4: Ethical and Legal Issues in Treatment Planning

CHAPTER 4

Ethical and Legal Issues in Treatment Planning

Robert Barsley and Helen Sharp

CHAPTER OUTLINE

Hippocratic Oath
Ethical Codes
Diagnosis and Treatment Planning
Legal Guidelines

Types of Law
Doctor-Patient Relationship and Professional Liability

Duty
Breach of Duty
Damages
Proximate Cause
Other Factors
Accepting Patients into the Practice

Who Must Be Accepted?
Who Must Be Treated?
When Does Treatment Begin?
Referring Patients
Confidentiality
Dental Record

Who Owns It?
What Is Included?
How Should the Information Be Recorded?
How Long Should Dental Records Be Kept?
What Is the Value of the Dental Record?
Consent to Treatment

What Is Consent?
How to Gain Informed Consent
Documenting Informed Consent
Competence and Capacity to Consent
When a Patient Lacks Decision-Making Capacity
Is Informed Consent Always Necessary?
Negligence and the Dental Practice

Liability Insurance
Suit-Prone Patients
Common Causes for Litigation
Conclusion

The successful practice of dentistry involves more than the skills required to perform technically excellent dental treatment. It also requires skills that go beyond those necessary to plan and sequence treatment as described in other chapters of this book. A hallmark of a profession is that its members are accorded the privilege of self-governance, primarily because the profession is expected to put the needs of those it serves above the needs of its members. This chapter explores that concept in the light of the laws and other considerations that influence the modern dental practice. Core issues covered are the ethical and legal importance of the treatment plan, the extent of documentation required for the plan and for the treatment rendered, and what constitutes the informed consent required to carry out that plan.

 

Dental Team Focus

Ethical and Legal Issues and the Oral Health Team

The actions and decisions of the oral health team must be guided by ethical and legal principles. This requires that every member of the team take responsibility for his or her own actions, maintaining confidentiality, doing no harm, and treating each patient fairly.

The administrative assistant begins this chain of basic principles by maintaining confidentiality as the medical-dental health history is obtained and updated at each appointment and by obtaining informed consent from the patient before treatment begins. The clinical staff must follow the standard of care for every patient by performing clinical functions that are legal in the state or country they are practicing in and by maintaining a high level of knowledge. These responsibilities require constant attention to updating skills and maintaining the necessary credentials for certification or licensure.

To be truly skilled in the art and science of dentistry, a dentist must be able to assess the patient’s needs, help the patient understand and recognize the need for appropriate treatment, and then perform clinically acceptable dentistry. In addition, the dentist must be able to master the record keeping, legal, and communication skills required by the modern dental office. It is important to recognize at the outset that although the law forms the foundation upon which this aspect of dental practice lies, mastery of the law only is insufficient. Successful professionals exceed the requirements imposed by the law, and furthermore, they appreciate and favorably resolve conflicts that can arise between mere laws or rules and the ethical or moral underpinnings of those laws.

HIPPOCRATIC OATH

The selflessness that grounds the healing professions springs from the Hippocratic oath, first articulated more than 2000 years ago by the physicians of Greece. In that famous oath, the issues of ability and judgment, confidentiality, ethical limits on the boundary of medical practice, and acting only for the benefit of the patient are espoused. Physicians and some dentists continue to swear to that or similar oaths upon their graduation and entry into the healing professions (Box 4-1).

 

BOX 4-1   Examples of Oaths Taken by Health Care Professionals

A Generalized Medical Oath (Taken by Some Dental Graduates)

I solemnly pledge myself before God and in the presence of this assembly, to pass my life in purity and to practice my profession faithfully. I will abstain from whatever is deleterious and mischievous, and will not take or knowingly administer any harmful drug. I will do all in my power to maintain and elevate the standard of my profession, and will hold in confidence all personal matters committed to my keeping and all family affairs coming to my knowledge in the practice of my calling. With loyalty will I endeavor to aid the physician in his work and devote myself to the welfare of those committed to my care.

Another Oath Taken by Some Dental Graduates

I, as a member of the dental profession, shall keep this pledge and these stipulations. I understand and accept that my primary responsibility is to my patients, and I shall dedicate myself to render, to the best of my ability, the highest standard of oral health care and to maintain a relationship of respect and confidence. Therefore, let all come to me safe in the knowledge that their total health and well-being are my first considerations. I shall accept the responsibility that, as a professional, my competence rests on continuing the attainment of knowledge and skill in the arts and sciences of dentistry. I acknowledge my obligation to support and sustain the honor and integrity of the profession and to conduct myself in all endeavors such that I merit the respect of patients, colleagues, and my community. I further commit myself to the betterment of my community for the benefit of all society. I shall faithfully observe the Principles of Ethics and Code of Professional Conduct set forth by the profession. All this I pledge with pride in my commitment to the profession and the public it serves.

The “golden rule” also supplies an ethical guidepost treating others as one would wish to be treated. The useful extension of this guiding principle is putting one’s self into the patient’s shoes when making a treatment choice. If age, gender, or other issues make that transference awkward for patient or practitioner, then the dentist can put the decision in the perspective of what level of care would be provided if the patient were his or her own grandparent, parent, sibling, or child, all the while remembering to put the needs of the patient uppermost in the decision-making process. The clinician should avoid preconceived ideas as to what a particular class of individuals, such as the elderly, desire, need, or are due.

ETHICAL CODES

In the modern practice of dentistry, these historical guides to good practice have been distilled into the “Principles of Ethics and Code of Professional Responsibility” promulgated by the American Dental Association (ADA). In addressing the very concerns first voiced in ancient times, the Code articulates acceptable professional behavior in upholding patient autonomy, minimizing harm through nonmaleficence, maximizing patient welfare through beneficence, promoting the fair and equal treatment of patients or justice, and maintaining honesty through the principle of veracity. Although the Code states that violations of its provisions may result in disciplinary action, its practical effect is generally limited to standing or membership in the organization itself. Whereas in the not-so-distant past, expulsion from a professional organization, such as the ADA, might have had an effect as devastating as license revocation, the same cannot be said for today’s practice arena. Fortunately, in many cases the law has become a substitute for what may otherwise have been lost. Each of the five ethical areas covered by the Code is addressed by the legal system. As will be shown, law, ethics, and morals require a dentist to do what the patient desires, subject to the limitations imposed by law, morals, and ethics. This chapter focuses on the interplay between these often competing themes.

DIAGNOSIS AND TREATMENT PLANNING

The dentist should operate from a patient-centered biologic database that is as complete and well documented as the office’s financial database. Patient records that contain diagnoses and tests, a well thought out and clearly recorded treatment plan, written informed consent forms signed by the patient, and coherent progress notes can be seen as excellent evidence of professional competency. Clinicians may also experience ethical dilemmas as seen in the accompanying In Clinical Practice box. Preparedness can help the dentist avoid having a suit filed, effectively defend against any suit brought, and minimize compensatory damages in those rare instances when the patient-plaintiff prevails.

LEGAL GUIDELINES

Types of Law

The U.S. legal system can be divided into two major divisions civil law and criminal law. Because our legal system is adversarial in both divisions, attorneys represent clients, acting as advocates who enter facts into evidence and argue the law on behalf of their clients. Commonly, a jury of citizens is impaneled to be the trier of fact, that is, to rule on which party has proved its case. Judges rule on all matters concerning the applicable law and also on the facts in cases not heard by a jury. Civil law governs the private legal relationships between two or more parties, such as in cases of negligent actions or tort law, in other words, malpractice. Criminal law operates when a person commits a wrongful act against society or the public, such as driving while under the influence of alcohol. A nonsanctioned act directed toward an individual, such as an assault or battery, may also be a crime. A dental practice may interact with criminal or civil law or even, in unusual cases, both a dentist could be charged criminally for battery and could be held liable for damages in the same incident. Administrative law, a smaller third division of law, governs the state and federal regulatory areas, such as professional licensing and rules for U.S. Medicare and Medicaid programs.

 

In Clinical Practice

An Ethical Dilemma

Upon graduation from dental school more than 20 years ago, some classmates kept in close touch as our practices were beginning. One classmate called during the first winter to discuss a new patient. When the patient had presented for his first examination, my friend noticed a lesion on the upper lip that he suspected might be cancerous. He called the lesion to the attention of the patient and suggested a biopsy. The patient declined; he only wanted his teeth restored. When the patient returned 2 weeks later, the lesion had increased in size and my friend’s clinical diagnosis was melanoma a frightening prospect. He again pointed out the extreme urgency of seeking prompt and thorough intervention. He even considered removing the lesion without the patient’s consent while the area was anesthetized for a nearby restoration. What a dilemma. He felt strongly that he should intervene, but the patient was adamant in refusing the recommended treatment, even though it might be lifesaving. After the second visit, my friend concluded that he could no longer ethically treat this individual. One could argue that refusing to provide further care could only make matters worse because by the time the patient had found a new dentist, the melanoma might be too advanced for effective treatment should the patient change his mind. The outcome? Unknown. The patient never returned for that third visit. He was, as is so often noted in our professional journals, “lost to follow-up.”

When you have completed your study of this chapter, ask yourself what this dentist might have done to better communicate the urgent nature of the diagnosis to gain the patient’s acceptance of the recommended treatment. What will you do if faced with a similar circumstance? Although no answer is correct per se, this example does not seem to offer many easy choices.

 

What’s the Evidence?

The Most Common Types of Disciplinary Actions Initiated by State Dental Boards in the United States

In 2002, 1928 disciplinary actions against dentists were reported by U.S. state boards.1 The most frequent action, occurring in 25% of cases, was to assess a monetary penalty or restitution (compensating for loss or damage). Approximately 17% of the cases resulted in probation, whereas 16% resulted in reprimand or censure. Remedial education and suspension each accounted for 10% of the disciplinary actions taken. About 4% of the cases resulted in voluntary resignation or retirement, and another 4% resulted in the dentist receiving treatment for substance abuse. The remaining disciplinary actions included: license revocation, practice restriction, controlled license sanctions, and medical or psychological evaluation or treatment.

 

1. COMPOSITE, ed 15, Chicago, 2004, Publication of the American Association of Dental Examiners.

DOCTOR-PATIENT RELATIONSHIP AND PROFESSIONAL LIABILITY

Malpractice claims for damages are civil suits based in tort law. To be successful, claims must satisfy four elements. First, the defendant must owe a duty to the plaintiff and second, the defendant must breach that duty. Third, the breach of the owed duty must result in damage to the plaintiff, and finally, the breach of duty must be shown to be the proximate cause of the damages. Malpractice claims usually allege negligence or fault by the dentist as the breach. The negligent act may arise from either the commission of or the omission of an act during treatment. The plaintiff must provide a preponderance of credible evidence that the alleged wrong occurred, thereby meeting the burden of proof. Each of the four elements must be addressed through evidence; failure to address and to prove each element can result in the case being dismissed in the defendant’s favor.

Duty

The dentist owes his or her patient that degree of skill, care, and judgment possessed by a “reasonable” dentist. This is the benchmark against which an alleged negligent act is judged in other words, the standard of care that must be established by expert testimony. Courts have cited the greatly increased opportunities for communication and education in the dental field as the foundation for a national or prevailing standard of care. In many jurisdictions, a plaintiff cannot use the testimony of a specialist to establish the standard of care for a general dentist. On the other hand, specialists have long been held to a national standard of care. In addition, general dentists who hold themselves out as specialists (and in some jurisdictions, even those who do not) are held to the national standard when performing treatment that clearly falls into the realm of the specialist. In essence, the courts require all dentists to properly diagnose disease.

The duty to treat arises from the doctor-patient relationship. This relationship may be either an expressed or a tacit agreement. The patient may unilaterally sever it or it may be terminated by mutual consent. The doctor-patient relationship may not be severed arbitrarily by the unilateral action of the dentist, however, without following certain guidelines. An improper termination of the dentist-patient relationship may constitute negligent abandonment of the patient with subsequent liability for damages. In most instances, a patient enters the dental office expecting treatment and does not distinguish between the examination, the treatment plan, and the actual treatment. If the treatment plan is not agreed to for any reason, both the dentist and the patient must clearly understand the next steps to be taken. It is important to realize that even if the relationship is properly severed, the dentist may still owe a duty to arrange for the opportunity of continuing treatment, including providing referrals and a referral source, and making copies of records available.

Breach of Duty

The breach of the duty owed is a negligent action defined as failing to do something that the ordinary, prudent person would do or conversely doing something that the reasonable and prudent individual would not do in the same or similar circumstances. A mere bad result or an unforeseen result does not constitute negligence per se. Negligence is established by one of two general methods. The first and perhaps the easiest is through a doctrine known as res ipsa loquitur in which the deviation from the standard of care is so obvious that expert testimony does not need to be offered to prove the departure. For example, a patient who sustained injury because of a radiographic unit toppling over or because a dental instrument was dropped in the patient’s eye need only show that the injury occurred. It is commonly understood that such injuries are not the normal expected results of a dental visit. The extraction of the wrong tooth would also fall into this category of claims, although the services of a dental expert may be required to comment upon the extent of the injury suffered. It is important to note that in this type of case the burden of proof shifts to the defendant dentist to show by a preponderance of the evidence that negligence did not occur. The accompanying In Clinical Practice box discusses one such example.

The great majority of cases, however, require a demonstration of the standard of care from which the defendant is alleged to have deviated negligently. The degree of skill, care, or judgment required of the defendant dentist is that of the reasonable and prudent practitioner. As pointed out above, another qualified dentist must testify as to exactly what that means in each case. The standard of care testified to by the expert should not be “what in my opinion I would have done,” but rather whether or not the treatment (or lack thereof) at issue is one that the reasonable (average) dentist might have provided under the circumstances. Because errors at the outset have the potential to deprive a patient of the future opportunity for proper treatment, courts have often held that the highest standard of care applies in the area of diagnosis.

 

In Clinical Practice

Breach of Duty

Some years ago the author was asked to review, before trial, a case of alleged dental negligence from a neighboring state. A woman in her early 20s faced the imminent loss of several molar teeth because of severe periodontal bone loss. Upon her request, her dentist had furnished his complete dental record documenting the treatment that she had received from age 10 through the prior year. The record consisted of a single page form combining an odontogram and progress notes. Numerous bite-wing and periapical radiographs were included in the chart folder. According to the notes, she had been seen every 6 to 8 months throughout the period in question. The notes mentioned that approximately 7 teeth had been restored with Class II amalgams during this time. Additionally, she had received “prophy, BWX, P.A. x 2” at nearly every visit. The record included no charting of or mention of periodontal probing or any other diagnostic testing, nor was there a treatment plan or any updated health history beyond the one completed by her mother at her first visit.

The bite-wing radiographs revealed no calculus, but when viewed sequentially, showed a clear progression over time of generalized periodontal destruction. Bone loss was greatest in the areas between the teeth that had been restored, apparently because nearly every interproximal box restored by this dentist had resulted in overfills with large overhangs. Corresponding maxillary and mandibular periapical views of the incisor teeth were included for each of the bite-wing sets. When questioned at deposition, the dentist maintained that his abbreviation “P.A.” actually stood for “periodontal assessment” rather than “periapical.” Of course, this case settled before trial. This patient may have had a systemic condition that accelerated her response to the local irritants, or she may have been the victim of an aggressive form of juvenile periodontitis. Nevertheless, this dentist’s failure to recognize the progress of the disease, or if he had recognized it, to inform her of her deteriorating oral condition, cost her several teeth and his insurer tens of thousands of dollars. This case illustrates the need to assess and record the findings from current diagnostic aids in the light of previous tests and aids and to regularly update the patient’s health history. I suspect that this dentist viewed each session’s radiographs in a vacuum as it were, never comparing them with any others beyond the most recent and thereby missing the insidious, but relentless, progress of her disease.

Damages

Next, negligence must be shown to have resulted in damage to the patient plaintiff. This undesired result must be shown to have been foreseeable in the course of events. Although the exact type or extent of damage need not be foreseen, at a minimum, the facts must show that injury could be anticipated under the circumstances. Interestingly, the defendant dentist is said to “take the plaintiff as he finds him”; therefore different plaintiffs will suffer different degrees of damage from the same negligent act. For example, depending on the tooth in question or the number of remaining teeth, the extraction of a single wrong tooth could have vastly different consequences. Similarly the esthetic consequences and method of repair of that mistaken extraction will vary from patient to patient.

The final consideration for damages is that they must be quantifiable, not merely speculative. Commonly, a monetary amount is established that the court may award to a successful plaintiff as compensatory damages, designed to make the plaintiff whole or to restore him to the condition he was in before the negligent act. Compensatory damages include amounts for actual damages, such as past and future medical (or dental) expenses, loss of earnings, loss of consortium (e.g., love and affection), and other damages proved at trial, and noneconomic damages, such as pain and suffering. In certain jurisdictions, an additional damage award, known as punitive damages, may be assessed to punish the wrongdoer or to hold him or her up as an example to others to deter future occurrences. A showing of wanton and willful misconduct by the defendant is required to justify a punitive award. Some jurisdictions limit the total amount recoverable in a malpractice action or may place other limitations on various components of the damage award.

Many years ago, the case law in some jurisdictions prevented recovery by patients who had received treatment without charge a charity exemption. Similar exemptions also once protected nonprofit and government-operated health care organizations from liability. This is no longer the law in most (if not all) U.S. jurisdictions. In today’s litigious society, even the dentist who provides treatment at no cost whether for charity or even as a gift to friends or family remains at risk should negligence be proved. Regardless of the funding source, the dentist owes every patient the same level of skill, care, and judgment.

Proximate Cause

Establishing proximate cause is a factual matter. The evidence must demonstrate that the damages complained of flow directly from the negligent action of the defendant to the plaintiff without any other intervening cause and that, but for that negligent act, the damages would not have occurred. Some cases will fail the proximate cause test because even though the defendant dentist deviated below the standard of care, the patient did not suffer any injury. Similarly, even if the plaintiff suffers an injury, the results may not be any different from those that would have been likely to occur in the absence of negligence. For example, the negligent extraction of a hopelessly periodontally involved tooth may not result in actual damages. One line of cases has held that failure to refer a patient to a specialist after a negligent injury has occurred, or referring that injured patient to a specialist shown to be incompetent, may constitute proximate cause. In a similar vein, failure to secure informed consent may be shown to be the proximate cause of damages suffered by a patient.

Some jurisdictions substitute a risk-benefit analysis to determine which party should bear the costs of a negligent action. Such an analysis may include an assessment of public policy or may apportion the fault among various entities based on which can best compensate the injured party and modify operating procedure to prevent future occurrences.

Other Factors

In certain situations, even if the plaintiff can meet the four requirements previously described, other factors may preclude the case from being judged. One of these is known as the statute of limitations the case is just too old and would therefore be complicated by such factors as the possible loss of evidence and witnesses. The judicial system has a valid interest in limiting the time in which a case may be brought to the bar. Many jurisdictions place a 1-, 2-, or 3-year limit on the opportunity to bring suit, dating from when the plaintiff first knew or should have known that a negligent action had occurred. A similar bar to the courtroom is the statute of repose that operates to deny relief after a certain defined amount of time has passed, no matter whether the potential plaintiff has gained knowledge of the negligent act or not.

Conversely, in some situations, the amount of time available to the plaintiff may be increased. The act of fraud, />

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Jan 5, 2015 | Posted by in General Dentistry | Comments Off on 4: Ethical and Legal Issues in Treatment Planning
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