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It’s the Law

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 www.greenlawoffice.net.

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