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Managing patient expectations


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It’s well recognised that patients don’t necessarily complain simply based on their clinical outcome. Most dentists will have heard of or seen situations where a patient has experienced an outcome which wasn’t ideal yet wasn’t particularly poor, however the patient has been quite annoyed with the outcome and has lodged a complaint.  On the other hand, there are many cases of patients who have experienced quite poor outcomes yet have chosen to not complain.

There are many reasons why the above may occur, some which are easier to identify than others. All patients are different and human behaviour isn’t always predictable.  Good communication and the relationship between the patient and dentist will greatly influence the likelihood of a complaint.  One other very important factor is the expectations of patients.

Patient expectations

Many patients will go into dental appointments with some level of expectation regarding their likely outcome. They may have a very clear and detailed outcome in mind or it may be more broad and open.  Most importantly, some of these expectations will be realistic, however others won’t be.

Unrealistic patient expectations pose very real challenges for dentists. If a patient undergoes treatment which they have unrealistic expectations about, it’s unlikely those expectations are going to be met simply due to them being unrealistic.  If a patient’s expectations haven’t been met, it’s likely the patient is going to be unhappy or dissatisfied with the treatment.  Those unhappy and dissatisfied patients are the ones more likely to complain about the treatment and expect further corrective treatment or compensation.  It’s therefore vital that dentists do all they can to help the patient fully understand treatment and the likely and possible treatment outcomes before treatment begins.

Creating realistic expectations

A key step in making sure a patient has realistic outcomes regarding treatment is to have an open and honest conversation with them. This will not only provide the patient with further information about their treatment, but will also give the dentist a clearer understanding of the patient’s expectations.  A dentist’s clinical skills are vital to what they do, however effective communication goes a long way in providing positive outcomes.

To assist a patient to have realistic expectations, dentists must ensure they explain the treatment and outcomes using simple, clear terms. Technical clinical language should be avoided as many patients won’t understand this.  Dentists should also consider how they tailor their language and the information for each individual patient.  For example, a person with language or literacy challenges may need information presented in a more detailed manner than other patients.  Dentists should also consider using diagrams, pictures or models to assist with understanding where appropriate.

When discussing treatment with a patient, it’s important that dentists don’t make assumptions about what the patient will or won’t understand. It’s easy for dentists to become so familiar with what they do and know that they sometimes forget how foreign that knowledge can be to other people.  Patients will have varying degrees of knowledge and experience regarding dental treatment.  Therefore, what they understand about their treatment will also vary.

When a patient attends a dental clinic and requests a particular form of treatment, this is an occasion when a dentist should be especially mindful of the patient’s expected outcome. When a patient has requested a form of treatment, the patient has clearly formed a decision around what treatment they need to get the outcome they desire.  What they’re requesting and expecting may be reasonable and realistic, however in some cases it may not be.  When presented with this situation, dentists need to be sure they don’t rush into providing the patient with the requested treatment.  As with all patients, there needs to be a thorough assessment and diagnosis process.  Then the patient is to be provided with their treatment options, as well as the risks and benefits of those options.  There may be treatment options which are more suitable for that patient which the patient isn’t aware of.  The patient also needs to be made aware of the likely treatment outcomes for each of those treatment options.

The dentist needs to be sure the patient has all required information before consenting to treatment and this includes understanding the likely outcomes. A patient requesting particular treatment doesn’t alter this required process.  And dentists need to remember that they’re always responsible for the treatment they’ve provided, regardless of whether it was requested by a patient.

In summary…

Dentists should be doing all they realistically can to improve the outcomes for their patients and reduce the likelihood of poor outcomes and complaints. An important step in this process is making sure patients have realistic expectations regarding treatment outcomes.  Dentists have a very important role in using their clinical knowledge in conjunction with practical terminology to assist patients to develop realistic expectations.  Dentists need to remember this is of great benefit to both themselves and their patients.

 

Guild Insurance Limited ABN 55 004 538 863, AFS Licence No. 233 791. Guild Insurance supports your Association through the payment of referral fees for certain products or services you take out with them. This article contains information of a general nature only, and is not intended to constitute the provision of advice.

 

 

“Wow! My tooth broke your file!”

At a seminar given by Endodontist Glenn Weston the above words were suggested as what we would like the patient to think when the event of file fracture occurs during endodontic treatment. Needless to say, these are words that are not commonly heard in a dental office when an endodontic file breaks inside a canal! Yet we are all too aware that the performance of such treatment is a delicate operation involving fine and often calcified anatomy using delicate and sometimes fragile instruments. File fracture is a common enough event but it can be said that the event is often not understood by the patient. Patients do not necessarily appreciate the surgery at the same level as the dentist. It can be said that they have a very different perspective!

Who is in control?

People feel safer when they perceive that they are in control. Lay people are often inherently talented at weighing benefits and risks. Most patients recognise that different treatment options represent a trade-off in terms of aesthetics, time, comfort and cost. If you try and convince a patient that he or she will not be affected personally by a known dental risk, you might tell him/her that the chances are “one in 200”. Patients would prefer to hear that there is zero risk of an adverse outcome, but as we all know that is not true. How do we impart this important information to patients, so that they can make an informed decision and consent to treatment? On one hand we would like them to accept our treatment recommendations and to put themselves unreservedly in our hands. After all, we have their best interests at heart. Of course such wishes belong in a more paternalistic era of treatment when patients asked fewer questions and (it has to be said) had fewer options for treatment! So what do we need to communicate to patients about the treatment choices we are discussing and recommending?

An article which reviewing negligence claims and complaints in Australia in regards to consent makes for interesting reading.

Communication pre-treatment: consent is a process, not a form

“Malpractice complaints and claims in regards to informed consent are not uncommon events. When they arise they are most likely to centre on mundane factual disagreement over who said what and when, not contests over what should have been disclosed. This underscores that for the informed consent process, like most other areas of clinical dental practice, regular and careful documentation of interactions with patients is a prudent risk-management strategy. Documentation of the details of consent discussions in the lead-up to clinical or surgical procedures is particularly important, as the vast majority of informed consent disputes involve complications following operations.

Courts do not accept that merely handing a consent form to a patient, however well designed and exhaustive the form may be, is a valid way of obtaining informed consent. Consequently, clinicians must decide which risks to discuss and emphasise. For busy dentists, this necessitates choices, because time is limited and effort devoted to consent discussions has an opportunity cost. Courts regard the possibility of an adverse outcome occurring as an important element in determining what qualifies as a “material risk” that must be disclosed, but it is only one of several elements. The severity of an outcome associated with a risk also matters. Rarity and severity are considerations which operate together. A small risk of a catastrophic outcome usually warrants emphasis, as does a high risk of a relatively minor adverse outcome; but not a low risk of a minor adverse outcome. A common example in the case of oral surgery to remove a lower molar would be the risk of possible jaw fracture, which would require specialist surgical treatment to immobilise the jaw and would involve the patient in significant levels of pain, swelling and incapacity to work as well as a period of hospitalisation and interference in their daily life. Such would be regarded as an example of a small risk with a catastrophic outcome.

It also has to be recognised that details of risk tend to matter more towards the elective end of the treatment spectrum than the urgent end, which goes some way to explaining the higher incidence of post treatment dissatisfaction associated with cosmetic dental procedures.”[1]

Communication post treatment: honesty is the best policy…

Good communication to ensure informed consent principles have been met prior to treatment is but one arm of communication. What about the situation which arises when a mistake has been made, or when there is a treatment event that exposes the dentist to a complaint?

In these situations of course, honesty is the best policy. If something untoward occurs during treatment, inform the patient and assure him or her that you will work with them to rectify the problem. An honest and apologetic approach, coupled with a genuine wish to assist the patient, can defuse any negative emotions that the patient may initially express and avoid a claim being pursued. If remedial treatment is required, discuss the options of carrying it out yourself if you are suitably competent to do so, or refer the patient elsewhere. Leave it to the patient to decide which path to choose. It is desirable and helpful that, wherever possible, cost not to be a consideration at this point. Offers of financial assistance, when appropriate, often help minimise any friction with the patient and bring about resolution of the matter.

Case: a perforation during root canal therapy

A patient presented for emergency treatment of pain on the lower right side of her mouth. The dentist commenced RCT on the deeply filled 46, during which he perforated the lateral wall of the mesial root. This was confirmed radiographically. It was explained to the patient that the perforation had occurred and had reduced the prognosis for long-term retention of the tooth. A specialist Endodontic consultation was recommended should the patient wish to continue with the treatment. The patient, fortunately, was not too concerned and was more interested in having the tooth extracted and a bridge placed. She declined specialist referral. After further discussion, the dentist suggested that she consider what had been discussed before making a final decision on the future of the tooth. The following day the patient experienced severe pain and attended another dentist at the practice who adjusted the temporary filling, provided a script for antibiotics and analgesics, and referred the patient to the Endodontist. One month later, the patient wrote to the practice principal accusing the assistant dentist of being “negligent” in his treatment of her. She stated that she had not been given any antibiotics or painkillers by him, the temporary filling had not been completed properly, and he should not have commenced RCT if he was not capable. She advised that she would now be continuing treatment with the Endodontist.

The original treating dentist sent a courteous letter of reply to the patient outlining how the perforation had come about and been addressed, and reminding her of their detailed discussion about the problems with, and treatment options available for, tooth 46 at a visit prior to the RCT appointment. As a result of those discussions, it had been agreed that although the tooth may have to be eventually extracted, they would attempt to salvage it with RCT. The patient had been informed that no guarantees could be given and that there was a failure rate of around 10-15%. The dentist ended by saying that he was nevertheless happy to offer the patient a full refund ($200) for the treatment he had provided to 46 because of the unfortunate outcome and his primary concern for the satisfaction and wellbeing of his patients.

Five months later the dentist had still heard nothing in reply and the patient had failed to take up the offer of refund. The RCT was completed by the Endodontist and the patient was apparently happy with the service that had been provided. A crown was planned to be placed in the near future by another dentist at the practice.

Comment 

Unexpected complications of a procedure are more easily dealt with when the patient has been warned about them prior to the procedure being commenced.

Perforations are more common when treatment has been carried out in an emergency appointment when staff can be rushed and unprepared. When a perforation occurs, it can be tempting to hide it by not taking adequate radiographs which would assist in demonstrating the problem. However, by doing so, this may only delay its discovery (often by a future practitioner) when the inconvenient truth inevitably comes out. It was fortunate in this case that the perforation did not render the tooth unsalvageable. The outcome was assisted in part by both the dentist’s prompt admission of the problem and specialist attention at an early stage. It is important to follow up on patients who

have been referred to ensure that they follow through with care. A patient who was well-informed prior to treatment plus a well-worded letter of explanation and genuine expression of regret were important in preventing this matter from escalating.

As always, if you are unsure of what to say to the patient or are having difficulty in coming to a prompt resolution with him/her, contact your state Branch for advice.

Key points

  • Build the patient relationship by encouraging patients to talk.
  • Consent forms alone are not a valid way to obtain consent.
  • Consent is a process and a form is a useful part of that process.
  • A dentist must determine which risks to discuss and emphasise.
  • Consider issuing warnings about small risks with catastrophic outcomes and high risks with minor adverse outcomes.
  • Record details of your discussions in the clinical notes or send a follow up letter.

Bibliography

[1] Bismark MM, Gogos AJ, Clark RB, Gruen RL, Gawande AA et al (2012 Legal Disputes over Duties to Disclose Treatment Risks to Patients: A Review of Negligence Claims and Complaints in Australia. PLoS Med 9(8): e1001283

By Dr Roger Dennett – ADA NSW
Peer Advisor – ADA NSW Branch

Why do people complain to the ADA about their dentist?

Unfortunately, with all the very best of intentions and with all the professional training, skill, care and experience the dental team may exhibit, things don’t necessarily turn out as expected. This can result in an adverse treatment outcome and patient expectations not being met. The vast majority of these situations are managed in-house by the treating professional by offering to re do a procedure for the patient or referring the patient for specialist attention. Most patients are accepting of this approach, especially when the professional shows genuine concern for the patient’s well being and the patient is not greatly disadvantaged.

However, when a patient, their parent or guardian considers they have not been treated in a considered, appropriate nor professional manner, they may make a complaint to an authority such as the Dental Board of SA, the Health and Community Services Complaints Commission or the Australian Dental Association.

Such a complaint to the ADA (SA Branch) may then be forwarded to the Review Committee of the Association or a Community Relations Officer to review the circumstances involved, in an attempt to reach resolution to the mutual agreement of the parties involved whilst minimizing the chance of escalation of the dispute to expensive and time consuming litigation.

Acting as a Community Relations Officer with the Australian Dental Association (SA Branch) my role for 3 or 4 hours a week is to help mediate such incident reports and complaints which arise between members of the Association, their employees and their patients.

Having practiced Dentistry for some 30 years and then having spent the last 10 years with a nationally Registered Training Organisation which has a focus on Personal Leadership Development and Frontline Management training, as both a facilitator and an assessor, I am in the fortunate position of being able to wear two hats which enables me to conceivably empathise more closely with both sides of a dispute arising from unsatisfactory dental treatment outcomes.

Frontline Management training and development addresses the soft skills (i.e. the most desirable attitudinal and behavioural skills required by any individual in a leadership or supervisory role to maximize their own and their team’s effectiveness, performance and productivity in any area of industry), as distinct from technical skills. Topics covered in a development program include such things as the importance of clarity of roles and responsibilities, good communication, planning and prioritizing of workloads, decision making and problem solving, handling and preventing problems with people, exercising authority effectively and taking personal responsibility for one’s own actions and many more. Not surprisingly, these are invariably the very same areas involved when disputes between a member of the Dental profession and a patient arise.

Unfortunately, poor communication is one of the most frequent complaints anywhere in any workplace and certainly lies at the heart of many complaints received by the A.D.A. Many patients complain that they received treatment they weren’t expecting, were not fully informed of the costs involved, and didn’t understand the nature of the treatment, the complexity of the treatment or that things could in fact go wrong. For instance, they may have attended an appointment in pain and expected the treatment provided and paid for would fix their problem, totally unaware that the pulpitis may not resolve with an extensive restoration and could actually progress to root canal therapy. Naturally, one of the first questions asked when reviewing such a complaint with a dentist is “What did you say to the patient and did they understand what was said?”

Communication is both telling and listening and the very nature of communication is to clarify and understand. It involves words, the tone of voice and body language yet too often it would seem that “telling” is perceived as communicating. Dental patients are invariably at a distinct disadvantage whilst having procedures performed on them, especially under rubber dam, because they can’t ask clarifying questions whilst their mouth is open.

Tight time constraints are often blamed when communication fails because “we were busy” or “running behind time” and an assumption is made that the patient actually heard and understood what they were told on a single occasion.

Informed consent is so critical in this day and age. Unfortunately, it is very hard to defend any complaint when the patient says “I wasn’t told”, “I wasn’t aware” or “I didn’t understand” as it then becomes one person’s word against another. A follow up appointment, a written quotation for treatment or an explanatory handout helps people understand what is involved with their treatment and should help to avoid misunderstandings.

Good records help enormously in defending a dentist’s actions when a dispute arises, as they record facts. Record keeping is fundamental for any clinician and the record must be contemporaneous and accurate. Case notes must be dated, clearly written to define the procedure involved and contain sufficient content for a third party to understand what treatment was actually performed. Whenever a complaint is made against a dental professional one of the fundamental pieces of evidence requested to help defend the person, their actions and what was said, is the clinical record. It is extremely difficult to help and defend a practitioner against an allegation if their own records are inadequate, incomplete or poorly written.

Naturally, clinical records include charts, radiographs, photographs, study models or any other items associated with the examination or treatment of the patient and provide evidence to help justify any treatment provided by the dental team. Radiographs in particular provide supportive evidence of why decisions are made to undertake treatment and as such should be of good quality and show the area of concern, such as the periapical area when root canal therapy is required or the entire tooth of an impacted wisdom tooth requiring extraction. Surprisingly, many endodontic treatments are still initiated today without a clear pre-operative radiograph as partial evidence for that decision to be made.

Incidents and complaints made to the ADA vary enormously in nature. On many occasions when an incident or complaint is reviewed it becomes clear that the dentist has not done anything wrong at all and there is very little basis for the complaint. There may be some misunderstandings, however the treatment and services provided, the itemisation of accounts and the fees charged are deemed proper, appropriate and professional. The dentist can be defended by the ADA as having acted in the best interests of the patient, the treatment can be explained to the patient and generally the complaint can be considered as closed.

However, when treatments fail or fail to meet patient expectations and the dentist involved is not prepared to admit to the failure nor offer to address and correct it, things become more difficult to defend. The ADA must then address and be seen to address the patient’s complaint seriously and appropriately.

Surprisingly, some dentists refuse to even discuss the situation with the patient or they get their administrative staff to deal with the issue. Naturally patients resent this approach, become indignant, emotional and occasionally hostile. Even so, they are still encouraged by the ADA as a first step to return to the practice and request a discussion of the situation with the dentist involved in an attempt to resolve the issue. Should this approach fail, the ADA becomes more heavily involved and a more formal and time consuming process to mediation is required.

Complaints can range from a simple mismatched colour of a bonded composite resin, to a broken restoration, post operative discomfort, a failed endodontic treatment, a non retentive full lower denture through to a complex and extensive multiple implant case. A common sense approach is naturally required with all these cases with the facts being gathered and the emotions controlled to understand both sides of the dispute and enable the problem to be solved. Fortunately, the majority of dentists cooperate with the ADA in an attempt to rectify the situation and as a gesture of goodwill with the patient.

Unfortunately, some dentists are seemingly unaware of their own limitations of competency and often undertake treatments that are beyond their capability to provide. A little bit of knowledge and expertise can be a dangerous thing and knowing one’s own limitation is extremely important for any professional. Specialties exist in dentistry to deal with the more difficult, complex and challenging cases faced and in this age of increasing litigation a practitioner needs to make decisions on a daily basis as to what treatments he or she decides to undertake for a patient and what to refer.

For instance, a very common complaint arises when a general practitioner undertakes a molar endodontic therapy for a patient, places a crown on the tooth, charges the patient accordingly and the patient pays the fee assuming the problem has been rectified. Within several months however, the tooth becomes painful again, the patient returns to the dentist and is then referred to an endodontic specialist who then charges his appropriate fee to retreat the tooth. The patient is naturally and justifiably unhappy to be charged again and complains to the A.D.A. about the initial unsatisfactory treatment, the extra time and inconvenience involved and the extra costs.

Similarly, when complex restoration involving veneers, crowns, bridges and implants is undertaken involving considerable costs for the patient, dentists must ensure that patients are fully informed and aware of the expectations and limitations involved with the treatment. So often complaints arise due to a failure some time after the restoration has been placed, such as fracturing or breakage as a result of trauma or occlusal overload, with the patient then seeking and expecting financial compensation for replacing the restoration from the original treating dentist.

These are just a few of the reasons why people complain to the ADA about their dentist. There are many more which involve unprofessional conduct, excessive fees, clinical incompetence or an arrogant or dismissive attitude of a dentist. All dental personnel must have a constant awareness of what can and does go wrong, as Murphy determined many years ago and naturally prevention is far, far better than cure. For those of you who might say, “I’ve heard that all before but it doesn’t happen to me”, be cautious as your very next patient may contact the ADA or other authorities as a result of what you do or do not do. Make sure you can always defend yourself appropriately against any accusation that may be made against you.

“To know but not do, is to not yet know”

Jim Ball (B.D.S. Adel).
A.D.A. (S.A. Branch) Community Relations Officer.  

The wisdom of Solomon

The Biblical figure King Solomon lived between 1000 BC and 931 BC. The Bible portrays him as great in wisdom, wealth and power. One of the qualities most ascribed to Solomon is his wisdom. There is a famous account demonstrating this, wherein it was said that Solomon suggested dividing a baby in two to determine its real mother. In this often-quoted passage, two prostitutes came before Solomon to resolve a quarrel about which of them was the true mother of a baby. The other’s baby died in the night and each claimed the surviving child as hers. When Solomon suggests dividing the living child in two with a sword, the true mother is revealed to him because she is willing to give up her child to the lying woman rather than have the child killed. Solomon then declares the woman who shows the compassion is the true mother and hands the child to her.

An oral surgery mentor of mine once replied to my question “Why are third molars called wisdom teeth?” with the answer “Well, in my opinion it is because you need the wisdom of Solomon sometimes to know which ones you should remove and which ones you should leave”.

jawxray

In any event, we have to say that wisdom teeth are not like Mt Everest! The celebrated mountaineer, George Leigh Mallory, is famously said to have replied to the question “why do you want to climb Mt. Everest?” with the retort: “because it is there”. Well, certainly third molars don’t necessarily need to be taken out, just “because they are there”! The decision to surgically remove or not to remove wisdom teeth is sometimes a complicated one, given the many factors which may be relevant to the decision. Fortunately, if I am proud of one thing about the dental profession, it is the universal willingness of experienced practitioners to assist their colleagues when they ask for help. Perhaps the reason for this may lie in the universal wish to help them avoid the same mistakes that they themselves may have made in their younger years!

But I digress. This article is a case report of a recent case concerning a Dental Board complaint which was lodged by the family of a young man who had presented with some anterior crowding in the upper arch. His mother was especially concerned about a buccally drifted upper anterior tooth, tooth 21.

Consent

To address the patient’s chief complaint, the dentist, Dr X, discussed various options to correct the rotated and labio-versed tooth 21. The patient stated his aversion to full fixed orthodontic therapy. Further orthodontic options were given, which were not well received. Finally the mother and the boy decided that the only acceptable option for them was to have the four impacted wisdom teeth surgically removed. They were both keen to have this done as soon as possible, notwithstanding the approaching HSC examinations.

In discussions with the practitioner, it is interesting to note the mother of the boy was advised that it was not medically or dentally necessary to surgically remove the wisdom teeth, as the teeth were not causing any pain or infection. The dentist’s advice was that it was the mother’s decision entirely as to whether to have the four wisdom teeth surgically removed. The dentist suggested that any such operation should of course be left until after the HSC exams. However, the boy stated that he preferred it to be done before the HSC as he was going on a “schoolies’ cruise” immediately after the HSC. At this consultation appointment, the OPG was displayed and the relationship between the mandibular canal and the apex of the lower wisdom teeth was demonstrated to them. At this time, the practitioner warned of the risks of the operation. He stated:

“When we take out the wisdom teeth there is a small chance of damaging the nerves to half of your face, lip and tongue, including taste. If this happens, you may end up with numbness to these areas. Whilst this may last for only three to six months, in the worst case, it may be permanent”.

The patient’s family was then given the opportunity to ask questions, and then finally signed the hospital GA consent form, which stated in simple terms that they understood and accepted all the risks of the operation and consented to it, having had the opportunity to ask questions which were answered to their satisfaction.

The procedure

Some two weeks later, the operation was carried out under in hospital under general anaesthetic. The surgery was uneventful as they were routine surgical extractions in a young patient with minimal bone removal. No tooth division was necessary. Regarding the removal of tooth 48 (the tooth in question), the dentist raised a standard envelope flap, removed some buccal bone with a surgical handpiece under saline irrigation, after which the tooth was then elevated out quite easily using a Coupland elevator. Two silk sutures were placed over the wound. The patient was discharged with oral antibiotics and anti-inflammatories.

Post operation

The practice (a member of the staff) called the patient the following day but was unable to speak to him and so left a message on the home phone. The patient returned the call subsequently and attended for review four days later. The sutures were removed. Whilst there was no sign of any infection, the patient reported “tingling and numbness” on the right hand side of his tongue. It was noted that there was no numbness associated with the lip, chin or face. The dentist considered that the numbness was likely to be temporary, and he informed the patient that this was most likely due to the post operative inflammation around the lingual nerve. The dentist reassured the patient and his mother that the sensation would likely return in three to six months as explained prior to the surgery.

One week later, the patient attended reporting that the numbness had improved since last time. The dentist noted that there was normal sensation in the region of the anterior distribution of the nerve. This reinforced his view that sensation would continue to improve and was only due to post operative inflammation around the lingual nerve.

A subsequent review appointment was made three months post- surgery but this appointment was never kept.

The Dental Board complaint

The mother of the patient lodged a complaint with the NSW Dental Board. In the complaint, she stated that she had subsequently sought a second opinion from an Oral Maxillofacial Surgeon, and that opinion seven months post operatively was that the numbness suffered was permanent. In the complaint, the mother stated that her son had missed a “window of opportunity” to have the nerve surgically rejoined, which she had learned was a period of some four to six weeks. She further stated that at no time was she informed by Dr X that the numbness was permanent.

In response, Dr X countered that the patient was seen five days post-operatively, and again one week later. At this second post-op visit, it was noted that the numbness had improved about 30% since the last visit. This reinforced Dr X’s view that the numbness was due “to the post operative inflammation around the lingual nerve” since there was normal sensation in the anterior region of the nerve distribution. The patient was then seen again some three months post operatively. Dr X’s practice also called the patient to review progress on a couple of occasions within this time period. In relation to the mother’s statement that she had not been informed that such injury might be permanent, Dr X countered that this very possibility had been explained to them on the initial consultation prior to the surgery.

The Board referred the matter to the Dental Care Assessment Committee for investigation. The matter was referred to an experienced independent assessor, who was critical of Dr X’s management, stating:

’….if recovery had not been noted within a four week period, further evaluation of the injury was warranted…..the opportunity to evaluate the injury should have been given to the patient through timely referral and in this regard I find the required knowledge of nerve injury management was lacking in our colleague. The risks and benefits were not for him to decide upon and timely referral would have been the correct procedure…..It is my opinion that Dr X underestimated the nerve injury and appears to lack appropriate knowledge as to nerve injury physiology and prognosis…..On the challenging subject of prolonged paraesthesia and nerve repair, I believe that Dr X has to update/revise existing knowledge relating to the treatment of neural complications.”

The Committee was further critical of Dr X’s decision to remove the teeth, stating that there was little or no evidence to support the notion that third molars contribute to crowding particularly of upper teeth, and that he should at least have sought a second opinion prior to making a final decision. The Committee further opined that, far from acceding to the patient’s subjective choice if he wanted the wisdom teeth removed, the dentist had every obligation to refuse treatment if there were grounds for doing so, as they felt there were in this case. They were also critical of the decision not to refer on when the patient experienced post operative numbness.

The Committee recommended to the Board that Dr X refund his fees and undertake a refresher course in “applied anatomy”, to be determined by the Board. They called Dr X to a meeting of the Board where they would be considering whether this matter constituted “unsatisfactory professional conduct.”

The Board hearing

Dr X, with the assistance of the DDAS Peer Advisor, had prepared a Statement to be read out to the Board. Dr X stated his case and was able to explain his treatment decisions. He gave evidence that, rather than ignoring the paraesthesia, there was quite a reasonable follow up of the patient after the surgery. He restated that he was of the view at the time that the paraesthesia would continue to improve and therefore deemed that no referral to a specialist colleague was necessary. However, Dr X did acknowledge that he had learned from the experience and he now recognized that he should have referred the patient for timely investigation in regard to the paraesthesia within the first few weeks.

Dr X was subjected to what could only be described as a barrage of questions from a number of the Board members. The questions included his understanding of the path of the lingual nerve. He was asked to describe his surgical technique in this case. He was questioned about the appalling timing of this operation, shortly before the HSC examinations. He was asked whether in his opinion that the teeth needed to be removed at all. He was informed that literature reviews since 2000 have consistently stated that there was no evidence of a connection between wisdom teeth and upper anterior crowding. When asked why he had delayed referring the patient to a specialist surgeon, Dr X said that it was his training as an undergraduate (less than 10 years experience) to allow some three to six months for these injuries to repair. Dr X was able to quote a study which indicated that such injuries usually resolve over this time period and that surgical intervention was not required. The response of the Board to this was that this study was now considered to be out of date and the knowledge in this area had changed.

After considering their verdict, the Board resolved that the complaint did not raise issues of unsatisfactory professional conduct, and therefore dismissed the complaint. However, they issued Dr X with a strong reprimand. On one hand, the Board said that they accepted that Dr X had provided options for treatment. They accepted that in the circumstances of the case that it was not outside the parameters of accepted treatment that such surgical removal should be or could be performed by a general dental practitioner. They were of the view that the complaint was not about a lack of surgical skill nor was there any statement from the independent assessor that an inappropriate incision or surgical technique was used.

However, the Board commented that Dr X needed to be aware of the following:

  1. That the timing of the operation, coming just before the HSC, was appalling and should have been avoided, notwithstanding the patient’s direct request.
  2. That in such a situation, it would have been better if Dr X, as a relatively inexperienced practitioner, had sought a second opinion from a more experienced colleague before deciding to go ahead with the procedure given the circumstances of this case.
  3. That is was not only appropriate to refuse to carry out the treatment for the patient, but that Dr X should accept that he owed the patient the professional responsibility of not performing a procedure that he didn‘t feel was or might not be in the patient’s best interests. The Board stated that this was especially the case when considering surgical treatment where there was likely to be little benefit for the patient.

In saying this, there is always the decision to be made that the benefit of the treatment outweighs the potential risk. Whilst in this day and age this is indeed in part a consumer’s right to decide, it is behoven upon all practitioners to accept that sometimes no treatment may be the best treatment in situations where there is little or any benefit likely to be gained by carrying out any given procedure.

The Board made reference to the 2002 annals of the Royal Australasian College of Dental Surgeons, and that Dr X, as a Fellow of the College, should study four articles published therein. I have taken the liberty of locating those and some additional relevant articles and have included these as a reading list at the end of this article. They are available through the ADA NSW Library. Members can contact the Librarian, Gael Ringuet on 8436 9960.

Comment

Lingual nerve injuries present one of the most compelling dento-legal issues. The issue stimulates intense debate. Reports from previous studies have indicated a large variation in the incidence of nerve injuries ranging from low of 0.6% to a high of 22%. In general, studies from the UK have indicated a higher incidence of lingual nerve injuries than those from the US or Australia. This has been attributed to the technique of raising lingual flaps[3] and the popularity of the lingual split technique. Some oral surgeons believe that damage to the lingual nerve, of itself, indicates negligence in the procedure. However, the majority of oral surgeons consider that lingual nerve damage can happen in the most competent of hands, but is less likely to happen in the hands of a skilled and experienced oral surgeon. Certainly the experience of the DDAS is that such injury does occasionally happen in the very best of hands, and for reasons which are not clear to the operator.

There is considerable evidence that the lingual nerve is variable in its size, shape and course. All clinicians working in this area must assume that the nerve is very close to the lingual plate of bone and the gingival margin of the lower third molar. In a comprehensive study of 34 dissections and 256 cases of mandibular third molar extractions[2], 17.6% of lingual nerves were at the level of the alveolar crest, or higher! The study found that 62% of lingual nerves contacted the lingual plate of the lower third molar. These data provide sobering evidence that the lingual nerve is highly vulnerable in this area, endangered so frequently during routine third molar surgery.

Nevertheless, general dentists and specialists alike usually express complete surprise at the lingual nerve being damaged, despite the use of standard, accepted techniques. In light of the uncertain occurrence of this complication, the duty to warn is paramount. Ask yourself – what would a patient want to know about this? Would you want to hear about absolutely every possible unfortunate sequelae, no matter how minor? I would suggest no. Would you want a lesson on the path and morphology of the lingual nerve? Maybe perhaps. But in reality most patients would want to know what may happen and what they will feel like if it does happen. Leggatt[8] has suggested the following warning:

“The lingual nerve supplies sensation to the front two thirds of your tongue. You have two of them, one on either side. Occasionally, they can be damaged during extraction of your lower wisdom teeth by instruments coming into contact with the nerve. This can cause temporary or even a permanent change in or loss of sensation to this area. This means that you could have a numb tongue for the rest of your life. There is a small risk of this happening. That risk could be further reduced if you wish to consult an expert Oral Maxillofacial Surgeon.”

Obviously, the last part is for general dentists only, but again this stresses an important point. As a patient, is it not reasonable to know that there are specialists who can do the same procedure? To quote Leggatt[8] again:

“This is at the core of most dental and medical litigation. Most patients with a damaged lingual nerve understand that mistakes can happen. What they do not readily comprehend and have difficulty in accepting is the feeling of being lied to. Of not knowing that this is a recognized complication. Of not knowing that there were specialists who could have possibly reduced the risk.”

In the Board case referred to above, the Board was critical of the lack of a written warning. Dr X relied on verbal information and referral to a website. He was told by the Board that this was inadequate in this day and age and that it was the standard of care to provide such warnings in writing. Therefore dentists should consider having the patient sign a form acknowledging the warning provided as part of the consent process.

On this note, the DDAS often receives requests for a “pro-forma” consent form that will provide dentists with complete protection against such complaints. There is no such thing. In the words of Prof. John de Burgh Norman, informed consent “is a process, not a form”. The issue is to communicate with the patient so that they can accept what has happened to them if their lingual nerve is damaged.

The DDAS Peer Advisors can be contacted through our office Coordinator, Katherine O’Sullivan, on 8436 9944. We are available at any time to discuss this and the other many issues which arise during the day-today running of a busy dental practice. We look forward to speaking to you!

Dr Roger Dennett (Peer Advisor)
Dental Defence Advisory Service, ADA NSW

 

Bibliography – Third molar and nerve injuries – Annals of the RACDS 2002.

[1] The effect of orthodontic treatment on third molar space availability: a review.
Sable Daniel L
School of Dental Science, University of Melbourne, Victoria.
Annals of the Royal Australasian College of Dental Surgeons ( Australia )   Oct 2002 ,   volume 16 pp156-157

[2] Anatomy of the lingual nerve in relation to possible damage during clinical procedures.
McGeachie John K
Oral Health Centre of Western Australia. johnmcg@anhb.uwa.edu.au
Annals of the Royal Australasian College of Dental Surgeons ( Australia )   Oct 2002 ,   volume 16 pp109-110

[3] Nerve injuries following the surgical removal of lower third molar teeth.
Rix L
Department of Oral Surgery, United Dental Hospital, Dental Faculty, University of Sydney.
Annals of the Royal Australasian College of Dental Surgeons ( Australia )   Oct 2000 ,   volume 15 pp258-60

[4] What is the future of third molar removal? Removal of impacted third molars–is the morbidity worth the risk?
Woodhouse B
Annals of the Royal Australasian College of Dental Surgeons ( AUSTRALIA )   Apr 1996 ,   volume 13 pp162-163

[5] What is the future of third molar removal? A serious presentation for not performing the removal of third molars.
Sinclair J H
Annals of the Royal Australasian College of Dental Surgeons ( AUSTRALIA )   Apr 1996 ,   volume 13 pp158-161

[6] What is the future of third molar removal? A critical review of the need for the removal of third molars.
Anker A H
Annals of the Royal Australasian College of Dental Surgeons ( AUSTRALIA )   Apr 1996 ,   volume 13 pp154-157

[7] The mandibular infected buccal cyst–a reappraisal.
Thurnwald G A; Acton C H; Savage N W
Royal Brisbane Hospital, Australia.
Annals of the Royal Australasian College of Dental Surgeons ( AUSTRALIA )   Apr 1994 ,  volume 12 pp255-263

[8] The legal implications of lingual nerve injuries.
Leggatt David
Phillips Fox, Melbourne, Victoria.
Annals of the Royal Australasian College of Dental Surgeons ( Australia )   Oct 2002 ,   volume 16 pp115-117

The second dentist and patient dissatisfaction

There is little doubt that in this day and age, patients are becoming “clients”. Consumerism is on the rise, and “dental practices” are often seen and referred to as “dental businesses”. This is associated with a diminution of the perceived professionalism of the practitioner, with the result being an increase in the likelihood of a patient compliant. If one is lucky, your patient will bring their issue(s) to you, the practitioner, in whom they have placed their trust. However, when trust is gone and respect gone with it, then a patient becomes a consumer and is far more likely to lodge a complaint.

Complaints can go in a number of directions. Whilst the time honoured facility of complaining civilly by alleging negligence through the Courts is still being used by unhappy patients, a growing trend for many complainants has been to involve the Consumer Complaint Tribunals, such as the Health Care Complaints Commission (HCCC), the Dental Board and of course in NSW the Consumer Tenancy and Trader Tribunal (CTTT). Such complaints cost a patient very little in money and little more in time, and often pressure is brought to bear on the practitioner in such jurisdictions by the powers that be. There is sometimes the expectation that if treatment has not had a positive outcome, then the practitioner should refund the cost of the treatment.

As always, the decision to financially assist a patient should turn on the merits of the case. There is no absolutely right or wrong approach which can be universally applied to all situations. Rather, there are possible avenues that may be worth exploring in most cases to settle a grievance before such dissatisfaction becomes a claim. The three cases below highlight how the outcomes that exist for settlement of grievances may be affected by the comments or actions of the “second” dentist.

Case #1

A dentist contacted the DDAS wanting advice as to how to settle a dispute with a patient. The DDAS recorded the following complaint history: “Dr X saw an EPC Medicare patient who initially presented in February 2005 with an RCT which had already been started on the #21. Dr X finished the treatment and subsequently performed another two RCT’s (teeth #35 and 46) and issued 3 crowns (teeth #25, 35, 46) some three years after the initial treatment. About one year later, in February 2009, the patient was in pain and could not get an appointment to see Dr X, so saw another dentist, Dr B. Dr B allegedly informed her that the crown margins on one of the crowns were deficient. She is now unhappy with the crowns.”The patient saw the “second” dentist, Dr B, who had concerns about the standard of some of the endodontic work carried out by Dr X. He referred the patient to an Endodontist, with a request for the work to be assessed. Dr B noted that tooth #21 had been veneered with a porcelain veneer, subsequent to the root canal treatment.

The Endodontist reported to Dr B: “The initial intra-oral examination revealed gingival inflammation at the cervical margins of the anterior veneers. A grey discolouration of the clinical crown was noted . . . The pre-operative radiograph revealed an adequate root filling in situ with no obvious periradicular deterioration. Diagnostic testing was within normal limits and no tenderness to percussion or palpation was noted.” As no definite endodontic diagnosis could be made at the time of consultation, no treatment has been initiated or is indicated. (The patient) requested that I take a radiograph of teeth #35 and #36.

Although no obvious apical pathology was evident, a deficient crown margin at tooth #35 was noted. She has been referred back to your office for ongoing management…..” The patient was referred back to the original dentist Dr X by Dr B. Dr X referred the patient to a Prosthodontist for an opinion on the treatment he had carried out. The Prosthodontist reported on the patient’s condition in March 2009:

“The patient required assessment of previous treatment provided by you on endodontically treated teeth including teeth #21, 25 and 46. The patient expressed concern regarding the reasons for having root canal therapy in the first place. She could not understand why she required such extensive treatment as she felt that her oral hygiene was very good. As you are aware the patient has now seen three other dentists for a second opinion regarding the quality of the crowns placed by you over the years. She has had varying opinions regarding this, with some stating that the crowns required replacement due to inadequate fit.

Intra-oral examination revealed adequate oral hygiene with minimal interproximal plaque, apart from teeth #21, 25, 36, 35 and 46. There was a Class 1 incisal relationship with 30% overbite and 3 mm overjet. Anterior guidance was noted on the right lateral mandibular movement and group function was noted on left lateral mandibular movement due to wear of the canines. Centric relation was not coincident with centric occlusion, with a minor slide of less than 1 mm from CR to Co. There was moderate tooth wear, isolated to teeth #17 and #13.

Assessment of individual teeth noted a PFM crown on the #25, 36, 35, 46 plus porcelain veneers on #11 and 21. An OPG radiograph noted endodontic treatment on teeth #21, 25, 36, 35 and 46. Radiographic assessment also noted possible pulp capping of tooth 17, to which the patient alluded at our initial discussions.

Careful assessment of indirect restorations noted restorative overhangs on the buccal aspect of #11 and 21, mesio-palatal aspect of #25, buccal of #35 and disto-bucaal aspect of 46. Soft tissue irritation with bleeding upon probing was noted related directly to plaque accumulation around these overhangs. Caries was noted around the mesial aspect of #37, requiring immediate attention and careful probing of the margin around the #36 noted possible caries on the distal aspect as well as the disto-lingual and mesio-lingual aspects of this particular tooth. The same was noted on the distal aspect of the #35 and radiographic assessment of these teeth noted open margins/caries on the distal aspect of #35 and 36.”

Subsequently, the patient saw another general dentist who provided a plan of treatment which included the following:

  • Retreatment of RCT @ #21, including lengthy dressing with calcium hydroxide
  • Retreatment of RCT’s @ #35 and 36 and placement of 2 crowns
  • Placement of new porcelain restorations on teeth #16 and 26
  • Recontouring of restorations @ #11, 25 and 46
  • Provision of an occlusal splint
  • Ongoing preventive/hygiene maintenance

The fees quoted for this retreatment were over $13,000.

The DDAS Peer Advisor was of the view that some of the work was not of a reasonable standard, and was supportive of the preference of Dr X to settle the matter early on the best terms possible. Early action to bring some certainty and finality in this case was indicated if it could be achieved.Perhaps somewhat surprisingly, the patient accepted the offer of Dr X to settle the matter by refunding Medicare the total cost of the two crowns that would require replacement. Initially, the patient herself sought a direct personal refund, but given that she had paid nothing out of her own pocket, this was not appropriate.

The DDAS provided the member with a Deed of Release to assist with the refund. The refund was provided to Medicare with a request to apportion the refund against the patient’s account. A Deed of Release is a simple legal document which, once signed by the parties, confirms the resolution of the patient’s dissatisfaction and provides some certainty to both parties moving forward. The resolution of the case in this fashion was certainly an excellent outcome for the practitioner Dr X.

What if?

What were the alternatives in this matter for Dr X? Firstly, as the patient was a Medicare EPC patient, had she wished to make a formal complaint, the likelihood of her engaging a solicitor and alleging negligence was not the strongest possibility. Indeed, it would have been considerably more likely that she would have logged a complaint with either the Health Care Complaint Commission (the HCCC) or the Dental Board. Given the abundant and clear evidence in the case which was available to the DDAS Advisor, he opined that if the matter were to go to the Dental Board, the Board would likely have been critical of the following:

  • Crowns at #35 and 36 with deficient margins and this within a year of being placed.
  • All root canal therapies being performed without rubber dam isolation.
  • Inadequate treatment planning and documentation.

Comment

Time and time again, the issue of dental records comes up in cases such as this. We all know that it takes time to generate good clinical records. However, when things go wrong, so often we see that inadequate records generally reflect inadequate treatment, and this is the view taken by Courts and solicitors alike.

The Dental Board has minimal requirements for dental records and so for failings in this area, ignorance is no excuse. Of course the Board requirements for records are only a minimum standard and any self respecting practitioner should look upon them as such. Remember that your clinical records are evidence to support your side of the story, and a lack of appropriate information in the records leaves you in a difficult position as to defending your treatment.

Dr X sensibly decided that he would not wish to come before the Dental Board in such a matter, which is where many Medicare EPC complaints end up. Indeed, the DDAS, like the Dental Board, has experienced a considerable increase in complaints over the last year or so, and much of this increase is associated with Medicare EPC complaints. There is every chance that, if the Board had to consider a complaint from the patient, not only would a full refund of fees been ordered, but also the practitioner would likely have been found to have been guilty of unsatisfactory professional conduct and been asked to undertake refresher courses in Endodontics and treatment planning, with the possibility of having a practice restriction placed limiting the dentist’s rights to provide endodontic treatment pending further assessment or approval from the Board after the completion of the necessary coursework as approved by the Board.

Direct negotiation with a dissatisfied patient, as difficult as it might be, is usually preferable to having to deal directly with a Dental Board complaint.

In Dr X’s case, due to the dentist’s timely response, there was no Dental Board complaint and the DDAS provided a Deed of Release which the patient duly signed.

Of course, this case is noteworthy for the level of respect and cooperation achieved between the dentist, other general dentists and specialist colleagues. At no time was there any direct criticism of the dentist subsequently by the other practitioners involved in the case. There was certainly full and frank disclosure of all relevant details by the subsequently-consulted dentists which was evidence of a high level of communication and trust.

Sadly, however, so often this is not the case. Time and time again at the DDAS we hear of patient’s disquiet and subsequent decision to complain after comments alleged to have been made by the “second dentist”. Dentists need to be on the alert so that, when asked to give an opinion on treatment that has not had a satisfactory outcome, they do not comment on the standard of care of the treatment provided by another.

In saying this however, it is important to realise that our patients pay well for our services and care, and we should not turn a blind eye to problems which exist. All patients at all times are owed a proper and professional diagnosis. A clear discussion with the patient with explanation and co-discovery of problems that are apparent at the time of consultation are what we should be considering if we find ourselves being in the unenviable position of “the second dentist”. Some recent case examples with which the DDAS has been involved are illustrative.

Case #2

The patient attended for routine restorative treatment on some posterior teeth. Deep caries was removed, linings placed and the teeth restored. There were no pulp exposures evident. However, the dentist warned the patient that, due to the extent of the decay present, there was a chance that further treatment might be required and that if the teeth became painful, they should contact the practice.

Some six months later, the patient had pain emanating from one of the teeth treated. As her usual dentist was unavailable that day, she saw a second dentist who took a radiograph, diagnosed irreversible pulpitis and recommended RCT or extraction. The patient chose to have the tooth extracted.

When she asked why this had happened on a tooth recently restored, the second dentist advised that it was due to caries being “left behind” under the restoration. The patient was upset, not surprisingly, and obtained a copy of her records with the second dentist. She also requested to keep the tooth. Subsequently, she took the tooth and the records to her usual practitioner to show her.

The first dentist was somewhat flabbergasted at the claim voiced by the patient that she had “left decay behind”. A radiograph was obtained of the extracted tooth which showed no caries under her restoration whatsoever! In this situation, obviously the tooth was exhibiting the common signs of pulpitis and pulpal death. As we all know, many posterior teeth with a long restorative history will ultimately require endodontic procedures if they are to be saved in the long term, and this is often associated with an extensive caries history, rather than the perfectly fine restoration which is placed.

Above all else, practitioners should remember not to falsely criticise others in an attempt to justify the treatment they are recommending. No dentist looks ‘bigger’ in a patient’s eyes by making the previous dentist (in whom the patient has placed their trust) look ‘smaller’.

Case #3

A dentist was contacted by a patient from interstate who was visiting relatives in town. The patient had a crown on an upper central incisor tooth come out, and wanted it recemented. The dentist who saw the patient noted a small crack in the root face of the incisor which supported a post crown. He also noted a periodontal pocket on the distal aspect of the root. A radiograph was taken which showed that there was a fractured file remnant in the apical third of the root and a distal perforation of the root at the level of the post end.

The dentist discussed the problem with the patient who didn’t appear to show any concern for the clinical problems. She simply demanded that it be recemented and she would worry about it when she got home.

In fact the patient did not worry about it when she got home! Some 15 months passed before the tooth became painful. Now living in a different town, she attended a local dentist. She recounted that she had some work done when visiting relatives a year or more earlier. The new dentist took a radiograph and, it seems, saw an opportunity to criticise:

“Well, we’ve certainly got a problem here! We have a fractured instrument in this tooth and a crown with a post coming out the side of the root! I’ve seen better work done by students – Vet students! You’ll have to have it taken out and replaced with an implant. Very expensive! But do you know what I think? I don’t think you should have to pay for it! Do you?

In the case mentioned above, the last dentist only saw the patient as an emergency patient. He was not the dentist who did the suspect work!

Sadly, some dentists are expert at being the ‘second dentist’. Don’t let this be you! If you come across a case where work done recently is going to need to be replaced, ask permission from the patient before contacting the previous dentist and research how things have got to this point. Point out the clinical problems that exist in a calm manner without criticising others. Remember that one day you may be in the position of having your work criticised by others so be honest with the patient and fair to your colleagues.

In every such case, an early discussion with a friendly DDAS Peer Advisor can provide reassurance and assistance as how to approach a patient if you feel that they have recently had substandard work done which you feel will require replacement.

By Roger Dennett (ADANSW)

Complaint management – handling the dissatisfied patient, part two

In the first part of this article we discussed the philosophy of containment in risk management, reasons why patients complain, the possible avenues of complaint available to patients and some sensible strategies to adopt when managing a complaint. In this second part we provide a rationale behind some of the strategies recommended and look at three common scenarios and the thought processes to apply when considering how to manage the situation.

General strategies for complaint management

Acknowledge the complaint

  • When people get a response to their complaint, they often see this as a sign that their concerns are being taken seriously. Ensure that you or another senior person (such as the proprietor of the dental practice) handles the matter to reinforce the message that the issue raised is important to you.
  • Acknowledge their concerns and experiences, and take responsibility for what happened. This can immediately take some of the “heat” out of the matter. Assure them that their grievance concerns you and It’s important to remain calm but firm – there is no point getting involved in a slanging match, but neither should you put up with abuse. Hopefully the patient will feel better for venting their feelings and you’ll have gathered further information.
  • Give the person a clear time frame in which the complaint will be addressed and the contact details of the person involved. This buys you time to obtain professional advice.
  • Outline the plan of action for investigating and responding to the complaint.

Try to resolve the complaint directly with the complainant

  • It may not be possible in all complaint scenarios but, where it is, invite the person who made the complaint to talk directly. While you may not feel at ease with this approach it presents an opportunity to clarify the issues and the desired outcomes.
  • Not everyone writes beautifully and with clarity. It may be difficult to glean the reason for the patient’s dissatisfaction from their written contact with you. Many people will greatly value the opportunity to talk about what happened and give their point of view and this can be immensely beneficial for you in structuring your response.
  • If you’re fortunate enough to reach a resolution at this stage, confirm the agreed action with the complainant in writing.

Be aware of differing views of what happened and what was said

Communication is at the heart of many complaints. The dentist and the patient may have very different perceptions and understandings about what happened and what was said. Reasons for this could include:

  • Patients in the health care environment often feel vulnerable and may not process information properly.
  • The dentist assumes that their information or explanation has been clear when in fact the patient or their family may not have understood it at all. The extra time taken to ensure the information has been understood is time invaluably spent.
  • Confusion may arise as the patient seeks information from other sources which may conflict with that given by you. Such information may come from other practitioners, the opinions of other people, media organisations or even “Dr Google”.

Who is telling the truth?

  • If the whole issue swings on factors of communication and perception the “truth question” might not be of relevance. In your initial management acknowledge that there are differing accounts or points of view and, in particular, don’t be dismissive of the complainant’s point of view.

The perception of a cover-up

  • Many patients believe that descriptions of incidents and conversations would be included in their treatment records. If there is no record of an incident or a conversation they may form the opinion that records have in some way been tampered with or that there is an element of cover-up. The recording of conversations should be factually correct and not contain any inflammatory or derogatory comments and it’s important to train your staff to record professionally. It’s also important that you don’t record advice obtained from your professional advisors (including lawyers) in the clinical By all means record the advice you’re provided but this should be done on a separate document and form part of your business or legal record. Remember that everything you record in the clinical record may be revealed to the patient under our National privacy laws.
  • Many complainants also form the view that their point of view won’t be listened to and that staff in a practice will simply stick together and defend each other. Your early responses when a complaint is received need to, where possible, leave the complainant comfortable that due process will be followed.

Reassure the complainant

  • It’s not easy for many people to complain. Often they’re worried that in doing so there’ll be some kind of negative consequence for them and/or their ongoing care. Reassure them throughout the complaint handling process that this isn’t the case.
  • Ensure the complainant isn’t victimised or discriminated against as a result of making the complaint.
  • Reassure that the complaint will be kept confidential and only broached with those necessary for its investigation.

Have a complaint handling mechanism already in place

  • Evidence suggests that effective complaint handling and resolution decreases the risk of a directly-made complaint proceeding to legal action.
  • Responding is easier if you already have your system in place. You should institute a mechanism by which complaints are welcomed, received, acknowledged, investigated and resolved.
  • Advise the patient about your intended management of the matter and stick to that plan of action.

Let’s consider a few common scenarios.

The patient who refuses to pay

The rules and laws of society dictate that payment must be made in return for services rendered. Although there are procedures available for the recovery of debts, you should think carefully before instituting proceedings. One of the key questions to ask is: Why has payment not been made? Is the patient:

  • In financial difficulties?
  • Disputing the bill?
  • Dissatisfied with treatment?

Only pursue payment formally if you’re confident the resources exist and you’re prepared to expend the time in obtaining a judgement against the debtor. If finances are clearly not available then there is little point in commencing formal action. Perhaps you could arrange for payment to be made in instalments or, at worst, write off the debt. All of these options assume, of course, that the debtor accepts that he or she is responsible for the debt in the first place.

If the bill is in dispute, discuss the person’s concerns and explain your fees and charges in more detail. Sometimes discounting the bill may be the simplest way of resolving the matter, bearing in mind that clients are an important referral source and may choose to complain elsewhere if a satisfactory outcome isn’t achieved. Pre-treatment quotations should avoid this dilemma.

If the patient is dissatisfied with treatment, pursuing payment of outstanding fees is a recipe for further grief and should be avoided.

The patient who has made a court claim of negligence

Before you embark on a defence of a negligence claim you should take account of the following issues:

  • If a claim is filed in court, it’s open to the public and can attract media attention. It is impossible to predict what the media will report and much depends on the facts of the case and whether it’s a “slow news day”. There is no doubt there will be a greater chance of negative publicity in local and regional newspapers. Ordinarily it’s cases involving allegations of sexual assault upon patients or serious injury due to negligence that attract media attention. If scheduled for court your name will appear in the “court list” at the back of the newspaper or on the relevant court webpage with other scheduled actions. No other detail is published. However, anyone can enter a court room and view proceedings. While there is no guarantee against publicity, the risk will be greatly diminished by an out-of-court settlement.
  • Defending a negligence claim can take an enormous amount of time. This includes time to report to your insurer; time to instruct your lawyers; time to comment on the allegations against you; time away from your practice and family; and time in court if the matter proceeds to trial. While the majority of cases are settled before they reach a courtroom, those that aren’t cause considerable anxiety for the participants and their families.
  • Settlement terms. A settlement doesn’t necessarily mean an admission of liability. In order to make clear the balance between principle and the necessity of a settlement for commercial or other purposes, settlement documents can be drafted to protect your position with respect to admissions, future claims and confidentiality. It is not uncommon for cases to settle without any admission of liability on the part of the dentist and with an agreement that the terms of the settlement will remain confidential.
  • Obligations to professional organisations. Make sure that you know what your responsibilities are with respect to your registration, your governing body and your insurer.

The patient who requests a refund

The main reason a refund or other payment is offered, or demanded, is usually in circumstances where some unexpected and untoward mishap or misunderstanding has occurred during treatment, and the incident risks escalating into a serious dispute between the parties. This, of course, doesn’t presuppose that the problem can be attributed to either the dentist or the patient, because in most situations the question of fault shouldn’t be a factor, only that the best solution is to resolve the matter as promptly as possible.

Whether we should or should not refund is a decision that’s usually best made by the involved practitioner. When all issues are considered it is what is best for the practitioner’s peace of mind, and what’s in the best interests of the long-term reputation of the practice, which will prove to be important when making the final decision. As well, there’s the always present concern for the patient’s welfare.

And again remember: a refund or other assistance is not in any way an admission of liability. It’s purely a goodwill gesture.

Most untoward incidents fall into one of the following categories, and an agreement to refund needs to be considered in the context of which category applies:

  • Where it’s likely that the incident is negligent. An example would be the extraction of the wrong tooth and the patient is harmed or disadvantaged by the error.
  • Where the untoward outcome is a foreseeable complication of the procedure. Examples include fracture of endodontic files and paraesthesia subsequent to third molar surgery. These are not necessarily negligent provided the patient was warned of the risk before treatment, the treatment was performed competently and the patient was advised immediately after the adverse event occurred.
  • Where the dentist considers that the patient’s dissatisfaction is because of unacceptable patient expectations. In cases where the dentist is not in any way responsible for the patient’s dissatisfaction, the decision to refund fees would be made purely on the basis of expediency and to avoid further complications.

The decision as to how to act ultimately rests with the practitioner. That does not mean, however, that you should not seek the advice of your ADA advisor and your insurer. If a decision is made to refund it’s important that the appropriate document is drawn up (examples include a Letter of Offer and a Deed of Release) and for this you should seek assistance.

Certainly, however, there are times when the “commercial decision” is not appropriate. It is not being advocated here that the practitioner should never defend the principle, or always accede to a patient’s demands, or immediately give up on patients at the first hint of dissatisfaction. Each matter needs to be assessed on its merits and seeking advice is a good way to help you reach your decision.

At the end of the day, dentistry is a “people business.” Personal contact with you and your team, whether positive or negative, is the most memorable aspect of dental care for patients. Any part of the interaction with the patient can become a “moment of truth” during which the patient forms an impression of the quality of care provided. How you handle the human element is at the core of how successful you will be in resolving a complaint. It all comes down to communication.

Key Points
·      Have strategies in place for dealing with complaints and involve your practice team so the approach is consistent.
·      Consider carefully why an account for treatment is unpaid before pursuing the patient to recover the debt.
·      Be aware of all of the potential issues when deciding whether to defend a negligence claim.
·      A decision to refund must be made on a case-by-case basis. The context of the refund request needs to be carefully evaluated.
·      Many complaints arise from circumstances of nothing more than poor communication.

Remember that the Peer Advisors at the Dental Defence Advisory Service are here to help you. Whether you need advice, support or just an ear to hear your concerns – we are all dentists and are happy to help in any way we can. We welcome your calls and the opportunity to assist you.

References

  • Articles prepared by the Dental Defence Advisory Service and published between 2004 and 2012 in the New South Wales Dentist Magazine (details available on request).
  • Articles appearing between 2002 and 2011 in the Australian Dento-Legal Review Magazine published annually by Guild insurance Limited (details available on request).
  • Power Point presentations prepared by Dr Roger Dennett in 2006 and 2008.
  • An audio presentation by Dr David Roessler appearing on the Dental Files Program Six disc of 2011.
  • Resource documents on the Health Care Complaints Commission of New South Wales website.

Craig Brown, DDAS Peer Advisor

Patient complaints and early intervention

 

Governments and health professionals around the world understand the importance of early intervention in the context of disease and disorder. As health professionals gain a better understanding of the aetiology of some diseases and disorders the profession necessarily focuses on prevention, early identification and early treatment. The objective is to provide a better outcome for the patient and less of a financial drain on the public purse.

The ideals of prevention and early intervention should not be limited to the clinical context. Why wouldn’t a dentist apply these sensible principals to the management of patient complaints?

Sooner or later all dentists can expect to be presented with a patient complaint and nearly all complaints have the potential to snowball. What may seem an innocuous comment by a patient could escalate into a complaint to a Dental Board or a civil claim. This can be a stressful process for the dentist. Precious time can be taken up with dealing with regulatory bodies and lawyers and outcomes can be unpredictable. There can be a sense of loss of control over the situation and immense frustration.

What this article aims to do is empower the dentist to properly manage a patient complaint. The focus is on early intervention with the assistance of Guild Insurance, your ADA and Guild Lawyers.

Incident management

When dealing with a complaint, no matter how trivial, time is of the essence. An irate patient who does not receive a prompt response may feel ignored and be more likely to take matters further. To help avoid such an outcome the following steps are recommended:

  1. Ensure that you or another senior person (such as the proprietor of the dental practice) handles the matter. This should convey the message that it is being taken seriously.
  2. Contact the patient as soon as possible. Make it clear that the grievance concerns you and listen. It is important to remain calm but firm—there is no point getting involved in a slanging match, but neither should you put up with abuse. Hopefully the patient will feel better for venting their feelings and you will have gathered further information.
  3. Do not offer compensation or mention your insurance cover. This may encourage further pursuit of a claim. Rather, inform the patient that you will investigate the matter and provide a response as soon as possible. This will buy you time to obtain professional advice.
  4. Notify your ADA of the complaint. If necessary, your ADA will in turn notify Guild Insurance and if legal advice is required, Guild Insurance will retain Guild Lawyers to provide advice.

The key is to maintain control over the situation and seek advice.

Apologies

There has been an historical reluctance to offer an apology to a patient on the basis it may be misconstrued as an admission of fault. In this regard, dentists have often harboured the concern that if they offer an apology to the patient, the patient will rely on that apology to establish a case in negligence before the civil courts.

Legislative reform across all states has put this concern to rest. Put simply, an apology is not an admission of liability. Set out below is a table referring to the legislation in Tasmania, South Australia, Victoria and New South Wales dealing with the treatment of an apology. Whilst there is variation with respect to the wording from State to State, all provide that an apology is not an admission of liability for the purpose of civil proceedings.

Tasmania

Civil Liability Act 2002 –  Section 7

Definition:
“Apology” means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, which does not contain an admission of fault in connection with the matter.

Application:
An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person, does not constitute an express or implied admission of fault or liability by the person in connection with that matter and is not relevant to the determination of fault or liability in connection with that matter.

Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

South Australia

Civil Liability Act 1936 –  Section 75

Application:
In proceedings in which damages are claimed for a tort, no admission of liability or fault is to be inferred from the fact that the defendant or a person for whose tort the defendant is liable expressed regret for the incident out of which the cause of action arose.

Victoria

Wrongs Act 1958 –  Section 14 I and J

Definition:
“Apology” means an expression of sorrow, regret or sympathy but does not include a clear acknowledgment of fault.

Application:
In proceedings in which damages are claimed for a tort, no admission of liability or fault is to be inferred from the fact that the defendant or a person for whose tort the defendant is liable expressed regret for the incident out of which the cause of action arose.

New South Wales

Civil Liability Act 2002 –  Sections 67,68 and 69

Definition:
“Apology” means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.

Application:
An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and is not relevant to the determination of fault or liability in connection with that matter.

Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

 

The effect of an apology should not be underestimated. It is the experience of your ADA, Guild Insurance and Guild Lawyers that many civil claims would not have eventuated if a carefully worded, timely and sincere apology had been provided to a patient. Very often a patient may simply feel wronged and want acknowledgement. If ignored they will often take matters further. A further reason to make an apology is that regulatory bodies tend to place weight on an apology when determining the outcome of a disciplinary matter.

Early intervention in practice

Patients need to know that their complaints are recognised and taken seriously. A prompt response and if appropriate, an apology, can go a long way towards averting an expensive and potentially reputation damaging claim.

Guild Insurance works with the your ADA and Guild Lawyers with the aim of providing you with the best legal protection and with a view to minimising damage. In order to demonstrate that objective we have set out below some case studies. Some of these case studies highlight the benefits of early intervention. Sometimes, despite early intervention, a patient will escalate a complaint and so some of the case studies deal with outcomes before Dental Boards.

Case Study 1

Prepared by Marianne Nicolle, Principal, Meridian Lawyers

This case involved an orthodontist based in NSW. The orthodontist sought legal advice when a 15 year old patient called to say that she had left home and wanted her orthodontic appliances removed because she could not afford treatment.

The orthodontist was an extremely caring professional who recognised that this was a tricky situation. He was having difficulty contacting the young patient and did not know if he should contact one of her parents. He did not know whether contacting the parents would put the young patient at risk. He knew the premature removal of the appliances would result is a less than desirable clinical outcome but he knew that he had to respect the wishes of the patient. In other words, a lot of “grey area” and not much “black and white”.

The orthodontist wisely contacted his ADA. With the assistance of Guild Lawyers the legal issues were identified: was the patient legally competent to make the decision to have the appliances removed? Would the orthodontist be breaching his duty of confidentiality and/or offending privacy laws by contacting one of the parents? Would he be criticised by his peers if he removed the appliances?

The orthodontist was advised that the law in NSW recognises that a patient as young as 15 can still have capacity to consent to treatment (or the cessation of treatment). The orthodontist needed to satisfy himself that the patient had the capacity to provide such consent. He was advised not to contact the parents but rather to send a letter to the young patient explaining the consequences of early removal of the appliances. It was advised that the letter suggest that a meeting be arranged between the patient and her parents with a view to reaching an arrangement whereby orthodontic care continued with the fees being paid by the parents. It was recommended that the letter be sent to the patient at her home address and marked “Private and Confidential”.

Within a short period of time the young patient attended the orthodontist. She said that she had “patched things up” with her family. The appliances remained in place and the parents agreed to continue to pay future fees.

When presented with a complex problem such as above it is advisable to obtain the opinion of your peers and seek legal advice. A less savvy practitioner may have simply removed the appliances and in doing faced criticism from the patient and/or parents at a later date. The early intervention in this matter arguably resulted in the best outcome for the orthodontist and the patient.

Case Study 2

Prepared by Don Grant, Senior Associate of Guild Lawyers

A 60 year old female patient of the dentist slipped and fell on the verandah when leaving the dentist’s premises sustaining an injury to her wrist. The dentist’s staff had heard a thud and found the patient getting up on her hands and knees. The patient said that she had slipped on the wet floor boards and fallen forward onto the concrete ramp. It had been raining heavily prior to the incident and the staff had noticed that the heavy rain had been blown onto the verandah at an angle by a stiff breeze. (Guild Lawyers obtained information from the Bureau of Meteorology confirming that heavy rain had fallen in the area during the day and prior to the incident). There was a question as to whether suitable non-slip matting had been appropriately placed at the time.

The patient subsequently submitted her medical treatment costs to the dentist for payment. The dentist was at all times caring and sympathetic to his patient. The dentist held a public liability policy with Guild Insurance and so at an early stage sought advice from his insurer. Whilst it was debatable as to whether the dentist carried a legal liability for this incident it was considered prudent by both the dentist and his insurer that the patient’s relatively small claim for medical out of pocket expenses (radiology, medical and surgical consultations) be paid. The most recent advice from the patient’s surgeon is that he considers it unlikely that there are any foreseeable problems on the horizon.

In the result the dentist’s clear concern for his patient’s wellbeing following an injury sustained at his premises – a concern that was appreciated by his insurer – saw a satisfactory outcome all round. Significantly, the patient did not make any formal claim for compensation.

This dentist followed the rules of early intervention. He dealt with the complaint in a direct manner with the patient. He showed concern whilst not admitting that any failure on his part caused the patient to slip and fall. He sought advice at an early stage. As a result he has maintained a good relationship with his patient and avoided what could have been a long and costly dispute over the cause of the patient’s fall and the nature and extent of her injuries.

Case Study 3

Prepared by Caroline Tuohey, Solicitor of Guild Lawyers

This case involved a dentist in Victoria who was working as an independent contractor with a ‘boutique’ cosmetic dentistry practice.

A patient made a complaint against the dentist to the Dental Practice Board of Victoria (the Board) in connection with the placement of upper and lower veneers. The patient was unsatisfied firstly because the veneers repeatedly failed and secondly because the practice owner refused to accept any responsibility and told the patient to find the individual dentist himself to make a complaint.

The Board alleged that the dentist had engaged in unprofessional conduct on a number of grounds relating both to her treatment of the patient and that her dental records were not compliant with the Board’s Code of Practice on Dental Records.

Specifically, it was alleged that the dentist failed to record her diagnosis and that photographs taken were not maintained with the record.

A practitioner has a professional obligation, in accordance with the Board’s published Code of Practice, to record (at a minimum) the prescribed information set out in the Code. Relevantly to this practitioner, it was alleged she failed to record the diagnosis she had reached, and failed to keep the clinical photographs with her treatment records.

The practitioner was able to direct the Board to a brief reference in her notes of what she says was her diagnosis. She was also able to explain that the photographs were kept in a separate location within the clinic, but cross-referenced against the patient’s record.

Importantly for the dentist, her records were otherwise not criticised. They were computerised and otherwise very detailed, making it clear to the Board that she had taken a detailed history and consulted extensively with the patient during the treatment process.

Whilst computerised records are not mandatory, they do greatly assist a practitioner in cases where the records are being scrutinised by the Board. Practitioners ought to bear in mind that

whilst they may have explained their diagnosis with the patient, it is a requirement that they document this in the treatment record.

Whilst there was an adverse finding made against the practitioner’s treatment, there was no adverse finding about the dental records. The Board did not pursue this allegation once it had the benefit of the practitioner’s explanation.

Interestingly, the Board expressed concerns about the practice manager’s conduct in refusing to assist the patient. It was felt that notwithstanding the dentist was a contractor, to a member of the public the services were performed by the practice, and a patient should not ‘fall between the cracks’ of the practice and the dentist when seeking to have a complaint addressed.

Case Study 4

Prepared by Fiona Dransfield, Principal of Guild Lawyers

For the dentist, responding to a complaint to a Dental Board, can be a time consuming process. One such example is a complaint to the Dental Board of New South Wales (“the Board”), by the daughter of a former patient in relation to the provision of dentures.

The treatment in question was provided over a number of months in 2008. The patient attended upon referral from his general medical practitioner under the EPC Medicare Scheme. At the first appointment, the patient was examined and advised that his options were to have a cobalt chrome or acrylic dentures. The patient elected to have upper and lower cobalt chrome dentures. Subsequently, over a number of appointments, upper and lower impressions were performed and sent to a dental laboratory. Thereafter, the dentures were tried in, adjusted and issued.

Within a day of the dentures being issued, the patient presented complaining of experiencing pain, that the dentures were cutting his tongue and that he was bleeding. Upon objective examination, the practitioner could not detect any lesions present. However, the patient remained unhappy and refused to wear the dentures leaving them at the practitioner’s surgery.

Complaints Handling Process

Within a month after the last consultation with the patient, the practitioner received a letter from the Dental Board of New South Wales indicating that the patient had made a complaint pursuant to Section 48(1) of the Dental Practice Act 2001 (“the Act”). As a result of the complaint being made, the practitioner was required to respond to the complaint within 21 days in accordance with Section 51 of the Act.

In providing a response, the practitioner was required to provide copies of his entire clinical file (including financial details), a typed transcript of any handwritten notes and a typed representation relating to treatment of the patient.

Once the practitioner submitted his response, the Board would investigate the complaint or refer the complaint for further investigation to determine whether the complaint established unsatisfactory professional conduct or professional misconduct.

The majority of complaints to the Board involve treatment which may be tantamount to unsatisfactory professional conduct. Unsatisfactory professional conduct includes any conduct that demonstrates a significant lack of adequate knowledge, skill, judgment or care by a dentist in the practice of dentistry, as defined by Section 41(1) of the Act.

In submitting a response, the practitioner’s representations would then be considered by the Board’s Complaints Committee sitting with the Health Care Complaints Commission and could be referred to the Dental Care Assessment Committee (“the DCAC”). The DCAC may either investigate the complaint, encourage the complainant and practitioner to settle the complaint by consent or make a recommendation to the Board.

Given that a recommendation by the DCAC could be adverse to a practitioner, the Board allows the practitioner to respond in writing to any DCAC recommendation before the recommendation is considered by the Board.

However, at no stage does this prevent a practitioner from attempting to initiate a settlement of the complaint direct with the patient.

Response

Once the practitioner received notification from the Board of a complaint being made by the patient, contact was made with the Dental Defence Advisory Service (DDAS) of the Australian Dental Association (NSW Branch). Assistance was then provided by the DDAS and Guild Lawyers in drafting an appropriately worded letter of reply, responding to all elements of the patient’s complaint and outlining the treatment provided at every consultation with a view to submitting that at all material times the treatment and advice provided was appropriate and in accordance with accepted standards of care. The body of the report therefore provided a summary of clinical treatment and refuted those factual matters that were in dispute as referred to in the patient’s complaint.

Once the letter of reply was settled and the practitioner considered its content to be suitable, the practitioner forwarded the reply to the Board.

Investigation and outcome

Following receipt of the reply by the Board, it determined to refer the matter to the DCAC for further investigation and assessment. The patient was referred to an independent assessor to allow the DCAC to obtain a report as to the treatment provided by the practitioner. Once the independent assessor completed their assessment and report, the report was forwarded to the DCAC in furtherance of its investigation.

Ultimately, the DCAC formed the view, as a result of the independent assessor’s report, that the dentures provided to the patient were of good fit and make. The DCAC then forwarded a recommendation to the Board that the complaint be dismissed.

Subsequently, the Board at a formal meeting resolved to accept the recommendation of the DCAC that the complaint be dismissed. The outcome of the complaint and its investigation was then notified in writing to the patient and the practitioner.

Comment

The result in this instance was extremely pleasing and attributable to the practitioner, after taking advice from the DDAS and Guild Lawyers, submitting a thorough and detailed reply to all complaints and allegations made by the patient and his daughter.

In addition, the DCAC was not doubt assisted by the quality of the practitioner’s notes which included radiographs, study models and ultimately the denture itself which the patient had refused to accept.

Case Study 5

Prepared by Marianne Nicolle, Principal, Meridian Lawyers

The patient attended the dentist concerning tooth 16. The dentist diagnosed a crack on the amalgam of tooth 16. When the amalgam was removed it was noted that the crack ran through to the pulp chamber. The dentist discussed the options for treatment which included extraction or RCT followed by the placement of a ceramic inlay or crown. The patient chose the option of RCT followed by the placement of a ceramic inlay.

The patient subsequently complained to the dentist that the ceramic inlay fractured within 9 months. He asserted that he had been given a guarantee that the ceramic inlay should last for between 5-6 years and that is what influenced his treatment decision. The patient asserted that he consulted another dentist who extracted the tooth. In preparation for an implant he also underwent some bone grafting. He asserted that the bone grafting procedure was complicated by abscess formation requiring drainage and antibiotic therapy.

The patient sent an email to the dentist setting out his complaint and seeking a refund of fees together with compensation for associated out of pocket expenses. The patient said that he had obtained a second opinion to the effect that a crown, as opposed to a ceramic inlay, should have been placed on tooth 16. The patient wanted the dentist to place the implant for free.

The dentist notified his ADA and Guild Insurance of the communication from the patient. The dentist also received assistance from Guild Lawyers. The preliminary view was that the ceramic inlay was not a good treatment option and therefore the dentist was at risk of criticism from his peers (if a complaint was made to a Dental Board) or a judge (if a civil claim was pursued). The dentist accepted advice that he should write a letter to the patient expressing sympathy for his position whilst not admitting liability. The letter offered a full fee refund (around $3,000) as a gesture of goodwill. The dentist recommended that the patient have the implant placed by an oral surgeon.

The patient accepted the proposal. This is an example of early intervention at its best. As soon as the dentist received the patient complaint he obtained peer advice and legal advice. The advice was to the effect that the dentist may have a liability exposure and so an attempt should be made to resolve the dispute as soon as possible. The dentist was provided with advice about the content of the letter to the patient. The complaint was resolved within a short time frame. The patient now has funds to assist with the placement of an implant (which would have been required at some stage in any event) and the dentist has avoided escalation of the complaint.

Prepared by Marianne Nicolle, Principal, Meridian Lawyers

Consumer and board complaints – the New South Wales experience

In recent times it has been an increasing trend for patients of dental practices to file applications which can be broadly described as consumer claims with a consumer tribunal. Whilst the information provided in this article is specific to NSW it is important that all practitioners are aware of this increasing trend.

In NSW the relevant body is the Consumer Trader and Tenancy Tribunal (“CTTT”). The CTTT deals with consumer claims against business’ regarding the supply of goods or services and the bulk of these disputes are dealt with in the General Division of the CTTT.

Given that the Dental Board of NSW (“the Board”) does not have power to award compensation, save for a refund of treatment fees, many patients commence consumer claims in the CTTT in order to seek to recover additional compensation for future losses or general damages.

It has become increasingly commonplace for patients to lodge a complaint with the Board and make a concurrent application to the CTTT.

Consumer trader and tenancy tribunal

The CTTT has jurisdiction under the Consumer Claims Act 1998, to determine disputes about any goods or services, up to the value of $30,000.

The CTTT’s General Division (consumer claims) can hear and determine applications from consumers only. There is no automatic right of legal representation unless the application is for an amount greater than $10,000, or unless it can be submitted that the claim involves complex issues of law or fact. As a result, in our experience the CTTT can and does exercise its discretion to refuse applications made on behalf of dental practitioners, for them to be legally represented in this jurisdiction. Accordingly, both the applicant patient and the respondent dental practitioner to the consumer claim must appear in person. Failure to appear can result in adverse orders being made against the dental practitioner’s interests, which could include payment of the total value of the applicant’s claim, which would then be an enforceable judgment.

The provision of dental services for a fee, can be described to be a consumer claim in the General Division. The CTTT has jurisdiction to consider patient claims for such things as a refund of treatment fees, an order to replace or return goods (such as dentures), an order to pay for future treatment fees and an order to pay general damages for pain and suffering.

The CTTT is generally a no costs jurisdiction, which means that each party is to bear its own costs, except for the most exceptional circumstances. Such circumstances could include a vexatious claim or any undue delay in the speedy resolution of the claim.

Practical implications

Given the informality of the CTTT jurisdiction and the general absence of a right to legal representation, the process of resolving a complaint can be a difficult one which requires the dental practitioner to deal directly with the patient in circumstances where the patient practitioner relationship has broken down. In addition, the inability to have formal submissions made on behalf of a dental practitioner, by a legal representative, does make if difficult for any Tribunal Member hearing an application to make findings in relation to the standard of care provided by a dental practitioner to a patient.

Necessarily therefore, independent peer written opinion is important in considering whether the practitioner has discharged his or her duty of care. As patients rarely prepare for a hearing by obtaining a peer expert opinion, it is necessary for that opinion to be obtained by Guild Lawyers on behalf of the dental practitioner, in order to demonstrate to the CTTT that he or she has a defence to the patient’s application.

Often times, a Tribunal Member will encourage an applicant and respondent to conciliate a matter, with a view to avoiding a hearing. Again there are many practical difficulties in such a process given the breakdown in patient practitioner relationship. Nevertheless, it is a requirement of the CTTT process, to engage in informal discussions.

Should a Board decision be notified whilst proceedings are ongoing before the CTTT, it is our practice to inform the CTTT of such a decision (assuming it to be a positive). It is then a matter for the CTTT Tribunal Member to decide what weight to attribute to the outcome, given that the decision arises from another jurisdiction.

Comment

In order to manage applications in a timely manner, assistance should be obtained by the Advisory Services team of the NSW Branch of the Australian Dental Association and Meridian Lawyers. With the assistance of Meridian Lawyers and the Advisory Services team, attempts can be made to resolve a patient’s application at an early stage, with a view to avoiding the necessity of appearing at a conciliation or hearing.

Fiona Dransfield 
Special Counsel, Meridian Lawyers

Case study – nobody’s perfect

On 23 December 2008 an ADA Branch received an email from a member of the public complaining about the standard of service offered to him by its after-hours emergency service when he was experiencing considerable pain from a tooth that had been filled some 3 months earlier. The key elements of the complaint were:

  • The person who received the call introduced herself as the emergency dentist. She advised that she could pull the tooth for $350 or perform root canal therapy for $2,000. He would need to attend within the next hour as she would be leaving.
  • The complainant declined and subsequently his regular dentist solved the problem for $220.
  • He felt that the emergency dentist was attempting to take advantage of a person in considerable pain by pressuring them to make a hasty decision.

Although the ADA Branch obtained a verbal comment from the dentist’s dental assistant, it decided to wait for her to return from leave to get written details before responding. However, in the meantime it received two cool telephone calls from the complainant, and, even though full information about the incident was not known, in an attempt to defuse the situation the ADA Branch sent a response to the complainant

The key elements of the response:

  • Thanked him for his email about the emergency dental service and noted that the ADA was sorry that he felt it necessary to complain.
  • Advised that the service is an unsubsidized voluntary private service and consequently required patients to be scheduled at a given time, generally in the morning. The service had attended to 36 grateful patients over the Christmas period.
  • The dental nurse to whom he had spoken recalled that she had advised that removal of the tooth would cost $370, including the call-out fee, and that if it was possible to save the tooth then root-canal treatment would cost $800 – $1,400 over 3 visits.
  • The complainant had rudely told her that “you’ve got a good scam going” and hung up on her.
  • Advised that under no circumstances would he be pressured into making a hasty decision, but on seeing the dentist he would be presented with the best options for his overall dental care
  • An invitation to contact the ADA if he had any further concerns or queries.

The complainant responded to the ADA Branch on 25 January as follows:

“Madam

I am not in the habit of hanging up on any body I certainly did not in this case.

I most certainly did not say “you have a good scam going”, as I assumed that this was the necessary action.

The Lady who answered the phone told me that she was the Emergency Dentist and failed to give a name when asked.

She quoted $350.00 to pull the tooth and $2000.00 for root canal treatment.

She told me that she was at the surgery now and if I wanted Treatment to be there in an hour.

She should have offered emergency root canal therapy that was performed on me by my regular dentist.

I find it very distressing to be accused of being rude and of lying.

I am also surprised that a professional person finds it necessary to make these charges.

I await your response before taking further action on this matter.”

The ADA Branch decided that this issue was not likely to be readily resolved and thus sought legal advice from Guild Lawyers. The following email was sent to the complainant on 19 February:

“Thank you for your email transmission dated 25 January 2009.  I apologise for the delay in responding.

Please rest assured that we have taken most seriously your concerns in relation to your experience of the ADA Emergency Dental Treatment program.  In reporting to you the result of our enquiries with the staff member who assisted you over the telephone, no discourtesy was intended and we apologise for any distress that was caused to you in relaying the Service staff member’s version of the telephone conversation with you.

Again, thank you for your query and for drawing your concerns to our attention.  It always assists us in improving the quality of the service provided to members of the public.”

There has not been a subsequent response from the complainant. The ADA Branch sought a written report from the dental assistant which was received on 31 March.

“For every phone call I receive on the emergency phone I answer in the same way which is “Emergency Dental Service XXXX speaking”. I always quote the patient to the best of my ability without knowing the exact treatment to take place, and tell them that payment needs to be made at the time of the appointment and if they have a health fund to bring their card with them.

For a simple extraction I would have quoted at the time $370 which includes a consultation, x-ray and tooth extraction. If RCT is needed for a molar, $350 for initial appointment with at least two further appointments in future with their own dentist or specialist. If seeing a specialist for a molar the price is capped at $1400 and an anterior at $850. A crown maybe needed at a later date.

I do remember in this conversation the man saying “you have a good scam going”. I do not remember him asking my name, however I always answer the phone using my name. I do also remember saying that the fees were set and I did not have any control over them. I do also remember after he started getting quite rude asking him to direct any complaints to the ADA.

As you can imagine XXXX this phone conversation happened quite a while ago now and I do only remember some specifics to the conversation, but as I repeat myself every weekend, and have done so for the last 18 months I feel that I am consistent and do not vary the information I give to patients.”

†: Root Canal Therapy

The emergency dentist involved confirmed that the dental assistant always answers the phone as she had written in her email and had never heard anything but praise for her demeanour. The dentist had certainly never heard her be rude to anybody and was prepared to swear to this effect on a bible or in a court of law.

It should also be mentioned that before the patient rang the emergency mobile phone number, he received the following recorded message from the ADA Branch emergency line.

“Hello, this is the ADA Emergency Service.  The Service operates 9 am to 6 pm on weekends and public holidays.  An after-hours surcharge applies and payment is required at the time of treatment.  To contact the dentist on roster please ring XXXX.”

What can we learn from this case?

First, a written response should not be sent to a complainant without a solicitor from Guild Lawyers first reviewing it. It is clearly easy for a complaint to get out of hand. The error arose in commenting in the response that:

  • He had rudely told her that “you’ve got a good scam going” and hung up on her.
  • Under no circumstances would he be pressured into making a hasty decision, but on seeing the dentist he would be presented with the best options for his overall dental care.”

The issue was not if the statement was factual or not, rather that the statement might be seen by the complainant as inflammatory. The complainant’s second email was more aggressive than the first:

“I am not in the habit of hanging up on any body I certainly did not in this case. I most certainly did not say “you have a good scam going”

Second, in an ideal world a written record should be kept of all incoming calls. It is not unexpected for a busy dental assistant to forget the details of a call. As the dental assistant wrote:

“…. this phone conversation happened a while ago now and I do only remember some specifics to the conversation ….”

The courts are more likely to believe the patient’s recollection of the course of events rather than the dentist’s or the dental assistant’s because the event will be a major one for the patient, whilst it is only one of many such events to the dental people. The fact that a certain response is standard practice will not convince a court of law that the advice was actually given. However, keeping a record of every person who rings into your surgery, even though they decide not to go ahead with treatment or visit the surgery, would be ‘over the top.’

The ADA Branch is grateful that the dentist in question is willing to provide the after-afters emergency service, particularly over the Christmas break. Let’s hope the dentist doesn’t have to swear to his dental assistant’s demeanour “on the bible or in a court of law.”

The final message from this case is that no matter how courteous you are complaints can happen. Do not forget the adage of “there but for the grace of God go I.”

By Claudya Adamczewski and Len Crocombe

Complaint management – handling the dissatisfied patient, part one

In all spheres, the risk management cycle is a three part process:

  • Awareness – finding out where the risks are.
  • Control – doing something about the risks to minimise them.
  • Containment – limiting the damage when things have gone wrong.

This article deals with containment. We’re all aware of the importance of early intervention in the context of disease and disorder, and we’re also all aware of the benefits of prevention. These concepts can be just as readily applied to avoiding, minimising and managing complaints but here we address when awareness and control either haven’t been applied or haven’t worked and we’re put into damage control mode.

Why would somebody complain? Reasons include:

  • They want an acknowledgement that something went wrong and an explanation of why.
  • They want an apology for the distress they experienced.
  • They don’t want others to have to face the same kind of problem that they did.
  • They want to improve the service for themselves or others in the future.
  • They want someone to be blamed, punished or held accountable for what happened.
  • They want retreatment, a refund or compensation.

Be mindful that not every complainant is coming from the same place in terms of motivation and how you handle the complaint may help to give you a strong insight into what lies at the heart of the matter and, therefore, what the appropriate strategy should be to manage it. Never assume that all patients complain for the same reason or because they desire the same outcome. A complaining patient may be motivated by one or more of the above but don’t immediately leap to the conclusion that the last two necessarily apply. With good management techniques many complaints never progress that far. Remember too that a complaint doesn’t necessarily mean that you did something wrong. Often it is the result of nothing more than poor communication and differing expectations.

The number of complaints which are just vexatious and made by people purely out to cause trouble is generally very low. Further, it is worth remembering that receiving a complaint, while it may not make your day, gives you an opportunity to understand a patient’s perspective and may help you to improve your service delivery. In the stress of the moment you may not realise it, but receiving a complaint can lead to positive outcomes for you if you are able to objectively analyse the circumstances, learn the appropriate lessons and adapt how you practice so as to reduce the risk of receiving more complaints in the future.

What are the avenues of complaint open to the dissatisfied patient? They may:

  • Confront the dentist or staff directly.
  • Write to the dentist.
  • Write to a statutory authority (in either the health or consumer sectors or both).
  • Engage a solicitor to correspond with the dentist on their behalf (often alleging negligence).
  • Engage a solicitor to lodge a Statement of Claim in the court system (civil action).
  • Complain to another dentist and seek their opinion and/or guidance.

It’s possible, of course, that a dissatisfied patient may not complain at all. They may just never come back to your practice. If that sounds like the easy way out for you be mindful that they may not voice their concerns to you but they will tell their family, their friends and possibly the whole suburb or town. Reputation is extremely important to most dentists, so the “disappearing patient” can still be problematic for you. Therefore, we really should welcome complaints to the extent that they give us the opportunity to manage the situation rather than having no control over it.

Every complaint is different so the approach to resolving it will differ based on several considerations:

  • The nature of the complaint (i.e. its seriousness and complexity).
  • The wishes of the complainant.
  • The issues the complaint raises.
  • How the complaint came to you.

The first avenue of complaint mentioned was for the patient to confront the dentist or staff directly. This one will almost invariably catch you unprepared and off guard so the following strategies are worth remembering, and they apply equally to yourself and your staff when confronted with a complaining – and possibly irate – patient.

  • Don’t ignore them. Nothing will inflame matters more quickly than if the person making the complaint feels they’re not even engaging the person to whom they’re speaking.
  • Don’t look away and don’t be distracted. Eye contact confirms your attentiveness.
  • Listen, don’t judge and don’t interrupt. When a patient expresses a concern, you need to understand what they’re saying and feeling (“active listening”) and then communicate back in your own words what you think has been said. When you do repeat the story back, keep to the facts and take the emotion out of things. You’re trying to serve as a mirror, but only mirror those aspects that are within your power to control. This technique allows you to validate the patient’s position without necessarily agreeing with it.
  • Be empathetic. Show your human side and acknowledge theirs. Get to the heart of the issue. Ask how you can help. When someone’s angry, there is no harm in a simple “Do you want me to help?” or, if the answer to that is self-evident, “Can I do anything to help?”

Do what you can in the moment to acknowledge the patient’s concerns, make a detailed record of the interaction as soon as possible after the event (verified by others who may have witnessed the encounter) and seek advice for ongoing management from your ADA and/or your insurer. Remember not to record the advice you receive from your ADA or insurer or lawyer in your clinical record. These confidential communications should be recorded in a separate document.

The second avenue of complaint for the patient is to write to the dentist. The advantage of this one is that you aren’t forced to think on your feet in the way that you are with a face to face complaint. You also have the opportunity to seek advice before responding at all. In a written response, it’s best to:

  • Acknowledge that voicing of concerns is appreciated.
  • Acknowledge the distress and the person’s experience.
  • Say what has been, or will be, done to investigate the complaint.
  • State what has been done or could be done to address the concerns.
  • Mention any changes or action taken (or that are being considered) as a result of the complaint.
  • Offer an opportunity to discuss further, with a choice of options (meeting, telephone, written).
  • If you’re comfortable in doing so, reassure the person that they can receive further service, if needed, without any concern about having made a complaint. Obviously such reassurance depends on the nature of the complaint.

Your advisor would be happy to guide you once you have prepared a draft response.

The third avenue of complaint available to the patient is to lodge their grievance with a statutory authority. You will eventually receive notice of this and be asked to respond. This response will initially be in writing and it is important that you do so in a way that maximises your chance of achieving a successful outcome. When you’re preparing your report:

  • Endeavour to control all negative emotions. Just because a complaint is made against a dentist does not, of itself, validate the complaint. It’s just the first part of a process and it’s then up to the dentist to defend their actions by providing their own reasonable version of the matter.
  • Always show respect and always attempt to assist. A courteous reply will often be appreciatively received.
  • The report should be couched in descriptive narrative terms and should be accurate, comprehensive and fair.

Guidelines on how to structure a response are included in the webinar. Please remember to run your response by your ADA advisor and your insurer’s appointed legal advisor before you submit it.

The fourth and fifth avenues of complaint open to a patient involve the engagement of a solicitor, either to deal directly with the dentist on the patient’s behalf or to lodge a Statement of Claim in the court system. The advice for handling these matters is very, very simple. Do not respond to any letter from a solicitor or any document from a court without seeking the assistance of your ADA advisors and the legal advisors engaged by your insurer. There is no higher requirement for “containment” than in circumstances such as this. Don’t respond to these matters yourself – the potential to get yourself “in deeper” is high and you will save yourself significant heartache by enlisting the support of those who are familiar with such matters.

The sixth avenue of complaint listed was for the patient to complain to another dentist and seek their opinion and/or guidance. This is where we all have a role to play in containing the fallout which may follow once a patient is dissatisfied. If you are ever in the position of being that “second dentist” there are some points to keep in mind when a patient comes complaining to you, remembering of course that their grumbles may well be entirely justified. The other angle to consider in all of this is of the patient who was quite happy with their previous dental treatment until comments were made by another dentist and this precipitates a complaint which may otherwise never have been made. Some tips, then, for the “second dentist”:

  • If you come across a case where work done recently is going to need to be replaced, ask permission from the patient before contacting the previous dentist to research how things have got to that point. Point out the clinical problems that exist in a calm manner without criticising others.
  • Be on alert so that, when asked to give an opinion on treatment that hasn’t had a satisfactory outcome, you don’t pass comment on the standard of care of the treatment provided by another. Of course our patients pay well for our services and care and we shouldn’t turn a blind eye to problems which exist. All patients at all times are owed a proper and professional diagnosis. If, however, you find yourself in the position of being the “second dentist” your aim should ideally be a clear discussion with the patient with explanation and co-discovery of problems that are apparent at the time of consultation. No more, no less.
  • Criticism of previous work is non-productive and gives the entire profession a negative bias that can be difficult for the next operator to overcome.
  • Don’t falsely criticise others in an attempt to justify the treatment you’re recommending. You’ll never look “bigger” in a patient’s eyes by making the previous dentist look “smaller.”
  • In any discussion with a patient and their support person the dental practitioner should take care not to state or agree that another health care professional is liable for any harm which may have been caused to the patient.
  • Remember that one day you may be in the position of having your work criticised by others so be honest with the patient and fair to your colleagues.

By whatever means a complaint is received, there are strategies/actions/policies to keep in mind and apply wherever possible to achieve the best possible outcome:

Timeliness

When dealing with a complaint, no matter how trivial, time is of the essence. An irate patient who doesn’t receive a prompt response may feel ignored and be more likely to take matters further. Therefore:

  • Respond as soon as possible to the complaint, even if it’s just to explain the process and give a commitment to a certain timeframe.
  • Stick to the timeframe given.
  • Keep the complainant informed.
  • Give reasons for any delays.

Address all aspects of the complaint

  • Provide a full response so that important issues are answered and the complainant can see that the complaint has been taken seriously.
  • Explain the process of investigation.
  • Acknowledge areas of disagreement or varying accounts without dismissing what the complainant has said.

Remember

  • Try not to be defensive.
  • Acknowledge the distress of the complainant.
  • Apologise if appropriate, but in any event be sympathetic.
  • Acknowledge any errors that did occur.
  • Try to understand the situation from the complainant’s perspective.
  • Find out what will assist the complainant to resolve the matter. Examples could include a written response, a phone discussion, changes in policy or procedures, a meeting.
  • Avoid official or technical language, jargon and clichés.
  • Consider cultural background and sensitivities and the possible use of an interpreter if necessary.

Provide your perspective

If a written complaint has been received by a statutory authority you’ll generally be notified about the complaint. You’ll receive a copy of the complaint and will be able to respond to it before a decision is made about the action to be taken on the complaint.

Indicate that lessons have been learned

Outline:

  • What happened.
  • How it happened.
  • What’s being done to stop it happening again.
  • That you’re sorry that it happened.

On this last point, some people have real issues with saying sorry. There has been a historical reluctance to offer an apology to a patient on the basis that it may be misconstrued as an admission of fault. Dentists have often harboured the concern that if they offer an apology to the patient, the patient will rely on that apology to establish a case in negligence before the civil courts. Legislative reform across all states has put this concern to rest. Put simply, an apology is not an admission of liability for the purpose of civil proceedings.

The effect of an apology should not be underestimated. It is the DDAS experience that many civil claims would not have eventuated if a carefully worded, timely and sincere apology had been provided to a patient. Very often a patient will simply feel wronged and want acknowledgement. If ignored they’ll often take matters further. If for no other motivation, a further reason to make an apology is that regulatory bodies tend to place weight on an apology when determining the outcome of a disciplinary matter.

Seek support

Always do this, and do it early. It is not just important to be timely with the patient – you need to be timely for your own wellbeing. Consult with:

  • Your state branch of the ADA.
  • Your insurer and their appointed legal advisors.
  • Any relevant senior person in your workplace such as a supervisor or manager.
  • If you’re employed in the public sector, you may wish to contact the Complaints Manager of your hospital or Local Health District.
Key Points

·      A complaint does not necessarily mean that you have done something wrong.

·      Receipt of a complaint can be a valuable learning experience.

·      Good complaint management strategies can prevent escalation of a matter.

·      Take time to understand a patient’s perspective so your response can be appropriate.

·      Don’t record any advice you receive from your ADA advisor or a lawyer appointed by your insurer in the patient’s clinical record. These confidential communications should be recorded in a separate document.

In the second part of this article we provide a rationale behind some of the strategies recommended and look at three common scenarios and the thought processes to apply when considering how to manage the situation.

By Dr Craig Brown – ADA NSW Branch Peer Advisor