Most dentists know that, like other health care practitioners, they owe a duty of care to meet the prevailing standards of practice in treating their patients and that they may be held civilly liable if they breach that duty.
What they may not know is that, even if there are no deficiencies in disclosing the risks of treatment or in the treatment itself, they may be exposed to a finding of liability if they fail to put their patients’ interests ahead of their own. Because of their special position in society, some professionals have a legal and ethical obligation, called a fiduciary duty, to act for the sole benefit of the people they serve.
While power imbalance is a feature of many fiduciary relationships, the key criterion is the discretion of one person to affect the interests of another. A fiduciary must meet the strictest standards of conduct, and may be held to account if his personal interests conflict with his duty or if he profits from his position without the beneficiary’s consent.
Dentists, physicians, lawyers and teachers have been found to be fiduciaries to their patients/clients/students. As emphasized in the RCDSO’s Code of Ethics, this means that “the paramount responsibility of a dentist is to the health and well-being of patients.” Therefore, while there is nothing illegal or unethical in earning a living or making a profit from the practice of dentistry, dentists must always ensure that their financial interests do not take precedence over doing what is best for their patients.
Ms. Y told Dr. P she didn’t like the silver fillings in her mouth and wanted to know if he could replace them with white ones. On examination, Dr. P noted she had large, multisurface amalgam restorations on most of her molar and premolar teeth, but there was no clinical evidence of a need to replace them. He took bitewing radiographs that showed no evidence of decay.
Dr. P informed Ms. Y he would be happy to replace the fillings and discussed the fees for doing so. He proceeded to replace all the amalgams over the next two weeks.
Ms. A told Dr. C she was a budding actress and wanted a dental makeover. Dr. C recommended that all 28 teeth be restored with porcelain crowns.
Dr. C was just starting out in practice, and had little experience with providing crown and bridge treatment and no experience with porcelain crowns. Nonetheless, she felt confident in her ability to carry out the treatment plan.
Dr. C permanently cemented all of the crowns.
While Dr. P and Dr. C faced different clinical situations, there were some common threads. Treatment was of questionable benefit to their patients and there were clearly less extensive and expensive alternatives. As well, the treatment provided by Dr. C was beyond her scope of expertise. Had Dr. P and Dr. C asked themselves the following questions, they may have acted differently:
- Is treatment necessary at all?
- Is this particular treatment appropriate?
- Is this treatment in the best interests of the patient?
- Are there other options that should be considered?
- Is this treatment within my scope of expertise?
- Might it appear to others that I recommended or provided this treatment primarily for personal gain?
Instead, both left themselves open to allegations of breach of fiduciary duty. The fact that the patients specifically requested the treatment would not shield the dentists from liability if a court were to conclude that their failure to explore alternatives was financially motivated.
There is no doubt that most dentists would try to do what is best for their patients even if there were no legal obligation to do so. Using the above checklist can help avoid any appearance to the contrary by ensuring that patients’ interests remain the paramount consideration in any treatment decision.