it is helpful to be mindful of the following:
◆ If the circumstances of a request do not satisfy the conditions for assuming
implied consent, there is nothing preventing you from contacting the patient
in question to obtain his or her express consent to release his or her personal
health information to the requesting party.
◆ Even where a request satisfies the conditions for assuming implied consent, it
is always preferable to secure a patient’s explicit consent to release personal
health information to a third party, if time permits and as long as it is
practical.
As set out in the circle of care article, a health information custodian may only
assume a patient’s implied consent if all of the following six conditions are met:
1 The health information custodian must fall within a category of health
information custodians that are entitled to rely on assumed implied consent.
2 The personal health information to be collected, used or disclosed by
the health information custodian must have been received from the
individual, his or her substitute decision-maker or another health
information custodian.
3 The health information custodian must have received the personal health
information that is being collected, used or disclosed for the purpose of
providing or assisting in the provision of health care to the individual.
4 The purpose of the collection, use or disclosure of personal health
information by the health information custodian must be for the provision of
health care or assisting in the provision of health care to the individual.
5 In the context of disclosure, the disclosure of personal health information by
the health information custodian must be to another health information
custodian.
6 The health information custodian that receives the personal health
information must not be aware that the individual has expressly withheld or
withdrawn his or her consent to the collection, use or disclosure.
10 DISPATCH • February/March 2010 Ensuring Continued Trust
The Circle of CareConcept in Action inThe Dental Office Context
COLLEGE CONTACT Dayna SimonAssistant to the Registrar,[email protected]
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DISPATCH • February/March 2010 11
CASE STUDY
Disclosure to a Health Information Custodian
You receive two separate requests for copies of the dental
records of one of your patients. The first request is from
an oral surgeon that recently assessed the patient for a
minor surgical procedure. The second request is from a
business partner of the patient who is planning on
framing the patient’s dental X-rays as a gag gift for his
upcoming birthday party.
Health information custodians may assume implied
consent to collect, use and disclose an individual’s
personal health information to other health
information custodians and/or their agents. As a
health information custodian, you may assume that
you have your patient’s implied consent to release his
dental records to the oral surgeon, who is also a health
information custodian, as all six conditions required to
assume implied consent are satisfied.
However, you cannot assume that you have the
patient’s implied consent to release his dental records
to his business partner who is not a health information
custodian and thus does not meet condition #5.
CASE STUDY
Providing or Assisting in the Provision of an
Individual’s Health Care
You receive a phone call from the pedodontic dental
office of the five-year old son of one of your patients.
The father is your patient but the son is not. The
pedontist’s office explains that to better serve your
patient’s young son, they are exploring whether there
may be a history of disease in the family and would like
specific health information regarding the father.
Implied consent is only available where the collection,
use or disclosure of personal health information is for
the purposes of providing health care or assisting in
the provision of health care to the individual to whom
the personal health information relates.
While the pedontist is clearly a health information
custodian, the dental office is not requesting your
patient’s health information to provide or assist in his
health care. Rather, the office is requesting your
patient’s health information to provide or assist in the
health care of his son and thus does not meet
condition #4.
Therefore, you cannot assume implied consent to
disclose your patient’s health information to his son’s
dental office. In order to do so, you must obtain your
patient’s express consent.
CASE STUDY
Withholding or Withdrawing Consent
At her most recent dental appointment, your patient
discovers that your new dental hygienist is a neighbour
of hers. Your patient telephones you and says that she
doesn’t want her neighbour to “know her secrets” or be
involved in her dental care.
Individuals may expressly withhold or withdraw
consent to the collection, use or disclosure of their
personal health information.
Under normal circumstances, you could assume your
patient’s implied consent to share her health
information with the dental hygienist in your office.
However, since this patient has expressly advised you
of her objection, you cannot share her personal health
information with the dental hygienist, as condition #6
has not been met.
CASE STUDY
Sharing Information with Other
Health Care Professionals
Your patient is scheduled to attend at your office for a
complicated extraction. While preparing for the
upcoming appointment, you note that this patient
recently had heart surgery. You would like to contact his
family physician to ask whether you should take any
special precautions in treating him.
The family physician falls within the patient’s circle of
care as he is a health information custodian involved
in providing health care to this patient. In addition, the
personal health information that you are seeking from
the family physician will assist you in rendering health
care to the patient.
Accordingly, you can assume the patient’s implied
consent to collect his personal health information
from his physician and the physician can assume that
he has the patient’s implied consent to disclose this
health information to you. In short, all six conditions
necessary to assume that you can rely on implied
consent have been met.
However, while you may legally be entitled to assume
the patient’s implied consent in this circumstance,
unless it is a medical emergency, it is always prudent
for you to seek to obtain the patient’s express consent
to contact the family physician.
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56 DISPATCH • May/June 2010 Ensuring Continued Trust
PROFESSIONAL PRACTICE
ntario Information and Privacy Commissioner Dr. Ann Cavoukian has
directed the province’s health sector not to remove any personal health
information on mobile devices from their premises – unless this very
sensitive information is encrypted, as required in a health order issued in 2007.
The Commissioner has also made it very clear that she expects all personal
health information stored on any type of mobile device in Ontario to be
protected with strong encryption.
“While I accept that custodians may not be able to totally eliminate the loss or
theft of mobile devices, what I cannot accept is that the information contained
therein is not encrypted,” the Commissioner stated in an order released in mid-
January.
“Unauthorized access to health information stored on these devices that
happen to be lost or stolen may clearly be prevented through the use of
encryption technology. However, despite strong incentives to avoid privacy
breaches and the availability of encryption to prevent such breaches,
unencrypted mobile devices continue to be used. This is both distressing and
completely unacceptable.”
The Commissioner’s health order was issued to address a privacy breach in
Durham Region in mid-December 2009 that saw the loss of a USB key
containing the health information of almost 84,000 patients who attended
H1N1 flu vaccination clinics.
This incident was “very distressing,” said the Commissioner, “especially in light
of the fact that I directed all Ontario health information custodians not to
Privacy Commissionerexpects health sector to encrypt all healthinformation on mobiledevices: Nothing short of this is acceptable
COLLEGE CONTACT Dr. Michael Gardner Manager, Quality Assurance416-934-56111-800-565-4591 [email protected]
O
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transport personal health information on laptops or other mobile
computing devices unless the information was encrypted.” This
direction was included in a 2007 order under the Personal Health
Information Protection Act (PHIPA).
“Our health orders set a minimum standard for what we expect from
all health information custodians, all of whom
are required to protect personal health
information under PHIPA,” said the
Commissioner. Every health information
custodian in Ontario is subject to the Personal
Health Information Protection Act and is
required to protect personal health
information.
“I want to make this very clear,” the
Commissioner said. “No personal health
information should be transported on mobile
devices, unless the information is encrypted.
This requirement is perfectly clear and
encryption technology is readily available.”
The Commissioner’s investigation report on the
incident in Durham Region was issued in
January 2010. In March 2007, the Commissioner
had issued guidance to the Ontario health
sector as part of a health order (HO-004) to
Toronto’s Hospital for Sick Children after a
laptop computer containing the personal
health information of 2,900 patients was stolen
from a parked vehicle.
The Information and Privacy Commissioner is
appointed by and reports to the Ontario
Legislative Assembly and is independent of the
government of the day.
For more information, visit the website of the
IPC/O at www.ipc.on.ca.
The College is currently working on Guidelines
for Electronic Records Management that will
address emerging issues, such as mobile and wireless computing and
the use of laptops, USB keys and e-mail.
DISPATCH • May/June 2010 57
PROFESSIONAL PRACTICE
ENCRYPTING PERSONALHEALTH INFORMATION ONMOBILE DEVICESIn May 2007, the Office of theInformation and PrivacyCommissioner/Ontario released afact sheet on encrypting personalhealth information on mobiledevices.
This fact sheet explains why it isnot acceptable to rely solely onlogin passwords to protect personalhealth information on devices thatare easily stolen or lost. It alsogives helpful information on how toencrypt and secure healthinformation on mobile devices.
Recognizing that encryptionsoftware may be unfamiliar to thosewho have a responsibility for thislevel of data protection, the factsheet lists several encryptionsolutions currently available withwebsite addresses for moreinformation.
This fact sheet is available on theIPC/O website at www.ipc.on.ca.
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54 DISPATCH • May/June 2010 Ensuring Continued Trust
PROFESSIONAL PRACTICE
Best practices for the secure destruction of personal health information
patient’s dental records can speak to a
great deal. By their very nature, the
personal health information in dental
and medical records is among the most
privacy-sensitive when it comes to one’s
personal information.
As Ontario’s Information and Privacy
Commissioner, Dr. Ann Cavoukian, has said:
“A single medical record can reveal a great deal
about an individual including recreational and
lifestyle habits, or major health issues, all of
which can result in potentially devastating
consequences if revealed to family, friends or
employers.” The information management
practices of health care providers have very
real and lasting consequences for their
patients, explained the Commissioner.
To assist the health care industry to deliver
functional services and ensure the security of
personal health information, the Privacy
Commissioner has released an educational
paper called, Get Rid of It Securely to Keep It
Private: Best Practices for the Secure
Destruction of Personal Health Information. It
was written in collaboration with the National
Association for Information Destruction.
The publication outlines a number of best
practices that can be employed in the secure
destruction of personal health information
records. These include:
• developing a secure destruction policy
that is clear, understandable and leaves no
room for interpretation;
• segregating and securely storing records;
• determining the best methods of
destruction;
• documenting the destruction process;
• considerations before employing a third-
party service provider;
• disposal of securely destroyed materials;
• ensuring compliance.
The publication was created in response to
several recent orders issued by the
Commissioner. One order was about records
containing personal health information found
scattered on the streets in Ottawa outside a
medical centre housing a medical laboratory.
The other order dealt with the discovery of
patient health records found blowing around
downtown Toronto streets.
This publication can be downloaded free of
charge from the IPC/O website at ipc.on.ca.
COLLEGE CONTACT Dr. Lesia WaschukPractice [email protected]
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DISPATCH • May/June 2010 55
PROFESSIONAL PRACTICE
FOCUS ON DENTAL RECORDSDentists are required by the Personal Health Information Protection Act, the
regulations made under the Dentistry Act, 1991 and by the College’s Guidelines to
maintain patient confidentiality when disposing of records after the required
retention period for dental records ends. Dentists who wish to destroy records on-
site in dental offices can discard photographs, radiographs and models in the
garbage once patient identification/identifying labels have been removed,
obliterated or rendered illegible.
Some dentists may have large volumes of records to sort and dispose of at one time
and may want to have a shredding or information destruction company destroy and
dispose of these records for them.
For dentists who wish to enter into a contract with a shredding company to provide
these services, radiographs, photographs, models, radiographic mounts (both rigid
plastic and flexible vinyl), small metal objects (paperclips, staples and brads from
dental charts) and electronic media can be shredded by various types of commercial
shredding machines.
An acceptable alternative to shredding of these materials is incineration.
Dentists should ensure that the shredding service providers can meet the dentists’
confidentiality agreements before entering into any contractual agreements. The
Privacy Commissioner suggested that you look for a provider accredited by an
industrial trade association or willing to commit to upholding its principles,
including undergoing independent audits. Check
references and insist on a signed contract spelling out the
terms of the relationship.
AS FOR RECYCLINGThe Privacy Commissioner has stated in the past that
“recycling does not equal secure disposal” and that “the
only acceptable method for disposing of records is to
destroy them by a method that ensures the information is
completely obliterated, for example, by irreversible
shredding of the documents.”
Once paper records have been shredded, as required, then
the white paper can be recycled. Once patient identifers, mounts and other materials
are removed from radiographs, the silver in the radiographic emulsions on
developed radiographs can be recovered and recycled.
On The WebThe requirements for retention ofrecords and the maintenance ofconfidentiality in the destructionof records are outlined in theGuidelines on DentalRecordkeeping. Check out theGuidelines at www.rcdso.org.