Talk Isn't Always Cheap: The Dangers of Making Promises
Originally published in June 2014
The Professional Liability Program (PLP) defends dentists against patient allegations of wrongdoing, which sometimes include a claim that a dentist made a promise he didn’t keep. Because the course and outcome of dental treatment are dependent on many factors, some of which are beyond the dentist’s control, PLP warns members against guaranteeing results or setting rigid timelines for completing treatment. The following case summary highlights the potential risks of failing to heed this advice.
The patient presented to the member in April 2010 requesting replacement of crowns on teeth 11 and 21 for cosmetic reasons. New crowns were inserted but removed on August 24, 2010 because discoloration of one tooth was visible through the new crown. A second pair was rejected by the patient as being too grey two weeks later. Two further pairs were deemed similarly deficient on September 27 and October 18, 2010.
A fifth set of crowns was rejected on October 27, 2010 and the patient requested a full refund soon thereafter. PLP provided the member with a release for the patient to sign in exchange for a return of fees. The patient refused to execute the release and commenced a legal action against the member.
In addition to negligent dental treatment, the patient alleged that the member’s failure to insert permanent crowns by September 10, 2010 and to deliver crowns that were more aesthetic than the originals constituted breaches of contract.
The member denied the plaintiff’s allegations of negligent treatment and the existence of a deadline for final cementation of the crowns or any promises regarding their appearance.
The plaintiff failed to produce an expert report in support of her allegations. PLP retained an expert general dentist who opined that:
- the final crowns were a very good shade match;
- it is not unusual to send crowns back for re-shading, staining or adjustments;
- there was no evidence to suggest the member breached the standard of care.
The matter proceeded to trial on March 28, 2013 and reasons were released on July 4, 2013. The trial judge did not accept the member’s assertion that there was no agreement to complete treatment by a fixed date. However, the patient was found to have waived that condition by continuing to see the member after the deadline had passed, and her claim on that point failed.
The judge also held that the member promised the new crowns would be an improvement over the old ones, but he accepted the member’s evidence that the crowns met that criterion. Finally, the judge accepted the opinion of the defence expert that the member was not negligent in his treatment of the patient. In the result, the action was dismissed with costs.
The member in this case was dealing with a patient with high expectations who may have heard what she wanted to hear rather than what the member actually said. The he said/she said debate may have been resolved in the member’s favour if documentation had been available to corroborate his oral evidence. Especially when treatment is elective or cosmetic, it is important for the dentist to carefully record what the patient is told about the duration of treatment and possible outcomes. And above all, members should never use language that could be interpreted by the patient as a guarantee.