Treating non-Ontario residents
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 consultations 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 other jurisdictions around the world deem telehealth to be rendered where the patient resides. If the practitioner is not registered in the other jurisdiction, they could be guilty of practising without a licence.
Fortunately, the Professional Liability Program’s current insurer is of the view that treatment is rendered where the dentist is located. Therefore, protection is provided as long as the dentist was in Ontario when services were provided. If the insurer’s position was otherwise, liability protection would be denied as the policy only covers dental services rendered 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 their own devices in dealing with an untoward clinical event also exposes a health practitioner to liability, since they 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 their 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 registered dentist 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 dentist 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 dentist could also be exposed to personal liability for damages beyond the protection provided by PLP or the excess coverage purchased by him or her, especially in jurisdictions that award higher damages than Ontario courts.
Minimizing the risks
Because PLP is not financially or structurally set up to defend foreign legal actions, dentists should consider whether to treat non-Ontario residents electively. Of course, emergency treatment should be provided to non-Ontario patients as required, but only insofar as is necessary to stabilize the situation.
Except in emergencies, RCDSO registered dentists who do treat non-Ontario residents should have each patient sign a Governing Law and Jurisdiction Agreement in favour of all dentists of the practice who may participate in the patient’s care as part of the consent process.