by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the August 2003 issue of the Journal
Question: A patient was referred to my office for a root canal by her general dentist. I performed the root canal and returned her to her general dentist. Her dentist then contacted me to inform me that I had treated the wrong tooth! In checking the record, I did, in fact, treat the wrong tooth. Do I have to inform the patient? If I choose not to, is the general dentist obligated to inform the patient?
Answer: It is hard to conceive that the patient would not know that the wrong tooth was treated. Nevertheless, you should advise the patient that you performed the root canal on the wrong tooth. If you choose not to, the general dentist may be obligated to inform the patient. I'll analyze the basis for these answers from both the ethical and legal perspectives.
Ethics: Under Section 5 of the combined ADA/MDA code of ethics "the dentist has a duty to communicate truthfully." Under this principle, the dentist's primary obligations include respecting the position of trust inherent in the dentist-patient relationship, communicating truthfully and without deception, and maintaining intellectual integrity. Failure to disclose this mistake to the patient would be a clear violation of this provision.
It is a fundamental ethical requirement that a dentist should at all times deal honestly and openly with patients. Patients have a right to know their dental health status and to be free of any mistaken beliefs concerning their condition. It's clear that dentists are ethically required to inform patients of all facts necessary and to ensure an understanding of what has occurred. Only through this full disclosure is a patient able to make informed decisions regarding future dental care. Concern regarding legal liability that might result following truthful disclosure to the patient should not affect a dentist's honesty with the patient.
The law: Your failure to disclose this material information to your patient could result in enhanced exposure under tort law, violation of the Public Health Code and a possible criminal violation.
Performing a root canal on the wrong tooth is likely a violation of the standard of practice and, therefore, would constitute malpractice. There is probably no legitimate basis to defend this mistake. On the other hand, damages could be limited by immediate action that might be taken to correct the problem in whole or in part. A lawsuit might be avoided by an open disclosure.
Over the years, it has been my experience that patients do understand mistakes, even if there is no real excuse. Conversely, failure to disclose or otherwise cover up the mistake would likely lead to litigation. Moreover, such a cover-up could not only result in further dental problems to the patient, it would clearly result in enhanced monetary exposure. A jury would not look favorably upon a dentist who concealed this mistake.
Failure to disclose would also be deemed to be fraudulent concealment, which would toll the statute of limitations. This means that instead of a two-year statute of limitations that runs from the date of occurrence for dental malpractice cases, the statute of limitations would not run until the patient discovers the error.
In any instance where a mistake occurs, and before any action is taken, you should contact your malpractice carrier for advice on the best way to disclose this information to the patient. This should be done immediately, so that the patient may be promptly informed and so that corrective action may be taken.
If you billed for the root canal, it could be deemed a fraudulent billing that could lead to disciplinary action and possible criminal action. Although circumstances of performing a root canal on the wrong tooth could lead to a disciplinary investigation under the Public Health Code, failure to disclose this mistake would clearly lead to a disciplinary investigation and action that could result in jeopardizing your license.
Since the general dentist continues to have a dental-patient relationship with this patient, the general dentist would be obligated to inform the patient under the same ethical requirements discussed above. Although the general dentist would not have malpractice liability for the mistake that occurred with respect to the root canal, the general dentist could certainly have malpractice liability under the informed consent laws if he or she failed to inform the patient of this mistake.
It is also likely that the general dentist would have an obligation to report you as the specialist under the Public Health Code. The code requires that a licensee or registrant having knowledge that another licensee or registrant has committed a violation of the Public Health Code shall report the conduct to the appropriate state agency. Failure to so report does not give rise to a civil cause of action against the licensee or registrant who should have reported, but it would give rise to a potential disciplinary action under the Public Health Code against the general dentist.
As a matter of courtesy, the general dentist should first communicate directly with you as the specialist on the issue, and strongly suggest that you take the initiative in advising the patient and performing whatever corrective action is deemed appropriate.