Misadventures are an unfortunate reality in modern dentistry. When something untoward occurs, a dentist may wonder how much the patient should be told about the incident and whether being too forthcoming will increase the chances of being sued. There may be a fear that expressing concern for the patient will be interpreted as an admission of wrongdoing.
The following describes the professional, ethical and legal issues surrounding disclosure of adverse events and the role of apologies in dental practice.
Disclosure of Adverse Events
In generic terms, an adverse event is an injury caused by clinical management rather than a patient’s underlying disease or condition. Openness and transparency in responding to such occurrences is considered a key ingredient in improving patient safety. It is also just good practice.
Patients are partners in their own health care and they are entitled to know when things go wrong. Withholding information can cause patients to become angry or suspicious, destroying the trust that is the cornerstone of any therapeutic relationship. And failing to disclose or even delaying disclosure of an adverse event can impair a patient’s ability to obtain the treatment required to mitigate its effects.
For these reasons, timely and complete disclosure of adverse events is an ethical obligation for all health professionals, including dentists. The RCDSO has consistently advised its members of their duty to inform patients of unexpected incidents and to discuss with them any further or remedial treatment that may be required as a result. In the May/June 2008 edition of Dispatch, the RCDSO endorsed the Canadian Patient Safety Institute’s Canadian Disclosure Guidelines (updated version available at www.patientsafetyinstitute.ca) as being consistent with the RCDSO’s requirements for informed consent and the principles contained in its Code of Ethics.
What many health care providers may not know is that the duty to disclose is also a legal obligation. For those practicing in a hospital setting, notifying hospital administration of any adverse event resulting in death or serious injury is mandated under the Public Hospitals Act. As fiduciaries, dentists and other health professionals in any practice setting have a legal duty to act with the “utmost good faith and loyalty” toward their patients, which extends to being honest and forthright in providing clinical information. Any breach of this duty can give rise to liability for damages, including punitive, exemplary or aggravated damages, for which PLP does not provide indemnification.
In order to comply with best practices, disclosure of an adverse event should:
- occur as soon as reasonably possible after the member becomes aware of it;
- be made by the treating dentist;
- include a discussion of the facts relating to the incident;
- include a description of the actual or possible consequences for the patient, together with recommendations and/or referrals for further or follow-up care.
Members are also advised to document the details of any disclosure discussion (e.g. time, date, place, attendees, facts discussed, questions raised, answers given, treatment recommendations, etc.) in the patient chart.
The Apology Act, 2009
While most health practitioners understand the rationale behind and accept the duty to disclose adverse events, there is ongoing reticence to apologize to patients when treatment does not turn out as planned.
The benefits of disclosing and expressing sympathy for unexpected clinical developments are the same: both demonstrate respect for the patient and may assist in the healing process. But the barriers are also similar. They include fear of a lawsuit or College complaint, loss of malpractice protection, diminished reputation, and shame, guilt or embarrassment.
In 2009, the Ontario government passed a law aimed at eliminating some of these impediments. According to the Apology Act, 2009, an apology, defined as “an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration,”:
- does not constitute an admission of fault or liability;
- does not, despite any wording to the contrary in any insurance contract, void or otherwise affect any insurance or indemnity coverage;
- cannot be taken into account in determining fault or liability;
- is not admissible in any arbitration, civil or administrative proceeding as evidence of fault or liability.
Dos and Don’ts
PLP recommends that members be familiar with the protection available under Ontario’s Apology Act. However, it is important to note that a bad apology can do more harm than none at all. An expression of concern that comes across as insincere may only inflame the situation. Being defensive or “blaming the victim” undermines and may even neutralize the value of an apology. A good apology is timely, heartfelt and unqualified.
That said, an apology does not have to include an acknowledgement of blame or responsibility to be effective. Practitioners should be careful to avoid language such as “malpractice,” “negligence” or “liability” in either disclosing or apologizing for an adverse treatment outcome. Statements such as “I’m sorry this happened to you” or “I regret that things did not turn out as we had hoped” can go a long way toward maintaining or repairing the therapeutic relationship without implying culpability.
Any member requiring assistance in determining an appropriate response to an adverse event should contact PLP or the Practice Advisory Service for guidance.