© 2017 Chicago Dental Society
Jul 2016

Dispelling five dento-legal myths

by John M. Green, DDS, JD

Often contacted by dentists who have legal questions, I keep seeing the persistence of certain dento-legal myths. So let’s dispel five common myths.

Myth No. 1: A refund is an admission of guilt

Illinois law is clear: Refunding a patient is not a sign of guilt and cannot be used as a sword against the dentist should the case proceed to a lawsuit. Moreover, it is not a “failure” on the dentist’s part to refund money. As in certain circumstances, it may be a wise business decision that averts years of litigation.

Myth No. 2: Consent forms don’t hold up in court

When properly presented to a patient, a written consent form is a powerful defensive tool during litigation, especially during a trial. Keep in mind that obtaining a patient’s informed consent is not merely handing a piece of paper with risks to sign, but, rather, it is a verbal process memorialized by the written consent form.

And while merely having a patient sign a consent form is not insulation against liability, the consent form shows the defendant dentist is thorough and the patient knew the risks before undertaking the procedure.

Myth No. 3: It is not necessary to have an attorney when talking with regulators

A greater percentage of patients these days are filing complaints with the Illinois Department of Financial and Professional Regulation (IDFPR), ranging from serious allegations of misconduct, such as filing false insurance forms, to more mundane complaints, such as a dentist’s refusal to provide copies of a patient’s records.

Regardless of the allegation, the dental professional should always consult with an attorney who has experience with IDFPR matters, as even minor cases can mushroom into more serious problems without legal guidance.

It’s hard to “un-ring the bell” when a dentist makes damaging statements to an IDFPR investigator such as, “It’s not my job to make sure every dental insurance form submitted by my staff is accurate.”

Myth No. 4: As long as I document a patient’s refusal for X-rays, I can’t be sued

While it is important to document a patient’s refusal to undergo a dental procedure or diagnostic test, such as an X-ray, merely documenting such a refusal may not be enough to avoid liability.

In regards to X-rays, a dentist must explain why radiographs are a crucial part of the diagnostic process to uncover decay or periodontal disease. To not do so, a dentist is shirking his responsibility as a health care educator and may expose himself to a malpractice claim.

Myth No. 5: Hiring an independent contractor insulates my dental practice from liability

A dental practice may designate a dentist as an independent contractor dentist under the assumption that the practice owner is insulating himself from liability should the independent contractor commit malpractice. However, such a notion is false. In Illinois, a dental practice may be vicariously liable for alleged negligent acts by any dentist working under the roof of the practice under the legal theory of “apparent agency.” That means unless a patient is advised of the professional status of the independent contractor dentist (i.e. informed that Dr. Smith is an independent contractor working at Dr. Jones’ dental practice), then it is reasonable for the patient to assume that Dr. Smith is an employee of the practice.

By knowing fact from myth, you will be in a better position to avoid legal liability so you can sleep better at night.

Editor’s note: The above article does not constitute legal advice but is for educational purposes only. In order to obtain legal advice, a personal consultation with an attorney is required. The views expressed in this column are those of the writer and not necessarily the opinions of the Chicago Dental Society.

Dr. Green is a practicing dentist and defense attorney who has been representing dentists and dental specialists for more than 24 years. Find more information on Dr. Green at


Things ain’t as bad as you think

by Walter Lamacki, DDS

If you’ve been reading the business section of your favorite newspaper, you may be aware of the rush of physicians tripping over themselves to sell their practices to hospitals and other medical entities. Self-appointed “futurists” intone, “As medicine goes, so goes dentistry.”

Maybe not.

The rapid rise of large multi-establishment corporate dental practices has caused hand-wringing among many in the profession who fear that they and their practices will be swallowed up by these entities. There is no doubt that the practice of dentistry is undergoing consolidation and transformation, mirroring – to a limited extent – the consolidation in the medical profession.

On April 15, the American Dental Association Health Policy Institute released a research brief, Considering Large Group Dental Practices as a Vehicle for Consolidation in Dentistry, authored by Albert Guay, chief policy advisor emeritus, and Thomas Wall, ADA manager of statistical research, that shows the growth of large practices (those with at least 20 employees) increased their market share, while those with fewer than five employees saw their market share decline.It all sounds ominous for traditional practices. But is it?

There is a chink appearing in the armor of the mega-practices that share similarities with a Ponzi scheme that crumbles under its own weight. During the Great Recession of 2007 through 2009, the number of firms continued to grow. However, the period from 2010 to 2012 saw a decrease in the number of large group practices. The authors of the survey said this phenomenon might be due to difficulty finding new markets and the potential emergence of diseconomies of scale as they grow.What interested me most were the conclusions drawn by Dr. Guay and Mr. Wall from their research. They said dentistry has unique aspects that preclude the kind of consolidations occurring in medicine. The principal reason is that small dental offices usually correlate with the location of dental patients, facilitating strong dentist-patient relationships. Dentistry is the foster child in the Affordable Care Act and government has little incentive to regulate the dental care industry through consolidation.

No doubt mega-practices have economic advantages due to economies of scale. They can buy technology and hire specialized personnel. They can employ recent dental graduates by offering an immediate paycheck and perks a small practice cannot.

However, large practices experience higher overhead such as high rents, real estate taxes, employee and advertising costs. They have a high turnover rate of new dentists, who seek their own practice as soon as it’s economically feasible. The sheer size of mega-practices works against them. When they reach a critical mass of patients, they must find ways to keep the turnstiles continually rotating.Today’s traditional-practice dentists do have some advantages. They often are a part of the community and many times are the neighbors of their patients. They often grew up and went to the schools in the area in which they practice; they’re local folks.

Traditional-practice dentists are trusted in their communities and frequently serve as leaders on school boards, not-for-profit service organizations and religious institutions.

Yes, I know that some of these endeavors are common to those who practice in mega-practices, too. But I suspect staff turnover at mega-practices precludes the forming of lasting patient-doctor relationships, which is inherent to the traditional practice.

You see, I think that things ain’t as bad as they seem. The rumor of the death of traditional dental practice is greatly exaggerated.

Write Dr. Lamacki at

Dental therapy dogs


Can man’s best friend help your practice?

Dogs have been used in many situations to bring comfort and a sense of tranquility to people experiencing stress.

They have responded when lives are turned upside down following natural disasters, such as the 2011 tornado in Joplin, MO, and they are on the scene after man-made tragedies too, like the recent mass shooting in Orlando, FL.In each case, man’s four-legged furry friends were summoned to provide succor.

And now dogs might be finding their way into the dental profession.

The University of Michigan School of Dentistry this year called on therapy dogs to help students facing the stress of final exams and graduation. And at least one dental office in suburban Chicago has a dog visit on a regular basis.

“The act of petting a dog can lower your blood pressure and increase your endorphins, so there is a positive physical component to a visit,” according to Lynne Ryan, a dental hygienist at Pediatric Dentistry of Northbrook, who is also a volunteer handler with Lutheran Church Charities’ Comfort Dog Ministry.

Ms. Ryan, who has worked with CDS member dentist Thomas Resnik at the dental office for about 24 years, knew JoJo did well at school visits, so she had the idea about a year ago to bring her into the office.JoJo now comes in once a month. Patients schedule appointments when JoJo is available and the practice makes sure there are no allergy issues or fear of dogs. The rooms also get a thorough cleaning after each visit.

“Everything has been positive,” Ms. Ryan said of the visits.

Ms. Ryan said it has been mostly new patients who seek JoJo’s attention.

“It’s a comfort just having her in the room,” Ms. Ryan said of JoJo’s work. But some patients want the dog to sit on their lap or be in contact with them.

And sometimes, it is not the patient who needs the reassuring, Ms. Ryan noted.

The dog can size up a situation amazingly well, she said. For instance, a child with autism came into the office one time while JoJo was on duty.

Ms. Ryan said JoJo knew who in the room really needed comforting the most and went right to the child’s mother, and sat with her head in the mom’s lap during the entire visit.

“She has a sixth sense about who needs her,” Ms. Ryan said.

Erin Fesnak of Schaumburg schedules JoJo for her 11-year-old daughter, Ava Perez. Ava has anxiety about medical procedures after having surgery last year and suffering from posttraumatic stress disorder, Ms. Fesnak said.

“The dog calmed her down tremendously,” she said.

The first visit was just a consultation, when Ava was able to meet JoJo and the dental office could evaluate if the interaction was positive.

On her next visit, the dog helped calm Ava enough for her to get X-rays.

“For her to come in and get the X-rays was amazing,” Ms. Fesnak said.

Since then Ava has not had a panic attack about going to the dentist.

JoJo, like all of the Lutheran Ministry’s dogs, is a golden retriever.

But Billie Smith, who heads the Alliance of Therapy Dogs based in Wyoming, said that any breed could serve as a therapy dog.

“We have 1-pound Chihuahuas and 280-pound mastiffs who work as service dogs,” Ms. Smith said.

The only restriction is that the dog not be part wolf or coyote.

There are about 17,000 therapy dogs registered through the volunteer organization, with about 15,000 handlers, Ms. Smith explained.

There is no specialized training, but the organization does have a registration process with a number of testers who certify that the dogs and the handlers are able to do the work.

The certification includes an obedience test that shows the dog can be under control with a 4-foot leash, evidence that the dog has good manners and doesn’t jump or try to lick people, and that the animal is not aggressive toward other dogs.

“We look at the temperament of the dogs,” Ms. Smith said. “We focus on the relationship between the dog and the handler.”

The registry extends into the United States, Puerto Rico and Canada, Ms. Smith said.

Ms. Ryan said that interest in using a therapy dog spiked after numerous media outlets ran stories about JoJo.

“Dentists from all over the country have been calling up and asking, ‘can we order a JoJo?’” Ms. Ryan said.

However, she doesn’t know of any other comfort dogs through Lutheran Charities being used in dental offices and no Chicago area certification handlers from the Alliance of Therapy Dogs reported going to dental offices.

Ms. Smith said using a dog at a dental office sounds like a good idea, but that dentists should not just bring in their own pet for an afternoon.

The dog’s needs, such as bathroom breaks and quiet time, have to be considered as well.

Plus, therapy dogs have experience that a regular pet would not have.

“Our dogs are all socialized in a good number of situations,” Ms. Smith said. “So, for instance, the use of a dental drill wouldn’t bother them at all.”

Mr. DeRosier is the CDS staff writer.

Photography: Tricia Koning