Adverse outcomes - fixing your own problem
PLP often cautions members about the dangers of trying to fix problems arising out of their own treatment. When something doesn’t go as planned, the dentist may be too emotionally invested to make the best clinical decisions or provide the best care. The patient’s reaction to the incident or sudden mistrust of the dentist may create increased pressure, leading to more mistakes. Some dentists perform remedial therapy beyond their skill and competency in order to try and save a patient the costs of dealing with an adverse event that occurred at their hands, but ultimately make a bad situation worse.
PLP provides case specific advice, but it would not be unusual for PLP to advise a member in such situations to refer patients to another practitioner for corrective treatment.
Generally, there is a two year period in which a patient can bring a legal action for medical or dental negligence. This is referred to as the limitation period. Unfortunately, developments in the law in Ontario may allow that time period to be extended when a health care professional is providing remedial or corrective treatment. This potential extension of the limitation period is another reason health care professionals ought to think twice before continuing to treat patients after complications occur.
In Brown v. Baum, a patient who developed fat necrosis after breast reduction surgery due to obesity and ongoing smoking (against medical advice) sued her plastic surgeon alleging absence of informed consent. Remedial treatment, consisting of seven procedures by Dr. Baum, eventually produced an acceptable aesthetic result fifteen months after the initial operation. Ms. Brown commenced her legal action just under two years after the last surgery. Dr. Baum sought to have it dismissed on the ground the two year limitation period had passed, as the legal action was commenced more than two years after the patient knew all the facts on which her case was based, i.e. when she knew of the fat necrosis following the first surgery.
The plaintiff admitted she believed Dr. Baum had done something wrong within months of the first procedure and that she was gathering evidence for a potential legal action from the outset. However, the judge dismissed Dr. Baum’s argument that the two year limitation period had passed and accepted the plaintiff’s argument that the limitation period did not start to run until remedial treatment was concluded because it would not have been appropriate for her to sue Dr. Baum before his attempts to correct the problems created by his first surgery had been exhausted. This was a precedent setting decision.
The above principle was taken a step further in a dental malpractice case involving failed bridgework. In C-G v. R, the patient experienced continued breakage of her maxillary and mandibular porcelain bridges. In September 2011, she threatened to consult a lawyer and sue if Dr. R did not provide a refund. She repeated her insistence on a refund at an appointment a week later and added a demand that Dr. R provide her lifelong treatment free of charge. Dr. R said he would think it over but never provided the refund.
When Ms. C-G next attended in November 2011, her maxillary bridge was failing and she wanted it re-cemented. Dr. R advised that she needed dentures but eventually gave in to her demands. What followed was a series of visits over 11 months during which Ms. C-G demanded re-cementation and Dr. R capitulated, all the while making it clear the treatment was doomed to fail.
After Ms. C-G started a legal action against Dr. R in June 2014, Dr. R sought a dismissal on the ground that Ms. C-G had “discovered” her claim when she threatened to sue in September 2011 and the limitation period had therefore expired in September 2013, nine months before her legal action was issued.
Despite the fact that Ms. C-G articulated concerns about Dr. R’s treatment in September 2011 and the care provided after that was clearly not remedial in nature, the court found that the time for commencing an action did not start until Dr. R last touched one of the bridges in October 2012.
These judgments represent a fundamental shift in the law of limitation periods. There is less certainty as to when a limitation period has expired and more room for flexibility, based on the “discoverability” principle. As a result, when health care professionals attempt to assist their patients by providing further care after an unsatisfactory clinical outcome, these practitioners are prolonging the period of time patients have to sue them for negligence. As the Dr. R case shows, merely treating the patient for the same condition may suspend the limitation period. In no circumstances should a patient be abandoned mid-treatment or denied emergency care. However, as Brown v. Baum demonstrates, one cannot assume that diligently trying to satisfy a patient will prevent a lawsuit, even if such efforts are ultimately successful.
To avoid prejudicing their legal positions, dentists should carefully consider what to do when an untoward treatment outcome occurs. PLP advisors are available to help work through the options and determine the best course of action in such circumstances. As always, any dentist contemplating paying for someone else to perform corrective treatment or continuing to treat a threatening or angry patient should contact PLP immediately.