Risk Management: Managing risk in dental practice

by Dr. Rollin Matsui, BSc., DDS, LLB

As a practicing dentist today, the likelihood of having a patient file a complaint against you with your provincial regulatory body is greater than ever. How you respond to the complaint can have a great bearing on the outcome of the dispute. This article will provide a general overview on what issues you should consider when determining how you will deal with this most stressful and professionally threatening experience.

Dentists have often informed me that the patient’s complaint against them to their regulatory body (eg. Royal College of Dental Surgeons of Ontario) has been frivolous and without merit and as such, should be decided summarily in their favour. Whether or not you believe this to be true, it is important that you don’t assume the College will automatically “take your side” when they investigate the case.

When responding to a College complaint, always remember that the College’s mandate is to protect the public interest, not your interest and therefore, the most you can expect is that the

College will treat you fairly. From my own experience as a lawyer in Ontario, the RCDSO clearly takes its responsibilities in complaint cases most seriously and thoroughly investigates the matter before rendering its decision. Although dentists will not always agree with Committee Panel decisions, if you present your case effectively and persuasively to the College, there is a good chance that you will receive as favourable a result possible in the circumstances.

To help you form a game plan in responding to a patient’s complaint against you filed with the College, consider the following:

Have you notified your insurer of the situation as required under your legal expense insurance policy? I am not speaking of your malpractice insurer as this is a College complaint, not a malpractice lawsuit. Rather, I am referring to the additional misconduct insurance you hopefully have already purchased over and above your malpractice insurance, to cover your legal costs incurred when defending against a complaint investigation being conducted by your regulatory body. (These are specific misconduct insurance policies sponsored by organizations such as the Canadian Dental Protective Association which are not related to your malpractice insurance policy; if you don’t have this insurance, you should apply for same immediately. ) Failure to comply with the terms of your insurance contract may result in your insurer not providing coverage for your claim.

Even though this is a complaint matter before your regulatory body, have you considered whether or not you should also be reporting this matter to your malpractice insurer? Failure to comply with the terms of your malpractice insurance contract may result in the insurer not providing coverage for your claim, if for instance, in the future the complainant decides to sue you in addition to this complaint. Remember, malpractice suits are legal proceedings before a court, separate and apart from College complaint cases.

As trite as it may sound, be sure that you read the patient’s complaint letter carefully and accurately. Do you know what the complaint is really about? For instance, if the complaint letter appears to focus only on your office’s alleged harassment of the complainant for payment of his outstanding account, will the ultimate issue really be whether or not you met the standards of practice for the treatment rendered or perhaps charged improper fees?

Have you identified the legal issues in your case, which could be of concern to the College? In Ontario there are approximately 61 acts of professional misconduct as set out in the professional misconduct regulations and the issues arising from your complaint may offend one or more of these said acts. If you are not familiar with these issues relevant to the Province in which you practice, you would be wise to seek legal advice to assist you in preparing your defence strategy for the response letter. In my view, seeking timely and proper risk management and legal advice is undoubtedly the most important thing you can do in responding to the College complaint.

In determining your defence strategy, have you taken into consideration the possible outcomes that can arise from the nature of your response letter? Does your College provide a copy of your response letter directly to the complainant for review? Deliberately inflaming or insulting the complainant in your response letter is generally not helpful and unless part of a specific strategic purpose, is usually most inappropriate. Do you know if a “lay” public representative sits on the Complaints Committee Panel and who the Committee Panel members may be? You should not underestimate the qualifications of the members of the Panel. Incomplete and unprofessional response letters and sloppy and unpersuasive submissions to the Panel should be avoided.

Have you considered any options that may result in a resolution of this matter in a less adversarial way? For instance, would mediation or an Alternate Dispute Resolution approach be available to help you? If yes, do you know how to initiate this process?

Have you taken into account how the complaints process operates in your Province? For instance, in Ontario, under certain circumstances, either the dentist or the complainant will be able to request a review of the decision of the Committee to an independent Board called the Health Professions Appeal and Review Board. Have you prepared your response anticipating such a Review?

Have you considered whether or not you should be submitting supporting documentation from other third parties to help your case? Should staff, character references and expert opinions be submitted to the College in support of your response letter? To do this properly and to not breach your duty of maintaining confidentiality of patient information, you will need the assistance of a lawyer.

Have you taken into consideration possible information which may be put forward by other dentists or health practitioners who also have treated the complainant? The College may contact such persons as part of their investigation. Will your response letter and records submitted to the College stand up to scrutiny from the Panel in light of such additional information? Will your response letter affect any partner or associate dentist in your office? Where the complainant was treated by other such dentists in your office, such involvement may assist or complicate the position taken in your response letter.

Failure to recognize and take into consideration a multitude of factors some of which are mentioned above, may adversely affect the successful outcome of your College complaint investigation. Are you sufficiently knowledgeable and capable in these types of matters to prepare your response letter to the College without any risk management or legal advice?

The prudent dentist will prepare carefully before responding to a patient complaint filed against him or her with the regulatory College. Seek assistance. Advice is available from your insurers and risk management organizations such as the Canadian Dental Protective Association as well as lawyers knowlegeable in this field.

The comments provided herein are of a general nature only and are not to be taken as legal advice upon which you can rely. Appropriate legal advice should be obtained from your own lawyer prior to taking action.

Dr. Matsui is both a lawyer and a dentist in Ontario and acts as legal counsel for dentists on various matters including complaint and discipline proceedings before the RCDSO as well as commercial agreements between dentists. He is also the Executive Director of the CDPA.