Do you really need a lawyer to respond to a patient complaint?
Dentists regularly respond to patient complaints without the benefit of legal advice, and are often successful in getting complaints against them dismissed without the benefit of legal assistance. This doesn’t mean that this is the correct approach for every complaint. Given the significant negative consequences of an adverse complaint decision, obtaining legal advice is always the best approach. Litigation lawyers are trained to identify issues of concern, and in assisting clients to express themselves succinctly and effectively. Defending a dental complaint is initially based on written advocacy, explaining the dentist’s position. As advocates, lawyers should be able to write efficiently and focus on the appropriate issues. Not all lawyers will have sufficient familiarity with issues of professional misconduct and dentistry in order to render the specific expert assistance required to effectively deal with these matters. You would be well advised to retain a lawyer who has acted for dentists before, and has knowledge of both the complaints process and dentistry.
Most importantly, lawyers provide an objective opinion to their dentist client with respect to the merits of a complaint. We are routinely obliged to tell dentists that their regulator will find that they acted inappropriately, or that they committed professional misconduct. It is sometimes necessary to hear this perspective from an objective third party in order to make the best of a bad situation. There is no tactical benefit to taking a position that is destined to be rejected by the Complaints Committee.
An effective complaint response letter should allow the reader to determine: a) the nature of the complaint; and b) the dentist’s response to the complaint. Therefore, all of the complaint response letters we draft in our office contain a succinct summary at the start of the response letter of the patient’s actual concerns. We also consider that it is important for the dentist to summarize the clinical presentation of the patient at the start of the complaint response letter. Please keep in mind that a majority of the decision makers reading the complaint file will be dentists. Those dentists will wish to apply their specialized knowledge to the facts of the case. Therefore, we request that our dentist clients provide a patient profile. For example, a typical introductory paragraph in a complaint response should be as follows:
I first saw Ms. Jones on January 5, 2017. She was a 57 year old woman who hadn’t seen a dentist in the previous six years. She was essentially edentulous in her upper dentition. Her oral hygiene was very poor. She had calculus, and had not attended regularly for cleaning in many years.
In this way, the Complaints Committee is provided with a succinct overview of the type of patient the dentist was dealing with, in a manner that may be of great assistance to the dentist.
Utilize all available evidence
In Ontario, before the ICRC makes a decision about a complaint, it will disclose a copy of all of the evidence gathered during the investigation to the dentist and to the patient. This evidence is disclosed in a document known as the Record of Investigation. It is essential that the dentist carefully review the complete Record of Investigation. The dentist should be looking for any new information that the dentist was unaware of at the time that the initial response was prepared. What could be vitally important are the peripheral dentists’ records. There may be information in other dentists’ records that either assist our client, or hurt our client’s position. In either instance, it is essential that the dentist be aware of the new information, and consider providing a response. For example, the patient may have taped an important appointment with the dentist and there may be a transcript of that discussion in the Record of Investigation. It will likely be necessary to respond to the contents of such a document. We explain to our clients that there may be information that either helps the dentist or hurts the dentist. Information that is helpful to the dentist should be highlighted by a new written submission to the ICRC. Dentists often make the mistake of assuming that the ICRC will be able to zero in on information that is helpful to the dentist in the hundreds of pages of disclosure. This is simply not a good approach. The ICRC may not focus on this helpful evidence. A lawyer’s job as an advocate is to highlight information that is helpful, and make it plainly understood by the decision maker. A dentist should never assume that the ICRC will be able to spot information that the dentist considers as helpful to his or her position. The dentist themselves should be highlighting this evidence clearly.
The other important feature of using all available information is to carefully review any subsequent communications from the patient. In Ontario, when a dentist provides a written response to a patient complaint, typically the patient will respond to the dentist’s response. There may be new information contained in the patient’s reply that has not been addressed by the dentist. Again, this information may hurt the dentist or may help the dentist. Either way, the information should be carefully considered and responded to.
Having read hundreds of decisions, I can advise that if there are factual assertions that are made by a patient that are important, and these facts are not denied or responded to by the dentist, then the ICRC may well assume that the patient’s version of events is correct. Therefore, it is essential that the dentist rebut every important factual allegation that a patient makes. Otherwise, the ICRC may be inclined to accept the patient’s version of events. Overall, a dentist should not leave to chance any important issue that is raised by a complaint. It is impossible to determine what issues will engage the ICRC, therefore, a thorough assessment of all of the facts of the case should be made in every case.
Appropriate tone and language
It is essential that the dentist’s complaint response be written in a respectful and professional tone. There is nothing worse than a dentist who writes a letter that insults the patient. If a patient complains that a dentist was rude and aggressive, then it certainly doesn’t help the dentist’s cause to write a letter that is rude and aggressive as well. There is nothing to be gained by insulting the patient or the patient’s intelligence. As part of the process your response will be given to the patient/complainant to comment upon.
In the hundreds of ICRC decisions that we have read over the years, there are virtually no decisions that have findings that criticized the patient. The ICRC will not make a finding that the patient was motivated solely by financial gain, or that the patient was very rude and aggressive or ill-mannered. The ICRC strives to be balanced in its approach to decision making. It will typically not engage in any wholesale character assassination of a patient, even if the evidence is overwhelming that the patient is unpleasant or dishonest. If the ICRC is not going to make a finding on this subject, then the dentist should not devote a great deal of time to character assassination. If these types of submissions serve no useful purpose, then why include them? This does not mean that the dentist is not permitted to state, in an understated and polite manner, that the patient was unfair or unreliable in their recollections. It is a basic rule of advocacy, that if a decision maker is not likely to address certain issues in making their decision, then it does not make much sense to focus a great deal of attention on such issues.
There is a way to subtly communicate to the Complaints Committee that a patient is an unpleasant individual, without stating this directly or by being insulting. From time to time we have acted for dentists who have been the subject of a complaint by a patient who has mental health issues. There are also ways to communicate this information without being seen as being insulting or demeaning to the patient. For example, at the start of most dentist’s complaint response letters, we recommend providing a summary of the relevant dental history, and medical history. Information about a patient’s mental health or medications can be referenced in this section.
Importance of responding to all issues
Patients may write disorganized and rambling letters. It is important that the dentist appreciate all of the relevant issues that are raised. A typical issue that dentists may miss is the issue of informed consent. For example, a patient may complain that they did not understand that when they had a large restoration performed, that it might increase the risk of requiring a root canal on that tooth. This directly raises the issue of whether an informed consent was obtained. The patient will not mention the concept of informed consent, although the ICRC will address this issue. Patients will also not complain that the dentist’s records are deficient or that the dentist failed to follow the Anaesthesia Guidelines. However, an experienced lawyer should know when these issues will be considered by the RCDS, and help you respond accordingly.
Importance of obtaining corroborating evidence
A necessary step in responding to a patient complaint is to interview witnesses who have information with respect to a matter. In many circumstances, we will have to interview all of the staff of a dentist’s office. Where a patient has acted rudely or belligerently, it may be necessary to obtain corroborating evidence from all the other employees. Dental treatment issues also require corroborating evidence. The dental assistant may recall what information you told the patient, concerning informed consent. The dental hygienist may be able to comment with respect to the patient’s poor oral hygiene, if that is a relevant issue. All of this information should be gathered from the outset.
Use of Experts
If we believe that a patient complaint raises a standards of practice issue that may be assisted by having an expert opinion, we will routinely recommend to dentists that even at the ICRC stage, that we obtain an expert opinion. Our firm has a roster of experts that we utilize for RCDS complaint matters. The provision of an expert opinion at an early stage may defuse a potentially troubling situation, or may highlight deficiencies in the treatment or the record. We can then address those deficiencies proactively. We have utilized expert opinions in the following types of complaints:
- Recommending unnecessary restorations;
- Performing unnecessary root canal treatments;
- Failing to obtain an informed consent for a complicated implant, crown and bridge or cosmetic dentistry case;
- Implants which fail; and
- Orthodontic treatment which fails.
It is the lawyer’s job to contact the expert, and instruct the expert. If a dentist chooses to do this himself or herself, this may cause significant evidence problems down the road. In a serious case that ends up at the Discipline Committee, if a dentist has spoken directly with the expert, that expert will be cross-examined by the Prosecution at the Discipline Committee hearing concerning the specifics of any dialogue with the dentist. If a dentist has advised the expert, “look this is the way I always perform root canals. I have done this a hundred other times”, then the expert will be obliged to recount the information provided by the dentist. The dentist may make damaging admissions to the expert. This could fatally prejudice the dentist at a discipline hearing. This is why it is always necessary for your lawyer to instruct the expert.
One of the virtues of retaining experienced legal counsel is that you can make sure that your version of events is consistent from the outset. If a matter becomes more serious, and ends up at the Discipline Committee, there is nothing worse than a dentist being obliged to change his position with respect to factual and dentistry issues. If you take a position in writing prematurely, without the benefit of all the records or x-rays or input from witnesses, then you will be stuck with that version of events. If you try to change your story between the time of a complaint response letter, and a referral to the Discipline Committee, then you will be painted as not credible. This is why it is of great benefit to conduct all necessary witness interviews, and obtain all relevant records at an early stage, so that you can put forward a coherent and consistent version of events from the start.
Is the person complaining a patient?
From time to time I see husbands complain about dental treatment received by wives, or parents complain about adult children’s dental treatment. In these circumstances, it is necessary for the dentist or his lawyer to ask the College to obtain confirmation that the patient themselves wishes to make the complaint. There is no right for a parent of an adult child to make a complaint on the child’s behalf, unless the child consents as well.
Complaints by ex-employees or Associates
This is becoming a growth industry. If you fire an individual, there is always the risk that the disgruntled employee will make a complaint to the RCDS with respect to some aspect of your dental practice. Complaints from former Associates, dental assistants and dental hygienists can be especially devastating. I have seen several dentist clients receive lengthy suspensions, as a result of complaints from disgruntled ex-employees or Associates. The ex-employee may be preparing a list of problem files in the office, so that when he or she is fired, or when they leave the practice, they can make a very focused complaint against the dentist. In Ontario, the RCDS has no choice but to investigate these complaints. If an ex-employee provides specific information naming patients, you should know that in Ontario the RCDS has the authority to attend your practice, and remove and review these patient charts, if circumstances suggest that an act of misconduct has taken place.
What is equally risky for dentists is when an ex-employee was also treated by the dentist as a patient. If an ex-employee alleges that a dentist abused them verbally in the workplace, then this could be considered verbal abuse of a patient, which makes the case that much more complicated.
The key is effective written advocacy
Most patient complaints are dealt with solely on the basis of the patient’s written complaint, and the dentist’s written response. It is therefore critical that the dentist’s communications with the regulator be effective, and to the point. Litigation lawyers quickly learn that any trier of fact, whether it is a Judge or a Discipline Committee or a Complaints Committee, has a limited attention span. It is essential that written responses to complaints contain only the relevant information necessary to advance the dentist’s position. One of the biggest failings of dentists who act on their own behalf in responding to complaints is that the response letters are long and rambling, and contain irrelevant content. Irrelevant content is destructive. Such content will not have an impact on the important issues. Thus, a complaint response must strive to avoid irrelevant content. The following are the types of comments that appear regularly in response letters written by dentists that are simply not relevant at the Complaints Committee level:
- I have always been nice to Mrs. Jones and her son, and have always treated them kindly.
- I have worked in this community for 35 years without a complaint.
- I have bent over backwards to help this patient and her family, and I cannot believe that she is now complaining about me.
- Mr. Jones has poor personal hygiene and is very unpleasant and aggressive to all my staff.
- I have done much good work in my community, and I have 15 patients who will attest what a wonderful person I am.
- When I received Ms. Chin’s complaint, I was emotional and very upset, and I have not been sleeping well for the past several weeks. The complaint has also caused my wife migraine headaches.
- I have a bad back and I am on medication for this, and I am also currently suffering from depression.
- I cannot believe that Mrs. Jones has betrayed my trust in her and her family. I am devastated by her complaint, and can’t believe that she would double cross me in this way.
- I reported this incident to my liability insurer and the liability insurer has told me that they have no concerns with respect to the dentistry that I did.
- I have been doing restorations in this fashion for the last 20 years and nobody else has complained about the way I do them.
- The patient is very stupid.
- The patient is cheap and does not wish to pay for any dentistry.
- Even if I had offered to do a crown on that tooth the patient would have been too cheap to pay for it.
The problem with all of the above comments is that they are not typically relevant to what a Complaints Committee must consider with respect to a standards of practice complaint against a dentist. Throwing yourself on the mercy of the Complaints Committee, because you consider yourself compassionate or kind (while an understandable impulse), is not a submission that would be given any weight by a Complaints Committee. I routinely see dentists draft complaint responses that attempt to garner sympathy for the grief that the patient has caused them by making the complaint. This type of submission is completely irrelevant. The ICRC, or Complainants Committee is not going to make a decision based on its impression that the complaint has been very upsetting to the dentist. The ICRC will understand that every complaint is a negative consequence for a dentist. It will not likely be swayed by the dentist’s complaints about the personal toll that the complaint is taking upon them. The Complaints Committee has a job to do: to look at dentistry issues and the dentist’s dealings with the patient. The regulator will typically not be swayed by any emotional appeals, or by any attacks on the patient’s integrity. The complaint response letter has to put forward all of the important information that the dentist wishes the Committee to rely upon, in reaching a decision that the dentist has acted properly. Too much verbiage detracts from the dentist’s core message, and may cause the Complaints Committee to conclude that the dentist doesn’t really have a proper and effective response to the complaint. Put forward only the relevant and helpful facts. Focus on the core risks identified by the complaint. Further, the complainant will see your response, and as a result, it should not be offensive to the patient.
I have yet to read a Complaints Committee decision where the Complaints Committee is insulting to the patient. Therefore, any dentist’s complaint response letter that insults the patient is not serving any useful purpose. I have read hundreds of Complaints Committee decisions in the last 30 years. While issues about a patient’s oral health and dentition are entirely appropriate, personal invective is not.
Is there insurance for dental complaints?
Our firm is currently associated with the Canadian Dental Protective Association (CDPA), which is not an insurer, but which renders assistance to dentist members across Canada in respect of most complaint matters. The CDPA was established by Ontario dentists, and to this day is run by dentists. The CDPA uses a national roster of lawyers who are all very experienced in dental legal issues. The CDPA also provides continuing education to dentists with respect to risk management issues. Perhaps the most valuable aspect of the CDPA program is that the CDPA offers risk management advice, initially not from lawyers but from trained dental advisors. The CDPA utilizes dental advisors who have a great deal of experience in dealing with patient complaint issues. This is a useful resource for dentists who may not wish to contact a lawyer, or who may not need to contact a lawyer. You would be amazed at the level of knowledge that a skilled dental advisor can bring to a complaint, in spotting issues relating to dentist’s patient and business concerns. The CDPA dental advisors receive regular training and input with respect to developments in the area of professional regulation. The dental advisors also regularly meet with the RCDS and other officials who impart their wisdom with respect to the complaints process.
From acting for dentist clients who are not CDPA members, I am also aware that Canadian Dental Service Plans Inc. (CDSPI) offers insurance coverage through AVIVA insurance that covers dental complaints. You need to make sure that the particular coverage you have through CDSPI covers RCDS complaints. Currently there is a $1,000.00 deductible, and a $20,000.00 limit for legal fees. Even though lawyers may be expensive, this is usually far more than enough money to cover the legal fees to defend the typical patient complaint!