Treating Non-Resident Patients

Ontario dentists occasionally treat patients from other provinces or countries. American residents in particular sometimes seek dental services in Ontario because of geographical proximity and favourable currency exchange rates. While RCDSO members have malpractice protection for treatment provided to foreign patients in Ontario, treating non-resident patients raises a number of clinical and legal issues.

The Dangers of Telehealth

Health practitioners have no difficulty recognizing in-person consults as treatment, but many may not be aware that electronic communications may also qualify.

Telephone or email advice provided to a patient in another jurisdiction raises tricky questions about where the treatment is provided. Many provinces in Canada and countries around the world deem telehealth to be rendered where the patient resides. If the practitioner is not registered in the other jurisdiction, he or she could be guilty of practising without a licence.

If PLP’s insurer were to adopt that position, liability protection for such interactions would be denied, since the contract only covers services provided in Ontario.

The Problem of Follow-up and Aftercare

One of the problems in treating a non-resident patient is that it may be difficult for the patient to attend follow-up appointments or to return to the treating dentist in the event of a complication.

A dentist who is unable to properly monitor a patient’s progress may not meet the standard of care required in the circumstances. Leaving the patient to his or her own devices in dealing with an untoward clinical event also exposes a health practitioner to liability, since he or she will have no influence over the ultimate outcome.

The Challenges of Defending a Foreign Legal Action

A non-Ontario resident may choose to commence proceedings for alleged dental malpractice in his or her province or country as a matter of convenience or to take advantage of a more favourable legal climate in the foreign jurisdiction, including the potential for a higher damages award.

If an action against an RCDSO member were to be brought outside Ontario, PLP would assign local counsel to attempt to have it dismissed on technical grounds. If that was unsuccessful, PLP would provide a defence. However, the defendant would likely be required to attend pre-trial proceedings in the foreign jurisdiction and would be obliged to be present for trial should it get that far, resulting in considerable expense and inconvenience. The member would also be exposed to personal liability for damages beyond the protection provided by PLP or the excess coverage purchased by him or her.

Minimizing the Risks

Because PLP is not financially or structurally set up to defend foreign legal actions, it is our recommendation that RCDSO members not treat non-Ontario residents electively. Of course, emergency treatment should be provided to foreign patients as required, but only insofar as is necessary to stabilize the situation.

Except in emergencies, PLP members who do treat non-Ontario residents should have each foreign patient sign a Governing Law and Jurisdiction Agreement in favour of all members of the practice who may participate in the patient’s care as part of the consent.

Governing Law and Jurisdiction Agreement 

Click here to download a sample Governing Law and Jurisdiction Agreement.