10

CASE: HAPPY SMILES

Dr. Bob Milford graduates from dental school in 2004 and starts a practice in Montclair. The dentist-per-capita ratio in Montclair is very low at the time, and a local bank happily provides a start-up loan that also offers enough working capital to help service a substantial student debt. His practice takes on all comers and he signs manageable provider contracts with any insurance companies that patients might have. He also writes off accounts when needed for charity purposes. His practice grows steadily and his life grows comfortable. But Montclair’s industrial base begins to weaken by 2010, and neither he nor the bank sees much hope for a quick recovery of Montclair’s economy. So in 2012 he uses the gains from his eight-year practice, another bank loan, and a relatively minor windfall from the settlement of his parents’ estate to buy a good-sized practice from a retiring dentist in Ridgeview, a comfortable suburb of the state’s largest city, 130 miles north of Montclair. At the same time, he puts the declining Montclair practice into the hands of the associate he hired three years earlier. He retains ownership of the practice and pays the associate a salary for managing it, plus 35 percent of the profits with provisions for an annual bonus if costs are kept in line. He also drops the provider contracts with any insurance companies that are no longer financially profitable; the associate is not restricted, though, from renegotiating any provider contracts on his own. The profits from the Montclair practice will hopefully help cover Dr. Milford during the transition to Ridgeview.

Dr. Milford arranges to leave the Montclair practice six months before the Ridgeview dentist actually retires, and he takes a wonderful six-week European vacation with his wife and three children. He then spends the rest of those six months attending continuing education programs and workshops all over the country to develop more skills in aesthetic dentistry, pain control and anxiety reduction techniques, and dental marketing. He is well aware of the data from dental economists that predicts a general downturn in the dental market. So Dr. Milford develops, with the help of a highly skilled business consultant he has come to know, a plan that may help his practice not just weather the downturn but turn it into an opportunity.

Upon taking over the Ridgeview practice, Dr. Milford first changes its name to “Happy Smiles, Inc.” He then hires the business consultant to contact all the patients of the previous dentist and to create carefully designed and highly polished billboard and radio ads, along with e-mail, Facebook, and Twitter campaigns aimed at reaching every resident in Ridgeview and six surrounding communities. This highly sophisticated campaign announces the establishment of a new dental practice that will bring advanced dental technology to the patients of Ridgeview and that makes “happy smiles” the focus of the practice rather than “the pain, discomfort, and anxiety that the general public associate with dentistry.” The messages also include an introductory examination offer for new patients or the next check-up for patients of the previous dentist. The published price of an exam is intentionally well below that of the fees charged by the area’s other dentists.

These messages also ask audiences if they know about “all that can now be done with the new dental treatments and materials.” Dental and general health, which “are what professional dentistry is all about” are benefiting greatly, the ads says, and the appearance of the smile can be greatly improved as well. Dr. Milford’s office offers “the most advanced technology,” according to the ads, and people can get “the appearance they want” to help them in their social networks. People are advised to look closely at their teeth and think carefully about what their appearance tells others about them. If they want to change their image to be more attractive and better received, “improving the appearance of your smile, what everyone first notices about you, might be the most direct way to take action,” the promotional materials state.

In order to help potential clients decide, audiences are directed to his Happy Smiles website. There, various dental defects in appearance are matched with possible treatments and their intended results along with a statement that reads, “our technology and professionals offer accuracy and predictability you can trust” (with a small-print disclaimer that actual results depend on many factors and the pictures do not guarantee these exact outcomes). The website explains that these are not the only possible treatment options and that actual recommendations will depend on the results of a thorough examination and on each patient’s treatment goals. Dr. Milford’s continuing education credentials in these areas are noted and a free “smile consultation” with intraoral video tours and 3-D imaging are offered to both current and new patients at no charge.

Dr. Milford’s marketing consultant also obtains detailed knowledge of the practices of Dr. Milford’s chief “competitors,” especially those of Dr. Joseph Kamamata, who has practiced in Ridgeview for twenty years, and Drs. Ed O’Brien and Silvia Della Galla, who have a joint practice of ten years in a nearby suburb. On the consultant’s advice, Dr. Milford offers Dr. Kamamata’s office manager a large raise and better medical benefits. He also offers Dr. O’Brien and Dr. Della Galla’s best hygienist the same incentives plus a contractual commitment to support her completion of an MBA degree through an online university. Both women give their current employers the chance to match Dr. Milford’s offers, but when he remains the highest bidder, they join Dr. Milford’s new office.

The fruit of all these efforts is not only a well-run office with highly skilled and experienced dental hygiene care that complements Dr. Milford’s growing technical skills but also an immediate jump in new patients above the already steady flow of patients from the previous dentist’s practice. Dr. Milford’s business consultant has successfully matched the marketing efforts to the upscale lifestyle of the Ridgeview area. Quite a few new patients come specifically for cosmetic dentistry and then leave their former dentists and stay in Dr. Milford’s practice because they see the advantages of having their regular dental care in the same office as their cosmetic care.

Within two years Dr. Milford needs another dentist in the Ridgeview office. He advertises at several dental schools, proposing to pay a new associate (who will focus almost exclusively on basic diagnostic and restorative work) a fixed percentage of gross receipts in three categories: procedures the associate personally performs, dentistry prescribed by the associate and performed by the hygienist, and all cosmetic procedures performed by Dr. Milford as a result of the associate’s educating patients about its value.

Some dental students thought the details of this payment structure and the aesthetic education “script” involved unethical financial incentives to treat excessively. Others, however, had heard horror stories of vague, competitive, or demeaning relationships with employer dentists and the “get your numbers up or get out” culture of huge corporate dentistry shops and welcomed the clear-cut arrangement in a two-dentist office. In any case, since there are plenty of dental students burdened with $400,000 debts from undergraduate and dental school loans who have no easy prospects or desires for independent practice, Dr. Milford has plenty of high-quality applicants. Some of them apply in order to avoid the business of managing an office that now needs to deal with increasingly complex insurance contracts, laws, and bureaucracies as well as changing public policies about health care in general. Others are part of dual professional marriages and need options for geographic mobility. Still others just want more freedom in their lifestyles. Dr. Milford eventually hires Dr. Sandra Ballman, who is skilled, personable, highly recommended by her dental school, and a living model of what ideal smiles and oral health should be.

Meanwhile, Drs. Kamamata, O’Brien, and Della Galla had become furious with Dr. Milford. With considerable support from other dentists who have lost patients to Dr. Milford’s practice, Drs. Kamamata, O’Brien, and Della Galla submit a petition to the Ethics Committee of the local dental society, arguing that Dr. Milford’s mailings and website are unethical because they make claims about aesthetic dentistry that, if not false, are certainly materially misleading.

Dr. Milford is also a member of the local dental society. But he has not participated much in organized dentistry, preferring (on the recommendation of his business consultant) to become active in local business organizations and in several other nondental but health-related charitable organizations. With his limited spare time, these activities provided new opportunities to further grow the practice and develop his business skills and connections, as well as assist local philanthropic groups. Dr. Milford suspects the three dentists’ petition to the Ethics Committee to be nothing other than an act of revenge for his hiring away their employees. “All they had to do,” he says to his business associates, “was pay them better themselves. It’s just good business, and they weren’t willing to do it. None of them took the time to learn the business skills or work through the business ethics and compliance courses that I took. If they don’t like the effects of my business style, they should think about getting some education themselves and start hiring their own consultants. I’m not against fair fights in the marketplace. It’s this backhanded business of complaining to the Ethics Committee and trying to undermine my professional reputation that I object to. I’ve been careful to follow the profession’s guidelines about ethical advertising, and my business practices are fully consistent with the best business ethics. As far as I’m concerned, good ethics makes for good business.

“You know, the dental economists’ data indicate there are plenty of patients out there now for all of us. I’m barely scratching the surface, and if they would get their heads straight and start to work with me and the other health organizations in the area, especially educating the public about the importance of oral health, we’d only get better at reaching them. Even in this area, less than half the population use dentists regularly for nonemergency care. So why am I some kind of ogre for trying to get them into a dentist’s chair?

“I think we should all be marketing aggressively and telling the people what we have to offer. That’s good business and what good dentistry should be about—educating people so we can help them. If we don’t get them in the door, we can’t give them the education they need, and if we don’t educate them, we can’t help them. I think we should all get together and offer the community a free day of care in our offices, for example, and we should work together to raise funds to set up a volunteer clinic for all the poor people on Medicaid and those women and children whose families are destroyed by addiction. They need a place to be treated, too. Good marketing isn’t unethical at all; it’s good education, good community relations, and what good dentistry ought to be about!

“Painless Parker once said, ‘There’s nothing wrong with peddling,’ and he was right, as long as you educate yourself and do it ethically. We also need to work together to get the feds and public policy people to make these new pay-for-performance initiatives and the health insurance system really work for all the people who need dental care. I can’t tell you how glad I am to see organized dentistry finally starting to get out press releases and published ads about why we professionals need to work together.”

CHANGES IN THE DENTAL LANDSCAPE

In the United States dentistry has always been part of the free enterprise system, with most dental care being provided by individual dentists running their own small businesses until group practices became more common toward the end of the twentieth century. But the culture of the dental community and the understanding of the content of dentists’ professional obligations, both among dentists and within the larger community, were such in those days that the most prominent characteristics of the competitive free enterprise marketplace were not very evident in dental practice. Active marketing of dental services, competitive advertising, and serious competition by price were less common during most of twentieth century and were discouraged in the American Dental Association’s Principles of Ethics and Code of Professional Conduct (hereafter ADA Code). But now all three of these, and many other characteristics of the free enterprise marketplace, are well known in dentistry. Events, starting in the 1970s, began to challenge the understanding—reached in the dialogue between society and dental profession in previous years—that dentistry is primarily a profession and therefore very different from a typical participant in the commercial marketplace. Events were also challenging the conviction that the dental community is responsible for holding its members accountable as ethical professionals, which had been a part of this understanding.

What happened to dentistry during this period involved the coming together of a number of fairly independent sets of events, so its causes are multiple and complex. One was the late 1960s and early 1970s radical increase in dental school admissions in anticipation of the baby boomers entering the workforce. The number of dentists therefore grew more rapidly than the population’s desire for what they considered ideal dental services. It might have been assumed, for example, that more than half of the population would start to use dentists for nonemergency care if more dentists were available and the population was becoming generally better educated. But this did not happen and still hasn’t. Evidence and surveys suggest that there are more influencers to human behavior than supply and demand and targeted marketing campaigns aimed at directing people to make more use of dental services. Consequently, for the next thirty to forty years the United States found itself dealing with more dentists than could be kept busy if their primary focus, based on previous understandings about the nature of dental diseases, continued to be focused only on the treatment of caries.

Meanwhile, the dental community had succeeded in persuading the larger community to take preventive dental care seriously, to some extent in the dental office and through better-promoted self-care advice but more dramatically through fluoridation of many water supplies. The dental community itself also changed as the preventive theme expanded beyond caries and its consequences—tooth extractions, pulp treatments, and prosthetic appliances—to include more emphasis on periodontal disease, cancers, occlusal disorders, aesthetics, obesity, diabetes, smoking disorders, and so forth. The preventive efforts on caries, most often through the community fluoridation efforts, did help decrease the severity of the consequences of dental caries, so dentists’ needs/opportunities to do restorative work with the half of the population who already sought regular care decreased. The increased provision of a broader array of in-office caries and periodontal preventive care, though, made up for only some of the decrease in traditional restorative care. Dentistry found itself, then, with an increased number of providers and a decreased need for the previous understandings about the nature of basic dental restorative treatment that had been the mainstay of dental practices for years. Dental emergencies also remained stable in numbers, though this stability also came with a population shift to a growing number of patients who had lower incomes, were more elderly, and had more medically complex issues. In any case, very few dental practices were able to survive principally on the provision of emergency care.

Added to this mix was the entrance of insurance companies into the dental care picture. Dental diseases did not fit, however, the traditional characteristics of insurable events—namely, low-frequency, unpredictable, catastrophic financial or social losses that are hard to manipulate. Still, beginning in the 1980s, in collaboration with public health care policies and large employers, many insurance companies began to develop products to help address dental health care needs and, before very long, to influence, if not control, dental health care costs as tightly as possible. These efforts were met with mixed results. Whether basic dental health care needs were being better met or costs were being better controlled remained questionable. But, already challenged with the first two factors, US dentistry now began to face a fiscal situation in which powerful third parties were entering into the once traditional dialogue between patient and dentist about how to treat the patient’s oral health needs. At the same time, little happened to change the fact that our society would consistently spend fewer dollars for dental care compared to health care in general, both in absolute numbers and in relation to people’s needs.

More recently two other factors have further compounded this picture. One is the aging of the US population. Even though some forms of caries are less common causes of oral disease for this group than in previous years, periodontal disease remains a major factor in their oral health. But with the decrease in painful carious lesions, a significant percentage of elderly patients have, over time, become less interested in dental treatment, especially the long-term forms of dental monitoring appropriate to chronic/silent oral conditions. In addition, many in this aging population find themselves with fewer financial resources or are less willing to devote their limited resources to dental care than previously. Thus, the impact of the aging of the US population on dental practice in our society, while complex and difficult to predict, has further complicated the already complex dental landscape.

Meanwhile, a fashion trend to have one’s teeth appear whiter than their natural coloring has swept across almost every demographic of the population. Dentists have long been available to assist patients who wished to restore teeth to their natural tone when they became severely discolored. But this fashion trend for whiter-than-natural teeth began providing dentists with patients they might never have seen for routine oral health care. Ideally, these patients, or at least some of them, continue to be seen and benefit from regular visits. But, as chapter 14 will explain, the provision of cosmetic and aesthetic care focused on meeting the patient’s cosmetic interests (rather than the traditional aesthetic goals of dentistry) raises important questions about the relevance of dentistry’s professional expertise in providing services of this kind and the insertion of market-based values and market-based thinking into the patient-dentist relationship. So the highly increased prominence of patients seeking cosmetic/aesthetic assistance that this fashion trend has prompted (the trend itself often promoted by dentists themselves) must be viewed as an important change in the landscape of dental practice in our society.

Finally, there has been a significant change in the circumstances of graduating dental students, beginning in the early 1980s. When the federal tuition grants of previous years ended, this put a larger tuition burden on students themselves and/or their relatives, who were already becoming more indebted than in previous generations because of increases in the cost of undergraduate education. Then followed sharp increases, for many reasons, in the cost of dental education, and, with that, a decrease in the number of dental schools and class enrollment sizes. Then the cost of dental school increased even further in order to incorporate ever-growing, though sometimes short-lived, new technologies as well as faculty being drawn to higher paying positions in other parts of the market, and schools’ inability to compete effectively for additional financial resources from the government, foundations, and private philanthropy. Consequently, many dental students’ tuition bills continued to rise and their indebtedness rose even further.

The graduating dentist of an earlier generation ordinarily moved directly into a practice with the help of a bank loan and a population waiting for his (and occasionally her) services. Of course, the loan had to be serviced, but the ability to easily secure the loan was ordinarily there to help a young dentist get started, and servicing the debt could be factored into the practice’s cash flow needs. Since the 1980s, however, fewer and fewer graduates have entered directly into their own practice by starting with a bank loan. Especially since the beginning of the twenty-first century, most have been too deeply in debt from the cost of their educations and not yet experienced enough in practice to be considered for such a loan. Open fields for gaining this experience, however, were growing within the armed forces, public health, growing numbers of hospital-based general dental practice residencies, and the increasing popularity of group practices. But few of these opportunities offer salaries high enough to pay off the higher dental education loans efficiently. What has been found to be financially sound, however, is hiring these newly graduated dental students, bringing returns of 15 percent a year or more for entities investing in recent dental school graduates. So dental students have, understandably, become extremely anxious about their prospects. Most know they will likely begin their dental career in someone else’s practice. They hope to be fortunate enough to be an associate of someone who is seeking a younger professional peer rather than merely an employee of someone willing to take advantage of their financial need. A world in which dentists are collaborative and not actively competing with one another is a dream world for them, perhaps seeming like something out of the past. This is because dental students are now unavoidably competing from the moment they enter dental school just for the opportunity to practice dentistry in a setting they can feel proud of.

None of these change factors arise from anyone’s ill will toward dentistry or anyone’s insensitivity to the norms of professional dental practice. The dental profession, like any social institution, is situated among and strongly affected by many other complex social institutions, and many US institutions have played a hand in the changes just discussed, although broad economic policy decisions and other economic factors seem to have played a particularly important role. It is hard, then, to assign blame for these changes, even if there would be value in doing so. What is needed is for the dental community to ask how it ought to respond to these changes in the dental landscape in order to continue practicing dentistry as professionals and in as professionally ethical a manner as possible.

It may sometimes seem that the changes in the landscape of dental practice over the last thirty to forty years have already turned dentists into typical marketplace producers of services and their patients into typical marketplace consumers. This chapter and those that follow it will look at some of ways that the practice of dentistry is at risk in this respect.

But one of the main themes of this book is that this does not have to happen. Dentistry, like the rest of health care in our society, will continue to be provided in the context of the marketplace for the foreseeable future. But just as dentists in previous generations provided their care in the marketplace but conducted themselves as professionals in their dealings with patients and one another, and were viewed as professionals by their patients and the society at large, so can dentists continue to practice as professionals. But because the landscape has changed, doing so will require some careful thinking about how to do this and possibly some changes in how things are being done in order for dentistry to be carried out in a way that is genuinely professional.

It is very important, therefore, to reflect on how dentistry can be done ethically and professionally in the changed economic and social circumstances that face dentists today. Every practicing dentist needs to ask such questions about every aspect of his or her practice, and the discussion here and in the following chapters can only attempt to survey the most important issues. But there is no more prominent set of ethical concerns for today’s dentists than these, so they deserve careful attention.

We will begin in this chapter by looking at some of the management decisions that need to be made in every dental practice and that can be made in ways consistent with dentistry’s commitments as a profession or in ways that can make a dental practice look little different from a typical marketplace enterprise. The first of these concerns dental advertising because this is a topic that touches every dental practice and dental organization in our society today in one way or another. We will conclude this chapter with reflections on the theme of patients’ trust of their dentists, a topic introduced at several points earlier in this book. Within this chapter, and then in the chapters that follow, we will examine other situations on which a dentist who wants to run an ethical dental practice should reflect.

DENTAL ADVERTISING: SOME BACKGROUND

One of the most dramatic shifts in dentistry, in the minds of many dentists, occurred in 1979. This shift involved changes in the ADA Code in regard to prohibiting competitive advertising and the consequent proliferation of competitive advertising since then. But none of the patterns of change described in the previous section came about simply because of the changes in the ADA Code about competitive advertising. While the proliferation of advertising since 1979 certainly points to a much more competitive relationship between dentists, the reasons for the increase in competition are to be found in the social trends just described, not the advertising that expresses it.

Advertising, depending on its definition, formulation, and uses within the broader concept of marketing, actually has the potential to educate the public about dental care and oral health, as well as how to access dental services. It is clearly a mistake, then, to view dental “advertising” or direct-to-public-education as an unmixed evil. The excessive advertising by some individuals, furthermore, is not proof that dentists should never advertise. Many who have advertised since the changes were made in the ADA Code have done so ethically. The criteria for determining when competitive dental advertising is ethical and professionally appropriate, however, have still not yet been fully articulated, even though the ongoing dialogue between the dental community and the community at large about this issue has been going on for almost forty years now. One important depository of this dialogue within dentistry is the Appellate Disciplinary Decisions of the ADA’s Council on Ethics, Bylaws, and Judicial Affairs. The background to the changes in the ADA Code was a consent order that the ADA and the Federal Trade Commission (FTC) entered into in 1979, a consent order to avoid continuing costly legal battles that the ADA was clearly not winning. The actions of the FTC at that time were framed around the claim that the limits on advertising in the professions’ codes of ethics were a restraint of trade. Though a final Supreme Court decision was never made, the settlements between the FDA and the professional health organizations in the United States made it clear to the ADA, the American Medical Association (AMA), and other large professional health organizations that they would be challenged in the courts should the prohibition of advertising be reintroduced into their codes of professional conduct. The original claims initiating these complex legal proceedings were as likely motivated by political and economic considerations as by a careful reading of the mind of the larger community. So, one can argue that the elimination of the ADA Code’s prohibition against advertising was not necessarily an expression of society’s wishes.

The fact that the larger community has never had extensive representation on the ADA councils and other dental organizations’ committees that have drafted dentistry’s codes of ethical conduct, furthermore, raises an important question. For professional codes, by their nature, ought to be the work of both the profession and the larger community working together. While they may be primarily articulated and enacted by professional organizations whose members are experienced and knowledgeable about the internal workings of their service to the community, any reasonable or pragmatic organization would surely seek the community’s voice in articulating the norms that will guide its provision of services to that community. However, the only evidence of the larger community’s acceptance of these groups’ articulation of dentists’ professional obligations, as with its acceptance of the FTC’s actions in 1979, consists solely in the larger community’s lack of vociferous protest.

It is usually the case when dealing with the contents of professional norms that there are other, more subtle forms of evidence of the community’s mind. It is probably relevant that direct-to-consumer marketing in the United States by pharmaceutical companies, hospitals, and health systems is now even more plentiful than dental advertising and, although prompting some political and legal battles, it too has not yet been met with significant objections from the US public, though it is questioned outside the United States. The issue that such passivity raises, then, is whether the US public has reflected with any care on the differences between how the professions aspire to relate to those they serve and the competitive relationships of the marketplace. In any case, it is important to ask what the commitments that the dental profession and each of its members make imply about dental advertising.

THE ETHICS OF DENTAL ADVERTISING

The categories of norms that will be used here will be the nine categories of professional norms first identified in chapter 3 and applied to numerous other topics throughout this book. But as shall become clear, the three most important categories with regard to advertising are the obligation to respect patients’ Autonomy as one of dentistry’s Central Practice Values, the norm of an Ideal Relationship, and the norm of Integrity and Professionalism. This section will focus on the themes of Autonomy and the Ideal Relationship; the norm of Integrity and Professionalism will be considered in the next section.

Four models of the dentist-patient relationship were considered in chapter 4, and reasons were offered for judging the Interactive Model as most accurately representing what the dental community and the community at large currently accepts as the Ideal Relationship between dentist and patient. The Guild Model views the lay patient as wholly incapable of making judgments, not only about his or her appropriate therapy but even about his or her need for therapy and the values and priorities involved in determining how important it is to address that need. This is why the Guild Model has no place for patient decision-making. Even regarding the original choice of a dentist, into whose hands the lay patient then places his or her well-being, the Guild Model must hold that this choice by the patient is blind; for the Guild Model views the patient as having no understanding of the data that would be needed for the rational consideration of alternatives for such a choice.

Consequently, according to the Guild Model, there would be no justification for dentists, or any other health professionals, to advertise. If lay patients cannot understand or properly evaluate any advertised data that would be relevant to their choice of a dentist, physician, or other health care provider, advertising is at best utterly useless. But for the Guild Model advertising is actually worse than useless because it suggests to the lay patient that he or she can form properly reasoned judgments about the choice of a health professional. Suggesting this to otherwise unknowing lay persons might then lead them to believe they are capable of properly making other judgments about dental care—for example, about what sort of care is needed or about the quality of the care that is provided. Consequently, advertising runs a serious risk of interfering with the formation of a proper dentist-patient relationship. If the patient comes to believe that he or she is capable of judgments that only the dentist can make, then the patient may become less receptive to the essentially passive role that is the only appropriate role for patients in the Guild Model. The fact that the Guild Model, then, has no place in it for patient autonomy has seemed to some people to support the proposal that we should adopt a pure Commercial Model of the dentist-patient relationship.

The Commercial Model is obviously the approach supported by the Federal Trade Commission, whose mission is promoting and protecting competitive free trade, not trust in professions with their distinctive expertise and ethical commitments. According to the Commercial Model, the relationship between dentist and patient is simply that of producer and consumer negotiating about possible exchanges in the commercial marketplace. The two parties are viewed as being, from the first, self-interested competitors, each trying to obtain from the other the greatest amount of what he or she desires while giving up as little as possible in exchange. The Commercial Model’s supporters claim that, by the working of the “invisible hand” of the competitive marketplace, relationships formed on this model yield the greatest quantity and quality of dental care for the least cost in both natural resources and human effort. Therefore, its supporters argue, the “invisible hand” makes this the most efficient model of social relationships as well as one in which the value of every party’s autonomy is most respected.

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