November 1, 2013
by Lonny Rosen, Elyse Sunshine and Colin Glazer
Something has gone wrong during a dental procedure, now what? There has been a great deal of confusion with regard to what a dentist is required to disclose, when, and to whom. Legislation, the common law and a dentist’s own professional obligations all give rise to obligations to disclose adverse events in certain circumstances. Dentists in all areas of practice, and particularly those performing prosthodontics, must understand both when the duty of disclosure arises and what must be disclosed. This professional obligation must be discharged whenever an adverse event occurs.
An “adverse event” is defined as:
“an unexpected or undesired incident which results in unintended harm to the patient, and is related to the care provided to the patient rather than the underlying medical or dental condition.”2
The event that must be disclosed is the result of the clinical management of the patient with all its inherent risks, as opposed to the condition or disease being treated.
It is a patient’s right to know about any incidents relating to the result of their care, however minor, so that they can be properly managed in a timely fashion. This has always been the case. What may not have been clear in the past, which is now beyond dispute, is that a dentist has a legal obligation to disclose such unintended outcomes or “adverse events.” However, an adverse event would not include, for example, an unintended incident which did not result in harm to the patient (i.e. a “near miss”).
Disclosure of an adverse event is a process, which requires open communication and sharing of information, and is more than just a single conversation.3 The Canadian Dental Association has set out a clear approach to disclosure once an adverse event has taken place. Dentists are advised to:
• acknowledge the incident
• explain the known facts
• make an expression of regret to the patient
• take steps to minimizing patient harm
• take risk management steps to prevent similar adverse outcomes.4
At common law, the failure to disclose an adverse event can be construed as a breach of a fiduciary duty by a healthcare practitioner.5 This was examined in a case where a physician discovered a gauze roll inside his patient that he had left during a previous surgery. The physician told the nurses not to report or inform the patient of the adverse event. The court held that by delaying disclosure of the adverse event to the patient, the physician was in breach of his fiduciary duty.6 The court in that case awarded aggravated and punitive damages for the doctor’s failure to disclose the adverse event, in order to communicate that such conduct is unprofessional and deserving of punishment.
Dentists need to be aware of their professional and fiduciary duties to their patients, including disclosure of adverse events, as breaching such duties could lead to civil liability for damages. Significantly, failure to disclose an adverse event could lead to an award of punitive, exemplary or aggravated damages, which would not be covered under the Professional Liability Program in Ontario.7 In addition, failure to disclose an adverse event could also result in proceedings, such as a complaint, before the Royal College of Dental Surgeons of Ontario.
All dentists, and particularly those performing prosthodontic procedures, need to be cognizant of their disclosure obligations because these procedures carry with them the possibility of costly litigation.8 Prosthodontic procedures have gained the reputation of being highly litigious because they are more labour-intensive, requiring multiple appointments, and thus more vulnerable to mistakes. When harm occurs, the dentist’s duty to disclose the error becomes paramount; the dentist is not permitted to attempt to “fix” the problem without informing the patient, as the dentist could not then obtain informed consent for the continued or revised treatment.9 If the patient is unaware of the facts surrounding the incident or adverse event, he or she would not be aware of the nature of the proposed treatment to try to address the adverse event, its expected risks and benefits or the consequences of not having the treatment, all of which are elements of informed consent.10
Recognizing the risk associated with prosthodontics and the need to disclose any adverse event, it is thus incumbent on every dentist who practices in this area to implement risk management procedures that will reduce the likelihood of the occurrence of adverse events that are inherent to prosthodontics. In addition to outlining the potential risk of harm that can result from prosthodontic treatment, which would necessarily be addressed as part of the consent process, dentists have an additional obligation to identify — and take steps to prevent — harm that could result from system failures, business office breakdowns, and provider or equipment performance. These areas require critical review by every dentist–before an adverse outcome occurs, rather than after.
It is also important for dentists to have an established approach or protocol to follow if an adverse event occurs.
The following are some suggestions when confronted with an adverse event:
• Do limit harm to the patient by ending treatment as soon as safely possible.
• Do not abandon the patient in the midst of a treatment plan.
• Do consider referring the patient to a dentist that has the skills and experience to deal with the case because the “offending” dentist may not be in the position to repair the mistake.
• Do anticipate any future care that may be needed and make arrangements for such.
• Do maintain communication with the patient.
• Do comment on what you know to be a truth such as “unfortunately as I mentioned in our consent discussions, the tooth in question has fractured and now must be removed” or “I am sorry to tell you that when I was repairing your tooth, the instrument broke and lacerated your gum.”
• Do not comment beyond that, until all the facts concerning the mishap have been gathered.
• Do make expressions of regret and sympathy, where appropriate, in a neutral manner.
• Do seek advice before doing so.
• Do not cover up the mistake. Ever.
• Do document the adverse event and what transpired.11
When disclosing an adverse event, dentists may consider making an apology to the patient. With the enactment of the Apology Act 2009, dentists and other professionals are permitted to make an apology, or an expression of regret, without fearing that the apology or statement will be used to prove that they are liable for the harm caused. However, while a well-worded and well-timed apology may help preserve the dentist-patient relationship and may avoid litigation, an inappropriate or poorly crafted apology can have disastrous results, exacerbating an already difficult situation. The Apology Act, was passed to prevent apologies or expressions of regret by healthcare practitioners being used against them in court. The Act states that an apology:
• does not cons
titute admission of fault or liability.
• does not, despite any wording to the contrary in any contract of insurance, void, impair or otherwise affect any insurance or indemnity coverage.
• shall not be taken into account in any determination of fault or liability.12
• is not admissible in any civil or administrative proceeding, or arbitration as evidence of the fault or liability.13
The Apology Act was originally intended to facilitate parties in the reconciliation of disputes before going to court and was never intended to be a catch all for relief of negligence. Dentists should always take time to gather all of the facts and to seek advice before offering an apology. If an apology is appropriate and advisable, dentists should avoid using language that implicates negligence or liability, and should instead use language such as “I am sorry that this occurred and that you suffered harm” (referring to the specific outcome and harm suffered).
Disclosure must occur when there is harm, however minor, and regardless of whether the dentist is at fault. When a mistake occurs that does not result in harm, disclosure is not required but the dentist is well advised to consider how the error occurred and to take steps to ensure that it does not happen again. Dentists should examine their practices and identify any steps that will avoid or reduce errors, and implement them into their practices before such an adverse event occurs.
Disclosure of errors is an essential part of the dentist’s role as a caring and ethical professional. It is a given that the complexity of the incident will vary and so too will the process of disclosure. When done appropriately, disclosure of adverse events will not only help patients recover psychologically from the adverse event, but can help the dentist as well. And most importantly, it may just influence the patient’s decision to not take further action against the dentist. OH
1. Gerald B., Robertson, “When things go wrong: the duty to disclose medical error” (2002) 28 Queen’s L. J. 353–362 at 8.
2. CDA Committee on Clinical and Scientific Affairs, “Disclosure of Unanticipated Outcomes: A Toolkit for Dentists” (2011) 77 Journal of Canadian Dental Association 179; and also Committee on Scientific Affairs – Canadian Dental Association Apr. 2010.
3. Disclosure Working Group, “Canadian disclosure guidelines: being open and honest with patients and families” Edmonton AB: Canadian Patient Safety Institute; 2011 at 8. See: http://www.patientsafetyinstitute.ca
4. Committee on Scientific Affairs – Canadian Dental Association Apr. 2010; see also excerpts from Disclosure Working Group, “Canadian disclosure guidelines: being open and honest with patients and families” Edmonton AB: Canadian Patient Safety Institute; 2011 at 26.
5. Shobridge v. Thomas, Lions Gate Hospital, et al (1999), CanLII 5986 (B.C.S.C) at para. 100.
7. Brewer, Rene, “Disclosure of adverse events and apologies in dental practice” (2013) 27 No.3 Royal College of Dental Surgeons of Ontario Dispatch at 15.
8.Statistics from DPL (UK) state that prosthodontics is the number one area of complaint in commonwealth countries, and CDPA has found similar statistics; see Glazer, Bruce, “Informed Consent, Record Keeping and Adverse Outcomes” (2012) November, Oral Health Journal.
9. CDA Committee on Clinical and Scientific Affairs, “Disclosure of Unanticipated Outcomes: A Toolkit for Dentists” (2011) 77 Journal of Canadian Dental Association 179 at 180.
10. Health Care Consent Act 1996, S.O. 1996, c.2, s.11 (3).
11. Recommendations based in part on: The Canadian Medical Protective Association, “Communicating with your patient about Harm, Disclosure of Adverse Events” (2008); and Committee on Scientific Affairs – Canadian Dental Association Apr. 2010 at pg 5.
12. Apology Act 2009, c. 3, s. 2 (1).
13. Ibid. s. 2 (3).