Capable patients are entitled to copies of their dental records, including radiographs and models. Unless required or authorized by law, records should only be provided to a third party with a patient’s express authorization and original records should not be given to patients or third parties. Information and documents relating to a member’s communications with PLP do not belong in a patient’s chart and care should be taken not to include them when responding to a request for records.
A request for records that was not obviously triggered by a geographic move or a pending or potential claim against someone else may suggest that the patient is unhappy with your services. Consider whether you should contact PLP to report the incident.
Read more: Releasing Patient Records
I’m being sued by a patient
If you receive legal documents indicating that a patient or former patient is suing you in relation to dental treatment provided by you or for the actions of one of your employees:
- You must contact PLP immediately in order to protect your rights. Failure to react in a timely fashion may result in judgment being entered against you and jeopardize PLP’s ability to assist you.
- You must not attempt to contact the patient. If the patient contacts your office for reasons other than a dental emergency or to arrange for a transfer of records, you should advise him or her that further direct communication is inappropriate and report the incident to PLP.
- You should preserve the integrity of the patient’s chart by refraining from making any changes or additions to the record and storing it in a safe place.
Read more: Dealing with Unhappy Patients and the Threat of Litigation (PLP E-Publication), Anatomy of a Legal Action (PLP E-Publication).
I’ve received a subpoena or summons to testify about a patient
The requirements for a subpoena or summons to be valid can be complex and vary according to jurisdiction. If you receive such a document, you should contact PLP for guidance.
Being served with a subpoena or summons does not relieve you of your duty to protect your patient’s personal health information, and you may not discuss your evidence or potential evidence with third parties without the patient’s authorization.
Assuming the subpoena or summons is valid and has been served properly, you must attend as directed or a bench warrant for your arrest may be issued. However, you may contact the person requesting your testimony to see if personal attendance at the trial or hearing can be avoided or if any inconvenience to you can be mitigated. Sometimes a subpoena or summons is issued in order to obtain records, in which case it may be possible to deliver a copy of the chart to the court in a sealed envelope rather than appearing in person.
I’ve been asked to sign an Acknowledgement of Expert’s Duty
If you have agreed to act as an expert for the patient, this document must be executed and filed in order for your report to be admitted into evidence.
If you are a treating dentist and do not wish to become involved as an expert, the acknowledgement is not required and you should not sign it. You may want to expressly advise the person requesting your signature on an Acknowledgement of Expert's duty that you are not prepared to give evidence on the merits of the patient’s claim against the defendant.
If you have not agreed to act as an expert and are not a treating dentist, you should decide whether you would like to provide expert services and advise the person who sent the request of your decision.
Read more: Acting as an expert: Another way of giving back
How should I respond?
Any request for compensation or a refund by a patient must be reported to PLP. Upon receipt of the information, an Advisor will phone you to discuss your options and describe the risks and benefits of each approach.
Should you decide not to accede to the patient’s request, the Advisor will assist you in responding to the patient or deal with the patient directly. If the patient retains a lawyer and/or starts a legal action, the Advisor will act on your behalf or engage legal counsel to represent you.
Read more: Dealing with Unhappy Patients and the Threat of Litigation (PLP E-Publication), Anatomy of a Legal Action (PLP E-Publication)
I have already decided to give my patient a refund
PLP does not recommend that members who believe their care was appropriate refund fees to patients. If you have made a business decision to make a refund, it is important that you do not say anything that may be interpreted as an admission of wrongdoing and that you contact PLP to assist you with the paperwork. Failure to heed this advice may jeopardize PLP’s ability to assist you if the patient requests more money.
Despite a clinician’s best efforts, treatment outcomes sometimes fall short of expectations. When this happens, patients often understand that no one is to blame, especially if the dentist took the time to discuss the procedure’s risks and potential complications before commencing treatment. There will be occasions when it is completely appropriate to insist on payment, despite a sub-optimal outcome. In some cases, however, waiving fees as a goodwill gesture may be the best course of action. Prior to sending an outstanding account to collections, dentists should consider the following questions:
- Did the treatment progress according to plan?
- Was there an ideal or at least acceptable outcome?
- Have you or office staff called the patient post-operatively to follow-up on healing and discuss the reason for non-payment?
- Does the patient have a history of non-payment?
- Did the patient sign a financial agreement prior to commencing treatment, and if so, did it explain there was no guarantee of a successful outcome?
- Have you kept accurate and comprehensive records?
- If a legal action was commenced, are you confident the treatment you provided met the standard of care?
After contemplating these questions, if you are still unsure how to proceed, feel free to contact PLP and speak with an advisor; we are here to help. Whether you intend to waive fees or not, you should immediately report the matter to PLP if you believe a claim or lawsuit is likely to develop.
PLP does not assist with regulatory matters. If you are a member of the Canadian Dental Protective Association, you should contact them for assistance in responding to the complaint.
If the complaint relates to clinical as opposed to billing or interpersonal issues, you should report the matter to PLP.
Read more: The Complaints Process.
In order to obtain proof of malpractice protection, complete the request form and email it to email@example.com or fax it to PLP’s confidential fax line at 416-934-5601.
Deductibles may be paid by cheque, Visa or MasterCard. Cheques should be made payable to “Professional Liability Program” and mailed to PLP at 6 Crescent Rd., Toronto, ON M4W 1T1.
Payments by credit card can be made by completing an authorization form and returning it by email to firstname.lastname@example.org or faxing it to PLP’s confidential fax line at 416-934-5601.
A written request for a waiver or reduction of a deductible must be directed to the PLP Committee and reference the criteria for granting such a request set out in Dispatch.
Read more: PLP changes to member deductible formula; Minor change to the PLP deductible formula
PLP assistance extends to former members so long as the event giving rise to a patient claim arose out of the practice of dentistry in Ontario while the dentist was registered with the RCDSO. There is therefore no need for a former member to pay registration fees to the RCDSO in order to be protected by PLP against malpractice claims for treatment provided before leaving practice in Ontario.
On the other hand, excess coverage does not extend beyond the expiry of the contract. Any member wishing to continue excess coverage after retiring or withdrawing from practice in Ontario should contact the relevant broker or insurer.
PLP assists members in responding to privacy complaints. You should immediately contact PLP
to report the matter and obtain guidance from an Advisor.
A dentist receiving a request to place a DNR in a patient's chart must ensure the person making the request has legal authority to do so. If the patient has asked for the DNR, the dentist must be satisfied that the patient is able to understand the information required to consent to a DNR and the consequences of that decision. If not, the DNR cannot be followed unless authorized by the patient's substitute decision maker. A DNR received from an appropriate substitute decision maker is valid but may be challenged if that person does not appear to be acting in the patient's best interests.
Once satisfied the DNR is lawful, the health care provider must take steps to fully understand its content and scope. Even when committed to writing, it is not always obvious what emergency treatment is proscribed under a DNR. The health professional should clarify the patient's or substitute decision maker's intentions and carefully record the discussion in the patient's chart.
All professionals and office staff should be made aware of the DNR, and its existence should be noted prominently in the patient's chart. If a medical emergency occurs in the office or during treatment, emergency services should be contacted immediately and advised that a DNR is in place. No intervention contravening the DNR should be performed by dental office personnel.
When treating a child of separated or divorced parents, it is important to know who can consent on behalf of the child and who will be responsible for payment.
a separated or divorced parent will either be a joint custodian of the child, sole custodian or an access parent.
for incapable minors, a custodial parent usually has the power to make important decisions about the child’s care; an access parent does not.
- a custodial parent may consent to treatment, but an access parent may not.
- unless there is a court order or separation agreement stating otherwise, a parent who has only right of access to the child is entitled to make enquiries and be given information about the child and receive copies of the child’s records.
In obtaining consent to treatment of a child of divorced or separated parents,
- the most reliable means of establishing legal authority is to obtain a written statement from the parents outlining who may make treatment decisions for the child and what information can be conveyed to each parent.
- the dentist should try to secure consent from each joint custodian, particularly if the treatment is invasive or risky.
It is important to note that, according to Ontario’s Health Care Consent Act, 1996, a dentist must obtain consent from a capable minor directly even when he or she is accompanied by a parent or guardian. However, since an agreement to pay by someone under the age of eighteen may not be enforceable, it is unwise to act on a minor patient’s instructions alone, except in an emergency.
A dentist should identify upfront who is responsible for payment of the account. Ideally, both parents should sign a financial agreement for the child’s treatment; otherwise, the parent who consents should be responsible for payment. If one parent is the decision-maker and the other is covering the costs of treatment, it is prudent to confirm the plan and payment arrangements in writing in order to avoid collection problems.
Read more: Children and Consent to Treatment, Health Care Consent Act, 1996
If your relationship with a patient has broken down, the following guidelines will assist you in properly dismissing the patient from your practice:
- The treating dentist should handle a dismissal personally, i.e. responsibility for dismissing a patient should not be delegated to a staff member.
- A dismissal may be conveyed verbally or in writing. Verbal dismissals should be followed up in writing.
- The dismissal discussion/letter should
- be polite, professional, and to the point.
- provide the reason for the dismissal, e.g. breakdown of the dentist/patient relationship or the patient’s rudeness to staff.
- outline the patient’s outstanding treatment needs, if any.
- provide the patient with the telephone number of the ODA or other referral service.
- advise that copies of the patient’s dental records will be provided or transferred at the patient’s request.
- offer to attend to a true dental emergency and provide the telephone number for any local dental emergency service.
- Sending the dismissal letter by registered mail is recommended for patients with ongoing treatment needs.
You should ensure your records reflect the reasons for the dismissal and you should keep a copy of the dismissal letter in the patient’s chart. If the circumstances of the dismissal may lead to a demand for money by the patient, contact PLP.
Read more: Sample dismissal letter.
Read more: Dental emergencies.
Special considerations apply to dismissing an orthodontic patient from a dental practice. If a dentist decides to dismiss an orthodontic patient due to non-compliance or non-payment of an account, the dentist
- should inform the patient of the risks of discontinuing care with and without the placement of retentive appliances.
- should, if possible, assess the patient’s oral health status in consideration of the patient’s initial condition and in relation to the treatment goals that were agreed to at the commencement of treatment.
- may also suggest, or the patient may request, a second opinion.
- should provide copies of dental records as requested and directed by the patient/parent, regardless of the status of the account.
- should offer to remove the brackets, with full disclosure to the patient of the consequences of doing so. If indicated, retentive appliances may be provided.
- should not put a patient’s active treatment “on hold” while leaving fixed appliances in the mouth as a means of managing an unpaid account.
In cases where treatment has been paid for in full but only partially completed, the dentist must return the fees for the portion of treatment not provided without requiring the patient to sign a release.
You are not required to act as an expert in legal or other proceedings. Therefore, while you must to provide a patient with a written summary of your findings and treatment recommendations on request, you are not obliged to opine on a colleague’s care, nor should you without sufficient knowledge of the facts.
If you do wish to provide an expert opinion on behalf of any party to an action, you should
- only comment on issues within the scope of your dental knowledge and training.
- ensure you have all relevant records and diagnostic copies of any radiographs before offering an opinion.
- only provide an opinion supporting the position of the party who retained you if the facts warrant it.
- not act as an advocate for any party to the litigation.
- avoid hyperbole in expressing your opinion.
You may charge a fee to review a matter, deliver a written opinion and attend trial, if necessary. To avoid any misunderstanding, you should disclose and obtain agreement to your rate before beginning work on the file. It is also prudent to state how many hours you expect to spend researching the case and preparing your report.
Most lawsuits are resolved before trial, but oral expert testimony is usually required in actions that do get that far. If you are not prepared to be a trial witness, you should advise the person requesting your services immediately. Otherwise, trial fees should be negotiated in advance.
At trial, you will be cross-examined by the opposing party or that person’s legal representative, which can be unnerving. In most cases, at least one session will be conducted by the person calling you as a witness to prepare you for the experience.
When a patient expresses dissatisfaction with your care, it is important to
- Remain calm and professional.
- Avoid becoming defensive and argumentative. Allowing the patient a chance to vent may defuse the situation.
- Be empathetic. Apologizing for a less than ideal outcome or acknowledging the patient’s suffering cannot be used against you in legal proceedings.
- Refrain from offering compensation or admitting liability. Your liability protection could be jeopardized if you admit liability or offer money to the patient.
- Notify PLP. Timely reporting of issues that may give rise to a claim to PLP is a requirement under the terms of your liability protection.
- Maintain confidentiality. Specifics of a reportable situation should only be discussed with PLP staff or the lawyer assigned to assist you.
- Keep notes about legal matters separate from the clinical record. Notes of conversations with PLP staff should be not be recorded in the patient’s chart and should be stored separately.
- Refrain from altering the patient’s chart. Changing your records after learning of patient dissatisfaction will undermine your defence in a legal action.
- Consider referring the patient to another dentist. If you know a patient is dissatisfied with your treatment and you feel that the trust has been lost in the dentist-patient relationship, you should refer the patient to another practitioner for non-emergent treatment.
Read more: Dealing with Unhappy Patients and the Threat of Litigation
While patients have the ultimate right to make health care decisions based on their personal values and beliefs, your professional, legal, and ethical obligations may preclude you from acquiescing to a patient’s demands. The following recommendations will assist you in striking the right balance between the patient’s desires and your duties as a dental professional:
- Provide patients with evidence-based information about all reasonable treatment options.
- Consider whether the treatment requested by the patient may cause harm or is likely to fail.
- If the requested treatment is not ideal but does not breach the standards of practice, you may proceed after informing the patient of its risks and limitations. You should also ensure the patient has realistic expectations about the potential outcome.
- You should NOT provide treatment that you judge to be below the standards of practice and/or believe is not in the patient’s best interests. Explain your reasons for refusing the patient’s request to him or her.
- You are NOT obligated to provide treatment that is beyond your expertise or that you do not feel comfortable providing. Explain your reasons for declining treatment to the patient and offer a referral to other appropriate providers. Let the patient decide whether to proceed with the referral.
- If a patient rejects your treatment recommendations, explain the rationale for and the consequences of refusing your recommendations; if you feel the treatment refused by the patient is the only reasonable option, you should decline to treat the patient.
- Carefully document the informed consent discussion in the patient’s chart.
- If a breakdown of the patient-dentist relationship occurs, you may want or need to dismiss the patient from your practice.
It is important to note that a release of liability will not protect you from the legal consequences of providing inappropriate treatment and that patients who sign such documents may attempt to get around them. Rather than obtaining a waiver of liability from a patient who refuses your professional advice, the best course of action may be to provide no treatment at all.
Read more: Dismissing a Patient
Although patients have the ultimate right to make health care decisions based on their personal values and beliefs, there are times when a patient is incapable of providing valid consent due to age, illness or disability. When dealing with a patient who may lack capacity to consent to treatment, you should consider the following:
- The test for determining capacity to consent is whether the patient is able to understand the information relevant to the proposed treatment and to appreciate the reasonably foreseeable consequences of either consenting to or refusing treatment.
- When applying this test, you should remember that:
- patients are presumed to be capable unless there are reasonable grounds to believe otherwise,
- capacity is specific to the treatment, i.e. a patient may be capable of providing consent for some routine procedures, but not to other, more invasive procedures, and
- capacity is not static, i.e. a patient may be incapable at one point, but capable of consenting another time.
A patient who is found to be incapable has a right to appeal that finding to the Consent and Capacity Board and should be informed of that right.
- If a patient is incapable, you must obtain consent from someone else who is authorized to make treatment decisions on the patient’s behalf, i.e. a “substitute decision-maker” (SDM).
Ontario’s Health Care Consent Act provides a hierarchical list of those who may act as an SDM.
- When obtaining consent from an SDM, you should remember that:
- SDMs must act in accordance with the incapable person’s “advance directive”, i.e. legally significant wishes previously expressed by the patient with respect to the treatment, if any, and
- in the absence of an advance directive, the SDM must act in the patient’s best interests.
- A health care provider who believes an SDM is ignoring a patient’s advance directive or failing to act in a patient’s best interests may ask the Consent and Capacity Board to intervene.
It is important to note that a patient’s refusal to accept dental advice is not necessarily a sign of incapacity. A patient has the right to make treatment decisions that are unwise, dangerous or even life-threatening, so long as he or she understands the nature of the proposed treatment and its consequences or the consequences of non-treatment.
Read more: Obtaining consent for treatment of an incapable adult, Treating Patients in a Long-term Care Facility, Informed Consent, RCDSO Practice Advisory, Health Care Consent Act, 1996.
Knowing when to treat, when to consult and when to refer is essential to the successful practice of dentistry. Generally speaking, referral or consultation is required when:
- You are unable to diagnose the patient’s condition;
- The patient is not responding adequately to your treatment;
- You cannot continue to treat the patient (e.g. because you are ill or on vacation); or
- The patient’s clinical needs are beyond your capabilities.
Of the above situations, the fourth is often the most difficult to assess. When determining whether a specific procedure or course of treatment is beyond your expertise, consider the following questions:
- How much experience do I have with the treatment or procedure in question?
- Were those previous treatment outcomes favourable?
- When did I last receive training in this area?
- How comfortable do I feel providing the treatment?
- Do I intend to offer this as a regular service or is it a one-off?
- Am I proceeding with this treatment because I feel capable of providing it or because the patient wants me to do it?
- Would I be comfortable performing this treatment or procedure on a close family member?
- Could my lack of expertise or experience become an issue if treatment does not turn out as expected?
- Would the chances of a good result be significantly improved if I referred the patient to a specialist?
An unfavourable answer to any of these questions does not always lead to the conclusion that a patient must be referred out. But in the aggregate, your responses should give you a pretty clear indication of the right course of action. If you have considered all of these questions and remain unsure, it would be prudent to discuss the matter with an experienced colleague or mentor or contact the Practice Advisory Service.
A copy of the current malpractice protection policy can be obtained by logging into the RCDSO member portal and clicking “Downloads/Documents”.
The errors and omissions policy provided by the RCDSO to its members and administered by PLP protects Ontario dentists against liability arising out of the performance of or failure to perform “professional services”, defined as the practice of dentistry and “those services … reasonably considered by the [RCDSO] to be part of, related to, or ancillary to” the practice of dentistry in Ontario. In other words, PLP assistance is limited to patient claims of malpractice or negligence in providing dental treatment, e.g. performing endodontic therapy on the wrong tooth or failing to diagnose osteomyelitis. Examples of related or ancillary services covered by the policy would include accidentally hitting a patient with an x-ray machine while positioning it and causing a piece of paper to fly into a patient’s eye when opening the chart.
A dentist who owns a practice may be vicariously liable for the actions of a staff member if:
- The staff member was negligent;
- The staff member was acting within the scope of his or her employment;
- A patient was injured as a result; and
- The staff member was not an independent contractor.
Associate dentists are almost always independent contractors, so a principal dentist would not be vicariously liable for an associate’s malpractice.
Other health professionals, such as dental hygienists and nurses, may or may not be employees; while dental assistants, receptionists and treatment co-ordinators usually are. Because regulated health professionals (e.g., hygienists, physicians and nurses) are required to carry their own malpractice coverage, they are not eligible for PLP’s assistance. In contrast, employees who are non-regulated health professionals are protected by PLP for activities related to the practice of dentistry. Further, PLP would defend a vicarious liability claim against a principal dentist for an employee’s negligence, whether or not the employee was a regulated health professional.
Proper hiring, training and supervision of dental office staff are therefore critical in mitigating the risk of a finding of vicarious liability. Effective risk management also requires that practice owners ensure that all non-dentist regulated health professionals they employ have adequate malpractice protection.
If you are still not sure about whether, and to what extent, PLP may assist an employee accused of negligence, contact us and ask to speak with an advisor.