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‘We need to talk’ – your duty to warn and prognosis in endodontics, part 2

In this article, warnings and prognosis as they relate to endodontics will be explored in more detail and will hopefully provide a guide in the decision making process. Additionally, if the clinician can thoroughly assess a case prior to commencement, a treatment plan can be formulated which may indeed mean no treatment at all! As Professor Messer wrote in 1999:

‘Clinical judgement tends to be subjective. One dentist may attempt to treat a tooth which another would regard as hopeless…the challenge for us as dentists is to become more objective in our decision-making by developing a systematic approach to the assessment of difficulty of endodontic cases’.[1]

The ‘objectivity’ Professor Messer mentions is critical and the reason why I have previously stated I have concerns with practitioners citing success rates which may not at all be applicable to how they practice, their experience or applicable to the case at hand and as it presents.

The American Academy of Endodontists[2] has available on their web site (www.aae.org) guidelines for assessing the difficulty of endodontic cases. The form is divided into three categories which, when formulating a treatment plan, could be applied to any discipline of dentistry and factors which should be carefully considered prior to commencement of treatment. The Academy recommends that a rating be applied to each of these factors and that a ‘risk level’ be assigned as follows:

1 = Average Risk – ‘average or routine complexity’.

2 = High Risk – ‘complicated…with one or more treatment/patient impediment factors’.

3 = Extreme Risk – ‘exceptionally complicated…achieving a predictable treatment outcome will be challenging for even the most highly skilled practitioner’.

The AAE state that ‘if any one or more factor is rated high (2) or extreme (3) risk, then referral to an endodontist may be appropriate.

So, in endodontics specifically, it should not be difficult to assign such risks. With time and experience, the assigning of them should become almost ‘second nature’. If a clinician does not feel comfortable taking on a difficult and complex endodontic case or if the tooth has a hopeless prognosis, no amount of pressure from the patient to not be referred (or the removal of the tooth) could be used as a defence to litigation.

The three categories to be considered are as follows:

  1. Patient Considerations
  2. Objective Clinical Findings
  3. Additional Conditions

Rather than explore every aspect of each of these considerations, pertinent points will be highlighted as potential ‘barriers’ to treatment. Assigning the risk objectively may not always be easy but will fortunately assist in avoiding litigation and complaints in the future.

Patient considerations

‘limited ability to open mouth’ – what impact on success does limited opening have on treating tooth 11 as opposed to tooth 17? Will the same result be achieved for both teeth?

‘gagger’ – will the clinician be able to take an adequate working length film for tooth 36? Should sedation be considered to assist in achieving the best possible outcome?

Objective clinical findings

‘pulpal space’ – calcification, chamber, orifice, canal, number of canals

‘root morphology’ – curvature, length

We Need To Talk Pt 2 scan0007

Our concerns here should be obvious – the marked curvature as well as the receded pulp chamber, with risk factors 2 and 3 dominant. These issues need to be discussed prior to commencement.

We Need To Talk Pt 2 scan0009

On the other hand, in the case illustrated above, our concerns here are not with the endodontic treatment – simple and straightforward. However, when a large well-circumscribed periapical radiolucency such as this one presents, I am immediately wary of the possibility of surgery and the consultation appointment is spent discussing both procedures.

‘apical morphology’ – open

We Need To Talk Pt 2 scan0008

Although a seemingly innocuous case, the apical inflammatory resorption needs to be considered and the potential impact on treatment outcome. Is there a possible overfill ‘waiting’ here? If so, does a straightforward RCT then become a surgical case? Should MTA be used and if so, do you have the necessary skill and expertise to use and manipulate the material?

Additional conditions

restorability’ – isolation, caries, crown lengthening

We Need To Talk Pt 2 scan0006

The depth of the restoration is a concern and our ability to maintain an adequate coronal seal. Will crown lengthening be indicated? There has also been a previous attempt at endodontic access and what appear to be calcified canals.

resorptions’ – internal, external, apical

We Need To Talk Pt 2 scan0004

The resorptive process here is quite advanced…what impact does this have on treatment and outcome? The approach here should be one of caution – I would be advising the patient that the tooth is compromised and would explain the process of resorption and what the aim of RCT would be.

endo-perio’ – mobility, pocketing

We Need To Talk Pt 2 scan0001

The mesial bone loss and deep discrete pocketing immediately should set off ‘alarm bells’ in this case and the patient must be informed from the outset of the dubious prognosis. There is nothing wrong here in telling the patient that you are suspicious of a possible fracture which could have a devastating long term impact on prognosis.

We Need To Talk Pt 2 scan0003  We Need To Talk Pt 2 scan0005

previous RCT’ – Rate 2 or 3 only

perforations’ – Rate 3 only

The last two are compelling and reflect the difficulties even endodontists encounter with re-treatments and perforations. So, prior to embarking on these types of cases, the clinician must stress to the patient the complexity and difficulty of the case, referral must be offered each time and if treatment is to proceed, the patient’s (and your) expectation of success should be realistic.

During the course of treatment, prognosis can change and potentially be out of our control. Additionally, in endodontics, flare ups can occur and I have found it useful to advise patients after every appointment that they may experience pain and/or swelling and briefly explain why. In this way they are forewarned and almost expect discomfort.

The above examples are by no means exhaustive but hopefully provide an insight into what the clinician needs to consider prior to commencement of endodontic treatment. I have attempted to illustrate different issues which I consider important prior to commencing treatment and share with you what I share with patients. Just as treatment is dynamic so should our ability to objectively assess each case on its own merits. Again, as Professor Messer stated:

“…it is a serious overstatement to tell patients that endodontic treatment is successful in 90-95% of cases…’ If one is to use statistics such as these, then a number of conditions need to be satisfied: ‘rigorous bacterial control, including the use of rubber dam and medicaments; no procedural difficulties…; a durable coronal seal…; a final restoration that provides adequate protection against crown-root fracture; good periodontal condition. The patient (and the dentist) may seriously consider alternative approaches if the prospect of success is diminished…or if multiple problems are present”.

It has been the intent of these two articles to provide an alternative perspective at endodontic ‘treatment planning’. It is important that when we use a term such as ‘informed consent’ we do not confuse it with a signed sheet of paper. Informing the patient with discussion, explanation, diagrams, visual aids and of course information pamphlets, all go a long way to not only providing protection from litigation but also, in all likelihood, prevention of such action.

If at any stage you have a question or wish to discuss a particular case, please feel free to contact David Sweeney, Peter Crozier, Roger Dennett, Colette Dailey or me at the DDAS – we’re happy to assist with any situation which may arise.

Dr Stephen Harlamb BDS, MDSc

Peer Advisor, ADA NSW

 

[1] Clinical Judgement and Decision Making in Endodontics, Professor Harold Messer, Australian Endodontic Journal, Vol 25 (3) 1999, p124-132

[2] http://www.aae.org/dentalpro/CaseAssmtReferral.htm

‘We need to talk’ – your duty to warn and prognosis in endodontics, part 1

As an endodontist and peer advisor, I am commonly asked what my patients are told prior to commencement of treatment and how to answer the dreaded question – ‘how long will the tooth last me?’ Therefore, in this article, warnings to patient regarding endodontic treatment as well as ‘real-life’ success and failure in endodontics will be explored.

There is no doubt we as clinicians have a duty to warn patients of possible adverse outcomes as a result of treatment – broken endodontic instruments, failed implants, fractured restorations, paraesthesia post-surgery, to name but a few, are all possibilities and retrospectively the patient will often come back to us with the statement “I was never told….”

However, how are we expected to accurately predict all possible permutations? Do we sit down with the patient and spend hours outlining ALL possibilities? In all likelihood, by the time we’re done, we would have succeeded in alarming the patient to the extent that every tooth would be removed and they would probably remain edentulous!

So, what as a profession are we doing to deal with this dilemma? We produce information sheets and consent forms (the length and detail of some which would make the legal profession proud!), give them to the patient to read and sign, file it away and feel safe in the knowledge the patient has that piece of paper.

But what value do the courts place on such forms? Sorry to say folks, not much… it is a piece of documentary evidence, is only useful if there’s doubt about whether the patient has agreed to go ahead with the procedure and not, in itself, determinative of the issue – to quote a law text:

‘Even if the form states that the patient acknowledges that he or she has been fully informed and given the opportunity to ask questions, the patient may still be able to persuade the court that was not the case’.[1]

…and don’t think this dilemma rests solely with the dental profession. In a High Court case in 1998, Chappel v Hart, Dr Clive Chappel, an ENT specialist, operated on Mrs Beryl Hart in June 1983 following the patient’s complaint of acute dysphagia – an extremely painful condition with difficulty with swallowing. The cause of her symptoms was a ‘pharyngeal pouch’ – ‘an uncommon pathological outpouching of the pharyngeal mucosa through a weak area of the pharyngeal wall (Killian’s dehiscence)’.[2] Surgery was her only treatment option.

Two surgical treatment options were offered:

  1. surgical excision of the pouch via a cervical incision or
  2. the septum between the pouch and the posterior wall of the oesophagus is divided endoscopically. The cricopharyngeal muscle is then severed, thereby widening the oeophagus (‘the Dohlman operation’).

Professionally, Mrs Hart was an education officer (teacher) and thus at consultation told Dr Chappel she did not want to ‘end up sounding like’ Neville Wran, the NSW Premier at the time who had developed a severely hoarse voice as a result of throat surgery.[3]

The Dohlman procedure was carried out on 10 June 1983 and the patient advised there was a 6-18% chance that a perforation of the oesophagus may occur as a result of using an endoscope, but not of the slight risk that her voice may be affected as a result.

Needless to say, the perforation occurred – on recovery, the patient complained of hoarseness and was diagnosed to have developed vocal chord palsy (VCP) as a result of the oesophageal perforation site becoming infected, thereby damaging the recurrent laryngeal nerve (which anatomically is remote from the surgical site).

Mrs Hart, as a result of the procedure and subsequent vocal chord palsy, was compelled to take an early retirement as an Education Officer. She commenced legal proceedings in 1989 and went to trial in 1994 at the NSW Supreme Court with Donovan AJ presiding. Justice Donovan found for the plaintiff – that Dr Chappel had indeed breached his duty by failure to warn of the risk of VCP – awarding Mrs Hart $172,500 in damages.

The defendant was granted special leave to appeal to the High Court of Australia in 1998, the justices dismissing the appeal by a majority of 3:2.

This case is unique in that the end result was one where the surgeon performed a procedure to a standard without criticism from peers and that the (unfortunate) outcome was one that was extremely rare and, argued by some, that the doctor was in no position to warn of that outcome. In a recent article, Thomas Hugh argued that the complication of VCP following the Dohlman procedure suffered by Mrs Hart had never been reported in the literature. Therefore, ‘the complication about which Dr Chappel was supposed to have warned the plaintiff had never been reported prior to Mrs Hart’s operation…and…remains to this day the only recorded case of Dohlman-related VCP’.[4]

But did the High Court get it right here? I actually think they did. The key to this case was Mrs Hart’s extreme apprehension as to what impact the procedure may have on her voice. As Justice Kirby described it, the protection of the integrity of the patient and improved health care by warning patients about material risks (especially when they are apprehensive and query outcome and adverse effects) is a ‘rigorous legal obligation’[5] of the health profession.

As the justices in Rogers v Whitaker stated in 1992:

‘The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it’.

As Professor Skene notes, as a result of the decision in Rogers v Whitaker, ‘patients are entitled to make their own medical decisions and that the information necessary to make that decision varies according to the patient’s own circumstances. It cannot be determined in advance by an objective test or by accepted medical practice’.[6]

So what is a material risk in dentistry (specifically here in endodontics) and how do we know if the patient will attach significance to it? Giving your patient a 5-page disclaimer and series of bulleted warnings is certainly not the answer.

The answer of course lies with frank and open discussion with the patient and, as health care professionals, our duty lies in ascertaining where our patient’s concerns lie and what we as clinicians feel may be significant from the patient’s perspective. Some examples are extremely curved canals (file fracture?), calcified canals (perforation?), third molar impactions adjacent to the IAN (paraesthesia?), poor bone density (implant failure?).

We Need To Talk Pic A

In cases such as this (above), what needs to be discussed with the patient? Note the sharp curvature of the MB root, the receded pulp chamber and fine canals. As a clinician, my duty here is to advise my patient of the complexity of the case. Issues such as potential file fracture, possibly not negotiating all the canals (and its significance) and potential for perforation (although unlikely) should all be discussed.

On the other hand, in cases such as the one illustrated below, it may not be necessary to discuss the same issues as above. However, if the patient is inherently curious about different aspects of treatment, alerts you to this fact by asking a series of pertinent questions related to failure, possible file fracture etc, then, according to the ‘material risk’ test, it is important to outline and address all the issues raised, even if the outcome (from a clinical perspective) appears remote:

We Need To Talk Pic B

Indicating in your records ‘patient warned of risks’ therefore is not good enough. From a dental defense perspective, details of the conversation should be recorded. For example, ‘discussed with patient if crown not placed following RCT then great risk of fracture and possible tooth loss’.

This is far more convincing when presented as evidence rather than stating retrospectively that you ‘recall discussing with the patient’. As a judge in the Victorian Court of Appeal recently stated in reference to an oral surgeon’s tendered evidence of his recollection of his discussion with his patient:

Even were I to accept his version of what was said — and I do not in its entirety – because it is so very heavily reliant on reconstruction…’[7]

The duty to warn therefore is paramount to clinical practice. The paternalistic approach of practitioners is long gone (as it should be) and therefore when discussing possible risks of treatment, the practitioner must look beyond the tooth and take into account the patient’s concerns and apprehension.

Prognosis

Just as discussing possible risks of treatment is important, the subject of prognosis needs to be discussed with the patient both objectively and subjectively. Endodontic treatment, probably more than any other discipline in dentistry, has been subjected to a number of success and failure studies. In turn, these findings are published in the literature and subsequently quoted by clinicians to their patients.

Sjogren et al (1990)[8] is one study that is probably quoted most frequently. When asked by a patient what the likelihood of success of treatment is to be, clinicians, regardless of experience and techniques employed, will quote Sjogren’s findings:

  • 96-100% – ‘vital’ cases
  • 82% – presence of periapical pathology
  • 62% – re-treatment with periapical pathology

Quoting such figures can be fraught with danger. It is imperative to bear in mind how the Sjogren study results were obtained – all the teeth presented and reported on were treated under meticulous bacterial control conditions, including rubber dam, irrigation with appropriate irrigants and canal medication.

It is unlikely the straightforward case illustrated below will eventually succeed. Lack of rubber dam and inadequate access will likely lead to treatment issues and have a negative impact on long term success…but in all likelihood, prior to commencement of treatment, this patient was told that the success rate of such treatment would be somewhere between 90-95%.

We Need To Talk Pic C

Therefore, I would suggest dentists refrain from giving patients even broad success rates – the higher the percentage, the more likely it will NEVER be forgotten by the patient (and the clinician will constantly be reminded post-failure!) Like risk analysis and assessment, prognosis should be discussed on a case-by-case basis.

Which then brings the clinician back to the importance of the pre-operative assessment. The American Association of Endodontists has available from its web page (www.aae.org) a PDF download of guidelines for assessing the difficulty of endodontic cases.[9] Although it is slightly prescriptive in nature, it assists the clinician to carry out an extremely thorough and systematic analysis of the case prior to embarking on treatment. As such, prognosis and associated risks of treatment can be discussed in detail.

In summary, consent forms and information sheets do play an important role in day-to-day clinical practice as part of the consultation and treatment planning process. However, they should not be seen as a panacea in protecting the dentist from litigation and consent issues which may eventually arise. Careful pre-operative assessment, open discussion with the patient and, of course, a signed consent form all assist to ensure the patient (and you as the clinician) are in a comfortable position to deal with any issues which may arise during the course of treatment as well as in the future.

Issues such as consent and patient management (when things go wrong!) can be confusing and, in many instances, distressing for all parties. If at any stage you have a question or wish to discuss a particular case, please feel free to contact David Sweeny, Peter Crozier, Roger Dennett or me at the DDAS – we all enjoy assisting whenever we can and sometimes it just helps to have a third party to lean on!

Dr Stephen Harlamb BDS, MDSc
Peer Advisor, ADA NSW

 

[1] Law and Medical Practice. 3rd Ed, L Skene 2008, p.90

[2] <http://en.wikipedia.org/wiki/Pharyngeal_pouch> accessed August 30 2009.

[3] Thomas Addison, ‘Negligent failure to inform: Developments in the Law since Rogers v Whitaker’ (2003) 11 Torts Law Journal 1 at 9.

[4] Thomas Hugh, ‘Surgical Sense and Legal Non-Sense – Chappel v Hart revisited’ (2009) 79 ANZ Journal of Surgery 554 at 555.

[5] Chappel v Hart (1998) 195 CLR 232 at 272 (Kirby J).

[6] Ibid. pg 179.

[7] Hookey v Pantero VCOA 2009

[8] Sjogren et al 1990 JOE 16:498-504

[9] http://www.aae.org/dentalpro/CaseAssmtReferral.htm

“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

Case study – recovery of outstanding fees and lessons learned

A dentist provided treatment to a patient in the form of extensive fixed porcelain bridge work. The patient paid interim invoices rendered during the course of the treatment. The patient failed to pay the final invoice of $5,200 expressing that she believed that she had already paid for the cost of the treatment.

The patient alleges that she attempted to contact the dentist but was told that he was not prepared to see her for a review appointment until the outstanding invoice was paid. The dentist maintained that the cost of treatment was set out in verbal quotations provided, and which had been revised following changes to the plan for treatment.

After some time, the dentist issued proceedings against the patient seeking to recover the unpaid fee.

The patient filed a Defence denying that her informed consent for the treatment and its cost was obtained. The patient made a counter-claim alleging poor quality workmanship. In particular, the patient alleged that the agreement was entirely oral, that the porcelain bridge was a poor colour match for her lower teeth and that there were inadequacies in the size, positioning, form and texture of the bridge. The patient sought damages to rectify the alleged sub-standard bridge work and for personal injury, in the amount of $30,000.

The dentist denied the allegations of poor workmanship.

Of note is the fact that the patient and dentist had a good relationship prior to the dispute over fees. The dentist maintains that the patient had not expressed any concern with the appearance of the bridge following its insertion. Certainly, the patient’s initial written complaint to the dentist did not express dissatisfaction with the treatment, but merely confusion in relation to the amount outstanding.

The dentist is now in the unfortunate position of having to defend a professional negligence claim in relation to his treatment and the possibility of a damages award against him, well in excess of the amount he sought to recover. There is also the potential for a complaint to the Disciplinary Board.

What can we learn from this case?

It is inevitable that dentists will have to deal with the circumstance of a patient refusing to pay fees for treatment rendered. We recommend that before issuing proceedings to recover outstanding debts or placing outstanding accounts in the hands of debt recovery agents, that practitioners first make direct contact with the patient.

If a dispute in relation to fees arises, it is important that before issuing proceedings, the practitioner first ascertains from the patient the basis for their objection and specifically, whether it arises from any concern about the standard of treatment performed.

If the patient does cite dissatisfaction with the treatment, then we suggest that a practitioner arrange to meet with the patient for a review appointment to try and work through the patient’s concerns.

If the matter cannot be sorted out directly with the patient, a practitioner could give consideration to sending the patient for a second opinion regarding the adequacy of the treatment. That way, if concerns are well founded, attempts can be made to resolve the claim taking into account the fees outstanding and without resort to the stress of litigation.

It is important that practitioners ensure that each patient is provided with a written costs agreement at the outset of the treatment, and that this agreement clearly outlines the plan for treatment as well as the estimated cost of the treatment. That way, if a dispute arises, the patient can be referred back to the agreement which forms part of the contractual arrangement. It is recommended that practitioners insist on patients signing the agreement as evidence of their consent and as evidence of their acknowledgement of the terms of payment that are set out in the agreement.

If further treatment that was not initially anticipated is required, it is recommended that the patient is provided with a written, revised agreement and that practitioners obtain the patient’s further written consent to the treatment prior to undertaking any additional work.

If instalment payments are contemplated, it is recommended that the costs agreement clearly sets out the amount of each and every instalment and the trigger for payment (eg. following the insertion of fixed appliances). The agreement should set out the terms of payment (eg. payment within 14 days). The agreement should set out the consequences if payment is not made within the time allowed (eg. whether interest is proposed to be charged and, if so, at what rate and on what amount).

It is evitable that some complaints cannot be resolved despite the best efforts of the dentist concerned however, by ensuring the terms of the arrangement with the patient is in writing and is clear, practitioners will be better placed to resolve any fee dispute that may arise.

 

Kellie Dell’Oro
Principal, Meridian Lawyers

Sarah McPherson
Solicitor, Meridian Lawyers

Radiographs – risk management considerations

Radiographs (referred to hereafter as the colloquial albeit incorrect “x-rays”) are one of a dentist’s most important tools in the diagnostic process as well as being a useful aid in communication with patients. Because the taking of x-rays is common and usually straightforward, the value that radiology affords the practitioner can often be underestimated. In addition to their obvious clinical benefits, x-rays are often of key importance in defending complaints from disgruntled patients about treatment, and sometimes can be THE key in determining the entire course of a complaint or claim as you will see in some of the following case studies.

When it comes to the crunch, it is surprising how often to a member’s regret and/or embarrassment, the simple x-ray has been overlooked, or is poorly fixed or cared for, poorly taken in the first place, or been misplaced. Like other forms of patient records, in a legal setting, the quality of x-rays contributes to the impression of the quality of the treatment, especially when there may be little else available to base an assessment on. An excellent diagnostic x-ray is a delight to see!

Dentists have a legal duty to ensure that patients are treated with skill and care. This duty begins with the initial consultation process and involves:

  1. Duty to diagnose
  2. Duty to inform

There is then a duty to ensure treatment is carried out to an appropriate standard.

Where a practitioner fails in any of these duties, and the patient suffers in any way as a result, the patient has a potential claim. It will then be a matter of establishing whether the actions taken, or, perhaps not taken, were reasonable in the circumstances.

Let’s look at the first two duties in the context of x-rays. I would like to highlight that this is a greatly simplified view just for the purposes of illustration.

Your duty of care to your patients

Duty to diagnose

A practitioner has a duty to diagnose dental disease, occlusal disturbances and oral pathology so that, after appropriate discussion with the patient, treatment can be provided in a timely manner and the patient restored to oral health. “Failure to diagnose a condition correctly, in circumstances where a reasonably competent member of the same class of practitioner would not have so failed, will render a doctor [/dentist] liable in negligence”.[1]

Case 1

A patient presented seeking cosmetic enhancement of his smile. After appropriate discussion, bleaching and porcelain veneers were decided upon along with replacement of a pre-existing anterior crown. The treatment was completed in a series of appointments and the patient left apparently happy. Shortly afterwards a request for records and letter of complaint were received. The patient had sought treatment elsewhere and been advised that the re-crowned tooth now required extraction due to failure of the underlying root canal therapy that had been performed many years earlier by a previous dentist. The patient complained that the dentist had failed to take updated x-rays prior to commencement of the cosmetic work and requested assistance with the cost of implant replacement.

Comment: An updated x-ray had indeed not been taken of the tooth prior to the crown being replaced. In the absence of symptoms, it had been assumed that the root therapy was sound. Sometimes patient pressure to keep costs down can sway dentists against taking x-rays which would otherwise have been taken without hesitation. Resist this temptation. Always take the x-rays you need to ensure an unequivocal diagnosis, especially before commencing expensive or irreversible treatment. When you compare the cost of an x-ray and the information it affords

you to the overall cost of treatment, the additional expense is insignificant.

Case 2

A patient was referred away for removal of most of his teeth under general anaesthesia, and returned for issue of immediate dentures and post-operative management. Over the subsequent months, the patient was cared for by different dentists at the practice and had several small bony sequestra removed and numerous denture adjustments. However the patient continued to experience pain. He was a heavy smoker and had failed to comply with instructions to cease smoking during the post-operative healing phase, and this was considered a possible contributing factor to his ongoing problems. After numerous months of persisting discomfort, the patient sent the practice a letter expressing his desire to sue for pain and suffering, and sought treatment elsewhere. An x-ray of the upper anterior region taken by the dentist at the new practice revealed that a large portion of an incisor root had been left behind. Removal of this piece resulted in rapid settling of the patient’s remaining symptoms.

Comment: Whilst common things occur often, always keep the uncommon in mind! It was so unexpected that a straight rooted anterior tooth would have fractured that the taking of an x-ray to check for a retained root was overlooked. If no obvious cause for a patient’s problem is evident, it might be worth taking an xray to assist in diagnosis.

Case 3

A lady had attended a dentist regularly for six years having examinations and minor restorative work done. After moving house, she attended a different dental practice. A check-up was done and bitewings taken. The patient was shocked to hear that she required 5 major fillings done and one extraction – in the past she had been used to needing either nothing done or only one or two small fillings. She sent an angry letter to her former dentist requesting copies of her records and complaining that he had done inadequate examinations, failed to take sufficient x-rays, and had failed to diagnose urgent treatment.

Comment: Taking regular x-rays is a necessary part of the diagnosis and monitoring of the dental status. If the patient declines having x-rays taken, ensure this is noted in the patient’s records along with the reason. You may need to refer to this later, should a patient allege deficiencies in your treatment that the presence of x-rays would have assisted with.

If you are the subsequent treating dentist, bear in mind that small lesions or other problems that you detect may have been known to the previous practitioner. Sometimes doubtful areas or incipient lesions are not immediately restored and instead their progress is monitored radiographically to check for any development. It is important that the findings on such x-rays are discussed with the patient and that the need for regular monitoring and possible future restoration is made clear. Ensure that you record a brief note about your discussions in the patient’s records.

Case 4

A young girl presented upon orthodontic referral for removal of deciduous canines. The dental practitioner was not provided with, nor took, any x-rays prior to the extraction. A permanent lateral incisor was misidentified as a deciduous canine, and was removed and given to the patient. The practitioner only became aware of the error following a call from the orthodontist.

Comment: Extracting teeth for orthodontic reasons is the most common scenario resulting in the wrong tooth being removed, because of anatomical similarities and the usually pristine condition of the teeth requiring extraction. Always ensure you view an x-ray prior to treatment so that there can be no ambiguity about tooth identity.

Duty to inform

Practitioners have a duty to inform patients of the potential risks or complications of a procedure. In the past, the Bolam principle dictated that the standard of what to warn patients about was set by what a significant body of other peers within the profession considered was appropriate at the time. However the 1992 Australian High Court decision in Rogers v Whittaker led to a changed responsibility in the duty to disclose such that patients must now usually be warned of any risk inherent in the proposed procedure that is considered material. “A risk is material if in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner [/dentist] is, or should reasonably be, aware that the particular patient, if warned of the risk would be likely to attach significance to it”.[2] Hence the standard of care with regard to warnings is now determined by what the individual patient may desire as opposed to relying solely on medical judgment.

Case 1

A man presented with pain from tooth 47. RCT was suggested as the ideal option with extraction the only alternative. The dentist took an excellent periapical x-ray which indicated proximity of the mandibular canal to the 47 root apices, and noted in the records a caution to himself to avoid exceeding working length on instrumentation.

Having thought about it overnight, the patient returned the following day with the decision made to extract. The tooth was atraumatically removed.

Three days later, the patient returned for review and reported paraesthesia of his lower right lip. Unfortunately, despite the note in his records, this normally meticulous dentist had failed to warn the patient of this risk, being more concerned at the time with the patient’s complicated medical history and possible adverse postoperative complications arising from that. He had also been surprised and slightly distracted by the patient’s decision not to save the tooth, and the extraction appointment had been somewhat hastily arranged.

The dentist’s longstanding good relationship with the patient placed him in good stead to manage the patient’s anxiety and to oversee the gradual return to sensation in the lip over the following months.

Comment: Commonly it is the third molar region where x-rays are deficient, and which can result in insufficient information with which to adequately warn the patient of the likelihood of nerve damage. However paraesthesia has at times been reported following removal of lower first and second molars and also premolars. On rare occasion, sensation has remained permanently impaired. Hence it is necessary to ensure that xrays of all lower posterior teeth destined for extraction show sufficient information beyond the tooth apices to indicate any relationship with the inferior alveolar nerve canal. This will enable suitable warnings to be provided to the patient of the chance of nerve injury occurring, should the x-ray indicate such a risk. This will go a long way in preparing the patient should the worst case scenario eventuate, as well as being of obvious assistance in defending any potential allegations of negligence.

Case 2

A dentist placed a filling in a new patient’s tooth, 14, which had a large carious lesion. The filling was apparently close to the pulp but the tooth was asymptomatic and the patient was not warned about the possibility of RCT being required at some later stage. The patient developed symptoms two months later and sought emergency treatment from a dentist at another practice who commenced the RCT. The patient sent a written complaint to the original treating dentist stating that tooth 14 needed RCT due to him not having done the filling correctly, and threatening to take the complaint to the Health Care Complaints Commission or to the Dental Board. 

Comment: Be mindful that complaints from new patients are far more frequent than complaints from existing patients with whom a relationship of trust has been established. If you are going to keep good records for anyone, ensure you do so for new patients!

The first dentist had not taken a pre-operative x-ray because the caries was clinically obvious. It is nevertheless often prudent to take a pretreatment film to ensure a full and proper diagnosis (in this case to check for chronic periapical infection); for the purpose of having a record of the patient’s presenting state (for your own records and treatment planning purposes as well as for any future dentolegal defence requirement); and as a tool to assist in communication with the patient about their treatment.

Had the dentist taken such an x-ray, he would have had irrefutable evidence that the depth of the original caries was the reason for the RCT requirement as opposed to any fault of his restoration or “drilling too far”.

[1] Dix, Errington, Nicholson and Powe, Law for the Medical Profession in Australia, Butterworth-Heinemann 1996, p 291.
[2] ibid, p 104.

Case 3

A dentist carried out a lower molar RCT and placed a post, core and crown. Eight years later she received a solicitor’s letter claiming expenses for approximately $5,000 subsequent to a fractured instrument being discovered in the mesial root and the need to have the tooth retreated. The dentist had taken pre-, intra- and postoperative x-rays during the root therapy which had allowed her to detect the fractured file and inform the patient. However there was nothing noted in the clinical records to prove that any discussions with the patient had taken place – the dentist could only rely on the fact that it was her usual practice to inform of a fractured file and whether or not it had been able to be bypassed or removed etc. The patient claimed that he had not been so informed. Whilst the dentist’s management may have been appropriate, because of the lack of evidence of her side of the story, liability was a problem and the case needed to be settled.

Comment: This example highlights the importance of documenting radiographic findings in the records and any discussions with the patient. An offer of specialist assessment should be recorded along with the patient’s response, particularly if it is to decline referral. A court will likely believe a patient’s version of events over a dentist’s in the absence of supportive clinical records. 

Sometimes a dentist will deliberately avoid taking an x-ray when something adverse has occurred, fearing or knowing the evidence that it will show, in order to claim ignorance of an event. However the delay in being informed of a problem (which may come courtesy of a subsequent treating practitioner) may only serve to further upset a patient and in some instances, unnecessarily complicate management and reduce prognosis. It is better to promptly inform the patient of the adverse event, and you may wish to consult the ADA for advice before doing so.

Case 4

A new patient presented to a young dental practitioner for treatment of pain from the lower right which she believed was emanating from tooth 46. On examination the dentist found that tooth 46 and 47 were equally mobile with a poor prognosis, but tooth 47 was more tender to percussion than tooth 46. The dentist recommended extraction of 47. The specific tooth to be removed was only identified to the patient by percussion – she was advised that the sorest of the two teeth was the one that was going to be removed. The patient was not informed that this was a different tooth to the one that she believed was the problem. To save on costs, the patient had refused to have an x-ray taken and because 47 was so mobile, the dentist did not insist, knowing that the extraction would be straightforward. The tooth was indeed easily removed and the patient paid and left.

Shortly afterwards she returned stating that the tooth she had wanted taken out was still present and she wanted it removed. The dentist complied and extracted tooth 46 for no charge. A courtesy call was made to the patient later that day to check her progress. She was in some pain but feeling more comfortable.

The following day the patient’s partner phoned accusing the dentist of having removed the wrong tooth and requesting a meeting. A very lengthy meeting ensued between the partner and the dentist during which the partner demanded compensation for two extractions having been performed instead of one. He mentioned that the dentist had not followed correct procedures by failing to take an x-ray and said that he was holding him liable for loss of the abutment (47) for a future prosthesis that had been planned subsequent to the extraction of 46. The dentist was asked to think about it and contact the partner back with an offer. A harrowing fortnight followed for the dentist during which the partner continued to harass and harangue. The matter was resolved with a payment and execution of a Deed of Release.

Comment: This case raises issues of informed consent, patient privacy (the need to confine discussions about a patient’s treatment with the patient involved), admission of liability, and the practitioner’s right to decline providing treatment in situations where the patient is unwilling to comply with advice (in this case to have an x-ray taken prior to an extraction). The patient had also failed to provide an address and it is in contravention of the Dental Practice Act 2001 (NSW) to provide treatment in such circumstances. Whilst other evidence would likely have established that correct treatment had been provided, the lack of a pre-operative radiograph left the dentist in a vulnerable position and would have been a significant impediment in defending the case.

Case 5

A patient attended with a broken upper molar tooth with all coronal tooth structure having been lost. The dentist only recorded the patient’s name and not other essential details such as address or medical history. He failed to take any x-ray. The extraction was attempted but after a struggle the dentist failed to remove more than one root. As he was in a hurry, the dentist sent the patient off with no further advice or offer of referral. A fee of $100 had been charged and paid. “One extraction” plus the tooth number was all that was recorded in the patient records about the appointment.

The patient subsequently phoned the dentist and advised that he had attended a specialist oral surgeon and had been informed that in addition to the retained root, the sinus had been perforated.

Comment: This case was settled promptly.

Remember this! 

  1. Take the appropriate number of films which, in combination with your other findings, allows you to be confident of your diagnosis (or at least the adequacy of your attempts to reach a diagnosis). You may need to take additional films from other angles to capture adequate information. Complaints about a dentist having taken too many x-rays tend to be much less common, and tend to be about incidents of much less significance, than complaints about a dentist having taken none/too few/inadequate x-rays. If in doubt, take another x-ray.
  1. Best practice suggests that pre-operative films be taken before commencing expensive work such as crown and bridge, implant procedures, orthodontics and endodontics. In the case of endodontics, additional films should be taken both after and usually during the treatment, even if using an apex locator, so that the progress and outcome of treatment can be monitored and documented.
  1. Ensure your x-rays are of diagnostic value – this involves both the clinical taking of the films and their processing. It is no good having excellent radiography skills if the film processing is substandard or vice versa. Bear in mind that you may be required to provide copies of your records to one of your professional colleagues one day or to the Dental Board or to a patient’s solicitor.
  1. Ensure that your x-rays are dated, labeled and, if the non-digital type, are mounted correctly. This also applies to copies of x-rays which you are forwarding to other practitioners as part of the referral process, particularly referrals for removal of teeth. Oversights in these areas have resulted in the wrong tooth receiving the wrong treatment, including extraction.
  1. Be mindful that different practitioners, including within the same practice, might be in the habit of mounting x-rays with left and right reversed.
  1. Record in the dental records what x-rays were taken, the date they were taken, the purpose (if not obvious from your other notes), and what diagnosis was made, including if there was no abnormality detected (“NAD”). This way if the x-rays are lost, you will have your diagnosis recorded as further evidence of the films having been taken. Writing down your diagnosis also aids treatment planning.
  1. In addition to lowered radiation, digital x-rays have the advantage of creating an electronic audit trail where dates cannot be tampered with or inadvertently recorded incorrectly. They are also easier to store and can be stored indefinitely without deterioration. Secure back-up procedures are required to prevent loss of information through system failure. The use of digital x-rays does however involve an initial learning curve for the practitioner who is new to the system to become familiar with it and adapt his or her diagnostic skills. Auxiliary staff will also require appropriate training. Some practitioners believe that the non-digital system produces images of superior quality to those of digital systems.
  1. With digital x-rays, it may be prudent to keep a copy of the first image you take before any manipulation of contrast, brightness etc is done to enhance the image, in case something goes awry with the process.
  1. Always keep a record if the patient refuses to have an x-ray taken and the patient’s reasons – apart from being good clinical practice, this may become important in defending a claim. Without any such notation, you may leave yourself vulnerable to allegations of “I never said I wouldn’t have x-rays”.
  1. It is best to advise the patient up front that a certain procedure will involve the taking of multiple x-rays and why. That way the patient is forewarned and any objections about “unnecessary” x-rays can be addressed before they become an issue during treatment.
  1. Avoid using cost minimisation as a reason for not taking an x-ray that you feel is important. When the treatment is expensive, involved or irreversible, the cost of x-rays is minimal by comparison. If the patient declines having an x-ray for financial reasons, perhaps more information is needed to assist their understanding of the need. In such cases commencement of the treatment should be reconsidered (eg in the case of a tooth extraction).
  1. If copies of non-digital x-rays are required, this can be arranged through radiology centres, dental teaching centres, and the radiology department of major public hospitals.
  1. If you are the owner of radiology equipment, you are legally obliged to ensure that it is properly installed, housed and maintained so that it is safe for staff and patients.

By the Advisory Services Team at the ADA NSW

Case study – the law of consent for treatment to children

An orthodontist in Victoria sought legal advice on how to respond to a demand by the father of a 16 year old child, to cease a course of planned treatment.

The parents of the child were going through a bitter divorce.

The mother of the child had signed a Costs Agreement for the planned treatment at the outset of the treatment. This was done with the father’s knowledge and approval at that time.

The mother and child were keen for the treatment to proceed. The mother had informed the orthodontist that she would pay the account for the treatment.

At the point in time when the father made the demand, the child already had fixed appliances fitted. In these circumstances, the orthodontist sought advice on whether he could legally proceed with the treatment.

The orthodontist was advised that the law in Victoria recognises that a child as young as 16 can still have the capacity to consent to treatment.

The orthodontist was advised that he needed to satisfy himself that the patient herself consented to the treatment, and that provided he formed the reasonable belief that she had the capacity to do so, he could proceed with the treatment, notwithstanding the objection raised by the father.

In Australia, the test to establish whether a child has the capacity for giving consent is whether the child has achieved a sufficient understanding and maturity to enable him/ her to understand fully what is proposed and that the treatment is in the best interests of the child.

There is little guidance on how a practitioner should assess the competence of children to give informed consent. The decision must be based on a reasonably formed belief of the practitioner. Obviously, the younger the child is and the more risky the procedure, the higher the standards that necessarily have to be met in order to regard the child as competent to consent to treatment.

In this case, the orthodontist was persuaded to the view that the child was competent, having regard to her relatively mature demeanour, that she was 16 years of age, that she had already had the fixed appliances fitted and that she had been a longstanding patient, just part way through the course of treatment.

The orthodontist was advised that it would be prudent to require that both the patient and her mother sign a consent form for the further treatment. This was in addition to the practitioner making a careful record of his opinion that the patient had capacity to give valid consent. Whilst it is not a legal requirement, it was suggested that the practitioner also ask the mother to sign a new costs agreement.

Anticipating a demand by the patient’s father for the clinic to release information about the treatment and possibly the cost of the treatment, the orthodontist was advised that the patient can also make a decision to object to the release of her health information to the father. The orthodontist was advised to ask the patient whether she wanted to keep her information confidential and if she did, to respect that decision provided he formed the belief that she was mature enough to make an informed decision to that effect.

The test for determining a child’s competence for making a decision is the same in each State of Australia, however it is noteworthy that in South Australia a child, for this purposes, is defined as a person under the age of 16 and in New South Wales, a child is defined as a person under the age of 14.

If a child is under 18 years of age, or in the case of New South Wales and South Australia, under 14 and 16 years old respectively, then the child may give valid consent for medical treatment but only in circumstances where a practitioner determines that they are legally competent to do so having regard to whether the child has achieved a sufficient understanding and maturity to enable him/ her to understand fully what is proposed and that the treatment is in the best interests of the child.

 

Kellie Dell’Oro
Principal, Meridian Lawyers

Jehan Mata
Solicitor, Meridian Lawyers

Ever bought something expensive?

It may have become second nature to most of us but in reality the decision-making process for a consumer when deciding whether to purchase a good or service is anything but straightforward. The potential influences on consumer behaviour are many and varied and will differ from one person to the next. The marketing analysts, for example, cite a wide range of factors affecting purchasing decisions. These may include, but are not limited to:

  • External Influences – culture, group, situation;
  • Internal/Personal Influences – perception, attitude, knowledge, personality, income, opportunity cost, lifestyle, role;
  • Marketing Influences – product, promotion, price, distribution, service.

It is worth noting that these matters are not, for the most part, mutually exclusive. They interconnect in a way that influences who we are and how we behave.

After feeding the available information through our personal decision-making sieve, we arrive at our own conclusion – to buy or not to buy? It may, of course, be the case that we still decide to proceed with a purchase despite having formed the perception that the good or service is “expensive”. We have simply satisfied ourselves that the outlay is justified given the outcome we expect to achieve by making the purchase. Confronted with similar circumstances, however, another person may deem our “expensive” purchase to be a “bargain” and vice versa. Indeed, none of us are really in a position to speak for others in the marketplace as to what constitutes value for money.

Is dentistry any different? Whether we are comfortable with the terminology or not, our patients are consumers. Are we as dentists able to predict how any patient (given their individual circumstances, many of which we are not privy to) will perceive the fees we charge for the services we provide? The reality is that we are unlikely to be able to predict their perception but we may be able to have some input in to how they arrive at their conclusion.

At the heart of this process is information, which takes a number of different forms. In broad terms, a patient needs first to understand (on a technical level) and agree to the treatment procedure(s) being recommended. This is classically referred to as Informed Consent. Secondly, but no less importantly, the patient should be made aware of the costs they are likely to incur in receiving the treatment. It is this latter issue, Informed Financial Consent, which is addressed here.

There is nothing in the Competition and Consumer Act 2010 (Cth) that regulates the prices charged by professionals. As such, professionals are free to decide what fees they will charge clients for their services. Because of this, the Australian Competition and Consumer Commission (ACCC) believes that professionals have an ethical duty to inform their patients about the cost of the services they provide while consumers have a right to obtain information on these costs – “where possible, in advance of the services being provided”. The ACCC contends that consumers are often not as well informed about professional services as they are for other sectors because of the imbalance between what they know of the service provision compared with what the provider knows. It follows that better information needs to be provided about professional services to enable consumers to make better-informed choices about purchasing services and whether to provide consent for such services to be provided.

The source of protection for consumers is provided by the Australian Consumer Law (ACL), which is contained in a schedule to the Competition and Consumer Act 2010. Generally, the ACL requires that professionals do not, in their promotional activities, act in a way that is misleading or deceptive, or is likely to mislead or deceive. Through its enforcement of the consumer protection provisions of the ACL the ACCC is concerned that professionals obtain informed financial consent from their clients. Practitioners should be aware, for example, that failure to disclose material information such as fees may, in some circumstances, put them in breach of ACL provisions.

The issue of misleading and deceptive conduct is an important one to consider in relation to “failure to disclose material information”. In its 2010 publication Professions and the Trade Practices Act the ACCC states:

“Misleading and deceptive conduct – whether that conduct actually misleads clients or is merely likely to mislead them – is prohibited. Generally this type of conduct involves leading someone into error, or being likely to, and includes behaviour such as:

  • lying
  • leading someone to a wrong conclusion
  • creating a false impression
  • leaving out (or hiding) important information
  • making false or inaccurate claims

It is irrelevant whether these are done intentionally or not. A business can break the rules by both deliberate and inadvertent actions”.

What, then, does this all mean in real terms for the practitioner? We know from the above where the legislators stand, but what about consumer organisations? CHOICE has published several articles in recent years which touch on the issue of Informed Financial Consent as it relates to the provision of dental services. The articles Guide to choosing dental care (12 June 2007) and Can you trust your dentist? (23 November 2009) are worth reading if only to put yourself in a patient’s shoes and to understand what a consumer advocate body feels is appropriate. Both articles refer to the benefit of patients having a written quotation for proposed dental treatment. There are also several statements which acknowledge the need for dentist and patient to understand the perspective of the other. To the dentist, CHOICE urges the need to explain:

“Dentistry is said to be a notoriously inexact science, or even art based on scientific knowledge. With most people now assuming they’ll keep their teeth for life, dentists have an unprecedented duty of care. While preventative care is simply good practice, unnecessary work could ultimately destroy a tooth. Most people aren’t in a position to judge whose opinion best serves their long-term interests”.

To the patient, CHOICE endeavours to explain some of the reasons for fee variations:

“…there’s a wide cost range for most item numbers. Charges vary for many reasons, including the surgery overheads, the expertise of the practitioner and the time it takes. Even a single item number can be charged differently by the same dentist: a filling on one surface may be particularly large or hard to access, for example, and require more time; or if you’re having several fillings done at once there may be a discount (because it takes less time than doing each as a single filling)”.

And a cautionary note to patients from the same publication:

“Don’t let leading questions sway your judgement, and watch out for the sales pitch that doesn’t sound like a sales pitch. Is your dentist in the business of dentistry or the practice of dentistry?”

Would it not be reasonable for a dentist to operate in both of these spheres? It may just be that the perception of only being in the “business of dentistry” could be largely reversed by the open disclosure of fees prior to the commencement of treatment (together, of course, with a patient-appropriate explanation as to why the treatment is being recommended).

And so to the practicalities. Where does your Association stand on this matter and how can we help you? ADA Inc has an excellent resource for you to consider and I commend it to you. The Policy Statement Informed Financial Consent (“The Policy”) is complete in its coverage yet concise in its expression. You can find it on the Federal ADA website at www.ada.org.au/Professional-Information/Policies/Third-Parties/5-16-Informed-Financial-Consent. The document deals with the relationship between dentist and patient and additionally considers the impact of third party funding bodies. Some of the major points to note from this document are:

  • Informed financial consent is sound ethical professional practice. This is also good business practice and will result in fewer disputes over accounts, lower debt recovery costs and fewer bad debts;
  • Many patients will be unfamiliar with what is involved with their dental procedure. In some instances, patients may have wrongly assumed that the fee for the dental service is fully covered by their health fund;
  • Patients may be apprehensive over the pending dental procedures. They may be unwell, distressed, disoriented, or affected by more than one of those conditions. Discussing financial implications with some patients at this time may be impractical and unworkable;
  • Dental fees may be based on an itemised schedule of treatment or on the time taken to complete the dental procedure. Accordingly, the dentist may only be able to estimate a range of fees based on the expected time to undertake the procedure. Similarly, if the planned procedure is changed during surgery, due to unforeseen circumstances, this may also result in a change to the final fee charged by the dentist. Of course, any such fee should be advised at the appropriate time.

The Policy sensibly advises that any information about expected charges, provided to the patient prior to treatment, should include advice that the estimate is not guaranteed and the cost to the patient may increase if the planned procedure takes longer than expected or other procedures are required. The point is also made that dentists should ensure that patients are in a fit state to give informed financial consent.

In the public domain your Association has made its position on informed financial consent clear. On October 2008 the then Federal President, Dr John E Matthews, issued a media release in response to statements made by the Federal Minister for Health and Ageing, Nicola Roxon. In a speech to the Australian Health Insurance Association Annual Conference Minister Roxon mentioned Dental Services in relation to out-of-pocket costs, “Insurers publish information about the benefits they pay for dental treatment – but consumers often don’t get information about the actual charges until after they’ve had the treatment and receive an account”. Dr Matthews responded “The Minister is generalising when she makes such a statement as often patients request or are offered a treatment plan before commencing treatment. The ADA supports the principle of full disclosure of fees before a course of dental treatment and encourages dentists to provide and patients to seek a full estimate of treatment in advance. This is part of the ADA’s policy on informed financial consent”.

So how could you go about managing the issue in your day-to-day working life? Every practice has a different “feel” to it and there are no hard and fast rules. You know your business and your patients better than anyone else and have to decide what will work best in your particular circumstances. For some, it may be a blanket policy of providing quotations for all treatment proposed for all patients. Many current software programs make it quite easy to produce a quotation document based on the treatment plan you have entered. Given the compliance requirements of the Medicare Chronic Diseases Dental Scheme (CDDS) this should, by now, be routine for many. For others, you may choose to place a sign at reception with wording such as “We are happy to provide you with an estimate of fees for your treatment. Please advise if you would like us to prepare a quotation for you”. Other practices may take the decision to only provide quotations for treatment above a certain dollar amount and still others may just leave it to the practitioner’s discretion to suggest a quotation at the time when treatment is being discussed. Whatever the case, be mindful that what seems in prospect to be an imposition on your time (and that of your staff) is as nothing compared to the time and emotional energy you will need to invest in responding to a complaint about fees made by a patient (either to yourself or a statutory authority) after the event.

The issue of disputes over fees is very real. At the Dental Defence Advisory Service (DDAS) we are regularly assisting members on matters relating to treatment costs. The database of matters reported to DDAS currently contains some 130 files specifically on issues of fees. These are broadly categorised into one of two areas: Failure to Advise All Treatment Costs and Excessive Fees. So what are the types of circumstances that give rise to problems? Examples include:

  • Differences between what was quoted and what was subsequently charged with no explanation as to why the change occurred. The difference between the fee for a simple extraction and a surgical removal, for instance, needs to be discussed;
  • Seeing a patient for the first time and at the initial visit undertaking examination, prophylaxis, radiographs and multiple restorations – all without any discussion of what the fee payable would be at the end of the appointment;
  • Misunderstandings regarding ongoing costs such as subsequent denture relines where the patient may believe such fee was included in the original cost of the prosthesis;
  • A patient not being aware that the fee quoted for endodontic treatment was not inclusive of the subsequent restoration of the tooth. Similarly, a patient quoted for an “implant” needs to understand what this term means as a dentist’s usage of the term may be vastly different than the patient’s mental picture of a complete new tooth;
  • Unexpected additional procedures being required. An example would be the need to graft at an implant site which is only determined at the time of surgery. This possibility should ideally be canvassed prior to the event but, at the very least, addressed with the patient as soon as the practitioner becomes aware of the need to do so;
  • A patient’s monetary limit under the CDDS being exceeded such that the patient will unexpectedly incur out-of-pocket expenses;
  • Patients not understanding their gap payment obligations under either the CDDS or with health fund cover.

There are many, many more. Whatever dentistry you practice you will justifiably seek remuneration for the provision of this service, however it cannot be stressed enough just how important it is that you discuss fees with your patients prior to treatment and document these matters in your treatment notes. As a consumer yourself, would you expect anything less than to know the cost of the good or service you are considering purchasing?

At DDAS we are always just a telephone call away to provide an ear, a shoulder and, of course, advice. This is delivered in a non-judgemental way to help members deal with some of the problems that unfortunately arise as a result of dealing with people and being only human ourselves. Nonetheless, it is hoped that reading this article may stimulate you to rethink how you approach the matter of informed financial consent and perhaps, just perhaps, save you some trouble in the times ahead.

Article on Informed Financial Consent for NSW Dentist June 2011
Craig Brown, DDAS Peer Advisor

Case study – the importance of detailed and careful assessment, treatment planning and communication when dealing with patients of advanced age

The case:

When the patient was 78 she attended the specialist practitioner (periodontist) for the placement of an implant at site17. This tooth had fractured and required extraction. A crown was subsequently placed by the referring general dental practitioner. The process was uneventful and the treatment outcome successful.

The patient returned to see the periodontist when she was 83 as she was experiencing discomfort and sensitivity associated with an old bridge replacing missing teeth 14 and 15.

The practitioner took a fresh medical history which disclosed changes since he had seen the patient 5 years previously. This exchange allowed the practitioner to assess the patient’s intellectual capacity generally. He formed the view that she still had capacity to make decisions about her healthcare.

He then performed a careful and thorough assessment which included updating the medical history, the periodontal chart and taking further radiology. The practitioner diagnosed mild chronic periodontitis. At that stage he did not think abutment teeth 13 and 16 required extraction. He recommended a conservative treatment plan of cleaning with re-assessment in 3 months’ time.

The patient returned 2-3 weeks later complaining of pain from the lower right area. Examination and assessment (including radiology) revealed an endodontic lesion at the 45 and a fracture of 46. The practitioner described his findings to the patient and discussed treatment options: endodontic re-treatment with crowns or extractions restored with implant supported crowns. The practitioner recommended extractions. Again, the practitioner spent a lot of time explaining his findings and the options and the discussion was recorded in the clinical record. He satisfied himself the patient understood the discussion and therefore had capacity to make decisions.

The upper bridge subsequently fractured. Radiology investigation revealed she was a suitable candidate for implants in the upper and lower jaws and the patient ultimately agreed to a treatment plan that provided for:

  • the extraction of teeth 13 and 16
  • the placement of 3 implants at the 13-16 site
  • the extraction of teeth 45 and 46
  • the placement of 3 implants at the 45-47 site

It was clearly explained to the patient that the cost of the treatment plan did not include the cost of the crowns which were to be placed by her GP dentist.

The extractions and implant placement proceeded without event. The patient was happy with all aspects of treatment. But someone else wasn’t happy, her son. The son was a lawyer.

The patient’s son sent a letter to the practitioner asserting that he had extracted two of his mother’s teeth “by mistake and without her authority”. He requested a “healthy discount” on the fees which he perceived were incurred in fixing a “mistake”.

The outcome:

The practitioner sent a detailed letter to the son explaining all the treatment steps and the associated decisions. He strongly denied the general assertion that the treatment was provided without the informed consent of the patient and noted that his mother had made no complaint and wanted to continue treatment with him.

The practitioner noted that his mother had paid all fees.

The practitioner stressed that he never had any doubt that the patient had capacity to consent to treatment and queried the son’s basis for asserting he had no authority to proceed. He queried whether the son had been appointed an enduring guardian authorised to make decisions about dental care on behalf of his mother.

The practitioner never heard from the son again.

The practitioner was in a strong position because of the comprehensive nature of his assessment, examination, treatment planning, communication and notes. He had communicated well with the referring GP dentist. In short he was able to “back himself” when it counted.

Lessons to be learned:

  • Practitioners must assess a patient’s mental state and cognition in order to be satisfied the patient has capacity to consent to treatment.
  • When dealing with patients of advanced age, always provide adequate time for the patient to absorb the information – don’t rush treatment.
  • Always document the discussions with the patient and note the consent of the patient.
  • If a patient does not have capacity to consent (for example due to dementia) then the practitioner needs to obtain consent from someone authorised to make decisions on behalf of the patient. Failure to obtain valid consent may leave the practitioner open to a claim for assault, battery and negligence.

Marianne Nicolle
Principal
Meridian Lawyers