Ethics and Law

(1)

Canberra, ACT, Australia
 
Summary
Endodontic procedures are both challenging and technically demanding resulting in treatments that may have fallen short of acceptable guidelines. Occasionally the dentist may be open to litigation on the basis of clinical negligence. Failure to communicate with patients about the procedure and not obtaining consent for treatment is a key area of complaint, as is inadequate record keeping. When treatment is undertaken within the framework of accepted guidelines, it would be very difficult for a patient to open a claim for clinical negligence should a failure occur.

Clinical Relevance
Endodontics is an area of dentistry which gives rise to an increasing amount of complaints and litigation. Valid consent is an absolute requirement for legal and ethically correct treatment. Appropriate consent, through good communication, plays an important role in overall risk management that can reduce the chances of complaints. Warning patients about the risks associated with endodontics is an important part of obtaining a valid consent. Where treatment will be complex, a referral to a specialist should be offered.

5.1 Overview of Ethico-Legal Issues and Endodontics

Today, we live in a world of ever-increasing consumerism and high expectations where patients are sometimes dissatisfied resulting in a complaint. Receiving a complaint from a patient can be very confronting and stressful. Patients generally complain because they may be dissatisfied with their experience, they may seek information that is not forthcoming or they may be unhappy with the result of care provided [1]. The dimensions of patient satisfaction include the art of care (caring attitude), technical quality of care, accessibility and convenience, finances (ability to pay for services), physical environment, availability, continuity of care, efficacy and outcome of care [2]. A complaint can be defined as ‘an expression of dissatisfaction with the practice’s procedures, charges, personnel or quality of service’ [3].
Good communication, both verbal and non-verbal, is a key to reducing patient complaints [4]. The clinician must be astute in determining patient expectations, addressing previous misconceptions and being able to ensure that the divide between the patients’ expectations and what can actually be achieved has been modified, reduced or eliminated. This process fathomed from careful history taking, clinical examination and overall assessment will aim to address any unmet patient expectations thereby reducing the cause of many complaints [5]. Early recognition of patient unhappiness will help to resolve concerns quickly and prevent patient complaints from escalating [6].
With dental practitioners performing more endodontic procedures in their office, the exposure to possible malpractice litigation increases significantly. It is not enough to possess good skills and techniques; dentists must actively and diligently adhere to risk-reduction strategies to help minimise or eliminate future lawsuits [3, 7]. Clinical risk management is the process by which a framework of protocols is in place in order to prevent complaints or at least help minimise their impact (see Table 5.1).

Table 5.1

Key clinical risk management checklist
Always attempt to develop rapport and communication with the patient
Before performing any endodontic procedure, obtain informed consent
Document clearly, fully and legibly where applicable
Know when to refer the patient for a second opinion
Have all necessary equipment before beginning endodontic procedures
Good radiographic technique should be applicable with preoperative, peri-operative and post-operative films demonstrating technique
Rubber dam use is mandatory both from an aseptic point of view and medicolegally
Any iatrogenic errors during the procedure should be discussed with the patient and documented and appropriate referral option given where necessary
Be knowledgeable in the recognition and management of common endodontic complications including hypochlorite accidents and post-treatment flare-ups
Consider appropriate referral to endodontic specialist where applicable
Valid consent is a continuous evolving process rather than a single event, leading to patient understanding and permission for the clinician to deliver treatment, fundamental to clinical, as well as ethical and legal, risk [8].
Clinical and ethical risk management requires not only the correct treatment being provided, and appropriate consent obtained, but also good records of that treatment. Good record keeping is fundamental in managing risk and preventing and resolving complaints and legal claims [9, 10].
Ethics is a branch of the discipline of philosophy that studies morality associated with human behaviour. Professional ethics in dentistry from the time of Hippocrates to the present day is based on the ‘duty of care’ and providing justice and fairness to the patient including beneficence, respect for autonomy, veracity, quality care, continued learning and fidelity [11, 12]. The principle of beneficence is based on the fact that the patient is seeking care from a clinician to gain benefits in his/her oral health. The clinician provides the highest quality of care subject to current scientific understanding, the clinical circumstance and the patients’ desires. Respect for autonomy, derived from the Greek meaning of self-rule or governance, means that it is morally correct to acknowledge and affirm the rights of the patients and their self-determination, important in the process of gaining both a moral and legal valid consent. Truthfulness or veracity is a moral duty to all patients whereby valid consent is achieved without manipulation, deception or coercion. A prima facie duty of dentists is to ensure that the upmost quality of care is provided to the patient ensuring maximum benefit. Any treatment therapy provided must be appropriate for the specific problem addressed based on both sound scientific knowledge and established technical standards. One cannot provide quality care or care consistent with the profession’s knowledge base, if one is not familiar with that knowledge base. Hence continued learning (CPD) is a further professional moral duty for the dentist [13, 14]. Fidelity or faithfulness is the promise of the dentist to patients to be there for them; to place their interests as primary; to do for them the best that can be done with regard to oral health, and to not abandon them in a time of their need [15].
A dentist assumes a duty of care under common law when a patient is accepted for treatment. Complaints as a direct result of any treatment provided by the dentist can result in disciplinary matters with the governing body that regulates the profession or civil and/or criminal proceedings. The former may result in suspension or erasure with revoking of their dental licence and ability to practice. The latter may be brought before either a judge or jury, resulting in either compensation or direct criminal proceedings. Civil and criminal matters brought before a judge may arise as a resultant of either intent such as assault (battery), negligence or strict liability (problems arising from the use of dental products).
To bring an action of negligence under law, the judge needs to be satisfied that a duty of care existed between the defendant (the clinician) and the plaintiff (the patient), that the duty of care was breached and that there is a causal link between the breach of duty and injury sustained by the patient.
Duty of care (doctor–patient relationship) requires that the clinician provides a quality of care in accordance with their appropriate skill and knowledge. Valid informed consent helps protect the clinician from complaints, civil claims, criminal charges and disciplinary matters with the relevant governing body.
In the English law (UK) the Bolam principle for negligence was derived from the direction given by McNair J to the jury in the case of Bolam v. Friern Hospital Management Committee. Mr Bolam, a manic–depressive, was given electroconvulsive therapy. Risks of the procedure including seizures that could result in fractures of the patient’s bones were not discussed. Measures such as restraints and the use of muscle relaxant drugs to reduce these dangers were not given or discussed either. Being ignorant of these issues, he did not ask for them and following therapy sustained severe fractures to his pelvis [16]. The Bolam principle was formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care, but the standard of care is a matter of medical judgement.
The Sidaway case was another landmark case concerning the duty of the surgeon in terms of informing the patient of the potential risks before undergoing an operation. The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1 % of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation. In this case the judge ruled that the clinician was not negligent if he had informed the patient of the same risks as a responsible body of medical opinion, analogous to the Bolam test of negligence [17].
Inherent problems in the paternalistic approach to the Bolam test as applied to consent to treatment and the disclosure of risk have been exposed through a series of cases that have moved the law step-wise to a position more in alignment with that of North American jurisdictions and Australia. At the age of two Patrick Bolitho was diagnosed with a patent ductus arteriosus, a condition that prolongs the foetal circulation after birth to the detriment of the normal oxygenation of the blood. An operation to correct the anomaly had been undertaken in 1983 from which he made a good recovery. A year later he was admitted to St Bartholomew’s Hospital with croup. During the course of his admission, a sequence of events culminated in a respiratory collapse and cardiac arrest, from which Patrick emerged with severe brain damage and subsequently died. The hospital admitted breach of duty for the failure of the paediatric senior registrar, Dr Horn, to attend when she was called on account of being detained in the outpatient clinic. Experts for the claimant asserted that endotracheal intubation would have been the correct course of action under the circumstances, but Dr Horn maintained that even had she attended she would not have attempted intubation and cited Bolam to demonstrate that a responsible body of opinion would have endorsed her decision. Therefore, the failure to attend was not causally linked with the respiratory arrest since, hypothetically, had she attended the outcome would have been the same. It was however concluded that in rare cases, where a reasonable body of professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the opinion is not reasonable or responsible [18].
The High Court of Australia rejected the Bolam test of medical negligence with respect to giving information and obtaining consent in Rogers v Whitaker

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Sep 7, 2015 | Posted by in Endodontics | Comments Off on Ethics and Law
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