Dental-legal and regulatory issues

If you receive legal documents indicating that a patient or former patient is suing you in relation to dental treatment you provided 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 as a result of the legal claim 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. PLP will require a complete copy of the patient’s chart.

Read more: Dealing with Patients and the Threat of Litigation, Anatomy of a Legal Action

PLP does not assist with regulatory matters.  If you are a member of the Canadian Dental Protective Association, it may be able to assist you with responding to the complaint.

If the complaint relates to clinical as opposed to billing or interpersonal issues, and you think it could also become a claim for compensation, you should report the matter to PLP.

To read more about the Complaints process, visit the RCDSO website. 

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:

1. Did the treatment progress according to plan?
2. Was there an ideal or at least acceptable outcome?
3. Have you or office staff called the patient post-operatively to follow-up on healing and discuss the reason for non-payment?
4. Does the patient have a history of non-payment?
5. 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?
6. Have you kept accurate and comprehensive records?
7. If a legal action were to be 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.

You are not required to act as an expert in legal or other proceedings. 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.

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.

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