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PROFESSIONAL LIABILIT Y PROGRAM

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DENTAL RECORDS

Altering Dental Records – Don’t Go There!

Daily Progress Notes: Details Make the Difference

Proper Procedures and Appropriate Safeguards for Dental Records When a Dentist Passes Away

Dental Records Storage and Recovery of Damaged Records

The Importance of a Complete Medical History

Release and Transfer of Records

Patient Records: Transfer and Release

RISK MANAGEMENT

Top Five Steps to Avoid a Lawsuit or Complaint

What you need to know about liability for invasion of privacy

Patient Centred Care: A dentist’s paramount responsibility

What Price Perfection? The personal and professional costs of being too hard on yourself

WORKING WITH OTHER ORAL HEALTH PROFESSIONALS

Dentists and denturists working together under one roof

How do dentists and denturists work together to provide implant-supported dentures?

Questions about providing an order for the performance of orthodontic procedures

Responsibilities for patient care in principal-associate arrangements

ADVERSE EVENTS

OOPS! Accidents, Procedural Mishaps and Other Untoward Events Can Happen to You!

College Code of Ethics Consistent with New National Disclosure Guidelines

Disclosure of Adverse Events and Apologies in Dental Practice

COMMENTING ON THE CARE OF OTHER DENTISTS

Making Comments about Another Colleague’s Work

My Patient is Unhappy with Another Dentist’s Work… Should I Call PLP?

Acting as an expert: Another way of giving back

DEALING WITH PATIENTS

Defending Your Reputation

The Difficult Patient: Don’t Ignore the Warning Signs

Handling the Difficult Problem of Dismissing a Patient

Patient Selection – Ignore Red Flags at Your Peril

Treating Non-Resident Patients

PLP ASSISTANCE

Considering Making a Refund? Call PLP First!

Will PLP assist me if I am sued for an employee’s act or omission?

PRIVACY

Sharing Personal Health Information for Health Care Purposes

The Circle of Care Concept in Action in The Dental Office Context

Privacy Commissioner expects health sector to encrypt all health information on mobile devices: Nothing short of this is acceptable

Best practices for the secure destruction of personal health information

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ENSURING CONTINUED TRUST DISPATCH AUGUST/SEPTEMBER 2011

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OUNCE OF PREVENTION

Altering DentalRecords – Don’t Go There!

Scenario #1Dr. A received a statement of claim alleging that he failed to properly

diagnose and treat periodontal disease for a longstanding patient, Ms. M.

He immediately called the Professional Liability Program to report the

matter and was advised to send his records to PLP.

While reviewing the dental records in preparation for sending them off,

Dr. A discovered that there was no periodontal charting and no record

that he had informed the patient about her periodontal health. The

treatment notes contained only brief descriptions of the services rendered

and the fees charged for each visit.

Dr. A recalled discussing Ms. M’s condition with her on several occasions

and suggesting a referral to a periodontist, which the patient refused.

However, there were no entries about this in the chart.

Dr. A realized that the records did not put him in the best light. So he

decided to retroactively make them more complete. He added some

additional information, using the same ink colour. He assumed that no

one would notice, and even if they did, he doubted that the

repercussions could be any worse than what would happen if he

submitted the original records.

QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle aparticular situation with a patient, do not hesitate to call the College.

PLP Claims Examiners

416-934-5600 • 1-877-817-3757

Practice Advisory Service

416-934-5614 • 1-800-565-4591

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OUNCE OF PREVENTION

Scenario #2Mr. C lodged a complaint with the

College about his former dentist, Dr. R.

He had some crown work done about

one year earlier and it was now failing.

According to Mr. C, his new dentist had

advised him that the teeth in question

were not suitable for the type of

treatment rendered and that

conventional bridgework or implant

supported crowns should have been

presented as more viable treatment

options during the informed consent

process.

As soon as he received the letter of

complaint from the College, Dr. R

reported the matter to PLP on a

precautionary basis due to the possible

financial implications of the case.

Then Dr. R began preparing a letter

to the College in order to respond to

Mr. C’s concerns. On reviewing the

patient’s dental records, Dr. R found that

they were silent regarding the treatment

option discussion taking place. Since he

seemed to recall part of the discussion,

he added “p.s. patient cannot afford

bridgework or implants” to the records

to justify the treatment that had been

rendered.

Unfortunately for Dr. R, it was very

obvious that this entry was added

afterward. In fact, he even used a

different type of pen than used for the

other entries on the same date.

Scenario #3Ms. J wrote a letter to her dentist, Dr. P,

alleging she had been negligent by

failing to adequately diagnose and treat

her during the 30 years she had been in

her care and that her new dentist had

advised her that she needed extensive

restorative treatment.

On reviewing Dr. P’s records, PLP staff

were encouraged to see numerous chart

entries reflecting Ms. J’s failure to attend

dental appointments, her refusal to have

x-rays taken, her poor oral hygiene

despite numerous discussions regarding

its importance and her refusal to have

decayed teeth treated.

Because of the completeness and

thoroughness of the records, PLP

believed there was a very good defence

in this case. However, Ms. J denied that

any of this had happened.

Defence counsel was retained, a

Statement of Defence was filed, and the

litigation process commenced. It was not

until after the discovery process that

Dr. P eventually confessed to having

rewritten the entire chart to include

notations of missed appointments and

general lack of compliance.

Of course, PLP had no choice but to

settle the claim with Ms. J.

KEY POINTSAltering records is about the worst thing that a dentist can do to cause

damage to his or her defence in a malpractice claim or complaints

investigation. While it is difficult to defend a dentist who has

inadequate records, it is almost impossible to successfully defend a

dentist who alters the patient’s records, especially since a dentist’s

credibility is almost as important as that of a supportive expert witness.

Judges and juries will likely equate someone who alters a record to

someone who has something to hide or, even worse, someone who

does not tell the truth.

If the experienced claims examiners/adjusters at PLP suspect that dental

records have been altered by the dentist, every attempt is made to

settle the matter rather than risk exposure of these alterations to the

scrutiny of the patient’s lawyer.

It is important to note that the courts may even award punitive or

exemplary damages in cases where the patient’s records have been

altered. Punitive damages are damages awarded to reform or deter the

professional from pursuing a course of action, not to compensate the

patient. The key point to remember is that these punitive damages are

not covered under the malpractice policy.

COLLEGE CONTACT Dr. Judi Heggie – Dental Claims Advisor 416-934-5605 [email protected]

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Professional, ethical and legal responsibilities require that detailed

patient records documenting all aspects of each patient’s dental care are

maintained. A crucial component of a patient’s record is the daily

progress notes.

Progress notes describe the treatment rendered for a particular patient.

However, in addition to a concise and complete description of all services

rendered, the progress notes should also document all recommendations,

instructions, advice given to the

patient and any discussion with the

patient regarding possible

complications and/or outcomes.

In general, dental progress notes

usually contain adequate

information about treatment

rendered. However, there is often

little or no recorded detail of

discussions with the patient

regarding his/her treatment.

Dentists often comment that it is

too time consuming to document

details of discussions with patients.

Remember that short forms are

acceptable provided the dentist is

able to provide a “key” to the short

forms.

This article presents some

examples of good progress notes

for a number of dental procedures

and a description of the

importance of each entry. To assist

in the understanding of the chart

entries, explanations of the short

forms used in the examples are

shown on this page.

28 DISPATCH • November/December 2010 Ensuring Continued Trust

OUNCE OF PREVENTION

DAILY PROGRESS NOTES…Details Make the Difference

This feature is prepared tooffer guidance to membersabout the prevention ofmalpractice claims orcomplaints and thelessening of the magnitudeof an existing claim or acomplaint.

COLLEGE CONTACT Dr. Judi HeggieDental Advisor, PLP 416-934-5605 [email protected]

C/C Chief complaint

DNS Did not show

EN Endodontist

IC Informed consent

LA Local anaesthetic

MB Mandibular block

MHNC No change in medical history

MHU Medical history unremarkable

N/A Next appointment

NALM No answer, left message to call

NIS Not in service

NP New patient

O/E On examination

PD Periodontal disease

PE Periodontist

PT Patient told

Q Questions

R/C Risks/possible complications

RD Rubber dam

S/N Short notice

WCU Will call us

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CASE #1: ENDODONTIC FILE SEPARATES IN CANALDuring endodontic treatment, an endodontic file separated in a lower molar.

From the progress notes, it was clear that the patient was adequately

informed of the separated file and of the recommendations and possible

consequences associated with it.

DAILY RECORD ENTRY

Record entry clearly shows the patient was informed that:

– A file had separated in a canal.

– The endodontic treatment could not be completed.

– Referral to an endodontist was necessary for the removal of the file.

– Additional treatment might also be required.

CASE #2: CONSULTATION FOR WISDOM TEETH EXTRACTIONBelow are the details of a consultation appointment where extraction of teeth

18 and 48 is contemplated. The progress notes clearly show that informed

consent for the extractions was obtained.

DAILY RECORD ENTRY

Record entry clearly shows that:

– The extraction of 48 was necessary.

– The patient was warned of risks and possible complications of surgery.

– Options were discussed, consequences of no treatment were discussed and a consent form was provided.

– The treatment procedure was discussed.

– Costs were discussed.

– Informed consent was obtained.

DISPATCH • November/December 2010 29

OUNCE OF PREVENTION

Aug. 16/10 1.8 ml Lido (1:100,000 epi) – MB; RD

Cont’d RCT tx 46. Filed D to #30 @ 21mm.

File sep in MB canal. Unable to bypass. PT file separated,unable to seal canal, should see EN for file removal andfinish RCT. PT if EN can’t remove file, might need surgery.Pt agreed. Refer to Dr. GP – appt. made for Sep 8, 3pm.

June 16/10 MHNC; C/C: pain O/E: 48 partially erupted, pericor. PA –impacted, tipped M against 47. Roots not close to mand.canal. Recom exo 48, 18. Disc’d optn: leave as is but 48 willnot erupt due to position. Symptoms will persist, inf’n maydevelop. If leave 18, will likely overerupt. Disc’d procedure,R/C, as per 8’s IC form, provided cost est. No Q. IC obtained.N/A: 4u – exo 48, 18 LA

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CASE #3: NON-COMPLIANT PATIENT WITH PERIODONTAL DISEASE

This is an example of a non-compliant periodontal patient. The progress notes,

over an 18 month period, clearly show that the dentist informed the claimant of his

poor oral health, warned him of the consequences of periodontal neglect, and tried

to convince the patient to schedule appointments for treatment and to see a

periodontist for evaluation.

DAILY RECORD ENTRIES

Record entries show that:

– Complete periodontal charting was done.

– The patient was advised of periodontal condition.

– The patient was referred to a periodontist.

– The patient was told of consequences of failure to treat periodontal condition.

– Patient was non-compliant.

Claims often arise when a patient, who has been non-compliant and who has

periodontal disease, becomes the patient of a new dentist. When the second

dentist advises the patient of his or her poor periodontal condition, the patient

looks for someone to blame. Detailed progress notes demonstrate that the patient

was aware of his/her condition and is responsible for the periodontal deterioration

that occurred over time.


OUNCE OF PREVENTION

DAILY PROGRESS NOTES… Details Make the Difference

Feb 3/09

Feb 24/09

March 25/09

Sept. 24/09

Oct. 27/09

April 30/10

June 4/10

Aug. 15/10

MHNC; Perio exam: Mild-mod bone loss in BWs, deep pockets esppost. OH poor. OHI. Discussed PD. PT needs referral to PE. “Will thinkabout it.” N/A 4u scale

S/N cancel’n. WCU to rebook.

Called pt. Busy at work right now. WCU when not so busy.

MHNC; C/C “want check-up.” Reminded did not come back forcleaning. Ging. puffy, red, deep pockets in post. PT must come backASAP for cleaning and needs to see PE. Expln’d if PD not broughtunder control bone loss will likely con’t. and teeth could be lost!Promises to book hyg appt. today.

No show for hyg. appt. Called – NALM.

Pt. presents on emerg. C/C pain 46. PA.-bone loss to furc’n. Told ptMUST see PE. Pt agreed. Refer to Dr. S for complete eval.

Dr. S office called. Pt. DNS. Called pt. Forgot. WCU to rebook.

TCF Dr. S. Pt. did not rebook appt. Called pt. Home #NIS Calledwork, no longer works there-moved to BC.

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OUNCE OF PREVENTION

Deep Restoration

DAILY RECORD ENTRIES

Record entries show that:

– The initial treatment was required.

– The patient was told decay was deep and RCT might be required.

– The tooth subsequently became symptomatic and RCT was necessary.

– The option of extraction was discussed.

– The patient was told post/core/crown would be required following RCT.

– The patient accepted revised treatment plan.

IN CONCLUSIONCourts usually take the view that if there is nothing in the chart to

support a dentist’s contention that a certain action took place,

e.g. patient informed of certain risks, then that action is deemed

not to have taken place.

For this reason alone, it is vitally important that all interaction

with patients – discussion, information provided, advice/

instructions given, treatment recommended or performed, etc. –

be clearly set out in the progress notes and that all entries be

dated and attributable to the treating practitioner.

The examples given in this article demonstrate that it is relatively

easy to record detailed, accurate and timely progress notes that

will serve you in good stead if or when a complaint is lodged or a

lawsuit commenced.

QUESTIONS ABOUT APARTICULARSITUATION?If you have questions about howto handle a particular situationwith a patient, do not hesitateto call the College.

PLP Claims Examiners 416-934-56001-877-817-3757

Practice Advisory Service 416-934-56141-800-565-4591

Oct. 12/09

Nov. 2/09

NP emerg. MHU. C/C pain to sweet, cold LL (points to 34-35 area). PA-deep recurrent decay 35D, no PA path. PT decay very close to nerve,may need RCT. If RCT, post/core/crown also nec. If no RCT other optionis exo. PT RCT not always successful, may need add’l tx and/or surg.Pt understands, wants RCT if nec. Discussed costs of all.

1.8 ml lido (1:100,000epi) MB; RD, Deep DOV decay but no exposure. “X”liner and “Y” comp. PT decay very deep, RCT may still be req. Call ifsymptoms.

Emerg. C/C spont. pain 35, up all night last night. O/E 35 P+++,C+++. Dx: irrev. pulpitis PT needs RCT as disc. last appt. PT can starttoday. 1.8 ml lido (1:100,000 epi) MB; RD, pulpectomy. File to #20K@22m. 1PA NAOCl, dried. Closed with cotton, cavit.

N/A 3-u complete RCT 35

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When a dentist dies, what is theresponsibility of his/her estate toretain patients’ dental records? Under privacy legislation and the regulations

made under the Dentistry Act, 1991, the

dentist who is the owner of a dental practice

is deemed to be the custodian of his/her

patients’ dental records.

When a dentist passes away, the estate

trustee or the person who has assumed

responsibility for the administration of the

deceased dentist’s estate assumes

responsibility for retaining the dental records

until the records can be transferred to

another dentist.

If my estate is able to find anotherdentist to transfer the records to, howshould patients be notified of thechange of ownership of the records?The College’s Practice Advisory on Change

of Practice Ownership and the guidelines

and checklist from the Information and

Privacy Commissioner/Ontario provide

guidance on how to deal with this situation.

The notification of the change of ownership

of the dental records can either be done by

the estate trustee or by the dentist who has

assumed ownership of the dental records.

Under the Personal Health Information

Protection Act, a patient’s health records can

be transferred to a successor if the health

information custodian makes reasonable

efforts to give notice to the patient before

transferring the records or, if that is not

reasonably possible, as soon as possible after

transferring the records.

If the estate trustee finds a dentist to assume

custody and control of your dental records,

that dentist will retain the records and

provide copies of the records to the patients

at their direction or request.

Estate trustees also have obligations as health

information custodians to provide access to

and copies of dental records to patients as

directed or requested.

What sort of agreement needs to be inplace with the dentist who assumesownership of the records? The College recommends that when the

ownership of a deceased dentist’s records is

transferred to another dentist, there be an

agreement or understanding that:

• The records will be retained for the

retention period described in the

College’s Guidelines for Dental

Recordkeeping.

• The records will be available to the

previous dentist’s estate should they be

required in the case of a complaint or

claim.

ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2012

28

PROFESSIONAL PRACTICE

Proper Procedures andAppropriate Safeguardsfor Dental Records Whena Dentist Passes Away

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If the estate trustee is not able to find anotherdentist to transfer the records to, is thereanyone else the records can be transferred to?The only regulated health professional who can be a

successor health information custodian for dental

records is another dentist.

On the death of the dentist, it is the responsibility of the

estate trustee, or the person who has assumed

responsibility for the administration of the deceased

dentist’s estate, to arrange to transfer the custody and

control of the dental records to another dentist.

If this is not possible, they need to be transferred to a

person whose functions include the collection and

preservation of records of historical or archival

importance, provided that the person who assumes

responsibility for the records fulfills the requirements set

out in the Personal Health Information Protection Act.

If, in the meantime, a patient requests in writing that

his/her records be transferred to their new dental

practitioner, it is permissible for the estate trustee to

transfer the original dental records to that dentist.

The College advises that there be an agreement as above

regarding the retention of records and access in the case

of a complaint or a claim.

I am preparing my will and want to knowwhether I can leave my private dental practice,including my patient records, to my spouse.No. While non-dentists can own dental office premises,

supplies and equipment, non-dentists cannot own

dental records or profit from the practice of dentistry.

The conflict of interest sections of the professional

misconduct regulations made under the Dentistry Act,

1991, which dentists must abide by, prevent non-dentists

from employing dentists, having dentists as associates, or

being partners with dentists.

For these reasons, the non-dentist members of the family

or the estate of a deceased dentist cannot own and

operate the dental practice of a deceased dentist or

employ dentists to provide care to patients for the long

term.

The College does allow the estate trustee limited time

(no more than one year) to sell a deceased dentist’s

practice following the death of the dentist and to enlist a

locum to provide urgent and ongoing dental care to

patients until the dental practice is sold and dental

records transferred to another dentist.

The College advises that it is usually best to arrange for

another dentist’s assistance in operating the practice and

to have the practice valuated as soon as possible.


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MORE INFORMATIONPractice Advisory on Change of Practice Ownership - College website atwww.rcdso.orgGuidelines on Dental Recordkeeping – College website at www.rcdso.orgHow to Avoid Abandoned Records: Guidelines on the Treatment ofPersonal Health Information, in the Event of a Change in Practice -Information and Privacy Commissioner/Ontario website at www.ipc.on.caChecklist for Health Information Custodians in the Event of a Planned orUnforeseen Change in Practice - Information and Privacy Commissioner/Ontario website at www.ipc.on.ca

COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor, Quality Assurance416-934-5614 [email protected]

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How long do I have tokeep dental records?The required retention

period depends on the age

of the patient. For adult

patients, dental records

must be retained for at least

10 years after the date of

the last entry in the record.

For a child, dental records

need to be kept for 10 years

after the child reaches or

would have reached the age

of 18.

I don’t have room inmy office to store all of my archived records.Can they be stored off-site? Yes. The only proviso is

that privacy legislation

requires that dental records

of patients must be stored

in secure premises to

prevent unauthorized

access. You must also take

reasonable steps to protect

the records from theft and

damage from fire or flood.

This might mean, for

example, storage in water-

proof plastic bins with lids.

It is also recommended that

stored records be kept in a

systematic fashion so they

can be easily retrieved if the

patient returns to the

practice or if they are

needed for another

purpose.


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Dental Records Storageand Recovery ofDamaged Records

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If I decide to store myarchived records off-site, do I need to notifymy patients or formerpatients?It is not necessary to notify

patients if the records are

archived in the basement of

the dental office or in some

other area controlled by the

dentist. However, if the

records are moved to

premises that are not under

the control of the dentist,

such as a private record

storage facility, provincial

privacy legislation requires

that patient consent be

obtained before the records

can be stored in such a

facility.

There was a flood/firein my dental office andmy dental records weredestroyed. What do Ihave to do?The first step is to see

which records can be

retrieved or salvaged.

There are companies that

specialize in recovery/

reconstruction of paper

records and data recovery

for electronic records. Your

general liability or office

overhead insurance policy

may cover some of these

costs.

As for electronic records,

the College does

recommend that they

be backed up on a routine

daily basis and stored in

a physically secure

environment off-site.

In addition, your recovery

procedures should be

periodically tested to

ensure that all patient

records and critical data

can be retrieved and

reliably restored from the

backup copy.

If the system cannot be

restored from a backup

copy, it may be possible

to recover data from a

damaged hard drive.

Do I need to notifypatients that theirrecords were damagedor destroyed?The College advises dentists

to notify patients currently

in treatment and other

active patients about what

has occurred and what

records may need to be

recreated. For example,

this might include

examinations or

radiographs or other

diagnostic records and

medical histories required

to provide sufficient

information to deliver safe

and appropriate dental

care. Patients can be

notified verbally, by

posting a notice in the

office, or in writing.

Should I notify theCollege of this mishap?If your records have been

destroyed by fire or flood,

you can notify the College

that this has occurred. This

information could be

helpful if later on there is

an investigation of a

complaint or a lawsuit

(claim) filed against you.

In any report that you

might make, you should

describe the steps that you

have taken to salvage or

reconstruct the dental

records and what records

are remaining; for example,

electronic records of

treatment provided in the

patients’ financial records.

Your notification should be

in writing and you can

request that it be placed in

your permanent file. These

files are retained

indefinitely at the College,

even after you are no

longer registered or are

deceased.


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32

OUNCE OF PREVENTION

The Importance of a CompleteMedical History

Every year, PLP receives reports of

claims or potential claims in which

inadequate medical history-taking

and/or failure to update a patient’s

medical history have been pivotal

factors in the treatment outcome.

The following scenarios involving

inadequate history-taking that lead

to serious consequences illustrate

the importance of medical histories

to providing safe and appropriate

dental care.

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OUNCE OF PREVENTION


PLP ADVISORS

416-934-5600 • 1-877-817-3757

PRACTICE ADVISORY SERVICE

416-934-5614 • 1-800-565-4591

SCENARIO 1

Mr. H presented to his dentist, Dr. B, regularly for 12 years.

He required very little dental treatment, other than

routine cleanings.

After scaling had been completed at a recall appointment,

Mr. H mentioned to Dr. B that he’d had a diseased heart

valve replaced with a prosthetic one four months earlier.

Dr. B explained the importance of premedication to

Mr. H and prescribed antibiotics to be taken prior to his

next appointment.

Eight months later, Mrs. H called to say her husband had

passed away. An autopsy confirmed that her husband had

developed prosthetic valve endocarditis (PVE), reportedly

caused by the dental cleaning.

DISCUSSIONIn reviewing Dr. B’s records, PLP staff had the following

concerns:

• While there was a medical history form in the record,

completed on Mr. H’s initial appointment with Dr. B,

there was no evidence that the claimant’s medical

information had ever been discussed or updated after

that.

• It was clear from the records that the discussion about

Mr. H’s prosthetic heart valve occurred after the

scaling appointment, not before.

• Having discovered that the patient had a prosthetic

heart valve and had just undergone dental cleaning,

Dr. B took no immediate action, such as consulting

with Mr. H’s cardiologist, referring him back to his

physician, or immediately prescribing a post-exposure

regimen of appropriate antibiotics.

SCENARIO 2

Ms. S presented to Dr. A on an emergency basis for

extraction of an infected tooth. Dr. A extracted the tooth

under local anesthetic and he told Ms. S she should make

an appointment for a new patient examination. She said

she would do so.

A week later, Ms. S’s son called to report that his mother

had developed a serious infection and was in hospital on

IV antibiotics.

DISCUSSIONIn reviewing Dr. A’s records, PLP staff had the following

concerns:

• The medical history questionnaire form used by

Dr. A did not include important questions that would

elicit critical information in assessing a patient’s true

medical status.

• There was no evidence that Dr. A had reviewed the

scant medical history with Ms. S or that he had

investigated her positive responses to “Do you have

any illnesses or medical conditions?” and “Do you

take any medications?”

• There was no evidence that the tooth needed to be

extracted. Dr. A hadn’t taken an x-ray. There was no

information in the records about why the tooth

required extraction, although Dr. A said the tooth was

severely broken down and non-restorable.

Unfortunately, this was not documented.

• There was no evidence of any discussion about the

risks and benefits of extraction or the alternatives.

• There was no informed consent for treatment.

• There was no evidence that Ms. S was provided with

any post-operative instructions, verbal or written, or

that she was told to call the office if she experienced

any complications.

• Review of Ms. S’s full medical records demonstrated

that she was severely medically compromised. She was

a very poorly controlled Type II diabetic and was

suffering from many complications of the disease.

• Because he failed to investigate the positives on the

medical history form, Dr. A was not aware that

Ms. S was a poorly controlled Type II diabetic on

insulin. Further, he did not know that she needed

specific instructions post-operatively or that she

probably required prophylactic antibiotics.

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OUNCE OF PREVENTION

COLLEGE CONTACT Dr. Judi Heggie – Senior Dental Consultant, Professional Liability Program 416-934-5605 [email protected]

Understanding the relationship between oral and

general health is an essential component in

providing safe dental care. Treating the medically

compromised patient requires that the dentist be

knowledgeable about medical diseases and

conditions and familiar with the implications of

medications used to treat these diseases. It also

requires the ability to assess the significance of

these diseases before, during and after dental

procedures.

On our website at www.rcdso.org, the College

provides members with a “Medical History

Recordkeeping Guide” comprised of four parts:

• the Medical History Questionnaire

Companion;

• a sample of a Medical History Questionnaire;

• a patient information pamphlet entitled

“When it Comes to Your Medical History, Tell

Your Dentist Everything”;

• a sample Recall History Questionnaire.

The Companion section of the guide points out

that a medical history questionnaire can be

worthless if the dentist cannot interpret the

answers and, when necessary, seek out and obtain

additional information.

The questionnaire provides a starting point to

elicit information from the patient. It assists the

clinician in identifying a patient whose medical

history is uncomplicated, and whose treatment

may be conducted safely with a minimum of

treatment modifications.

The questionnaire can also assist in identifying a

patient whose medical history is complex or

clouded, and when further information is needed

to clarify any positive or unclear responses before

initiating care.

Additional information may be acquired through

a dialogue with the patient and by conducting an

appropriate physical examination (head, neck and

intra-oral examination, and taking and recording

vital signs) and/or consultation with the patient’s

physician.

In Scenario 2, had Dr. A discovered that Ms. S had

diabetes, there were a number of follow-up

questions he should have asked.

The Medical History Questionnaire Companion

explains that, when it is determined that a patient

suffers from diabetes, the dentist needs to

establish the type and severity of the disease and

the presence of complications, which are often

related to the duration of the disease. For

example, diabetic patients are more likely to suffer

from atherosclerotic heart disease, kidney disease,

blindness, xerostomia, periodontal disease,

burning mouth syndrome, and to have problems

related to impaired healing and infection.

As important as it is to be able to appropriately

interpret the medical history questionnaire and to

investigate the positive responses, it is equally

important that the medical information is

updated and followed-up on a regular basis.

Two methods can be helpful to ensure the

medical history is updated and the information is

accurate. One is to have the patient review the

information previously obtained and advise the

dentist of any changes. The other is to ask specific

questions of the patient. On page 11 of the

Medical History Questionnaire Companion there

is a list of appropriate questions to be asked at

recall appointments and also a sample

abbreviated Recall History Questionnaire.

LEARNING POINTS

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QMy patient says that she haspaid for the x-rays and isentitled to them. Can I givethese to her?

What the patient has paid for is the

diagnostic services that you have

provided on the basis of the radiographs

and the regulations require you to retain

these. Your patient is entitled to

diagnostic quality copies of the

radiographs.

QCan the patient pick up theirdental records or have thesemailed to their home?

Yes, the patient can pick up copies of

their dental records from your office or

request that these be mailed to their

home. Most dentists have the patient

sign in the patient’s record that they

have received the records if the patient

picked up the copies. If someone else

arrives to pick up the patient’s records

from your office, you should ensure that

you have the patient’s consent to release

them to this person. The patient can

indicate this in advance with their

signed consent.

QMy patient wants to pick upthe records of their childrenwho are at university. Is thispermitted?

While there is no legal age for consent

to the release of health information, the

College and the Information and

Privacy Commissioner of Ontario

consider that age 16 is a reasonable age.

This means that in most cases, parents

can request and are entitled to copies of

the dental records of children up to 15

years old. However, you will require the


28

Release andTransfer of Records

If someone else arrives to

pick up the patient’s records

from your office, you should

ensure that you have the

patient’s consent to release

them to this person.

“ “

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consent of children 16 and older to

release records to their parents. You

should contact the children to ensure

that you have their consent to release

the copies of their records to their

parents.

QIf I do not have a duplicator orprocessing solutions because Ihave switched to digitalradiography, can I give thepatient original filmradiographs?

Because dentists are required to keep

original records, the easiest way to

comply with your legal requirement to

provide patients with copies of the

dental records that they request is to

have facilities to make copies in your

office.

If you no longer have processing

solutions, you could investigate how to

scan film images to convert these to

digital files. Then you could send these

electronically with appropriate privacy

safeguards, or provide them to the

patient on a CD or USB key.

Alternatively, you could arrange to have

the radiographs duplicated; for example,

at a faculty/school of dentistry.

QDoes the request have to comefrom another dentist?

No. Dentists will often help their patient

to request their dental records from

another dentist, but the request can also

come directly from the patient. Patients

have the right to have copies of their

records.

While the College suggests that patients

put their requests in writing, indicating

what they would like to have copied and

where they would like the records to be

sent, the dentist does not require

consent to release information from a

patient’s record to the patient.

Dentists require the patient’s consent to

release information to someone other

than themselves and the College advises

written consent in most cases.

QWhat if the written requestdoesn’t specify which recordsare required?

If the request is very general, you could

contact either the patient or the dentist

to whom the records will be sent to find

out what is required and whether there

is an appointment booked or other

urgent need for the dental records.

QI have purchased a dentalpractice and a patient wouldlike his notes from the previousowner’s dental record. Am Irequired to provide this to himand does it make a differencewhether or not I have treatedthe patient?

In the sale of a dental practice, typically

the purchaser assumes the legal

responsibility to retain patient records as

required by the regulations. This means

that the purchaser has to keep the

originals and provide copies to the

patients, if requested.

If a patient continues treatment at the

office, whether or not the same charting

format is used, the patient’s record will

normally be considered a continual

record. You have to retain the records

for adult patients until at least 10 years

after the date of the last entry in the

patient’s record and for children, until


29

s

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at least 10 years after they turn 18. You

should not give patients their original

record until the legally required

retention period has ended.

QMy patients are havingdifficulty obtaining copies ofdental records from anotherdental office. How can I helpthem?

You can assist your patients by preparing

a request for the release of information

that specifies which records the patient

requires copies of, your office address,

and indicating if this is where the

records are to be sent. The patients

should sign these requests. Note that

children 16 years of age or older should

sign the requests for their own dental

records.

QMy associate has left the officeand has sent out a notificationto patients. If the patientsdecide to follow him, do I haveto provide the associate withthe patients’ records?

If you receive a written request that is

signed by the patient directing you to

do so, you should provide copies of the

dental records to the associate. The

associate is not entitled to the patient’s

original records, unless that is in

accordance with a written contract, for

example, an associate agreement where

the associate is the designated owner of

specified patient records, or if there is a

written agreement between the dentists

specifying that, at the end of the

associateship, the transfer of original

records with the consent or written

direction of the patient takes place

so that the associate assumes the

responsibility to retain these as required

by the regulations. The College does not

provide legal advice and dentists should

consult with their own lawyer before

entering or executing such agreements.

QCan I charge the patient for theduplication of dental records?

According to the College’s Practice

Advisory on the Release and Transfer of

Patient Records, you can pass on any

out-of-pocket expenses incurred in

duplicating and releasing records. This

could include mailing costs, charges

from a dental laboratory or radiograph

duplicating facility, and materials costs.

This cannot include an administrative

fee for your staff time.

QWhere can I get moreinformation?

The Guidelines for Dental

Recordkeeping and the Practice Advisory

on the Release and Transfer of Patient

Records are available on the College

website at www.rcdso.org under

Professional Practice.


30

Release and Transfer of Records

COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor 416-934-5614 [email protected]

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Q: Who owns the dental records,the patient or the dentist?Dentists are required to retain original patientdental records for ten years after the last entryin the chart. Patients are entitled to see theirrecords and to receive copies.

Q: If I receive a request from apatient for copies of his/herrecords or receive writtenauthorization by the patientfrom another dental office, mustI comply?Failing to provide copies of patient records andradiographs when requested by a patient orher or his authorized representative may beconsidered as professional misconduct underthe Dentistry Act, 1991.

A Supreme Court of Canada decision alsostated that patients either have the right ofaccess to their health records at a timeconvenient to the practitioner or they areentitled to be provided with copies of theirhealth records, including copies ofradiographs.

Q: Are patients entitled to theiroriginal dental records?No. The dentist must keep the original recordsbut the patient can have copies.

Q: What would be considered areasonable time frame forproviding copies of patientrecords?The professional misconduct regulationsmade under the Dentistry Act,1991 speak tothe transfer of records and/or reports within areasonable time.

It is the College’s view that, in most cases, thisshould be accomplished within one to twoweeks of receipt of the request. The Collegealso recommends that dentists use personaldelivery, a courier service or registered mail toensure that the records safely reach theirdestination.

Q: A patient has requested tohave the records sent to his/herhome, rather than to the newdentist. Is it acceptable to dothis?A patient can give direction as to where he orshe would like the records sent. They do notnecessarily have to be sent to a dental officeonly.

Q: What records should normallybe provided?If a patient or his or her lawyer request copiesof all dental records and radiographs, you


COLLEGE CONTACTDr. Don [email protected]

PRACTICE CHECK

Patient Records:Transfer and Release

MENU

must comply with this request. However, ifthe request is not specific, the most usefulrecords would be current x-rays and the mostrecent full mouth survey/panoramic view, anda copy of the current treatment plan andprogress notes.

Q: Is it permissible to levy acharge for the duplication ofpatient records?It is the College’s view that in fulfilling his orher legal and professional obligations toforward records and/or reports that have beenrequested by a patient or agent, a dentist mayconsider charging a fee consistent with thedirect costs incurred in doing so.

This fee would include the costs ofphotocopying paper records, duplication of x-rays or models and transfer costs. Anadministrative fee for this service is notconsidered appropriate.

The College recognizes that, in some cases, theburden to members to provide records justifiescost recovery. In others, a dentist may chooseto provide copies of records as a professionalcourtesy as assessing such a fee might furtherinflame an existing conflict with a patient.

Q: Can a dentist refuse to complywith a patient’s request for thetransfer of his/her dental recordsto a new dentist until theoutstanding account balance hasbeen paid? No. The release and transfer of records is aprofessional responsibility and unrelated towhether or not the patient still owes the dentaloffice any money. Dentists have othermechanisms available to them to recoverunpaid balances.

Q: If the police come to thedental office requesting therelease of dental records of aparticular patient of thepractice, must I comply with thisrequest?You cannot release any patient records withoutthe authorization of the patient or his/herauthorized representative, i.e. parent,guardian, legal representative, trustee, or asrequired to do so by law.

In order for a dentist to be able to comply withthe police officer’s request, the officer wouldhave to produce a Coroner’s Warrant or a courtauthorized Search Warrant. Without suchwritten authorization, the dentist would beunable to comply. In this situation, it might bewise to contact the College’s Practice AdvisoryService at 416-934-5614 or toll-free at 1-800-565-4591 for assistance.

Q: Where can I get moreinformation?The College’s Practice Advisory on the Releaseand Transfer of Patient Records can be foundon the RCDSO website at www.rcdso.org byclicking on Professional Practice in thenavigation bar on the left-hand side of thehome page, and then on Practice Advisories inthe drop down menu.


PRACTICE CHECK

Transfer and Release of Patient Records

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DDr. Bert Greene is a general practitioner in a busy dental office. A patient,Wendy Smith, attended at his office complaining of severe pain in tooth27. After examining her, Dr. Greene recommended root canal therapy.He explained the treatment and discussed the other options. Ms. Smithchose to go ahead with root canal therapy and Dr. Greene initiatedtreatment on the same day.

Very early in the procedure, a file separated in the middle third of themesiobuccal canal. Dr. Greene made no attempts to remove or to bypassthe separated file. Instead, he proceeded to complete the treatment,obturating the palatal and distobuccal canals fully and obturating themesiobuccal canal in the coronal half of the canal only, up to the level of the separated file.

He charged Ms. Smith the full fee for endodontic treatment of a tooth withthree canals.

A week later, Ms. Smith attended at another dentist’s office complaining of pain and this dentist discovered the separated instrument and informedMs. Smith.

This situation could quickly escalate into a complaint filed about Dr. Greene to the College or the commencement of a lawsuit. However, there are a few precautions that could have been takento decrease the chance of a complaint or lawsuit.




OUNCE OF PREVENTION

TOP FIVE STEPSto Avoid a Lawsuit or Complaint

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Step OneASSESS THE SITUATION

1When a complication occurs duringtreatment, it is important to take thetime to carefully assess the situation. Inthis way, decisions about what to do

next can be made with careful considerationand with the patient’s best interests in mind.

In this situation, Dr. Greene, with the patient’sconsent, could have attempted to retrieve theseparated file. If this wasn’t possible, he couldhave bypassed it and successfully sealed thecanal. If neither of these attempts waspossible, he could have referred Ms. Smith toan endodontist to attempt file removal and/orbypass and to complete endodontic treatmenton all of the canals.

Step TwoCOMMUNICATE WITH THE PATIENT

2You have a responsibility to informyour patient when a complicationarises during treatment. As soon as Dr. Greene realized a file had

separated in a canal, he should havediscontinued treatment, sat Ms. Smith up inthe chair, and explained what had happenedand what the options were on a go forwardbasis, including the option of referral to anendodontist, before continuing with anytreatment.

A patient is able to make an informed decisionabout the course of treatment when she or hehas all of the relevant facts.

As well, patients appreciate opencommunication with their dentist, and thisfosters a relationship of trust between thedentist and patient. If patients feel they arebeing misled or their concerns aredisregarded, then how or why the actualcomplication occurred may becomeirrelevant.

Very often, what a dentist does after anuntoward incident occurs plays as much apart in what happens next as the incidentitself. Showing care and concern, as well ascommunicating and taking appropriateaction, often prevents further action on thepart of the patient against the dentist.

Step ThreeTAKE APPROPRIATE ACTION

3Do something to correct the situation.In this case, if Ms. Smith had accepteda referral to an endodontist, Dr.Greene should have immediately

referred her and should not have proceededwith obturation of the other canals.

Also, Dr. Greene should have stronglyconsidered waiving all fees for theappointment as a goodwill gesture to thepatient.

If Ms. Smith chose to have Dr. Greene attemptto remove or bypass the file, then he couldhave gone ahead with that treatment. If hecould not safely remove or bypass the file, heagain should have immediately referred Ms.Smith to an endodontist and definitelyconsidered waiving his fees.

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OUNCE OF PREVENTION

Step FourDOCUMENT

4Put it in writing. Regardless of thecourse of action chosen, Dr. Greeneshould have made a note in thepatient chart about the incident and

what was done to resolve it. Thisdocumentation should have included a noteabout what the patient was told, includingtreatment options and possible outcomes andrecommendations made, as well as anycomments made by the patient. If there is acomplaint or lawsuit some time later, thesenotes serve as an important reminder of whathappened.

Step FiveGIVE NOTICE

5If an upset or angry patient indicatesthat she or he wants somecompensation, threatens a lawsuit, orissues a Statement of Claim, the

dentist should contact the ProfessionalLiability Program in order to protect his or hercoverage under the College’s errors andomissions policy.

If something untoward occurred and thedentist wishes to offer to correct the procedurewithout charge or to waive any fees as agoodwill gesture, PLP can assist the dentist inresolving the matter by providing anynecessary documents so as not to admit anyliability.

SUMMARYThe practice of dentistry is both an art and ascience, and sometimes accidents, mishapsand/or untoward events occur. The fivesuggestions in this article can assist you inhandling difficult situations, bolster or regaintrust, and defuse anger and upset. Even if thepatient decides to commence a lawsuit orcomplain to the College, it may beadvantageous to be able to show that thesituation was managed with the utmostprofessionalism.

QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle a particular situation with apatient, call the College.

PLP Claims Examiners 416-934-5600 • 1-877-817-3757Practice Advisory Service 416-934-5614 • 1-800-565-4591

Top Five Steps to Avoid a Lawsuit or Complaint

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18

INTRUSION UPON SECLUSION

What you need to know aboutliability forinvasion of privacy

TOOTH OR CONSEQUENCESRISK MANAGEMENT ADVICE FROM PLP

HHistorically, privacy rights in Canada have been protected by a

patchwork of legislation designed to shield individuals from

unauthorized use or disclosure of personal information by

prescribed entities or groups, including health care providers.

While the remedies for a statutory breach of privacy may include

an award of damages, until recently, no jurisdiction in Canada

had ever recognized a common law right to sue for invasion of

privacy. All of that changed in January of this year with the

Ontario Court of Appeal’s landmark decision in Jones v. Tsige.

Jones and Tsige did not know each other, but both were

employees of the Bank of Montreal. Tsige was in a common-law

relationship with Jones’ ex-husband, and in order to confirm

information received from her partner about his finances, she

surreptitiously accessed Jones’ personal banking information at

least 174 times over four years. She did not publish or distribute

any of Jones’ financial or personal information, and Jones did not

suffer any economic harm as a result of the intrusion.

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After discovering the

unauthorized intrusion, Jones

sued Tsige for invasion of

privacy. A motion judge

dismissed the action on the

ground that there was no

such common law tort in

Canada.

On appeal, the Court

canvassed the law in Ontario

and the other provinces and

determined that the

protection available under

privacy legislation does not

preclude common law relief.

Following U.S. precedent, it

imported a cause of action for

“intrusion upon seclusion”

into Canadian law, defined as

follows:

One who intentionally intrudes,

physically or otherwise, upon the

seclusion of another or his

private affairs or concerns, is

subject to liability to the other

for invasion of his privacy,

if the invasion would be

highly offensive to a

reasonable person.

The Court clarified that a

reckless invasion of privacy

would be included in this

definition, but it expressly

declined to adopt a broader

one which would encompass

inadvertent disclosure of

sensitive personal

information.

After concluding that Tsige’s

acts satisfied the elements for

establishing liability, the

Court granted judgment in

favour of Jones and awarded

her $10,000 in damages.

The decision to acknowledge

the importance of privacy by

creating a cause of action for

its deliberate violation is not

terribly surprising, and one

can expect other jurisdictions

to follow suit.

Moreover, it is very likely

that Ontario courts will

recognize a right of action

for unintentional breach of

privacy sooner rather than

later. In fact, a class action

for damages arising from

the loss of a USB key with

unencrypted personal health

information for over 83,000

people was certified last year.

While certification itself does

not mean the claims

advanced in the pleadings are

sustainable, it is noteworthy

that one of the common

issues for trial is whether the

defendants owed a common

law duty to the class members

to protect their privacy.

Since most breaches of

privacy in dental practice are

accidental rather than

deliberate, it is unlikely that

there will be a flood of actions

against Ontario dentists for

intrusion upon seclusion.

But the spectre of civil

liability for negligent breach

of privacy looms for health

care practitioners who have

not changed their ways

despite the possibility of

complaints to their regulatory

bodies or the Office of the

Information and Privacy

Commissioner/Ontario.

As custodians of personal

health information, dentists

are held to a very strict

standard of confidentiality.

Unfortunately, it is all too

easy to forget that even the

fact that someone is a patient

is private. Many dentists

casually share treatment

information about one person

with other family members

without consent.

Ignoring the risk of theft or

loss, some dentists still

transport computers, smart

phones, and other electronic

devices containing

unencrypted patient

information. Some dentists

engage in e-mail exchanges

about treatment or even send

patient records electronically,

which, while convenient, is

dangerous without proper

safeguards. The time to

change such practices is now,

before the reputational and

financial consequences

escalate.


19


PLP ADVISORS

416-934-5600 • 1-877-817-3757


416-934-5614 • 1-800-565-4591


COLLEGE CONTACT René Brewer – Manager, Professional Liability Program416-934-5609 [email protected]

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22

Patient CentredCareA dentist’s paramount responsibility


MMost dentists know that, like other health care practitioners, they

owe a duty of care to meet the prevailing standards of practice in

treating their patients and that they may be held civilly liable if

they breach that duty.

What they may not know is that, even if there are no deficiencies

in disclosing the risks of treatment or in the treatment itself, they

may be exposed to a finding of liability if they fail to put their

patients’ interests ahead of their own.

Because of their special position in society, some professionals

have a legal and ethical obligation, called a fiduciary duty, to act

for the sole benefit of the people they serve.

While power imbalance is a feature of many fiduciary

relationships, the key criterion is the discretion of one person to

affect the interests of another.

A fiduciary must meet the strictest standards of conduct, and may

be held to account if his personal interests conflict with his duty

or if he profits from his position without the beneficiary’s

consent.

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Dentists, physicians, lawyers and teachers have been found to

be fiduciaries to their patients/clients/students. As emphasized

in the RCDSO’s Code of Ethics, this means that: “The

paramount responsibility of a dentist is to the health and well-

being of patients.” Therefore, while there is nothing illegal or

unethical in earning a living or making a profit from the

practice of dentistry, dentists must always ensure that their

financial interests do not take precedence over doing what is

best for their patients. Consider whether the dentists in the

following two scenarios met this obligation.

SCENARIO 1 Ms. Y told Dr. P she didn’t like the silver fillings in her mouth

and wanted to know if he could replace them with white ones.

On examination, Dr. P noted she had large, multisurface

amalgam restorations on most of her molar and premolar

teeth, but there was no clinical evidence of a need to replace

them.

He took bitewing radiographs that showed no evidence of

decay. Dr. P informed Ms. Y he would be happy to replace the

resins and discussed the fees for doing so.

Dr. P proceeded to replace all the amalgams over the next two

weeks.

SCENARIO 2Ms. A told Dr. C she was a budding actress and wanted a dental

makeover. Dr. C recommended that all 28 teeth be restored

with porcelain crowns.

Dr. C was just starting out in practice, and had little experience

with providing crown and bridge treatment and no experience

with porcelain crowns. Nonetheless, she felt confident in her

ability to carry out the treatment plan.

Dr. C permanently cemented all of the crowns.

DISCUSSIONWhile Dr. P and Dr. C faced different clinical situations, there

were some common threads. Treatment was of questionable

benefit to their patients and there were clearly less extensive

and expensive alternatives. As well, the treatment provided by

Dr. C was beyond her scope of expertise.

Had Dr. P and Dr. C asked themselves the following questions,

they may have acted differently:

• Is treatment necessary at all?

• Is this particular treatment appropriate?

• Is this treatment in the best interests of the patient?

• Are there other options that should be considered?

• Is this treatment within my scope of expertise?

• Might it appear to others that I recommended or providedthis treatment primarily for personal gain?

Instead, both left themselves open to allegations of breach of

fiduciary duty. The fact that the patients specifically requested

the treatment would not shield them from liability if a court

were to conclude that their failure to explore alternatives was

financially motivated.

There is no doubt that most dentists would try to do what is

best for their patients even if there were no legal obligation to

do so. Using the above checklist can help avoid any appearance

to the contrary by ensuring that patients’ interests remain the

paramount consideration in any treatment decision.


23


PLP ADVISORS

416-934-5600 • 1-877-817-3757


416-934-5614 • 1-800-565-4591


COLLEGE CONTACT René Brewer – Manager PLP416-934-5609 [email protected]

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DDentistry tends to attract people with particular personality traits.Succeeding in dental school and in practice requires discipline,determination, intelligence, drive and a certain amount ofcompetitiveness. Like others in demanding professions, dentists areusually high achievers with high standards for others, but mostespecially for themselves. Many were drawn to dentistry over otherhealth professions because of their desire for independence andcontrol over their careers and financial futures. Theirs is a healingprofession, and most dentists care deeply about their patients’welfare and strive to provide the best care possible, so they aredevastated when their best efforts aren’t enough.

But the flipside of these attributes can lead dentists into trouble.Some overestimate their abilities or are reluctant to admit any limitson their skills or training to their patients. They may be reticent,even ashamed to ask colleagues for advice or assistance. Somehave difficulty acknowledging or dealing with patient dissatisfactionor less than ideal treatment outcomes. They may go into denial orrefuse to accept defeat, often making matters worse.


24

What Price Perfection?The personal andprofessional costs of being too hard on yourself

MALPRACTICE MATTERSRISK MANAGEMENT ADVICE FROM PLP

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All of these behaviours andattitudes increase the likelihoodof patient complaints and legalactions. The following are a fewtips for avoiding such pitfalls:

KNOW YOUR LIMITS. Many PLP files arise fromsituations in which the memberstrayed into areas beyond his orher level of experience andcompetency. The fact that apatient asks you to perform theservice for financial or otherreasons will not be a defence toa complaint or a claim if you didnot have the appropriatetraining.

KNOW WHEN TO SAY WHEN. Sometimes the best responsewhen a complication occurs is torefer the patient to a colleaguefor assessment or remedialtreatment. Mistakes are morelikely to occur when you arepersonally invested in fixingyour own problem.

DON’T PRACTISE IN ISOLATION. Forge relationships with otherdentists; find and/or be amentor; join or create studyclubs; become a member of aprofessional association.Connecting with other peoplefacing similar challenges andsituations will help you workthrough them.

PHONE A FRIEND. Don’t be embarrassed to admityou don’t know something.Reach out for help and advice.You’re not perfect, and acting asif you were is a sure-fire way toensure you will be sued if thingsdon’t turn out as planned. Andby the way, your colleaguesaren’t perfect either.

GET USED TO GIVING BAD NEWS. Things go wrong. Admit it, dealwith it and move on. Mostimportant is that you tell thepatient right away. Not only is it your legal, ethical andprofessional obligation todisclose an adverse event to

your patient in a timely fashion,but failure to do so significantlyincreases your risk of a lawsuitand the potential for an award ofpunitive damages against you,for which PLP does not provideindemnification.

GET USED TO SAYING “I’M SORRY.”Studies have demonstrated thatempathy from the healthpractitioner can positively affecta patient’s reaction to acomplication. And in Ontario, an apology cannot be used asevidence of liability in a civilproceeding, so there is nothingto lose in making a heartfeltexpression of sympathy for apatient’s suffering.


25COLLEGE CONTACT Dr. Judi Heggie – Senior Dental Consultant, PLP

416-934-5605 1-877-817-3757

[email protected]


WHILE PERHAPS EASIER

SAID THAN DONE,

FOLLOWING THESE

SIMPLE RULES WILL

HELP AVOID THE STRESS,

ANXIETY AND EVEN

DEPRESSION ASSOCIATED

WITH THE INEVITABLE

UPS AND DOWNS OF ANY

DENTAL PRACTICE.

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1. Different levels ofprofessional responsibilityDentists and denturists have different

scopes of practice and different

controlled acts, as described in the

Dentistry Act, 1991 and the Denturism

Act, 1991. That is why it is the College’s

view that dentists and denturists have

different levels of professional

responsibility for shared patients.

If a dentist refers a patient to a denturist

to perform specified services as part of

an overall treatment plan coordinated

by the dentist, the dentist has a

professional responsibility to be aware of

the qualifications of the denturist. This

is the same responsibility a dentist has

in referring a patient to any health care

provider.

If a denturist refers a patient to the

dentist for rest preparations and other

tooth preparation for partial dentures or

for the placement of implants that the

denturist will later restore with a

removable denture, such as an

overdenture, the dentist’s responsibility

does not begin and does not end with

this stage of the patient’s treatment.

In fact, the responsibility to make the

decision if a patient is a candidate for a

specific prosthetic treatment plan rests

with the dentist. Dentists are the only

regulated dental health professional in

Ontario authorized to communicate a

diagnosis identifying a disease or

disorder of the oral-facial complex as the

cause of a person’s symptoms.

The formulation and communication of

diagnosis and the treatment plan is an

integral component of the informed

consent process for prosthetic dentistry.

So too is the suggestion of reasonable

ENSURING CONTINUED TRUST DISPATCH NOVEMBER/DECEMBER 2011

8

Dentists anddenturists workingtogetherunder one roof

Dentists sometimeswant to enter into businessrelationships withdenturists thatwould have eachprofessionalproviding servicesto patients underthe same roof.

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treatment alternatives, some of which

are outside the scope of practice of

denturists.

The patient’s record must document

the dentist’s discussion with the

patient and must show evidence of

adequate consultation with all the

professionals involved in the treatment

process. The patient’s record should

document the alternative treatment

options discussed and the choice of

treatment made by the patient.

In addition to these general

requirements, with partial dentures the

dentist must agree to the specific

denture design.

For implant supported removable

overdentures, the dentist should

mount the fixed hardware to the

implants before referring the patient

back to the denturist.

The dentist is also responsible for the

placement of any implant-supported

crown if it is serving as a precision

attachment for a removable partial

denture.

Once prosthetic treatment is

completed, the dentist will be

responsible for ongoing evaluation by

clinical and/or radiographic

examination and for providing or

arranging for periodontal and

preventive maintenance of the

abutments for implant supported or

conventional fixed prostheses.

Because there is no procedure code in

the Ontario Dental Association’s

Suggested Fee Guide for tooth

preparation for a partial denture, if the

denture is provided by the denturist,

fees for the dentist’s time in

preparation of the teeth might not be

reimbursed by dental insurance.

Patients must be advised of this before

proceeding.

A word description in the dentist’s

note section of the insurance claim

form would be required to submit an

insurance claim for these services

provided by the dentist.

2. Business relationshipsThe preferred business relationship is

for the denturist and the dentist to

operate independent and separate

practices, with each maintaining

his/her own patient records. The

dentist and denturist bill patients for

treatment independently. Insurance

claims are submitted separately using

their own provider numbers and the

procedure codes of their own

associations – the Ontario Dental

Association and the Denturist

Association of Ontario.

A denturist can pay rent to a dentist to

work in the dentist’s office. However, if

a dentist wishes to rent space from a

denturist, the only permissible

financial arrangement is for the dentist

to pay rent on a flat fee basis, not as a

percentage of the fees charged to

patients.

A dentist is only permitted to fee split

with another dentist or with a dental

hygienist working in the dentist’s

practice. Dentists cannot engage in any

form of fee or income sharing or profit

share with denturists.

3. Employer-employeerelationshipDentists cannot be employed by

denturists. The College permits dentists

to employ denturists and this

arrangement is not prohibited under

the regulations made under the

Denturism Act. In this situation, there

would be a single set of patient records,

similar to the requirement with dental

hygienists who are employed by

dentists. The dentist would bill or

charge patients for the dentures

provided by the denturist.

Dentists are advised to provide the

denturist with access to the patient

records if the denturist requires access

to those portions of the dental records

pertaining to denturism services

provided by him/her to respond to a

complaint filed with his/her regulatory

college, to comply with quality

assurance program requirements, or to

respond to a lawsuit in which the

denturist is named.

In the case where the dentist employs a

denturist, the College considers it

permissible for an insurance claim to

be submitted under the dentist’s name,

as long as there is an explanation that

the denture services were provided by a

denturist and the denturist is named in

the dentist’s note section of the dental

claim form.


9COLLEGE CONTACT Dr. Lesia Waschuk – Practice Advisor, Quality Assurance416-934-5614 [email protected]

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6

How do dentists anddenturistsworktogether toprovideimplant-supporteddentures? QCan denturists fabricate

implant-supported dentures?

Under the Denturism Act, 1991, the scope of

practice of denturism is the assessment of arches

missing some or all teeth and the design,

construction, repair, alteration, ordering and fitting

of removable dentures. Denturists have only one

authorized act and it is “to fit and dispense

removable dentures.”

This means that denturists may fabricate implant-

supported dentures that are removable by the

patient, including complete overdentures retained

by implants and removable partial dentures

retained by implant-supported crowns that have

been fabricated for, and cemented by, dentists.

Denturists may not fabricate fixed prostheses

retained by implants, e.g. bridges that are

cemented or screwed onto implant abutments.

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QCan dentists place implants on a referralfrom a denturist who is planning tofabricate an implant-supported prosthesis?

The decision as to whether a patient is a candidate for

dental implants and, if so, the number and positioning

of the fixtures rests with the dentist. Dentists are trained

to make these types of decisions. They are the only

regulated dental health professional in Ontario

authorized to communicate a diagnosis to a patient

identifying a disease or disorder of the oral-facial

complex as the cause of a person’s symptoms.

The formulation and communication of diagnosis and

subsequent treatment plan is an integral component to

obtaining a patient’s informed consent to treatment for

implant dentistry. As part of this informed consent

process, in cases where implant-supported removable

prostheses are considered, alternative treatment options

may include conventional removable prostheses, fixed

implant-supported prostheses, or fixed conventional

prostheses. The latter two options are outside the scope

of practice of denturists.

In an implant team composed of a dentist and denturist,

it is the dentist who is responsible for obtaining the

patient’s consent to treatment. The College’s Guidelines

for Educational Requirements & Professional

Responsibilities for Implant Dentistry posted at

www.rcdso.org outline the dentist’s responsibilities for

obtaining the patient’s informed consent to treatment.

The patient’s record must document the dentist’s

discussion with the patient and must show evidence of

adequate consultation with all professionals involved in

the treatment process. The patient’s record should

document the alternative treatment options discussed

and the patient’s choice of treatment.

QWho is responsible for the maintenance and assessment of the implants?

According to the guidelines on implant dentistry, once

treatment is completed, a member of the implant team

should be designated as the ongoing care provider. This

practitioner will be responsible for general maintenance

of the implant(s) and the supporting prosthesis, and for

informing the patient of the ongoing preventive

requirements. If difficulties arise with the prosthetic

portion of the treatment, other members of the team

should be consulted. The ongoing evaluation by a

clinical and/or radiographic examination and the

maintenance of implant abutments must be performed

by a dentist.


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The College’s Practice Advisory Service has received an increasing

number of calls from members asking about their responsibility

when providing an order for dental hygienists to perform

orthodontic procedures in their offices.

In January 1999, the College Council approved Standards of

Practice of the Profession Relating to the Performance of

Orthodontic Procedures by Third Parties. While these Standards

were never approved by government, they represent the will of

Council and, therefore, remain the position of the College.

The Standards state that when a dentist provides an order for a

dental hygienist to perform orthodontic procedures: “The

member shall be present in the office suite while the procedures…

are being performed.”

While it is up to the discretion of the dentist to determine the level

of supervision that the orthodontic procedures require, it is the

College’s expectation that dentists will be present in the office

suite while these procedures are performed by a dental hygienist.


34


Questions aboutproviding an order for the performance of orthodonticprocedures


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IIt is not uncommon for the

owner or owners of a dental

practice to engage the

services of associate dentists,

whether general practitioners

or specialists. The practice

owner or principal may own

more than one office, and may

or may not practise at any of

these locations.

In these principal-associate arrangements, it is not

unusual for questions to arise about the responsibilities

for patient care, access to dental records, and records

retention in such arrangements.

Dental practice in a group practice setting should

emphasize quality and continuity of care, where the

patient’s history, expectations, stage of treatment and

necessary follow-up are all of paramount importance.

This may be compromised in a setting where a principal

is absent and/or no particular practitioner is able to act

as the most responsible dentist.

As associates enter and leave the practice, it may become

difficult to provide multiple phase treatment, and it is

entirely possible that necessary or urgent care will be

delayed or neglected.

Whether or not the principal practises in a given office,

the associate is still responsible for meeting his/her

professional obligations to patients and providing

appropriate care that meets the standards of practice.

Ideally dental services will be provided in the context of

comprehensive treatment planning.

In all cases, it is important to maintain thorough

documentation to facilitate communication with front

office staff and other practitioners in the office. The

patient’s dental records should clearly indicate which

practitioner has provided dental services and every

dentist should ensure the accuracy of any insurance


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Responsibilities forpatient care inprincipal-associatearrangements

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claims that are submitted for dental treatment that he or

she has performed, ordered, or authorized.

The associate may consider referral to a more experienced

practitioner in the office in order to provide certain

aspects of the treatment that are beyond their level of

expertise, or perhaps in order to accommodate the

patient’s schedule. Although the principal may prefer for

as much patient care to be provided within the practice

as possible, it may still be necessary and appropriate in

some cases for an associate to refer a patient to a specialist

or other colleague outside of the office.

Termination of a principal-associate relationship or

disputes between dentists must not be allowed to impact

the ongoing treatment of patients or adversely affect their

right to receive care from a dentist of their choice. As a

result of problems between dentists, the patient may end

up receiving only intermittent emergency management

rather than consistent, properly sequenced treatment.

Unless requested by the patient or alternate arrangements

are made, discontinuation of dental services without

reasonable cause must be avoided and the patient should

have an opportunity to arrange for continuing care,

including any dental emergencies, in the event that there

is a breakdown of a principal-associate relationship.

It may be prudent to include transition terms in a written

principal-associate agreement, with particular reference to

such issues as completion of treatment in progress,

handling changes to a treatment plan and/or how

re-treatment needs will be addressed. These terms would

be especially important in the event that the principal

or other associates in the practice are unable to

accommodate additional patients or in situations where

a patient is in the midst of a complex treatment plan at

the termination of a principal-associate arrangement.

Regardless of whether there is a previous written

agreement, at the end of a principal-associate

arrangement, it may be possible for the associate to be

accommodated at the principal’s office for a specified

period of time or for the patient to attend at the

associate’s new location for completion of some or all of

the treatment.

It may also be helpful for the associate to have the option

of negotiating contractual rights of access to original

patient records to facilitate completion of certain cases.

Should patients elect to seek treatment at an office that

does not have direct access to their records, the patients

would be required to consent to their release.

If a written principal-associate agreement prohibits any

form of patient notification by the associate, the onus

would be on the principal to take responsibility for

arranging ongoing care of the patient following the

associate’s departure.

It is always best for patients to be informed if they will be

seeing a different practitioner than planned prior to their

next scheduled appointment.

The principal must provide the associate’s new practice

location to any patients who request it.

It is important that patients are informed of any changes

in the treatment plan and/or financial agreements and in

the arrangements that have been made for the

completion of their treatment.

The associate is responsible for care he or she has

provided to a patient, and if the patient has concerns or

complaints about treatment that the associate has

provided it is best for the patient to have the opportunity

to address these directly with the associate.

NOTE: Please note that the College does not provide legal advice.

Dentists are encouraged to obtain their own independent legal advice

from counsel experienced in providing business advice to dentists

and who understand the regulatory framework for the practice of

dentistry in Ontario.


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INCIDENTS IN THE DENTAL OFFICE

Incident #1 – Impression Material Ingested

While a dentist was taking a polyvinyl siloxane impression of the

patient’s maxillary arch, some of the impression material dislodged from

the tray and was ingested by the patient. Neither the patient nor the

dentist realized what had happened.

Five days later, the patient presented to hospital complaining of nausea,

vomiting and abdominal pain. A CT scan confirmed the presence of an

obstruction in the small bowel, secondary to the presence of a foreign

body.

On the same day, surgery was performed under general anesthetic and

the foreign body was removed, along with three inches of the patient’s

bowel. The pathology report described the foreign body as resembling

rubbery, soft plastic material.

28 DISPATCH • August/September 2010 Ensuring Continued Trust

OUNCE OF PREVENTION

OOPS! Accidents,Procedural Mishaps andOther Untoward EventsCan Happen to You!



The practice of dentistry is both an art and a science so

sometimes accidents, mishaps and/or untoward events

do occur. While not necessarily “negligence,” patients

can be injured as a result of these occurrences and may

deserve compensation for corrective treatment, as well

as for pain, residual damage and future treatment.

In this article, let’s look a number of real incidents and

then zero in on risk management strategies to prevent,

to the extent possible, these kinds of accidents and

mishaps from occurring.

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Incident #2 – Sodium Hypochlorite Injected

In order to anesthetize an upper anterior tooth

to facilitate endodontic treatment, a dentist

inadvertently infiltrated the area using an

anesthetic cartridge that had been refilled with

sodium hypochlorite. The patient suffered

excruciating pain, as well as severe swelling

and bruising; however, fortunately she

eventually recovered fully.

Incident #3 – Lip Cut

While removing a matrix band a patient’s lip

was cut. The dentist referred the patient to

hospital where he received three sutures to the

lip. The patient suffered a permanent scar.

Incident #4 – Needle in Cheek

While suturing the wound following extraction

of a lower wisdom tooth, the needle was lost in

the cheek tissue. The dentist attempted to

remove it but was unable to do so. He referred

the patient to an oral/maxillofacial surgeon,

who removed the needle uneventfully. The

tissue subsequently healed normally.

Incident #5 – Denture Ingested

A dentist provided a patient with a small

unilateral denture to replace three missing

teeth. Soon after, the patient inadvertently

swallowed the denture and it lodged in her

stomach, requiring surgical removal.

Incident #6 – Cornea Scratched

While the dental hygienist was removing an

orthodontic wire, it grazed the child patient’s

eye. She did not inform the patient or his

mother about what had happened.

The following day the patient presented to his

physician who noted there was a corneal

abrasion and referred the patient to an

opthamologist. The opthamologist examined

the patient three days later and diagnosed a

bacterial corneal ulcer. He prescribed

antibiotic ointment and the ulcer eventually

healed with no permanent damages.

Incident #7 – Tooth Aspirated

While performing a full mouth clearance, a

tooth came out unexpectedly and the dentist

assumed it had dropped on the floor. Shortly

afterwards the patient began coughing

violently. When the coughing eased up

somewhat, the dentist continued with the

extractions but was interrupted by the

patient’s persistent coughing.

The following day the patient returned

complaining that he felt like something was

stuck in his throat. The dentist examined the

patient and noted no evidence of

complications.

The patient presented again four days later

with similar complaints and then again one

week later, when he indicated the lodged piece

felt like it had gone down further. Now there

was blood when he coughed. Again, the

dentist noted no evidence of complications.

Four days later, the patient’s wife called and

advised he was in hospital and, after three

separate attempts under general anesthetic, a

tooth had been removed from his lung.

DISPATCH • August/September 2010 29

OUNCE OF PREVENTION

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Incident #8 – Syringe Tip Ingested

While drying a tooth prior to restoring it, the

air/water syringe tip (3½ inches long)

detached and the patient swallowed it. The

patient required surgery to remove the tip

from her stomach.

Incident #9 – Lip Burned/Laser

While a dentist was performing laser curettage

in the patient’s upper arch, her lip was burned

with the laser. The patient was left with a

permanent scar.

Incident #10 – Lip Burned/Hot Instrument

During obturation of a lower molar, the patient

moved unexpectedly and a hot spoon

excavator came into contact with, and burned,

her lip. The patient was left with a permanent

scar on her upper lip.

Incident #11 – Instrument Aspirated

While inserting a post, the dentist lost his grip

on the screwdriver and the patient aspirated

both the post and the screwdriver. The patient

underwent a bronchoscopy procedure and the

post and screwdriver were successfully

removed from the lung with biopsy forceps.

Incident #12 – Instrument Ingested

While placing a pin during restorative

treatment, the dentist dropped the hand

wrench and the patient swallowed it. In

hospital, an endoscopy was performed but the

instrument had passed into the stomach and

could not be retrieved. The patient was

followed and, 11 days later, the instrument

passed naturally. An endoscopy performed

three months later revealed no permanent

damages.

Incident #13 – Instrument Ingested

While tightening the healing abutment on an

implant, the dentist lost her grip on the

implant screwdriver. The patient, who was

sedated, swallowed the screwdriver.

The screwdriver did not pass and, one month

later, it was located in the patient’s appendix.

The patient underwent appendectomy and

recovered fully.


OUNCE OF PREVENTION

QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle a particular situation with a patient, do not hesitate to call the College.

PLP Claims Examiners 416-934-5600 • 1-877-817-3757

Practice Advisory Service 416-934-5614 • 1-800-565-4591

OOPS! Accidents, Procedural Mishaps and OtherUntoward Events Can Happen to You!

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OUNCE OF PREVENTION

PREVENTATIVE STRATEGIESAccidents occasionally do happen despite our

best efforts to prevent them. Unfortunately,

accidents, however unintentional, can cause

harm. That is where the Professional Liability

Program comes in. Here are some suggestions

to help avoid preventable accidents:

To prevent aspiration or ingestion of dentalinstruments or materials

• Whenever possible, use a rubber dam.

• When use of a rubber dam is not possible,

consider protecting the throat with gauze.

• Tie small instruments with floss to allow for

easy retrieval.

• Sit the patient upright when performing

procedures where there is a risk of

ingestion/aspiration.

• Take extra precautions if the patient is

sedated. Sedated patients may have

decreased gag reflexes.

To prevent soft tissue injuries

• Whenever possible, use a rubber dam. This

can dramatically reduce iatrogenic injuries

to the lips, tongue and oral mucosa.

• Use shields or guards to prevent hot

instruments from contacting skin or

mucosa.

• Avoid the use of cotton rolls for moisture

control when using caustic materials. These

materials can leak into cotton rolls and

cause mucosal injury.

• Ensure instruments and equipment are in

good working order and materials used are

the appropriate ones.

• Have the patient wear safety glasses to

protect the eyes.

IF AN ACCIDENT DOES OCCUR• Advise the patient of what has happened.

• Follow up with the patient appropriately.

• Refer the patient to a dental specialist or for

medical follow-up as necessary.

• Document all advice given and referrals

made.

• Call PLP for advice, assistance and to

protect your right to coverage.

In many situations, an acknowledgement that

harm has been done to a patient with a

heartfelt apology can be key to the patient’s

healing process. Studies of patients who have

filed malpractice suits show that almost half of

those said they might not have filed suits if

they had been given an explanation and

apology.

With the 2009 passage of Ontario’s Apology

Act, it is now possible for health care

practitioners to apologize for an accident or

wrongdoing, without it being used as evidence

of liability in a civil legal proceeding under

provincial law.

Remember, your policy of insurance states

that, upon becoming aware of any occurrence

which might reasonably be expected to be the

basis of a claim, you must notify PLP.

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DISPATCH • May/June 2008 57

COLLEGE CONTACTDr. Lesia Waschuk Practice Advisor416-934-5614 1-800-565-4591 [email protected]

COLLEGE CODE OF ETHICSCONSISTENT WITHNEW NATIONALDISCLOSURE GUIDELINES

The Canadian Patient Safety Institute (CPSI) has announced the releaseof its collaborative document, the Canadian Disclosure Guidelines.

These guidelines are intended to assist and support health-care providers,interprofessional teams, organizations and regulators in developing andimplementing disclosure policies, practices and training methods across

Canada. They promote a clear and consistent approach to disclosure,emphasize the importance of interprofessional teamwork, and support

learning from adverse events.

The principles in the CPSI guidelines, namely the right of patients to opencommunication about adverse events and the responsibility of health-careproviders to provide information to patients about their conditions, areconsistent with the requirements for informed consent and the ethical principlescontained in the RCDSO Code of Ethics available on our website atwww.rcdso.org.

The College has always advised dentists that they are required, both legally andethically, to inform their patients whenever a misadventure or unexpecteddevelopment or outcome occurs.

The College also advises dentists to discuss further treatment options with theirpatients and to make appropriate referrals to other practitioners as necessary, ifthe remedial or further treatments that the patients require are beyond theirexpertise.

The College also believes that open communication and support when things gowrong is a good risk management strategy and a way of strengthening thedentist-patient relationship.

The CPSI guidelines are now available at www.patientsafetyinstitute.ca

Disclosure of Adverse EventsIn generic terms, an adverse event is aninjury caused by clinical management ratherthan a patient’s underlying disease orcondition. Openness and transparency inresponding to such occurrences areconsidered key ingredients in improvingpatient safety. It is also just good practice.

Patients are partners in their own healthcare and they are entitled to know whenthings go wrong. Withholding informationcan cause patients to become angry orsuspicious, destroying the trust that is thecornerstone of any therapeutic relationship.And failing to disclose or even delayingdisclosure of an adverse event can impair apatient’s ability to obtain the treatmentrequired to mitigate its effects.


14

Misadventures are an unfortunatereality in modern dentistry. Whensomething untoward occurs, a dentistmay wonder how much the patientshould be told about the incident andwhether being too forthcoming willincrease the chances of being sued.There may be a fear that expressingconcern for the patient will beinterpreted as an admission ofwrongdoing.

This article describes the professional,ethical, and legal issues surroundingdisclosure of adverse events and therole of apologies in dental practice.

Disclosure of AdverseEvents and Apologies in Dental Practice


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For these reasons,timely and completedisclosure of adverseevents is an ethicalobligation for allhealth professionals,including dentists.RCDSO hasconsistently advisedits members of theirduty to informpatients ofunexpected incidentsand to discuss with

them any further or remedial treatmentthat may be required as a result.

In the May/June 2008 edition ofDispatch, RCDSO endorsed the Canadian Patient Safety Institute’sCanadian Disclosure Guidelines (updated version available atwww.patientsafetyinstitute.ca) as consistent with RCDSO’s requirements for informed consent and the principlescontained in its Code of Ethics(www.rcdso.org).

What many health care providers may not know is that the duty to disclose is also a legal obligation. Forthose practising in a hospital setting,notifying hospital administration of anyadverse event resulting in death orserious injury is mandated under thePublic Hospitals Act.

As fiduciaries, dentists and other healthprofessionals in any practice setting have a legal duty to act with the “utmostgood faith and loyalty” toward theirpatients, which extends to being honestand forthright in providing clinicalinformation. Any breach of this duty can give rise to liability for damages,including punitive, exemplary, oraggravated damages, for which PLP does not provide indemnification.

In order to comply with best practices,disclosure of an adverse event should:

•occur as soon as reasonably possibleafter the member becomes aware of it;

•be made by the treating dentist;

• include a discussion of the factsrelating to the incident;

• include a description of the actual orpossible consequences for the patient,together with recommendationsand/or referrals for further or follow-up care.

Members are also advised to documentthe details of any disclosure discussion(e.g. time, date, place, attendees, factsdiscussed, questions raised, answersgiven, treatment recommendations, etc.)in the patient chart.

The Apology Act, 2009While most health practitionersunderstand the rationale behind andaccept the duty to disclose adverseevents, there is ongoing reticence toapologize to patients when treatmentdoes not turn out as planned.


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DENTISTS AND OTHERHEALTH PROFESSIONALSIN ANY PRACTICESETTING HAVE A LEGALDUTY TO ACT WITH THE“UTMOST GOOD FAITHAND LOYALTY” TOWARDTHEIR PATIENTS, WHICHEXTENDS TO BEINGHONEST ANDFORTHRIGHT INPROVIDING CLINICALINFORMATION.

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The benefits to disclosing and expressingsympathy for unexpected clinical developmentsare the same: both demonstrate respect for thepatient and may assist in the healing process.But the barriers are also similar. They includefear of a lawsuit or College complaint, loss ofmalpractice protection, diminished reputation,and shame, guilt, or embarrassment.

In 2009, the Ontario government passed a law aimed at eliminating some of theseimpediments. According to the Apology Act,2009, an apology, defined as “an expression of sympathy or regret, a statement that aperson is sorry or any other words or actionsindicating contrition or commiseration”:

•does not constitute an admission of fault or liability;

•does not, despite any wording to thecontrary in any insurance contract, void or otherwise affect any insurance orindemnity coverage;

•cannot be taken into account in determiningfault or liability;

• is not admissible in any arbitration, civil or administrative proceeding as evidence of fault or liability.

Dos and Don’tsPLP recommends that members be familiarwith the protection available under Ontario’sApology Act. However, it is important to notethat a bad apology can do more harm thannone at all. An expression of concern thatcomes across as insincere may only inflamethe situation. Being defensive or “blaming thevictim” undermines and may even neutralizethe value of an apology. A good apology istimely, heartfelt and unqualified.

That said, an apology does not have to includean acknowledgement of blame or responsibilityto be effective. Practitioners should be carefulto avoid language such as “malpractice,”“negligence,” or “liability” in either disclosingor apologizing for an adverse treatmentoutcome. Statements such as “I’m sorry thishappened to you” or “I regret that things didnot turn out as we had hoped” can go a longway toward maintaining or repairing thetherapeutic relationship without implyingculpability.

Any member requiring assistance indetermining an appropriate response to anadverse event should contact PLP or thePractice Advisory Service for guidance.


16COLLEGE CONTACT René Brewer – Manager, Professional Liability Program

416-934-5609 1-877-817-3757

[email protected]

Disclosure of Adverse Events and Apologies in Dental Practice

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TThis can be a challenging professional dilemma for any dentist.

There are whole chapters in dental ethics textbooks devoted to

working through this ethical problem.

As clinical dentists, our primary obligation is to place the well-being

of patients ahead of our own personal interests. First and foremost,

we must give patients complete and truthful information about

their current oral health status.

However, when patients ask about the efficacy of another dentist’s

therapy, it is not unethical or unprofessional to remember that the

burden of proof regarding faulty or bad treatment, not just the

outcome of that therapy, is demanding.

It is important to draw the distinction between less than ideal

outcomes of appropriate treatment and bad outcomes attributable to

sub-standard work. We all know that bad outcomes can occur with

our therapy even when all proper methods are followed.


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ETHICS IN ACTION

Making Commentsabout AnotherColleague’s Work

I see patients who have had poor qualitytreatment, such as open contacts and poormargins. The patients complain of foodimpaction, sensitivity and costs. How do Irespond when patients ask me to commenton the work of their previous dentist?

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A prudent dentist must exercise great caution

before making comments about another

dentist’s treatment.

How a dentist responds to questions like these

from a patient can have both ethical and legal

implications.

The principles in the College’s Code of Ethics

state the following:

Only make evaluative remarksabout the work of others aftermaking reasonable efforts tounderstand the prior treatmenthistory of patients.

In other words, it is unwise to speculate on

when the treatment may be less than ideal or

is failing without the knowledge of all the

relevant facts and patient history. Any

comments should be objective in nature not

subjective nor unduly critical. Remember, you

most likely don’t have the necessary

information at hand to speculate on the cause

of the patient’s problems.

If a new patient presents with severe

periodontal disease, is the cause the

supervised neglect of the previous dentist or is

it because the patient smokes, habitually

misses appointments and has diabetes? Can

you take the patient’s word for their dental

history and base your opinion and criticism

on only one side of the story?

When you are faced with a request from a

patient for an opinion about why a treatment

has failed or requires repair or replacement,

the wisest course of action is to suggest that

the patient return to the dentist who provided

the treatment in question for an explanation.

Your legal and ethical duty is to advise the

patient of your findings, your treatment

recommendations and other treatment

alternatives, as well as the risks, benefits,

expected outcomes and costs.

Try putting the shoe on the other foot, as the

saying goes. If a patient was complaining

about your work to a new dentist, wouldn’t

you want the opportunity to discuss the

situation with the patient directly rather than

being blindsided by some hasty and

inopportune remarks made by the other

dentist?

Fairness is one of the core values outlined in

the College’s Code of Ethics to guide the

ethical behaviour of College members.

Fairness is defined as:Treating all individuals,patients and colleagues in ajust and equitable manner.

That fairness includes your interaction with

your patients and with your colleagues too.


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ETHICS IN ACTION


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My Patient is Unhappy with Another Dentist’s Work…

Should I Call PLP?From time to time, patients present at a

new dentist with poor quality dental

treatment or with undiagnosed, untreated

dental disease. They may ask the dentist to

comment on treatment provided by another

dentist, especially when it relates to the

question “Who is going to pay for this?”

When faced with the above scenario,

dentists will often call PLP for advice on

how best to handle these situations.

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COLLEGE CONTACT Dr. Judi Heggie – PLP Dental Advisor 416-934-5605 [email protected]

A longstanding associate recently left mypractice. At recall, I am finding that there are a number of patients with crowns, recentlyplaced by the previous associate, that have poormargins and require replacement. The patientsdo not want to have to pay for new crowns and I am not prepared to provide this treatmentat no charge. What can I do? Should I report this to PLP?

I am an oral and maxillofacial surgeon. A general dentist routinely refers patients to me,on an emergency basis to be seen the same day,after he has abandoned an attempt to extract atooth or teeth and clearly the treatment was notwithin the scope of her expertise. Should I tellthe patients to call PLP?

I purchased a dental practice. Many of thepatients in this practice have severe periodontaldisease. When I inform them of the need forperiodontal surgery and/or extractions many areshocked and very upset. It appears the previousowner dentist did not inform these patients oftheir periodontal diagnosis or recommendtreatment and/or referrals. What should I say tothese patients? Should I call PLP?

Obligation to ReportOne of the conditions of the PLP policy is a dentist’s duty to

report any occurrence that might reasonably be expected to be

the basis of a claim to PLP. Since failure to report an incident in

a timely fashion may jeopardize a member’s coverage, it is

important that PLP is contacted as early as possible.

The obligation to report rests with the practitioner who

performed or failed to perform the treatment in question, not

the subsequent dentist, the new practice owner or former

principal dentist.

Duty to patientIn these scenarios, the new dentist’s legal and ethical duty to

the patient would be to advise him or her of:

• his findings;

• the recommended treatment to address the deficiencies;

• the other aspects of informed consent including other

treatment alternatives;

• the risks, benefits, expected outcomes and costs.

These comments should be objective in nature, not subjective

or unduly critical.

If the patient asks questions about the previous dentist,

including his or her responsibility to pay for the remedial

treatment or alleged damages, the patient should be advised to

put the dentist on notice of their concerns, preferably in

writing.

The practice address of dentists can be obtained from the

Dentist Search – Register portion of the College website at

www.rcdso.org. If the current practice address is not known,

the letter should be sent to the dentist’s last known address.

Once put on notice by the patient, it would be the onus of the

former associate, former practice owner or former dentist to

report the claim to PLP.


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What does it mean to be an expert?Experts play an important function in the legalprocess by helping the parties and the ultimatedecision-maker understand issues in thedispute beyond a layperson’s knowledge. Theymust have special skills, education, and/ortraining to be accepted by the court asqualified to comment on a particular topic.

Beyond that basic requirement, there are manyqualities that make an expert witness more orless effective. The following are examples ofwhat a good expert is not.

An expert should not be a hired gunLitigants and lawyers should be wary ofprofessional experts who abandon activepractice in favour of writing opinions andappearing as witnesses at trials all over thecountry, continent, or abroad. Judges tend toview such hired guns with skepticism,especially if they always act for one side.

Many dentists generouslyoffer their time, money, andclinical services as a way ofgiving back to theircommunity and profession.However, perhaps becausecompensation is involved,they may not view acting asan expert in the same light.

This article describes the roleof an expert in a dental-legaldispute and encouragesmembers to considerproviding expert assistanceto patients and colleagues.


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Ongoing engagementin the profession canbe critical to thestrength of anexpert’s opinion. Forexample, in actionsfor dentalmalpractice, expertevidence is oftenrequired to determinewhether thedefendant met thestandards of theprofession and

whether the treatment provided causedharm to the patient. Since the standard ofcare is evaluated by measuring thedentist’s actions against those of hispeers, the best standards experts are notprofessional witnesses with little or norecent clinical experience, but rathercompetent, well-regarded colleagues whopractise in the same or a similarenvironment as the defendant. Andwhile it is not uncommon to look to otherjurisdictions for expert input oncausation, opinions from foreigners onstandards of practice carry less weightthan those of local practitioners.

An expert is not an advocateExperts are expected to remain objective.Unfortunately, though, some experts feela duty to help their clients by strayingbeyond their expertise or offeringopinions that do not withstand closescrutiny. Ironically, this often prolongsproceedings rather than resolving them,resulting in increased cost, anxiety, andinconvenience to everyone involved,including the client.

Courts are becoming increasinglyintolerant of such witnesses. In Ontario,judges are more and more willing todisallow or restrict expert testimony onthe basis of inadequate qualifications,which can be devastating to the client’scase. An expert who exaggerates, isargumentative, or appears biased riskshaving her evidence rejected and causingirreparable damage to her professionalreputation.

An expert is not the judge or juryAt the other end of the spectrum, someexperts believe they are not bound by,and may even be morally or legallyobliged to ignore, the instructions of theperson retaining them. For example, anexpert may exceed the scope of hermandate out of fear that omittinginformation from her report is misleadingand could contribute to an injustice.

It is not up to the expert to decide whatthe outcome of the case should be orwhat the judge or jury needs to know.The issues in litigation are framed by theparties, and some of the facts an expertmay discover may not be relevant to theproceedings. It is neither unethical norunprofessional for an expert to accede toa request to limit her review and writtencomments, though legal counsel willusually want to know if the expert’sopinion on extraneous matters would beunhelpful to the client’s position. Thelawyer will determine whether theexpert’s concerns make her vulnerable asa witness at trial.

EXPERTS HELPENSURE THATWORTHY PATIENTSRECEIVE EARLY,REASONABLECOMPENSATION FORTHEIR INJURIES ORPROVIDE SUPPORTTO COLLEAGUESWHO HAVE DONENOTHING WRONG.

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An expert is not a treatingpractitionerSimilarly, in the course of reviewing a matter,an expert may come across something shefeels should be disclosed to another party. Adental or medical expert for the defence might,for example, conclude that the patient/plaintiffis suffering from a previously undiagnosedcondition requiring treatment.

In such circumstances, the expert has no legalduty to advise the patient of her findings; shedoes, however, have obligations to her client,and she must be careful not to breach clientconfidentiality. An expert who believes she hasuncovered something about which the otherside should be made aware should thereforeadvise the instructing lawyer, who will decidewhat to do with the information. If the problemis potentially serious, the lawyer will likelyconvey the expert’s concerns to opposingcounsel.

Giving BackPatients and PLP sometimes have difficultyfinding dentists to comment on a case. Somepractitioners may feel they are not qualified tohold themselves out as experts or areuncomfortable reviewing another dentist’s care.Many say they are too busy, and others arelikely put off by the relatively low hourly ratessome patients and PLP can afford to pay.

A lawyer approaching a clinician to request adental-legal opinion has likely already doneenough homework to determine that she hasthe right qualifications and qualities tocomment on the matter. And although writingreports does not always come naturally, theinstructing lawyer will outline the questionsrequiring the expert’s attention and provideguidance on approach and format.

Importantly, dental experts perform a valuablepublic service. Since PLP only compensatesthose injured as a result of dental negligence,patients require expert input to advance theircases and PLP often needs expert commentaryto determine if a matter should be settled ordefended. Experts help ensure that worthypatients receive early, reasonablecompensation for their injuries or providesupport to colleagues who have done nothingwrong.

So the next time someone asks you to providean expert opinion in a PLP matter, give it someserious thought.


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COLLEGE CONTACT René Brewer – Director, Professional Liability Program

416-934-5609 1-877-817-3757

[email protected]


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DefendingYour

Reputation


PPLP sometimes receives enquiries from members concerning

possible recourse against patients who post negative comments

about them on the internet. While such issues are beyond the

scope of PLP’s mandate, one member recently took matters into

his own hands to good effect. That member authorized PLP to

recount his story in Dispatch for the benefit of others.

In 2004, Ms. X presented to Dr. Y, who placed a restoration.

Ms. X returned two months later and a second restoration was

placed on another tooth.

Ms. X was dissatisfied with Dr. Y’s treatment and made a

complaint to the then Complaints Committee in 2006.

The Committee eventually directed that no action be taken

against Dr. Y and Ms. X’s appeal to the Health Professions Appeal

and Review Board was dismissed. A second complaint filed by

Ms. X in January 2010 was also decided in Dr. Y’s favour.

In February 2010, Ms. X sent the first of many disparaging e-mails

about Dr. Y to his practice. She also posted a video on YouTube

described as a “dental horror movie” showing the allegedly

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defective restorations. That same month, she

commenced a legal action against Dr. Y claiming

that he had “drilled and filled a totally healthy

tooth”, causing inflammation and years of pain.

At the request of defence counsel assigned by PLP

to assist Dr. Y, a deputy judge dismissed the

action a few months later and Ms. X’s appeal was

ultimately abandoned.

Still, Ms. X continued her crusade, sending

further derogatory e-mails about Dr. Y to him, his

colleagues, and even a PLP staff member. In 2011,

Dr. Y decided to commence his own small claims

court action against Ms. X for defamation.

In order to succeed in an action for defamation, a

plaintiff must demonstrate:

• that the impugned words are defamatory, in

the sense that they would tend to lower the

plaintiff’s reputation in the eyes of a

reasonable person;

• that the words in fact referred to the plaintiff;

• that the words were published, meaning that

they were communicated to at least one

person other than the plaintiff.

After trial in June 2012, Deputy Judge Winny

found that Ms. X had “engaged in a deliberate

campaign to harass Dr. Y and to smear him in the

eyes of a variety of parties associated with the

practice of his profession…” in 19 separate acts of

defamation. Although malicious intent is not

required to establish liability for defamation, it is

relevant to damages, and Deputy Judge Winny

considered the fact that Ms. X set out to harm

Dr. Y in assessing damages at $45,000; however,

because the limit in small claims court is $25,000,

Dr. Y was awarded the full amount of his claim

of $22,000 plus costs. In closing remarks, the

deputy judge urged Ms. X to end her campaign

immediately and noted that she was very

fortunate not to have been charged with

criminal harassment.

It turned out that Dr. Y was not the only object

of Ms. X’s ire and that she had commenced

proceedings against a number of other health

care practitioners and institutions. In May 2012

one of them was successful in having Ms. X

declared a vexatious litigant, as a consequence of

which she is not permitted to commence any

further legal proceedings in Ontario without

leave of the court.

Bear in mind that this was an extraordinary

situation and most patient complaints are not

defamatory. If you feel you are being harassed by

a patient, you should speak to your lawyer about

potential remedies.

Deputy Judge Winny’s reasons for judgment are

available through PLP.


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PLP ADVISORS

416-934-5600 • 1-877-817-3757


416-934-5614 • 1-800-565-4591



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AAt some point during your practice,you will have a demanding,difficult patient who, in spite ofyour best efforts, is not happy withany of the treatment you provide.This type of patient usually has ahistory of dissatisfaction withprevious dentists. Sometimes, thismay be an early warning sign oftrouble ahead. Other times, it is notuntil major treatment is underwaythat you become aware of thepatient’s tendency to makeunreasonable demands.

In these cases, it is very important to keepexcellent records detailing the patient’sdemands, as well as all of yourrecommendations and explanations, and thepatient’s comments.

Also, it is critical that you don’t allow yourselfto be talked into providing unreasonable orunwarranted treatment. It is important toknow when to draw the line and refuse toprovide additional treatment or tounnecessarily redo procedures.

Sometimes, referring the patient for anotheropinion or even dismissing the patient fromthe practice may be the best course of action.

The following scenario describes a PLP caseinvolving a very difficult, demanding patientwith unreasonable expectations. In this case,the dentist allowed the patient to dictatetreatment and continued to treat the patientlong after he felt comfortable doing so. Thepatient eventually filed a claim against thedentist, which is when PLP became involved.

THE SCENARIOMr. Black presented to Dr. Foster with aneight-unit fixed bridge (15-14-13-P-P-P-P-23).The abutment teeth were all grossly decayedand could not be salvaged. Mr. Black chose tohave implants and a fixed bridge after adiscussion with Dr. Foster about the treatmentoptions. Dr. Foster referred Mr. Black to anoral and maxillofacial surgeon who placed siximplants. Then, Dr. Foster fabricated andinserted an interim partial denture.

All six implants integrated successfully and,six months after the implant surgery, Dr.Foster fabricated and inserted an eight-unit

40 DISPATCH • May/June 2008 Ensuring Continued Trust



OUNCE OF PREVENTION

The Difficult Patient: Don’t Ignore the Warning Signs

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implant retained bridge. Mr. Black was verypleased, but that didn’t last long.

Two weeks after insertion, Mr. Black presenteddemanding removal of the bridge, because hewas unhappy with the aesthetics. He said hisfriends told him the teeth didn’t look natural.Dr. Foster removed the bridge and fabricated anew one. A number of adjustments andcustom staining appointments were requiredbefore Mr. Black was satisfied, and a newbridge was permanently cemented.

Just over a week later, Mr. Black presentedsaying he couldn’t tolerate the bridge. He saidit didn’t feel right and he now wished he hadkept the original one. At Mr. Black’s insistence,Dr. Foster removed the bridge and had itremade. Mr. Black appeared satisfied with thenew bridge, so Dr. Foster cemented it.

Soon after that, without notifying Dr. Foster,Mr. Black went to another dentist, Dr. Smith,to have the bridge redone. Then Mr. Blackreturned to Dr. Foster demanding a refund. Dr. Foster refused, so Mr. Black said he wouldcontact his lawyer.

About one month later, Mr. Black returned toDr. Foster’s practice, saying he was veryunhappy with the bridge Dr. Smith had placedbecause he couldn’t eat properly. He beggedDr. Foster to replace it once more. Dr. Fosterreplaced the bridge, but told Mr. Black thiswas the last time he would do so.

Six months later, Dr. Foster received a letterfrom Mr. Black’s lawyer, advising him that Mr. Black intended to pursue a claim againsthim, alleging unnecessary, negligenttreatment and lack of informed consent.

learning pointsJust because a patient is unhappy withtreatment you have provided doesn’tnecessarily mean there is a problem withthe treatment.

If you do not believe that it is in thepatient’s best interests to redo thetreatment, you are not obligated to do so.Explain your reasons for refusingretreatment to the patient. Fully documentthat discussion. Consider referring thepatient to a colleague for another opinion.Or, call PLP for advice and assistance.Above all, never offer to refund fees fortreatment provided without calling PLPfirst.

Remember that if you wish to discontinuetreatment of a patient, you should followthe proper protocol for dismissing apatient as outlined in the Fall 2005 issueof Dispatch. This article is available onlineon the College’s website at www.rcdso.org.

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OUNCE OF PREVENTION

THE DIFFICULT PATIENT: DON’T IGNORE THE WARNING SIGNS

Dr. Foster called Mr. Black and offered torefund his fees. Mr. Black refused. Dr. Fosterthen called PLP to report a potential claim.

PLP PERSPECTIVEUpon reviewing Dr. Foster’s records, PLP staffhad the following concerns:

• The pre-treatment radiographs taken byDr. Foster did not show the extent of thedecay affecting abutment teeth 15, 14, 13and 23. There was no information in therecords about the condition of these teethor of the reason why their extraction wasnecessary.

• There was no evidence in the records thatinformed consent was obtained prior toinitiating treatment or that Dr. Foster haddiscussed the advantages anddisadvantages or the alternatives to animplant retained prosethesis.

• The records did not show that the bridgeswere replaced because of Mr. Black’sinsistence. In fact, the records were silentabout why any of the bridges werereplaced.

• Dr. Foster may have breached theprovisions of the malpractice insurancepolicy by failing to report the claim in atimely fashion and by offering to make apayment to Mr. Black.

Fortunately, PLP was able to convince themalpractice insurer that, although Dr. Fostershould have reported the matter when he wasfirst aware of the potential claim, neither hisfailure to do so nor his offer of a refund hadprejudiced its position.

PLP subsequently negotiated a settlementamount and obtained Mr. Black’s full and finalrelease in favour of Dr. Foster. This releasestated specifically that Dr. Foster had notadmitted liability.

CALL PLP WHEN:• You receive a call or letter from a

patient or patient’s representativeseeking compensation.

• You are threatened or served with a legal action.

• You rendered treatment to a patientwhere the result is adverse and notconsistent with the anticipatedoutcome.

• Your patient is unhappy with andcomplaining about the treatmentrendered.

• You are unsure whether or not tocall – if in doubt, call PLP. There isno downside to doing so.

IN ORDER TO PROTECTYOUR RIGHT TO COVERAGE:• Notify PLP immediately if your

patient wants or might want money. • Do not take any steps that may

jeopardize your right to coverage.

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what to consider beforewaiving/refunding/adjusting feesCall PLP for helpful advice before you offer to waive an outstanding fee orrefund fees already paid, as a means of resolving a dispute with a patient.The knowledgeable claims examiners in PLP can coach you on how toapproach patients about a refund in exchange for a release.

Early contact with PLP can ensure that you do not unwittingly admit liabilitywhen dealing with dissatisfied patients, and reporting potential claims to PLPensures your right to coverage.

Matters can usually be resolved on a mutually satisfactory basis for both youand your patient.

rememberIt is important that the details of any and all discussions with the patient bedocumented in his or her chart whenever you are giving consideration towaiving, refunding or adjusting dental fees as a result of a mishap or patientcomplaint.

The chart entry should clearly note it is being done for public relationspurposes and as a goodwill gesture. In many cases, some sort of writtenacknowledgement or release form signed by the patient may be justified.

QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle a particular situation with apatient, call the College.


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One of the least pleasant tasks that a dentist

may have to consider is the dismissal of a

patient. For a variety of reasons, a dentist-

patient relationship may begin to deteriorate.

Sometimes this results from a single incident;

however, more often, it is the result of a series

of problems. Finally, it may become apparent

that the relationship is no longer co-operative

and trusting; in fact, it may even be

antagonistic. When this occurs, it may be

beneficial to both parties to go their separate

ways.

Before coming to the conclusion that it is

necessary to dismiss a patient, it may be

worthwhile for the dentist to re-examine the

events that led to this point and to consider

whether or not all reasonable efforts have been

made to address any problems in the dentist-

patient relationship and with treatment.

Is the problem a result ofmiscommunication?

It may be useful to attempt to speak with the

patient directly and clarify matters.

Is there a disagreement regardingtreatment options?

It may be appropriate to refer the patient for a

second opinion.

Is the patient’s account in arrears?

New payment terms may be offered and

agreed upon.

Is the problem related to treatmentoutcome?

It may be possible and prudent to resolve the

patient’s concerns.

Following good recordkeeping practices, your

patient records need to include details of any

relevant problems and issues, as well as

notations of all communication with the

patient.

If your conclusion is that dismissal is the best

option, the patient should be informed in an

appropriate fashion, preferably in writing. The

College advises that any discussion with the

patient about dismissal be handled by the

dentist and that letters should be sent by the

dentist or in the dentist’s name.

Your letter should be polite, professional, and

to the point. It should avoid words or phrases

that might inflame the situation. (See the

sample provided with this story on the

opposite page.)

A well constructed letter should address the

following five areas:

1. Provide the patient with the reason for their

dismissal. For example, the patient is

demonstrating a lack of confidence in your

abilities, or is disruptive to office routine

and abusive to the staff, or is not complying

with agreed upon payment terms, etc.

2. Outline any treatment needs that the

patient should have attended to in a timely

manner. For example, the patient may still

require specified fillings or should have a

root-canal-treated tooth crowned.

3. Provide the patient with the means of

obtaining the services of a new dentist. Your

letter might provide the telephone number

of a local dental society or the Ontario

Dental Association so that the patient can

obtain a list of dentists in the area.



Handling the DifficultProblem of Dismissing a Patient

COLLEGE CONTACT Dr. Lesia WaschukPractice [email protected]

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4. Inform the patient that you will provide

copies of any records or radiographs that

may be of assistance to the patient or, with

the patient’s written authorization or

consent, to the new dentist. Remember,

dentists are required to retain original

records, including radiographs and

diagnostic study models.

5. Inform the patient that, until they have

obtained the services of a new dentist, you

will agree to attend to any true emergency

situation.

6. You might also provide the telephone

number of a local dental emergency

service. Note that this information may be

provided in addition to, but not in place of,

your offer to render emergency care.


SAMPLE PATIENT DISMISSAL LETTER

I am writing to you regarding your last scheduled dental appointment,which was on May 13, 2010. On this date, you were to attend my office tohave a lost filling replaced. When you failed to attend at the appointed time,my receptionist contacted you by telephone and you informed her that youwere too busy to leave work. This was the fourth time this year that you didnot keep a scheduled appointment.

You will remember that we have had several discussions on the subject ofmissed appointments. Additionally, I wrote to you and clearly provided myoffice policies regarding this subject in a letter dated April 30, 2010.

If a dentist-patient relationship is to be successful, co-operation is essential.Obviously, I cannot treat you if you do not attend your scheduledappointments. I can only conclude that either you do not value theappointment time that is set aside for you, or my office is not convenient toyour needs. Whatever the reason, it is with regret that I must insist you seekthe services of another dentist.

In order to prevent further damage to your lower left tooth, please arrangeto have your new dentist replace the lost filling as soon as possible.

If you require assistance in locating a new dentist, you may wish to contactthe Ontario Dental Association for a list of dentists in your area. The ODAtelephone number is 416-922-3900. I will be pleased to provide copies ofyour records at your written request.

Should the need arise before you find a new dentist, I am prepared to seeyou on an emergency basis or, if you prefer, assist you in makingarrangements at another suitable dental office.

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embers reporting problems

with patients to PLP sometimes

confess that signs the

relationship wouldn’t end well were

there from the beginning. When asked

why they ignored their gut instincts,

there are a number of responses: they felt

bullied; they genuinely thought they

could help, though others had tried and

failed; they didn’t know they could

refuse to treat someone. Unfortunately,

members may pay for their benevolence,

hubris, or naïveté in time, money, and

sleepless nights.

The purpose of this article is to dispel

the myths about a dentist’s duty to treat

and to describe cases in which it may be

appropriate, indeed wise, not to accept

a patient into your practice.

The situations in which a dentist is

obliged to treat a particular patient are

surprisingly few. A health care provider

may have a legal and/or an ethical duty

to treat in case of an emergency or when

a service is not otherwise readily

available (e.g., in geographically remote

areas). Once commenced, a dentist may

only discontinue treatment without

cause in limited circumstances. Finally,

health professionals are prohibited by

provincial and federal legislation and

codes of ethics from not treating a

patient on the basis of personal

characteristics, such as age, race,

disability, gender, sexual orientation, etc.

Otherwise, dentists have significant

latitude in deciding which patients to

take on. They may limit the number of

patients in their practices or restrict

themselves to a particular specialty.

According to the Canadian Dental

Association’s Code of Ethics, they may

refuse to accept a person as a patient

because of personal conflict or time

constraints. In short, while dentists must

treat all patients and potential patients

fairly and with compassion, there is

nothing that says they have to take

all comers.

It goes without saying that dentistry is

primarily about relationships – with

colleagues, staff, vendors, and especially

with patients.

Careful patient selection is important in

building a vibrant practice and in

securing peace of mind. Was the

prospective patient late to the first

appointment without explanation? Was

she rude to your receptionist? Does he

complain about previous health care

providers? Is she litigious? Are her

expectations unreasonable? Is he

demanding and inflexible? While some

of these traits might not be immediately

obvious, a proper new patient interview

may reveal red flags and save you hours,

days and even months of aggravation,

inconvenience, or worse.

Patient Selection –Ignore Red Flags at Your Peril


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11COLLEGE CONTACT René Brewer – Manager, Professional Liability Program

416-934-5609 [email protected]

Ensuring Continued Trust Dispatch February/March 2014

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THE DANGERS OF TELEHEALTHHealth practitioners have no difficulty recognizingin-person consults as treatment, but many may not be aware that electronic communications mayalso qualify. Telephone or email advice provided to a patient inanother jurisdiction raises tricky questions aboutwhere the treatment is provided. Many provincesin Canada and countries around the world deemtelehealth to be rendered where the patient resides.If the practitioner is not registered in the otherjurisdiction, he or she could be guilty of practisingwithout a licence. If PLP’s insurer were to adopt that position,liability protection for such interactions would bedenied, since the contract only covers servicesprovided in Ontario.

THE PROBLEM OF FOLLOW-UP AND AFTERCAREOne of the problems in treating a non-residentpatient is that it may be difficult for the patient toattend follow-up appointments or to return to thetreating dentist in the event of a complication. A dentist who is unable to properly monitor apatient’s progress may not meet the standard ofcare required in the circumstances. Leaving thepatient to his or her own devices in dealing with anuntoward clinical event also exposes a healthpractitioner to liability, since he or she will have noinfluence over the ultimate outcome.

Ontario dentists occasionallytreat patients from otherprovinces or countries.American residents inparticular sometimes seekdental services in Ontariobecause of geographicalproximity and favourablecurrency exchange rates.While RCDSO members havemalpractice protection fortreatment provided to foreignpatients in Ontario, treatingnon-resident patients raisesa number of clinical andlegal issues.

The Perils of TreatingNon-Resident Patients

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THE CHALLENGES OF DEFENDING AFOREIGN LEGAL ACTIONA non-Ontario resident may choose to commenceproceedings for alleged dental malpractice in his or herprovince or country as a matter of convenience or totake advantage of a more favourable legal climate in theforeign jurisdiction, including the potential for a higherdamages award. If an action against a College member were to bebrought outside Ontario, PLP would assign local counselto attempt to have it dismissed on technical grounds. Ifthat was unsuccessful, PLP would provide a defence.However, the defendant would likely be required toattend pre-trial proceedings in the foreign jurisdictionand would be obliged to be present for trial should it getthat far, resulting in considerable expense andinconvenience. The member would also be exposed topersonal liability for damages beyond the protectionprovided by PLP or the excess coverage purchased byhim or her.

MINIMIZING THE RISKSBecause PLP is not financially or structurally set up todefend foreign legal actions, it is our recommendationthat College members not treat non-Ontario residentselectively. Of course, emergency treatment should beprovided to foreign patients as required, but only insofaras is necessary to stabilize the situation.Except in emergencies, PLP members who do treat non-Ontario residents should have each foreign patientsign a Governing Law and Jurisdiction Agreement infavour of all members of the practice who mayparticipate in the patient’s care as part of the consentprocess and before commencing any new treatment.

The member wouldalso be exposed topersonal liability fordamages beyond theprotection providedby PLP or the excesscoverage purchased.

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The Perils of Treating Non-Resident PatientsGOVERNING LAW AND JURISDICTION AGREEMENT

COLLEGE CONTACT René Brewer – Director, Professional Liability Program416-934-5609 [email protected]

Governing LawI agree that all aspects of the relationship between (add name of dentist, dental assistant,dental hygienist) and me, including but not limited to any dental treatment/service/advice provided to me, and the resolution of any dispute arising from that relationship,including any dispute arising from this Agreement, shall be governed by and construedin accordance with the laws of the Province of Ontario, Canada.JurisdictionI acknowledge that the dental treatment/service/advice I receive from (add name ofdentist, dental assistant, dental hygienist) will be provided in the Province of Ontario,Canada and that the courts of the Province of Ontario, Canada shall have exclusivejurisdiction over any complaint, demand, claim, proceeding or cause of action arisingout of the dental treatment/service/advice or from any other aspect of my relationshipwith (add name of dentist, dental assistant, dental hygienist). I agree that I will pursue anysuch complaint, demand, claim, proceeding or cause of action in the Province ofOntario, Canada and only in the Province of Ontario, Canada and hereby submit to thejurisdiction of that Province.__________________________________________________Signature of Patient/Substitute Decision-Maker

__________________________________________________Name of Patient/Substitute Decision-Maker (print)

__________________________________________________Date (month/day/year)

__________________________________________________Place (name of city/town)

__________________________________________________Signature of Witness

__________________________________________________Name of Witness (print)

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SCENARIODr. S fabricated six porcelain veneers for her patient, Mr. J. On the day ofinsertion, Mr. J appeared to be pleased with the results and paid the feesin full. However, a week later he returned and insisted on seeing Dr. Swithout an appointment. He claimed his friends had toldhim the veneers looked unnatural and his dentist hadreally messed up. Dr. S offered to redo the veneers to hissatisfaction. Mr. J argued that he wasn’t at all confident inher ability to do any better and he wanted to see a dentistwho had made his friend’s veneers because they wereperfect. He demanded that Dr. S pay for the cost of newveneers to be made by this other dentist. Dr. S agreed asshe was happy to be rid of this difficult patient.Unfortunately she did not think of obtaining a releasefrom Mr. J and her records were silent regarding thegoodwill nature of this refund.

A few months later, Dr. S received a statement of claim,alleging improper treatment and lack of informedconsent related to the veneers fabricated for Mr. J. Shecontacted the Professional Liability Program to report the matter, only tolearn that she may have compromised the case by making a refundwithout the risk management protection offered by a release and/or letterto the patient.


This feature is prepared to offer guidance tomembers about theprevention of malpracticeclaims or complaints and the lessening of themagnitude of an existingclaim or a complaint.


OUNCE OF PREVENTION

Considering Making aRefund? Call PLP First!

INSIDE VIEWRead the article on page 40called, “A Behind-the-ScenesLook at the ProfessionalLiability Program” that givesan inside view of how PLP canhelp you if you wish to refundfees to a patient or pay a smallclaim yourself.

QUESTIONS ABOUT A PARTICULAR SITUATION?If you have questions about how to handle a particularsituation with a patient, do not hesitate to call the College.


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OUNCE OF PREVENTION

DISCUSSIONA refund of fees already received or waiving anoutstanding account could be an appropriate way tohandle the difficult situation when a patient isunhappy with the treatment results and chooses toattend another practitioner or when you want toexpedite the orderly dismissal of a patient from thepractice. However, if not handled properly, it maynot necessarily achieve the intended result ofplacating a problem patient.

When you are asked to or are considering returninga fee or a portion of a fee for dental services, youshould first contact the Professional LiabilityProgram. This reporting serves two purposes:

1. Informs PLP of the matter at hand as requiredunder the malpractice insurance programpolicy conditions.

2. Takes advantage of risk management assistance advice before the fact whendealing with a patient who wants a refund.

The benefits of this initial contact are to:

• reduce the risk of admission of liability on your part and avoid prejudicing yourposition with the insurer;

• fulfill the reporting requirement of the PLP policy;

• protect your interests with respect to the possible application of one of theconditions in the PLP policy, which states that: “The insured shall notvoluntarily assume any liability or settle any claim.”

risk management adviceIn order to protect your right to coverage, please notify PLP immediately if yourpatient wants or might want money or if you would like to offer a refund.Discuss the matter with a PLP staff member before proceeding. Do not prejudiceyour coverage by acting hastily. We can assist you by drafting a letter to yourpatient and providing the appropriate release statements and/or forms.

PLP POINTERSBefore you offer to waive anoutstanding fee or offer a refund offees already paid, as a means ofresolving a dispute with a patient,call PLP for helpful advice.

A knowledgeable claims examinercan coach you on how to approachpatients about a refund in exchangefor a release.

Early contact with PLP can ensurethat you do not unwittingly admitliability when dealing withdissatisfied patients.

Reporting potential claims to PLPensures your right to coverage.

Matters can usually be resolved on amutually satisfactory basis for bothyou and your patient.

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9

The short answer is yes. PLP assistance extends to members

and their employees who are not regulated health

professionals for their own acts and omissions, often referred

to as direct liability.

Dentists and their health professions corporations are also

entitled to assistance when they are sued for vicarious

liability, i.e. for acts and omissions of their employees in

rendering professional services on or behalf of members or

their HPCs.

However, it is important that all employees in a dental

practice who are regulated health professionals have their

own professional liability protection in accordance with

recent amendments to the Health Professions Procedural

Code, since their policies would be expected to provide the

first avenue of recovery for patients injured as a result of their

actions.

Will PLP assist me if I am suedfor an employee’sact or omission?


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The term “circle of care” is not adefined term in the Personal HealthInformation Protection Act, 2004(PHIPA). It is a term commonly usedto describe the ability of certain healthinformation custodians to assume an individual’s impliedconsent to collect, use or disclose personal health informationfor the purpose of providing health care, in circumstancesdefined in PHIPA.

This article will clarify the circumstances in which a healthinformation custodian may assume implied consent and theoptions available to a health information custodian whereconsent cannot be assumed to be implied.

It should be noted that the assumed implied consent provisionsof PHIPA apply equally to paper-based and electronic recordsof personal health information.

DISPATCH • February/March 2010 5

CIRCLE OF CARESharing Personal HealthInformation for HealthCare PurposesReprinted with permission of Ann Cavoukian, PhD

Information and Privacy Commissioner, Ontario

Originally published online on September 2, 2009

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CIRCUMSTANCES WHEN YOU MAYASSUME CONSENT TO BE IMPLIEDA health information custodian may only

assume an individual’s implied consent to

collect, use or disclose personal health

information if all of the following six

conditions are satisfied:

1. The health information custodian must

fall within a category of health

information custodians that are entitled to

rely on assumed implied consent.

Most health information custodians may rely

on assumed implied consent to collect, use

and disclose personal health information for

the purpose of providing health care or

assisting in the provision of health care to an

individual.

A health information custodian is a person or

organization described in PHIPA with

custody or control of personal health

information as a result of, or in connection

with, the performance of its powers, duties or

work. For example, health information

custodians include:

◆ health care practitioners

◆ long-term care homes

◆ community care access centres

◆ hospitals, including psychiatric facilities

◆ specimen collection centres,

laboratories, independent health

facilities

◆ pharmacies

◆ ambulance service

◆ Ontario Agency for Health Protection

and Promotion.

However, it is important to note that some

health information custodians are not

entitled to rely on assumed implied consent.

For example, these include:

◆ an evaluator within the meaning of the

Health Care Consent Act, 1996

◆ an assessor within the meaning of the

Substitute Decisions Act, 1992

◆ the Minister or Ministry of Health and

Long-Term Care

◆ the Minister or Ministry of Health

Promotion

◆ the Canadian Blood Service.

2. The personal health information to be

collected, used or disclosed by the health

information custodian must have been

received from the individual, his or her

substitute decision-maker or another

health information custodian.

The personal health information to be

collected, used or disclosed must have been

received from the individual to whom the

personal health information relates, from his

or her substitute decision-maker or from

another health information custodian.

Personal health information is defined in

PHIPA as identifying information relating to

the physical or mental health of an

individual, the provision of health care to an

individual, the identification of the substitute

decision maker for the individual and the

payments or eligibility of an individual for

health care or coverage for health care,

including the individual’s health number.

A substitute decision-maker is a person

authorized under PHIPA to consent on

6 DISPATCH • February/March 2010 Ensuring Continued Trust

CIRCLE OF CARESharing Personal HealthInformation for Health CarePurposes

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behalf of an individual to the collection, use

or disclosure of personal health information.

If the personal health information to be

collected, used or disclosed was received

from a third party, other than the substitute

decision maker for the individual or another

health information custodian, consent

cannot be assumed to be implied. For

example, a health information custodian

may not rely on assumed implied consent if

the personal health information was received

from an employer, insurer or educational

institution.

3. The health information custodian must

have received the personal health

information that is being collected, used or

disclosed for the purpose of providing or

assisting in the provision of health care to

the individual.

The personal health information to be

collected, used or disclosed must have been

received for the purpose of providing health

care or assisting in the provision of health

care to the individual to whom it relates.

A health information custodian may not rely

on assumed implied consent if the personal

health information was received for other

purposes, such as research, fundraising,

marketing or providing health care or

assisting in providing health care to another

individual or group of individuals.

4. The purpose of the collection, use or

disclosure of personal health information

by the health information custodian must

be for the provision of health care or

assisting in the provision of health care to

the individual.

The collection, use or disclosure must be for

the purposes of providing health care or

assisting in the provision of health care to the

individual to whom the personal health

information relates.

A health information custodian may not rely

on assumed implied consent if the

collection, use or disclosure is for other

purposes, such as research, fundraising,

marketing or providing health care or

assisting in providing health care to another

individual or group of individuals.

5. In the context of disclosure, the disclosure

of personal health information by the

health information custodian must be to

another health information custodian.

A health information custodian may not

assume an individual’s implied consent in

disclosing personal health information to a

person or organization that is not a health

information custodian, regardless of the

purpose of the disclosure.

6. The health information custodian that

receives the personal health information

must not be aware that the individual has

expressly withheld or withdrawn his or her

consent to the collection, use or disclosure.

PHIPA permits an individual to expressly

withhold or withdraw consent to the

collection, use or disclosure of his or her

personal health information, unless the

collection, use or disclosure is permitted or

required by PHIPA to be made without

consent.

In most circumstances, if an individual

decides to withhold or withdraw consent,

PHIPA requires the receiving health


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information custodians or their agents to

be notified if the disclosing health

information custodian is prevented from

disclosing all of the information that is

considered to be reasonably necessary for

the provision of health care.

For further information about the ability of

an individual to expressly withhold or

withdraw consent to the collection, use or

disclosure of personal health information for

health care purposes, and the obligations on

health information custodians in this

context, please refer to the Lock-box Fact

Sheet produced by the Information and

Privacy Commissioner of Ontario at

www.ipc.on.ca.

FACTORS TO BE CONSIDERED IN RELYING ON ASSUMED IMPLIED CONSENTIn general, a health information custodian

must not collect, use or disclose personal

health information if other information will

serve the purpose and must not collect, use

or disclose more personal health information

than is reasonably necessary for that

purpose. These general limiting principles

apply even where a health information

custodian is entitled to rely on an individual’s

assumed implied consent.

OPTIONS AVAILABLE WHEN YOUCANNOT ASSUME CONSENT TO BE IMPLIEDWhen consent cannot be assumed to be

implied, health information custodians

should consider other options. Depending

on the circumstances, a health information

custodian may be permitted to collect, use or

disclose personal health information without

consent, with the implied consent of the

individual to whom the personal health

information relates or with the express

consent of that individual. PHIPA

distinguishes between implied consent and

assumed implied consent.

In the case of implied consent, health

information custodians must ensure that all

of the elements of consent are fulfilled;

whereas in the case of assumed implied

consent, health information custodians may

assume that all of the elements of consent

are fulfilled, unless it is not reasonable to do

so in the circumstances.

Without Consent

Health information custodians may collect,

use or disclose personal health information

without consent if the collection, use or

disclosure is permitted or required by PHIPA

to be made without consent.1

For example, health information custodians

are permitted to disclose personal health

information without consent to a medical

officer of health if the disclosure is made for

purposes of the Health Protection and

Promotion Act. In addition, in certain

circumstances set out in sections 37(1)(a),

38(1)(a), 50(1)(e) of PHIPA, health

information custodians may use or disclose

personal health information without consent

where it is reasonably necessary for the

provision of health care and the individual

has not expressly instructed otherwise.


CIRCLE OF CARESharing Personal HealthInformation for Health CarePurposes

1 Sections 36 and 37 of PHIPA, respectively, set out thecircumstances in which personal health information maybe collected and used without consent and sections 38-48 and section 50 set out the circumstances in whichpersonal health information is permitted or required to bedisclosed without consent.

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Implied Consent

Health information custodians may imply an

individual’s consent to collect and use

personal health information for most

purposes. They may also imply consent to

disclose personal health information to

another health information custodian for the

purpose of providing or assisting in the

provision of health care to the individual.

However, subject to limited exceptions,

health information custodians cannot rely on

implied consent when disclosing personal

health information to a person or

organization that is not a health information

custodian. This exception applies regardless

of the purpose of the disclosure.

In order to rely on implied consent, health

information custodians must be satisfied that

all the required elements of consent are

fulfilled.

Express Consent

In all other circumstances, health

information custodians may only collect, use

or disclose personal health information with

the express consent, (i.e. verbal or written

consent) of the individual to whom the

personal health information relates or his or

her substitute decision-maker.

In order to rely on express consent, health

information custodians must be satisfied that

all the required elements of consent are

fulfilled.

ELEMENTS OF CONSENTThe consent of an individual for the collection, use

or disclosure of personal health information by a

health information custodian:

◆ Must be a consent of the individual or his orher substitute decision-maker.

◆ Must be knowledgeable.

◆ Must relate to the information that will becollected, used or disclosed.

AND

◆ Must not be obtained through deception orcoercion.

For consent to be knowledgeable, it must be

reasonable to believe that the individual knows the

purpose of the collection, use or disclosure and

knows that he or she may give or withhold consent.

It is reasonable to believe that an individual knows

the purpose of the collection, use or disclosure if

the health information custodian posts or makes

readily available a notice describing these

purposes where it is likely to come to the

individual’s attention or provides the individual

with such a notice.

Although health information custodians are not

required to provide notice in those circumstances

where consent may be assumed to be implied,

health information custodians are encouraged to

do so as a best practice.

For more information, please visit the Office of the Information

and Privacy Commissioner of Ontario website at www.ipc.on.ca

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It is important that dentists carefully consider whether an individual requesting a

patient’s personal health information falls within the patient’s circle of care such

that the dentist can assume the patient’s implied consent to release the personal

health information in question.

When confronted with such a situation, it is helpful to be mindful of the following:

◆ If the circumstances of a request do not satisfy the conditions for assuming

implied consent, there is nothing preventing you from contacting the patient

in question to obtain his or her express consent to release his or her personal

health information to the requesting party.

◆ Even where a request satisfies the conditions for assuming implied consent, it

is always preferable to secure a patient’s explicit consent to release personal

health information to a third party, if time permits and as long as it is

practical.

As set out in the circle of care article, a health information custodian may only

assume a patient’s implied consent if all of the following six conditions are met:

1 The health information custodian must fall within a category of health

information custodians that are entitled to rely on assumed implied consent.

2 The personal health information to be collected, used or disclosed by

the health information custodian must have been received from the

individual, his or her substitute decision-maker or another health

information custodian.

3 The health information custodian must have received the personal health

information that is being collected, used or disclosed for the purpose of

providing or assisting in the provision of health care to the individual.

4 The purpose of the collection, use or disclosure of personal health

information by the health information custodian must be for the provision of

health care or assisting in the provision of health care to the individual.

5 In the context of disclosure, the disclosure of personal health information by

the health information custodian must be to another health information

custodian.

6 The health information custodian that receives the personal health

information must not be aware that the individual has expressly withheld or

withdrawn his or her consent to the collection, use or disclosure.


The Circle of CareConcept in Action inThe Dental Office Context

COLLEGE CONTACT Dayna SimonAssistant to the Registrar,[email protected]

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CASE STUDY

Disclosure to a Health Information Custodian

You receive two separate requests for copies of the dental

records of one of your patients. The first request is from

an oral surgeon that recently assessed the patient for a

minor surgical procedure. The second request is from a

business partner of the patient who is planning on

framing the patient’s dental X-rays as a gag gift for his

upcoming birthday party.

Health information custodians may assume implied

consent to collect, use and disclose an individual’s

personal health information to other health

information custodians and/or their agents. As a

health information custodian, you may assume that

you have your patient’s implied consent to release his

dental records to the oral surgeon, who is also a health

information custodian, as all six conditions required to

assume implied consent are satisfied.

However, you cannot assume that you have the

patient’s implied consent to release his dental records

to his business partner who is not a health information

custodian and thus does not meet condition #5.

CASE STUDY

Providing or Assisting in the Provision of an

Individual’s Health Care

You receive a phone call from the pedodontic dental

office of the five-year old son of one of your patients.

The father is your patient but the son is not. The

pedontist’s office explains that to better serve your

patient’s young son, they are exploring whether there

may be a history of disease in the family and would like

specific health information regarding the father.

Implied consent is only available where the collection,

use or disclosure of personal health information is for

the purposes of providing health care or assisting in

the provision of health care to the individual to whom

the personal health information relates.

While the pedontist is clearly a health information

custodian, the dental office is not requesting your

patient’s health information to provide or assist in his

health care. Rather, the office is requesting your

patient’s health information to provide or assist in the

health care of his son and thus does not meet

condition #4.

Therefore, you cannot assume implied consent to

disclose your patient’s health information to his son’s

dental office. In order to do so, you must obtain your

patient’s express consent.

CASE STUDY

Withholding or Withdrawing Consent

At her most recent dental appointment, your patient

discovers that your new dental hygienist is a neighbour

of hers. Your patient telephones you and says that she

doesn’t want her neighbour to “know her secrets” or be

involved in her dental care.

Individuals may expressly withhold or withdraw

consent to the collection, use or disclosure of their

personal health information.

Under normal circumstances, you could assume your

patient’s implied consent to share her health

information with the dental hygienist in your office.

However, since this patient has expressly advised you

of her objection, you cannot share her personal health

information with the dental hygienist, as condition #6

has not been met.

CASE STUDY

Sharing Information with Other

Health Care Professionals

Your patient is scheduled to attend at your office for a

complicated extraction. While preparing for the

upcoming appointment, you note that this patient

recently had heart surgery. You would like to contact his

family physician to ask whether you should take any

special precautions in treating him.

The family physician falls within the patient’s circle of

care as he is a health information custodian involved

in providing health care to this patient. In addition, the

personal health information that you are seeking from

the family physician will assist you in rendering health

care to the patient.

Accordingly, you can assume the patient’s implied

consent to collect his personal health information

from his physician and the physician can assume that

he has the patient’s implied consent to disclose this

health information to you. In short, all six conditions

necessary to assume that you can rely on implied

consent have been met.

However, while you may legally be entitled to assume

the patient’s implied consent in this circumstance,

unless it is a medical emergency, it is always prudent

for you to seek to obtain the patient’s express consent

to contact the family physician.

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ntario Information and Privacy Commissioner Dr. Ann Cavoukian has

directed the province’s health sector not to remove any personal health

information on mobile devices from their premises – unless this very

sensitive information is encrypted, as required in a health order issued in 2007.

The Commissioner has also made it very clear that she expects all personal

health information stored on any type of mobile device in Ontario to be

protected with strong encryption.

“While I accept that custodians may not be able to totally eliminate the loss or

theft of mobile devices, what I cannot accept is that the information contained

therein is not encrypted,” the Commissioner stated in an order released in mid-

January.

“Unauthorized access to health information stored on these devices that

happen to be lost or stolen may clearly be prevented through the use of

encryption technology. However, despite strong incentives to avoid privacy

breaches and the availability of encryption to prevent such breaches,

unencrypted mobile devices continue to be used. This is both distressing and

completely unacceptable.”

The Commissioner’s health order was issued to address a privacy breach in

Durham Region in mid-December 2009 that saw the loss of a USB key

containing the health information of almost 84,000 patients who attended

H1N1 flu vaccination clinics.

This incident was “very distressing,” said the Commissioner, “especially in light

of the fact that I directed all Ontario health information custodians not to

Privacy Commissionerexpects health sector to encrypt all healthinformation on mobiledevices: Nothing short of this is acceptable

COLLEGE CONTACT Dr. Michael Gardner Manager, Quality Assurance416-934-56111-800-565-4591 [email protected]

O

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transport personal health information on laptops or other mobile

computing devices unless the information was encrypted.” This

direction was included in a 2007 order under the Personal Health

Information Protection Act (PHIPA).

“Our health orders set a minimum standard for what we expect from

all health information custodians, all of whom

are required to protect personal health

information under PHIPA,” said the

Commissioner. Every health information

custodian in Ontario is subject to the Personal

Health Information Protection Act and is

required to protect personal health

information.

“I want to make this very clear,” the

Commissioner said. “No personal health

information should be transported on mobile

devices, unless the information is encrypted.

This requirement is perfectly clear and

encryption technology is readily available.”

The Commissioner’s investigation report on the

incident in Durham Region was issued in

January 2010. In March 2007, the Commissioner

had issued guidance to the Ontario health

sector as part of a health order (HO-004) to

Toronto’s Hospital for Sick Children after a

laptop computer containing the personal

health information of 2,900 patients was stolen

from a parked vehicle.

The Information and Privacy Commissioner is

appointed by and reports to the Ontario

Legislative Assembly and is independent of the

government of the day.

For more information, visit the website of the

IPC/O at www.ipc.on.ca.

The College is currently working on Guidelines

for Electronic Records Management that will

address emerging issues, such as mobile and wireless computing and

the use of laptops, USB keys and e-mail.



ENCRYPTING PERSONALHEALTH INFORMATION ONMOBILE DEVICESIn May 2007, the Office of theInformation and PrivacyCommissioner/Ontario released afact sheet on encrypting personalhealth information on mobiledevices.

This fact sheet explains why it isnot acceptable to rely solely onlogin passwords to protect personalhealth information on devices thatare easily stolen or lost. It alsogives helpful information on how toencrypt and secure healthinformation on mobile devices.

Recognizing that encryptionsoftware may be unfamiliar to thosewho have a responsibility for thislevel of data protection, the factsheet lists several encryptionsolutions currently available withwebsite addresses for moreinformation.

This fact sheet is available on theIPC/O website at www.ipc.on.ca.

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Best practices for the secure destruction of personal health information

patient’s dental records can speak to a

great deal. By their very nature, the

personal health information in dental

and medical records is among the most

privacy-sensitive when it comes to one’s

personal information.

As Ontario’s Information and Privacy

Commissioner, Dr. Ann Cavoukian, has said:

“A single medical record can reveal a great deal

about an individual including recreational and

lifestyle habits, or major health issues, all of

which can result in potentially devastating

consequences if revealed to family, friends or

employers.” The information management

practices of health care providers have very

real and lasting consequences for their

patients, explained the Commissioner.

To assist the health care industry to deliver

functional services and ensure the security of

personal health information, the Privacy

Commissioner has released an educational

paper called, Get Rid of It Securely to Keep It

Private: Best Practices for the Secure

Destruction of Personal Health Information. It

was written in collaboration with the National

Association for Information Destruction.

The publication outlines a number of best

practices that can be employed in the secure

destruction of personal health information

records. These include:

• developing a secure destruction policy

that is clear, understandable and leaves no

room for interpretation;

• segregating and securely storing records;

• determining the best methods of

destruction;

• documenting the destruction process;

• considerations before employing a third-

party service provider;

• disposal of securely destroyed materials;

• ensuring compliance.

The publication was created in response to

several recent orders issued by the

Commissioner. One order was about records

containing personal health information found

scattered on the streets in Ottawa outside a

medical centre housing a medical laboratory.

The other order dealt with the discovery of

patient health records found blowing around

downtown Toronto streets.

This publication can be downloaded free of

charge from the IPC/O website at ipc.on.ca.

COLLEGE CONTACT Dr. Lesia WaschukPractice [email protected]

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FOCUS ON DENTAL RECORDSDentists are required by the Personal Health Information Protection Act, the

regulations made under the Dentistry Act, 1991 and by the College’s Guidelines to

maintain patient confidentiality when disposing of records after the required

retention period for dental records ends. Dentists who wish to destroy records on-

site in dental offices can discard photographs, radiographs and models in the

garbage once patient identification/identifying labels have been removed,

obliterated or rendered illegible.

Some dentists may have large volumes of records to sort and dispose of at one time

and may want to have a shredding or information destruction company destroy and

dispose of these records for them.

For dentists who wish to enter into a contract with a shredding company to provide

these services, radiographs, photographs, models, radiographic mounts (both rigid

plastic and flexible vinyl), small metal objects (paperclips, staples and brads from

dental charts) and electronic media can be shredded by various types of commercial

shredding machines.

An acceptable alternative to shredding of these materials is incineration.

Dentists should ensure that the shredding service providers can meet the dentists’

confidentiality agreements before entering into any contractual agreements. The

Privacy Commissioner suggested that you look for a provider accredited by an

industrial trade association or willing to commit to upholding its principles,

including undergoing independent audits. Check

references and insist on a signed contract spelling out the

terms of the relationship.

AS FOR RECYCLINGThe Privacy Commissioner has stated in the past that

“recycling does not equal secure disposal” and that “the

only acceptable method for disposing of records is to

destroy them by a method that ensures the information is

completely obliterated, for example, by irreversible

shredding of the documents.”

Once paper records have been shredded, as required, then

the white paper can be recycled. Once patient identifers, mounts and other materials

are removed from radiographs, the silver in the radiographic emulsions on

developed radiographs can be recovered and recycled.

On The WebThe requirements for retention ofrecords and the maintenance ofconfidentiality in the destructionof records are outlined in theGuidelines on DentalRecordkeeping. Check out theGuidelines at www.rcdso.org.

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