The dentists' great confusion: revealing adverse events

There exists a great deal of confusion regarding what a dentist is required to disclose when a dental procedure goes wrong, when to reveal it and to whom, write Toronto health lawyers Lonny Rosen and Elyse Sunshine in Oral Health Group.

Dentists need to be aware of their professional and fiduciary duties to their patients, including disclosure of adverse events, as breaching such duties could lead to civil liability for damages, write Rosen and Sunshine. Significantly, failure to disclose an adverse event could lead to an award of punitive, exemplary or aggravated damages, which may not be covered under the Professional Liability Program in Ontario.

In addition, failure to disclose an adverse event could result in a complaint being put before the Royal College of Dental Surgeons of Ontario.

"Legislation, the common law and a dentist’s own professional obligations all give rise to obligations to disclose adverse events in certain circumstances," write Rosen and Sunshine, partners at Rosen Sunshine LLP. "Dentists in all areas of practice, and particularly those performing prosthodontics, must understand both when the duty of disclosure arises and what must be disclosed. This professional obligation must be discharged whenever an adverse event occurs."

It is a patient’s right to know about any incidents – even minor ones – relating to the result of their care, write Rosen and Sunshine, "so that they can be properly managed in a timely fashion."

Dentists have a legal obligation to disclose any unintended outcomes or adverse events, write Rosen and Sunshine, "However, an adverse event would not include, for example, an unintended incident which did not result in harm to the patient.

"DisclosuElyse Sunshinere of an adverse event is a process, which requires open communication and sharing of information, and is more than just a single conversation," write Rosen and Sunshine. "The Canadian Dental Association has set out a clear approach to disclosure once an adverse event has taken place."

In situations where a patient faces an adverse event, dentists are advised to acknowledge the incident, explain the known facts, make an expression of regret to the patient, take steps to minimizing patient harm and take risk management steps to prevent similar adverse outcomes.

"At common law, the failure to disclose an adverse event can be construed as a breach of a fiduciary duty by a healthcare practitioner," write Rosen and Sunshine. "This was examined in a case where a physician discovered a gauze roll inside his patient that he had left during a previous surgery. The physician told the nurses not to report or inform the patient of the adverse event. The court held that by delaying disclosure of the adverse event to the patient, the physician was in breach of his fiduciary duty. The court in that case awarded aggravated and punitive damages for the doctor’s failure to disclose the adverse event, in order to communicate that such conduct is unprofessional and deserving of punishment."

When disclosing an adverse event, dentists may consider making an apology to the patient, write Rosen and Sunshine. With the enactment of the Apology Act 2009, "dentists and other professionals are permitted to make an apology, or an expression of regret, without fearing that the apology or statement will be used to prove that they are liable for the harm caused."

However, they write, "while a well-worded and well-timed apology may help preserve the dentist-patient relationship and may avoid litigation, an inappropriate or poorly crafted apology can have disastrous results, exacerbating an already difficult situation. The Apology Act, was passed to prevent apologies or expressions of regret by healthcare practitioners being used against them in court."

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