by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the March 1994 issue of the Journal
Question: As a long-time MDA member, I find your legal column very interesting. I'm wondering if you could touch on a subject that has been of concern to me for quite a while. That is, I feel it is important to remind our members not to second-guess the work of another dentist, or at least to be careful in giving a second opinion. It is my view that criticism by a dentist of another dentist's work is a leading cause of malpractice suits. This is not to say that some of this criticism is unwarranted, but I think that we need to choose our words wisely. I think some dentists have been irresponsible in this regard in the past, and we should remind them to watch their tongue, lest they be the cause of a malpractice action.
Answer: Although I know of no studies done on this issue, I agree with your opinion that criticism by dentists of another dentist's work is a leading cause of malpractice suits. Any comments made by a dentist about prior dental services that could lead the patient to believe the prior services were substandard may lead the patient to seek legal advice. When the patient informs a lawyer of a dentist's criticism of prior dental services, it is a good bet that the lawyer will either take the case or at least pursue further inquiry.
The primary hurdle of a plaintiff lawyer in a malpractice case is the requirement that another dentist testify as to the standard of practice and its breach. The lawyer will probably contact the dentist who made the disparaging comments about prior services. Even if that dentist will not support a breach of the standard of practice, it is likely that the lawyer will go further in an attempt to find some dentist who will support the plaintiff's case.
What should the current dentist do if the prior dental services were sub-standard? What are the rights of the patient? What are the rights of the prior treating dentist? What are the responsibilities of the current treating dentist?
The Standard of Ethics of the Michigan Dental Association and the American Dental Association have identical provisions on this topic:
1-G Justifiable criticism
- Dentists shall be obliged to report to the appropriate reviewing agency as determined by the local component or constituent society instances of gross or continual faulty treatment by other dentists.
- Patients should be informed of their present oral health status without disparaging comment about prior services.
- Dentists issuing a public statement with respect to the profession shall have a reasonable basis to believe that the comments made are true.
The advisory opinion cautions that the dentist should exercise care that any comments made are justifiable when informing a patient of the status of his or her oral health. A difference of opinion as to preferred treatment should not be communicated to the patient in a manner which would imply mistreatment. The opinion recognizes the discretion of dentists in this area and advises against disparaging statements against another dentist. It is also noted that where comments are made which are obviously not supportable and therefore unjustified, such comments can be the basis for the instigation of a disciplinary proceeding against the dentist making such statements.
It is probably easier said than done to advise a patient of the poor status of his or her oral health without further commenting on the quality of the prior dental services if they appear to have been substandard and a cause of the patient's oral health problems. Nevertheless, dentists should attempt to draw the distinction between the patient's right to know his or her present oral health status and potentially damaging statements about prior dental treatment.
If the prior dental treatment appears to have been substandard, it would be a better alternative to request the MDA component society's peer review/dental care committee to investigate the matter to obtain an objective, third-party opinion. If the care was substandard, it is best that the dispute be resolved in the peer review context, rather than in litigation. Peer review proceedings are cloaked with legal immunity and confidentiality protections.
If the prior dental treatment clearly shows negligence or failure to exercise due care on the part of the prior dentist, the current dentist may be required to report the matter to the state licensing authorities. As pointed out in the "Dentistry and the Law" article in the last Journal issue, the new licensure and discipline law which goes in to effect in April 1994 mandates health professionals to report other health professionals when they have knowledge that there has been a violation of section 16221 of the Public Health Code. Included in that section of the Public Health Code is "a violation of general duty, consisting of negligence or failure to exercise due care. ..."
It is significant that this new law requires the reporting person to have "knowledge" of the violation, not simply suspicion. Therefore, it is not anticipated that such direct report to the state will be required in most instances of dental treatment. Fortunately, such a report is confidential. The person making the report has statutory immunity, as does a person who did not make the report but, in retrospect, should have.