Risk Management Advice And Guarantees In Dentistry An Interview With Ms. René Brewer

All practicing dentists should be armed with practical risk management knowledge to minimize exposures to patient lawsuits and or College complaints. As such, this article will highlight some of the important information in a question and answer interview format with Ms. René Brewer.

Ms. René Brewer obtained her law degree from McGill University with Great Distinction in 1994 and began practice as a litigator at Russell & Dumoulin in Vancouver (now Fasken Martineau Dumoulin). In 1998 she moved to Ottawa, where she joined Gowling Lafleur Henderson, acting as General Counsel to the Canadian Medical Protective Association until 2011. Ms. Brewer is the Director of the Professional Liability Program in Ontario.

What are the main differences between a College complaint and a civil action?
Probably the most important difference between College and court proceedings is the ultimate impact on the respondent: the outcome of a College complaint can affect professional standing, whereas legal actions are mostly about money. Since PLP provides a defence and indemnification to Ontario dentists sued for alleged malpractice, a member’s personal financial exposure in a PLP matter is usually limited to the applicable deductible.

Because regulatory bodies and courts perform different societal functions, the focus of their enquiries is also different. Dental regulators enforce professional standards in order to protect the public. Accordingly, they are most concerned with a dentist’s actions; there is no requirement that a patient be harmed by a dentist’s misconduct for a complaint to be sustained and the regulator does not offer compensation to injured patients. On the other hand, since civil proceedings are designed to compensate parties injured by the wrongful acts of others, claimants (plaintiffs) must prove wrongdoing and loss or injury in order to succeed.

Therefore, while complaints to the regulatory body can arise from any aspect of the patient-dentist relationship, patients are generally only entitled to an award of damages for dental negligence if the dentist’s wrongful conduct caused their losses. As an example, respondents in health profession regulatory matters are often sanctioned for failing to keep proper records. But while good documentation is important in a legal action because of its evidentiary value, a defendant health practitioner will be held civilly liable for deficient record-keeping only if it can be linked to harm to the patient/plaintiff, which is rare.

There are differences in the regulatory and court processes themselves as well, though both are often lengthy and time-consuming, and uncertainty over the outcome can take a toll on dentists involved in either, even those who have done nothing wrong.

What are the most significant areas of exposure to civil liability for dentists?

In terms of treatment or practice area, PLP is seeing an increase in demands for compensation relating to implant dentistry. This is likely due to the number of practitioners with minimal training entering the field and because the complications arising from dental implants can be significant and costly to remedy.

Communication deficiencies create risks for any health practitioner. Many PLP cases are triggered not by a bad outcome but by a member’s failure to fully explain treatment alternatives and associated risks or, after something has gone wrong, the member’s unavailability, arrogant demeanor, or perceived indifference to the patient’s suffering.

What should a dentist do when his or her relationship with a patient seems to be deteriorating?

Again, communication is key. Studies have shown that health professionals who take the time to really listen and explain things to their patients are less likely to be sued and more likely to prevail if they are. When faced with an unexpected clinical outcome, a practitioner’s natural impulse is often to withdraw, but patients interpret defensiveness or reticence to discuss such situations as a tacit admission of guilt. A frank conversation about what occurred and the options for remediation goes a long way toward defusing the patient’s anger and anxiety.

What should a dentist do if a patient demands a refund or compensation?
For Ontario dentists, this would constitute a reportable incident and a member receiving such a demand should immediately contact PLP for guidance. Dentists in other jurisdictions may have similar reporting requirements.

If the member was not previously aware of any dissatisfaction with the treatment, PLP’s advice would be to have a conversation with the patient about the reasons for the request. Once that information is obtained and if the patient continues to insist on compensation, the dentist would need to decide whether or not to accede to the patient’s demands. PLP counsels members who believe their care was appropriate against making gratuitous payments to disgruntled patients and does not provide indemnification in such circumstances. However, any dentist wishing to reach a financial settlement with a dissatisfied patient needs to obtain a written release of further liability from the patient and PLP provides this documentation to its members. Dentists should be aware that they cannot require patients to forego a complaint to their regulatory body as a condition of settlement and any contractual term to that effect would be unenforceable.

What should a dentist do if he or she is sued by a patient for alleged dental malpractice?

Any dentist in that situation should immediately contact his or her liability protection provider. It is important that the dentist not contact the patient or make any changes to the patient’s chart after being served with legal papers.

What can dentists do to enhance the prospects of a favourable outcome in a legal action?

The outcome of a court proceeding is largely determined by things that cannot be changed after the fact – the quality of the practitioner’s care, communications, and record-keeping. The best defence to a negligence action is therefore to adhere to the standards of practice during every patient encounter.
That said, there are things dentists can do once proceedings have been commenced to show themselves in the best possible light or, conversely, to make things worse. Respecting procedural timelines and expressing genuine compassion for a patient’s suffering will generally be well-received by the court. On the other hand, a judge may conclude that a dentist’s uncooperative attitude, arrogance, or dismissiveness of the patient’s concerns is reflective of his or her usual practice style.

How should a dentist respond to a patient’s concerns about another dentist’s treatment?

It has been reported that a significant percentage of proceedings against health practitioners are triggered by comments made to patients by professional colleagues. Unfortunately, many of those criticisms are made without full knowledge of the facts and, in some cases, patients spend thousands of dollars on meritless legal proceedings as a result.

Subsequent treating dentists should advise patients of their observations and treatment recommendations, but they are not obliged to critique the actions of another practitioner. When a patient asks what went wrong, it is quite appropriate to refer him or her to the d
entist who provided the allegedly deficient treatment for answers. This, incidentally, is also often the quickest route to financial redress for the patient.

It is risky for a subsequent treating professional to get drawn into providing expert advice to the patient, since that dentist may have a vested interest in defending his or her own actions and thus lack the objectivity required of a court expert.

Some patients want dentists to provide guarantees or warranties before agreeing to treatment. Is there any difference between a guarantee and a warranty?

Both are contractual promises that certain conditions will be fulfilled by a vendor. A warranty is a type of guarantee relating to the quality of goods that is usually written and time-limited. Guarantees may be given for goods
or services and are sometimes open-ended.

What is the role, if any, of guarantees or warranties in dental practice?

In my view, dental guarantees and warranties are problematic and PLP cautions members not to give them. So many variables may affect the outcome of dental treatment, a lot of them beyond the practitioner’s control, that it is dangerous for a dentist to guarantee a particular result. Beyond replacement in case of a latent defect, it is even hard to stand by a guarantee or warranty for dental “goods” such as prostheses because whether or not a prosthesis is “right” for a patient depends largely on subjective perceptions of aesthetics, feel, fit, and function.

The most a dentist can really promise is to do his or her best to meet the patient’s needs, taking into account any treatment limitations arising from the patient’s presenting condition and financial constraints. Any dentist promising to continue treating a patient until the patient is satisfied may be required to provide free services and cover out-of -pocket expenses relating to that treatment for an indeterminate period of time. Since PLP is not bound by such arrangements, the member would be personally responsible for those expenses, and could also be personally liable for the cost of remedial treatment by another dentist should the relationship with the patient break down.

As practicing dentists we can appreciate the concept of prevention of all dental diseases before it progresses to advance stages. Likewise when it comes to risk management within a dental practice, prevention is the name of the game to minimizing exposures from disgruntled patients.

On behalf of myself and all readers of Oral Health, we would like to thank Ms. René Brewer for her valuable expert advise and opinion highlighted in this interview.OH