1. One possibility is that he could approach the problem by holding himself accountable to the standard of quality that his colleagues similarly situated would have provided. Then, if he judged himself deficient, he could redo the procedure at his expense. On the other hand, if he concluded that his colleagues would have found him faultless, he could feel free from the responsibility of remaking the appliance. However, he would still have to address Mrs Richards’ concern about the food impaction.
In reflecting on the first option, which calls into play the standards of one’s colleagues, keep in mind that the collegial standard is usually invoked as a judgment on whether treatment was merely acceptable. Dr Goldman already thinks that what he did was acceptable. He is concerned that it wasn’t excellent.
2. Dr Goldman could also ignore what his colleagues might have done and hold himself accountable to doing the best possible work. This would mean redoing the procedure at his expense, even though he felt that it would have been unreasonable to have expected him to have anticipated that particular problem. However, explaining all of that to Mrs Richards as a justification for having her pay for the retreatment would probably be impossible.
3. Dr Goldman could proceed according to options 1 or 2 but reduce his fee enough so that if, for some reason, the case must be redone, the financial consequences of charging a second time would be less onerous for Mrs Richards, while at the same time would reduce his losses to a more acceptable level.
4. In this era of informed consent, Dr Goldman could present the two plausible treatment alternatives to Mrs Richards together with a statement that she might not be completely satisfied with either option. If he chose that option, he would still have to decide what to do about the level of the fee in case she wanted a “second try.”
Ethically, are there other options? Which one should Dr Goldman choose?
When the Patient Fails to Keep the Bargain
Determining exactly how high a standard a dentist should use in deciding whether the obligation to the patient has been fulfilled is just one of the issues raised by the question of what is owed to the patient. Ethical problems are also raised when the patient fails to fulfill his or her part of the contract. This question might arise if a patient fails to practice proper dental hygiene, persistently fails to keep appointments, or, as in the following case, does not pay his or her bill.
Mrs Sandra Lichter, who was in her late 50s, was a patient in the practice of Dr Ana Burt. Dr Burt’s practice was primarily reconstructive, and she had performed that type of service for Mrs Lichter. Mrs Lichter had received full-mouth rehabilitation, consisting mostly of crowns along with one partial denture. Endodontic treatment and periodontal surgery had also been necessary.
The total bill was expected to be about $20,000. Dr Burt had been paid $2,000 by Mrs Lichter’s insurance company, and she had asked her business manager to arrange a payment schedule with Mrs Lichter. The business manager was sure that a business agreement had been made, but every time Mrs Lichter came in she made some plausible excuse for not paying.
Finally, the case was completed. Dr Burt inserted all of the restorations on a trial basis and was pleased with the result. However, Mrs Lichter still had paid no part of her $18,000 bill.
Dr Burt wondered whether she should withhold final placement of all restorations until the bill was paid or insert the prostheses and continue to try to work things out with Mrs Lichter.
Unlike in the previous case, Dr Burt is not worried about how high a standard she ought to use in deciding whether she had done her best work for her patient. Both she and her patient seem satisfied. The problem here is whether the “contract” should be fulfilled by Dr Burt when Mrs Lichter seems unwilling or unable to keep her part of the bargain.
The first issue here is whether it is ever acceptable for a dentist to withhold the completion of work until the patient keeps his or her end of the deal. Under the paternalistic ethic, the duty of the dentist was to do what was best for the patient. No conditions were attached pertaining to the responsibility of the patient. In fact, the patient was not seen as an active participant in the relationship, only as someone who was treated.
For those who accept in principle that a new relationship is emerging in which patients bear active responsibility and, therefore, have obligations as well as rights, the next question is what responsibility the patient bears. The ethic of contracts is that the parties bear mutual responsibility. Assuming both parties were competent and understood the nature of the agreement, if one party fails to fulfill her end of the bargain, the other party is not obligated to complete hers. That would seem to imply that Dr Burt would be justified in not completing the work until she is assured she will be paid.
It is hard to tell in this case whether Mrs Lichter could have begun paying her bill, but that may not make any difference morally. In a relationship that involves a contractual purchase of merchandise, if the bill is not paid, the merchandise is not delivered (or is repossessed). Is this the type of relationship between a dentist and a patient, or is the dental relationship one in which the dentist bears moral responsibility for improving the dental health of the patient even if she cannot pay, at least if the reason that she cannot pay is beyond her control? Suppose that Dr Burt decides not to cement the crowns permanently. If, at a later time, the cast crowns, which have been cemented temporarily, develop problems caused by the washing out of the temporary cement and the subsequent development of caries, is Dr Burt morally responsible? Would such actions constitute abandonment?
The ADA’s position on abandonment4 is that “[o]nce a dentist has undertaken a course of treatment, the dentist should not discontinue that treatment without giving the patient adequate notice and the opportunity to obtain the services of another dentist.” It goes on to say that “[c]are should be taken that the patient’s oral health is not jeopardized in the process.” This suggests that the ADA is working with the more traditional model in which the fiduciary relationship with a patient requires completing the work regardless of the patient’s willingness to pay. Those who view the dentist-patient relationship as more of an agreement between consenting parties would be more willing to support a dentist who withheld completion of the treatment.
We still need to decide what specific action Dr Burt ought to take. One view sides with the traditional model—sort of. Ultimately the potential long-term harms of not providing permanent cementation require that it be done. In addition, Dr Burt’s office management system is at least partly at fault for the current predicament. No matter what Mrs Lichter’s excuses were, the treatment should not have gone as far as it did without payment. So the cementation must take place, but not without considering two important caveats. One is that Dr Burt needs to have a significantly overdue talk with Mrs Lichter about the problem. We do not know much about Mrs Lichter’s personality and attitudes, but hopefully the conversation can be done skillfully in a way that maintains, and perhaps strengthens, their relationship. (An important question to consider is what Dr Burt should say and how she should say it.) The second caveat is that even though the fiduciary relationship requires that the prosthesis be properly inserted, that does not mean that Dr Burt should not be paid. There is still a business contract between her and her patient. If Mrs Lichter absolutely refuses to pay for the treatment, it is time to take legal action.
The fiduciary or contractual relationship may help to provide an understanding of another traditional element of health professional ethics: confidentiality. Health professionals have long recognized that they have a duty to their patients to keep confidential the information that they learn about the patient in the course of the professional relationship.
Only recently have we begun to realize how controversial this duty is. A close reading of the Hippocratic Oath reveals that, according to the Oath, the health professional should not disclose “those things that ought not to be spread abroad.”8 The implication is that there may be some things that are appropriately disclosed. Traditional paternalistic health care ethics determined what should be disclosed by the Hippocratic test: Always act so as to benefit the patient according to the provider’s ability and judgment.
There are two problematic cases. First, should the professional disclose information when he or she believes disclosure would serve the patient’s interest, even though the patient wants the information kept confidential? Second, should the professional disclose information when such disclosure may prevent a serious harm to third parties?
The following case raises the first question.
Mary Smith, a 15-year-old girl, came into a dental clinic for a recall appointment. She had been a patient of Dr Virginia Jones in that clinic for many years. While waiting in the radiology area, she saw a sign instructing women to inform their dentist if they were pregnant. Mary became upset and asked Dr Jones why the sign was there. Eventually she confessed that she was pregnant and asked that Dr Jones not tell her mother.
Dr Jones knew Mary’s mother quite well and felt she had an obligation to her as well as to Mary. Mary was not legally independent, and her parents had to give consent for any treatment that Dr Jones would propose. Knowing Mary’s parents, Dr Jones was convinced that it would be beneficial to Mary if her parents knew and could provide care and support during this difficult time. Dr Jones wanted to respect Mary’s confidentiality, but she was not sure that she should.
There are several approaches one can take to the problem of confidentiality. This is an interesting and important case for dentistry, because different approaches will lead to very different conclusions about what Dr Jones should do.
The more paternalistic, traditional approach would resolve the problem by having Dr Jones ask what she believes would be best for her patient. In its most traditional form, this approach did not even hold the dentist to a standard of what his or her colleagues believed would be in the patient’s interest. As long as the dentist really believed disclosure would be better in the long run, he or she had the right (maybe even the duty) to tell the patient’s parents. A modified version would permit disclosure of the confidential information only if Dr Jones’s colleagues would concur in her judgment about patient interest. In either case, there is no reciprocal set of commitments involved in confidentiality, only a judgment on the part of the professional about the patient’s best interest.
The newer approach is to treat confidentiality as a duty that stems from the contract or covenant with the patient. The key is what is promised (or implied) to the patient at the time the relationship is established.
This approach derives the ethics of confidentiality from the ethics of promise-keeping. Whatever a dentist promises or implies as part of the commitment that establishes the relationship is what is owed to the patient. If, for example, Dr Jones believes that she can only promise to withhold information in cases when it would be consistent with the patient’s interest to do so, she could make that offer to her patients. Of course, many patients who understood that she would disclose information when she believed that it would be in the patient’s interest (even when the patient did not agree) would find that proposal unacceptable. It could be argued that making that policy clear to patients would be self-defeating; patients might refuse to disclose information to the dentist if she could not be trusted.
The alternative is to promise patients that information will be kept confidential—even when the dentist believes that the patient would benefit if it were disclosed. Increasingly, sister professions such as medicine are making such promises. The British Medical Association, for example, has adopted a policy that in such cases disclosure can take place only with the consent of the patient.9
The ADA’s Principles of Ethics and Code of Professional Conduct addresses this issue in an interesting way: “Dentists shall maintain patient records in a manner consistent with the protection of the welfare of the patient.”4 That seems to place the ADA on the side of paternalism, which implies that Dr Jones not only may but also should break confidence to promote the patient’s welfare.
The ADA goes on to say that “[u]pon request of a patient or another dental practitioner, dentists shall provide any information in accordance with applicable law that will be beneficial for the future treatment of that patient.” This is somewhat ambiguous. Does it qualify the earlier statement meaning that dentists can break confidence for the welfare of the patient only when the patient or another dentist asks? Of course, if the patient asks, the ethical problem seems moot, but what if it is the dentist who thinks that confidence should be broken? What if it is another dentist who asks? Does the promise that the dentist makes permit disclosure in these conditions in order to do what Dr Jones believes will benefit Mary?
This raises problems of the second kind, however. In some medical situations a dentist may feel compelled morally to disclose information, not to benefit the patient, but to protect a third party.
This was the problem faced by Dr Davis, the dentist described in Case 1. He was caring for an HIV-infected patient whose fiancé apparently did not know that she was infected. The ethical issue posed by that patient, Andrea Armstrong, is different in important ways from those posed by the pregnant patient, Mary Smith. If Dr Jones broke confidence in Mary Smith’s case, it would be for purely paternalistic reasons—to serve Mary’s long-term interests (even though Mary might not understand or agree). Breaking confidence in this way is morally justified only to the extent to which paternalism is. In Andrea Armstrong’s case, Dr Davis, if he is inclined to break confidence, is considering doing so not primarily for his patient’s welfare but for the welfare of a third party, his patient’s fiancé.
One of the attractive features of the Hippocratic ethical tradition is that it focuses solely on the welfare of the patient. As we have seen, however, that narrow focus can also be a problem, not only when patients like Mary Smith do not want their interests served, but also when third parties are put at serious risk if the patient’s interest is served.
Twentieth-century ethics of organized physicians has supported breaking confidence in cases when there is a serious threat to the interest of third parties. The present American Medical Association (AMA) policy supports disclosure when there is a realistic threat of serious bodily harm.10 By contrast, the ADA seems to permit no third-party interests to justify breaking confidence. With specific reference to HIV status (but focusing on disclosure to another dentist rather than a fiancé), the ADA says that the dentist should obtain permission from the patient before disclosing and should contemplate severing the relationship if the patient refuses. This, of course, would not warn Ms Armstrong’s fiancé of his impending risk. Does it relieve Dr Davis of his moral responsibility?
The previous section presented confidentiality as an integral part of the fiduciary relationship. The security felt by a patient that sensitive information disclosed in the course of treatment will be kept confidential by the dentist is a key feature of the professional trust relationship. Also of great importance is the patient’s expectation that the dentist will act in his or her interests. Patients should be able to expect their dentist to deliver high-quality care, minimize pain or discomfort, honor their confidences, charge them fairly, and, in general, respect their integrity as people by not abusing their position. Patients have a right, and are almost forced, to trust that their dentist will act competently and compassionately on their behalf.
This expectation of trust is different from that developed with close friends. Trust with friends develops over time; it is earned. In contrast, patients should be able to expect trustworthiness in dentists by virtue of their training and their special role in society.
One reason that trust is so important in the relationship between patient and dentist is that there is usually a significant inequality in the relationship. The dentist has knowledge and skills not possessed by the patient. The possession of these characteristics places the dentist in a relative position of power and the patient in a relative position of vulnerability and dependency. With this inequality comes an obligation to act in ways that avoid the abuse of power.
In this and the following section, we present cases that deal with the implications of trust in the relationship between dentist and patient. This section’s cases explore the delicate interplay between the professional role and entrepreneurship—functioning as a businessperson. The next deals with personal relations with patients that mix sexual interests with the professional relationship.
Recently, Dr Louisa Sanchez, a general dentist, received a letter from a board-certified general surgeon inviting her to offer her patients “better health, more energy, and reduced cancer risk through custom vitamins and develop a lucrative wellness-based business.” The claim for health benefits was accompanied by a Journal of the American Medical Association citation and a statement that two reputable pharmaceutical labs “are providing average Americans with a customized supplement program based on proven scientific testing.”
The surgeon gave examples of four professionals who generated between $16,000 and $45,000 per month—an orthopedic surgeon, a podiatrist, an anesthesiologist, and an internist. Now, apparently, he and the company he was associated with wanted Dr Sanchez and other dentists to join the growing number of doctors who were selling these products to their patients in their offices. For some of them the additional “income stream” came to surpass that of their practices. The surgeon pointed out that, “with increasing overhead, increasing malpractice insurance, increasing regulations, and third-party payment hassles, many dentists are looking outside of their practices for additional income streams to secure their financial future.”
All of this, the surgeon emphasized, could be accomplished by the dentist “while remaining true to the ideals of helping his/her fellow man.”
Dr Sanchez had only to call the surgeon at a toll-free number to receive more information. And if her interest continued, the surgeon would visit Dr Sanchez personally “to fully explain the program.”
Dr Sanchez was impressed with the opportunity to make extra money, even though she figured much of the letter was hype. On the other hand, she did not think she had gone to dental school to sell vitamins—custom or otherwise. But a colleague of hers said, “If you believe that what you are selling the patient is good even though it is not dentistry, what is the problem?”