Dental Ethics Primer
2017 Edition
1/3/18Bruce Peltier PhD, MBA
Larry Jenson DDS, MA

Dr. Peltier is Professor of Psychology and Ethics at the Dugoni School of Dentistry, Universityof the Pacific in San Francisco, where he has taught for 25 years.
Dr. Jenson served as Clinical Professor of Dentistry and Lecturer at the University of California,
San Francisco for 23 years and practiced in Nevada and California for 30 years. His Master’s
degree is in Philosophy.

The authors of this text are dental educators and ethicists, not attorneys. Please do notconstrue the contents of this document to be legal advice.

Note: This version is a working draft and will be adjusted and edited in the future.
Please do not forward or publish it without permission. Use bpeltier@pacific.edu tocontact the authors.

Dental Ethics Primer
Bruce Peltier PhD, MBA
Larry Jenson DDS, MA
This text is written for dental students and residents. While other readers may
find it useful, its purpose is to provide a brief and clear introduction to the ethics of theprofession of dentistry. A more complete introduction follows the ToC below.

TABLE OF CONTENTS
Introduction
Chapter 1: Foundations and Theory
1.1 The Nature of Dental Practice
1.2 Ethics, Law, and Risk Management
1.3 Professionalism and the Nature of Professions
Professionalism Checklist

1.4 Standard of Care and Scope of Practice
1.5 Ethical Sensitivity
1.6 Ethical Decision-Making: Essential Theories and Methods
o The Publicity Testo The Driving Home Testo Decision Method #1: Principlism: The Principle-Based Method
The Principles
o Decision Method #2: Utilitarian/Consequentialisto Decision Method #3: Values-Maximizing Method
Ozar’s Hierarchyo Decision Method #4: The Four Quadrant Approach
An Illustration of how to use the methods
21.7 Ethics in Dental School
1.8 Building Moral Capacity
References

Chapter 2: Your Profession and its Formal Codes
2.1 Organized Dentistry
2.2 Codes of Ethics
2.3 Peer Review
References

Chapter 3: Commerce and Care
3.1: Incompatibilities and Tension (Theory)
Commerce and Care chart
Competition and cooperation
3.2: Making a Living in Dentistry






Dentist owned and operated solo or group practiceDentist owned solo or group practice that hiresa Dental Service Organization (DSO)
Corporate DSO owned group practiceKnox-Keene insurer/provider group practices
Government agency group practice.

3.3: Specific Ethical Traps and Pitfalls in Business3.4: Working with Third-Party Payers (“Insurance”)

Common legal and ethical traps in working with “insurance”

Conclusions
Reference3Chapter 4: Informed Consent
4.1 The Basic Concept: The Patient’s Right to Chooseo The Autonomy-Paternalism Spectrum
o General Components of the Informed Consent discussion
4.2 What to Do and How to Do It (Informed Consent)
Specific components of the discussion

4.3 Who Can Consent for What?
Adults Who Cannot Consent for their Own Treatment

Summary
References
Chapter 5: Intraprofessional Relationships (other practitioners)
Cooperation and Self-Regulation
Sharing patients
Error
The work of other dentists
Gross or continual faulty treatment
Impaired colleagues

o
o
o
o
o

References
Chapter 6 : Confidentiality and Mandatory Reporting
6.1: The Nature and Importance of Confidentiality
6.2: Managing Confidential Information

Record-keeping and record management

6.3: Exceptions and Mandatory Reports
o
o
o
o
o

Categories of abuse
Child abuse
Elder abuse
Domestic violence and abuse
Developmentally disabled adults

46.4: Other responsibilities related to confidentialityooooDangerous or suicidal patients
Criminal patients
Patients with infectious diseases
Adolescent patients

Summary
References
Additional Resources
Chapter 7: Challenges in the Doctor-Patient Relationship
7.1: Doctor Values and Patient Values
7.2: Dual Relationships
7.3: Unacceptable Patient Behavior
7.4: Ending the Doctor-Patient Relationship
7.5: Harassment and Hostile Environment
7.6: GiftsooooWhy do patients give gifts?
Potential problems
How to decide?
How to respond?

Summary
References___________________________________________________________
Future Chapters and Sections:
Case Book for Discussions
Section X . Other Important Ethical Challenges
Advertising and Social Media in Dentistry
CAMBRA, Restoration, and OHI
Access to Care and the Underserved5Referring: Relationships Between Specialists and General Dentists
The Dental Team: Relationships with Assistants and Hygienists
Language, patients, and maledicta

Common ethical situations faced by dentists, hygienists, assistants, and dental
students.
Glossary of Important Terms
FAQs
Recommended Readings

6

Dental Ethics Primer
12/27/17

Bruce Peltier PhD, MBA
Larry Jenson DDS, MA

Introduction
Key Concepts
 Ethics is the study of right versus wrong, good or bad, and better-worse.
 Every clinical situation has ethical components.
 This text assumes you are interested in doing the right thing.
 Essential ethical skills can be taught, learned, and improved.
 No one is perfect; everyone makes clinical and ethical errors.
 There are practical (as well as emotional) benefits of doing the right thing.
________________________________________________________________________
Ethics is the study of right and wrong, good and bad (in the
moral sense), and better or worse solutions to human problems anddecisions. This introductory handbook is intended as a guide for the

Ethics is thestudy of rightand wrong.

dentist in the process of recognizing and making daily decisions about clinical ethicalbehavior. It addresses these two critical questions: How do you decide what’s right andwrong, and how do you get yourself to actually do the right thing?
1. How do you notice ethical issues?
2. How do you decide what’s right?
3. How do you get yourself to do the right thing?

Ethics also
concerns itself withquestions of more better and less bad. Sometimes ethics involves a choice between
two positive things or between two less desirable actions. This text uses the terms
7

“good” and “bad” in a moral sense rather than in a practical or preferential one. For
example, a decision to take back roads instead of the freeway is a typically a practicalone and the choice of raspberry ice cream over strawberry is a question of preferenceor taste. One could make a good decision or bad one, but these are not moral or
ethical questions.
While dental education necessarily tends to focus on technicalclinical tasks, ethics adds a crucial dimension. No dental decision orclinical action is strictly technical. The question of whether a clinical

There is no suchthing as a strictly
clinical decision.

action is correct always involves ethics. The distinction between these two types ofproblems (clinical-technical and ethical) will become clear as we go along; in fact part ofthe study of dental ethics is making this distinction more clear. For now, consider thatan ethical issue is a problem that involves questions of right and wrong and is not easily
solved by a technical clinical action (such as the use of a different material). Clinicaldecisions are informed by technical considerations, but as we will see, not fully
determined by them.
We are ethical beings, that is, most humans are by nature concerned with theeffect that our behavior has on other people. This text assumes thatyou are deeply interested in doing the right thing in your practice. If
you are uninterested in doing the right thing you will no doubt find thistext worthless, and perhaps you ought to find a different occupation.

This text
assumes thatyou areinterested indoing theright thing.

But a concern for others often results in ethical questioning, and it is
not always clear what we should do. Even when we are clear, we may find that others
disagree, or that our preferred solution is inconvenient or embarrassing.
Ethics can be taught and learned. Claims are sometimes naiively made that
ethics cannot be taught, or that students come to dental school more or less fully
formed as ethical beings. Some believe that a person's moral attitude is set at an early8age and does not change appreciably over the years, or that some people are just goodby nature while others are not. We often hear that if a certain level of moral behavior is
not attained by a young age then there is little that can be done. We believe otherwise,and empirical research and teaching experience support our belief. The study of dental
ethics can have a direct influence in the moral and professional development of thedentist. Studies have shown that moral development does indeed occur and is an
ongoing process throughout one's life. Plus, when you become a dentist, you will beconfronted with unique ethical problems that do not generally occur in normal day to
day interactions outside of dental practice. Being an ethical dental professional is acomplex skill that can be successfully taught and learned. Dental practice involves a
specific set of complicated moral questions and problems that anyone who has notattended dental school would be hard pressed to understand. Most dental students
arrive in school with moral values and views that were formed by families, communities,
and religious environments, but they have little exposure to the challenges they will
face in the clinic. As a result, they do not immediately think much about what counts asright and wrong clinical behavior. They rely on general rules and principles that are sointernalized they rarely give them a thought; they act spontaneously or rely on decisions
made by clinic faculty. Many dental students are shocked when they first facecomplicated issues on the clinic floor, and they find themselves at a loss to know what
to do. This is to be expected.
Dental students can learn specific components of clinical ethical decision-making
so that they can be prepared to deal with the complex and challenging ethical problems
they will face in clinic and later on in their career. Such learning will greatly enhancetheir practice, the treatments they provide, their careers, and how they feel about theirwork.
This text does not intend to teach you what you should think about your clinicalpractice. A recent magazine essay captures this point well:
9

“There’s a saying common in education circles: Don’t teachstudents what to think; teach them how to think. The idea goes back at
least as far as Socrates.”- Lukianoff & Haidt, 2015
Conversely, this text is not aimed at turning dental students into philosophers. It
is written to provide tools for moral decision-making in day-to-day clinical practice.
The study of dental ethics serves to supplement the general rules and principles
that students bring to the profession and asks such questions as:• What are the ethical issues facing me in this case? What issues lay
just below the surface?
• How do I decide between one action and another? How do I get to
the right answer?
• How do I make myself do the right thing, especially when it is difficult?
• Once I settle on the right thing to do and convince myself to do it, how
do I proceed and what do I say?
The role of health care provider involves a multitude of important
responsibilities. Dentists perform tasks that make a big difference in people’s lives, forbetter or for worse. They can help and they can hurt. It is essential to take these
responsibilities seriously, even though the right path is not always obvious or even easy
to find. Most dental students are eager to do the right thing and wary about making
mistakes. This text is written to provide a map for good, solid, ethical decision-making
in real life dental practice.
Here are some fundamental issues for anyone interested in dental ethics:
Who determines what counts as right or wrong behavior in the practice ofdentistry? This primer asserts that what counts as right or wrong behavior isdetermined by all of the people who hold an interest (“stakeholders”) in healthcare;10

providers, patients, and society. Professional codes of ethics such as those developedby the ADA, ACD and other professional societies are good places to start, and we willrefer to their collective wisdom during out discussion of specific issues. However,current codes of ethics developed by professional organizations lack any significant
input from patients and society at large and are therefor not definitive.
Another basic premise of this handbook is that ethical questions do, indeed, haveanswers. Too often we hear that ethics is a mere matter of personal opinion, that
ethical questions have no “correct” answers, and that no one can say for certain what adentist ought to do in a given clinical situation. We reject this thesis. Though ethicalquestions frequently require careful and nuanced consideration — and reasonablepeople often disagree — it is our position that reasonable people who have all theavailable relevant facts of a situation can and do come to conclusions about behavior
that is supported by a consensus. In the end, reasonable people can at least agree tonarrow down the correct answers to a very small number, and to reject other ones. In
these pages, we hope to make clear what principles, rules, and actions have been
generally accepted by years of scholarly thought, discussion, and clinical practice.
No text on ethics would be complete without at least a quick review of two basic
frameworks for moral reasoning, development, and decision-making.
Moral Judgment: Six Stages of Moral Reasoning
The best known description of the stages of moral reasoning is that of Lawrence
Kohlberg, who created a six-stage system that descibes progressive “levels” of moral
development. He observed that people grow from one stage to the next as they age.
He asserted that the stages follow one another and cannot be skipped. Not everyone
makes it to the “highest” level of moral development.

11

Stage One: Obedience and punishment. You are motivated and guided by adesire to stay out of “trouble.” An action is wrong because it is likely to get
you punished.
Stage Two: Pragmatic individual interest. You are guided to do things based onwhat you can get out of them. (“What’s in it for me?”).
Stage Three: Social approval. You do things so that others will approve of you
and like you. You strive to fit in.
Stage Four: Obey. You follow the rules and conform to the prevailing social
norms. (“Law and order,” respect the law and maintain order.).
Stage Five: Social contract. You are motivated to uphold your end of the social
bargain. If we all cooperate and behave well, we can count on each other, and
we all benefit. You do your part, and rely on others to do the same.
Stage Six: Internal moral values and conscience. You do the right thing simply
because you believe it is the right thing to do. You believe in “universal
principles,” and your actions may not always be popular or convenient.
Background information and readings can be found at summary of the stages andLawrence Kohlberg, and here. References are below.
Moral Reasoning and Action: Rest’s Four Components Model
The terms moral and ethical are sometimes used interchangeably. This text uses
the term “moral” to refer to the totality of one's moral existence and not just the
morality that applies to one's profession. We use the term “ethical” to refer to theunique (and more narrow) moral demands and behavior of a profession like dentistry.
James Rest (Rest & Narvaez, 1994) noted that there is more to morality than justjudgment, and he devised a system of the determinantsof moral behavior that includes four parts. It is called“The Four Components Model.” These are the generalcomponents of moral behavior.

Moral reasoning and action:• Moral Sensitivity• Moral Judgment• Moral Motivation• Moral Character
12Moral Sensitivity:
In order to take moral action one must first spot moral issues when they present
themselves. You cannot solve an ethical issue if you don’t notice it or view it as an“issue.” Moral sensitivity includes an awareness that our actions will impact others.
First year dental students cannot be expected to spot ethical issues in the clinic because
they do not have enough clinical experience to be able to anticipate things that might
happen in the future. In an ethical sense, they just don’t know what they are looking at
or what is liable to happen next. That said, simply getting more experience will notnecessarily result in ethical competence, but the formal study of ethics increases one's
ability to identify issues. Dental ethics classes are designed to accelerate your ability tospot issues in the clinic.
Moral Judgment:
Once you have recognized an ethical problem, you are confronted with a decision
about what to do. As mentioned, we often act spontaneously based upon theinternalized rules and principles we learned while growing up, or by our perception ofsocial norms. Beginners (appropriately) make decisions that imitate the behavior of
their teachers. These approaches lack an important ingredient: that of reflection andreasoning. A course or handbook in dental ethics offers guidance on effective reflection
and reasoning about ethical problems. A dentist ought to be able to give good reasonsfor his or her ethical behavior just as a dentist ought to be able to justify any diagnosis
or treatment decision. This handbook will offer a variety of reasoning methods toclarify and improve your ethical choices.
Moral Motivation:
If one has recognized an ethical issue and reasoned well to a good decision (theright thing to do), two questions still remain: Why do the right thing? and How do you
get yourself to do it? Make no mistake: Ethical action can be difficult, and sometimes
13embarrassing or costly. Good ethics can seem to get in the way of good money, forexample.
One essential motivation is a personal commitment to becoming a professional.
This text will examine the crucial question: What does it mean to be a professional, andwhy should you care?
Moral Character and Action:
Lastly, one might aspire to be a professional, become good at recognizing ethicalproblems, and learn to reason well about these problems, yet still fail to behave in an
ethical manner. You must implement your decision and put it into action. Knowing theright thing is not the same as effectively doing the right thing. Why is this so? It is often
difficult, awkward, and uncomfortable to implement the right decision, and there arepractical ways to accomplish effective ethical action. Such solutions typically involve
sophisticated communication. This skill, while not always easy, can be learned withthought, rehearsal, practice, and then reflection.
Some additional thoughts
Professional ethical decisions often (but not always) involve personal sacrifice.
There are actually several good, practical reasons to do the right thing. When you do
the right thing:• It tends to be good for other people.
• People like you better.
• It is a great practice builder.
• It tends to keep you out of “trouble.”

There aresmart, practicalreasons to do
the right thing.

• You feel better at the end of the day.

14

The downsides of good ethical action and practice are few, and they tend to be
temporary. Sometimes ethical action costs you money, as you might refund a fee or redo a treatment for no additional charge. Sometimes it can be embarrassing to admit a
mistake in practice or judgment. But these negatives aren’t long-lasting, while yourreputation is. The overall impact of a good decision tends to be positive over the long
haul.
Ultimately, development of the moral skills and resolve needed to act ethically is
up to each individual dentist. We hope to encourage commitment and aspiration. We
believe that reflection on professionalism and the benefits of high ethical behavior willlead to a deep sense of personal satisfaction in the admirable profession you havedecided to join. Wouldn’t you rather feel good about yourself and your work?
This text is written to provide basic background instruction for dental students,
and it is written for anyone desiring a fundamental understanding of the discipline ofapplied clinical dental ethics. You will not find it to be highly philosophical, although thebasics of moral philosophy are included as necessary. We hope that you will find it
readable, instructive, and useful as you begin your journey as a doctor and professionalin the healing arts.
References
Kohlberg, L. (1981) Essays on Moral Development: Vol. 1, The Philosophy of Moral
Development. San Francisco: Harper and Row.
Kohlberg, L. (1984) Essays on Moral Development: Vol. 2, The Psychology of Moral
Development. San Francisco: Harper and Row.
Lukianoff, G. & Haidt, J. (2015). The coddling of the American mind. The Atlantic, September.
(http://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-americanmind/399356/).
Rest, J. & Narva’ez, D. (1994). Moral Development in the Professions: Psychology and Applied
Ethics. Hillsdale, NJ: Lawrence Erlbaum.
15Chapter 1: Foundations and Theory
Peltier & Jenson(12/26/17)

1.1 The Nature of Dental Practice
1.2 Ethics, Law, and Risk Management
1.3 Professionalism and the Nature of Professions
Professionalism Checklist
1.4 Standard of Care and Scope of Practice
1.5 Ethical Sensitivity
1.6 Ethical Decision-Making: Essential Theories and Methods
The Publicity Test
The Driving Home Test
Decision Method #1: Principlism: The Principle-Based Method
The Principles
Decision Method #2: Utilitarian/Consequentialist
Decision Method #3: Values-Maximizing Method
Ozar’s Hierarchy
Decision Method #4: The Four Quadrant Approach
An Illustration of how to use the methods
1.7 Ethics in Dental School
1.8 Building Moral Capacity
References

16Key Concepts
 Several aspects of clinical dental practice make good ethics difficult.
 It’s important to understand the difference between Law, Risk Management, andEthics.
 “Professionalism” is an important, yet complex and poorly understood concept.
 Professionals take excellent care of people who do not understand (and cannot
evaluate) what they do.
 You must practice within the Standard of Care and your Scope of Practice.
 Standard of Care and Scope of Practice are complicated, poorly understoodconcepts.
 It is typically impossible to know, for certain, the standard of care in individual
clinical cases.
 There are two elements of Scope of Practice: the scope of dentistry in generaland your personal scope of competence.
 Four formal methods for ethical decision-making and two informal ones aredescribed in detail in this chapter.
 Dental students face ethical quandaries every day.

17

Section 1.1: The Nature of Dental Practice
Good, ethical practice is challenged by numerous realities of modern dental practice.

What follows are some important components of dental practice that can
influence your ethical decision-making. Dental school is difficult enough, but the actual
practice of dentistry is challenging in ways that directly and indirectly influence moral
behavior.
· Dentistry is generally hard and stressful.
· Dentistry is practiced in a competitive market arena.
Certain is
aspects· Dentistrya people business.
ofdentistry· Dentistry is service-oriented.
makearegood· Therealways three treatment options.
ethicsdifficult.
· Third-party payers (“insurance” plans) influence decision-making.
· You are always looking at other dentists’ work.
· You can always get sued.

Dental practice is hard, and it is stressful.
The practice of dentistry is difficult in several ways. On a very basic level it isphysically hard. The hours can be long, and the work can be damaging to one’s body.
The ranks of dentistry are riddled with those whose necks, backs, elbows, and ears havebeen ruined by the grind.
The work is interpersonally stressful. Patients fear the dental appointment.
Many have had traumatizing experiences in the past, some due to the behavior of otherdentists, some due to their own personal negligence, and some due to the nature ofdentition and the life process. Many patients perceive (falsely, of course) that you, theirdentist, should assume all the responsibility for their oral health. Some patients, in
response to powerful feelings of anxiety or loss of control, behave poorly or strangely in18

the operatory. Some act irresponsibly and miss appointments or show up late. Others
complain about the high cost. Many feel compelled to tell you how much they dislike
dentistry.
The management and leadership of a dental office is typically complex andchallenging. Team members don’t always behave perfectly, and staff turnover iscommon. Sometimes they don’t get along with each other. Some patients try to pit ortriangulate office staff against the dentist to get their way. Occasionally team members
triangulate patients against the doctor.
The work is hard from a business perspective. It is not always easy to make ends
meet, to bring in more money than you pay out, and to make a worthwhile amount of
profit. When you don’t have enough patients you don’t bring in enough revenue; when
you have more patients the work-load is higher and harder. In other words, dentists
can feel stressed when patients do show up and when they don’t. Dental practices arevery costly to run, and only the dentist can truly appreciate that particular stress. All of
this is made more challenging because dentistry is expensive relative to average
American incomes and to the cost of things that people routinely purchase. As an
example, a root-canal and crown can cost $3,000, an amount that’s roughly equivalent
to a school teacher’s after-tax income for an entire month.
Dentists traditionally value perfection. It is a standard taught in dental school
and advocated later, yet impossible to attain. Reconciling one’s actual practice against a
standard of perfection is stressful for many.
Dentistry is practiced in the context of a competitive, commercial, free-market
economic environment.
Dentistry in the United States is practiced mostly in the marketplace, meaningthat practitioners are compensated for their work in the context of a buyer-seller
exchange. Buyers and sellers compete, each striving to make their best “deal.” The19

arrangement works well in the everyday interactions found in stores, but creates
profound ethical challenges in the healthcare arena, mostly because patients cannot
effectively compete with doctors. Caveat emptor, or “buyer beware” is a defining
characteristic of the commercial marketplace, but it has no place in the doctor-patient
relationship. Instead, patients must trust doctors to look after their interests as well as
the doctor’s own interests. This important matter is examined in depth later in this text.
Dentistry is a people business.
Dental education tends to focus on the technical aspects of care, the preps, themargins, the occlusion, the anatomy, and the materials and procedures. Virtually all
dentists eventually become competent or expert in these aspects. But, interpersonal
interactions with patients and team members tend to be endlessly challenging. As
Sartre noted in his 1943 play Huis Clos (No Exit), “Hell is other people.”
Unlike physicians, dentists spend significant time with their patients. While an
M.D. might spend 12-15 minutes in a consultation, dentists sometimes spend anywherefrom thirty minutes to three hours with the same patient. Dentists also put their hands
and instruments to work on patients for long periods while patients are in a conscious,
aware, uncomfortable state; in most cases dentists do not have the luxury of putting
patients to “sleep” for long surgical procedures.
Dentistry is a service-oriented enterprise in healthcare.
The whole point of being a doctor is to provide service to others who need it,
cannot take care of it for themselves, and may not even comprehend it. This requires asomewhat selfless point of view as well as occasional self-sacrifice. One need notalways put patient needs ahead of one’s own, as this would eventually lead to burnout
or compassion fatigue; however, it is the defining feature of a professional to effectively
serve others.
20

There are always at least three treatment options.
While many patients expect their dentist to simply make a proper diagnosis andthen execute the proper treatment, it turns out that there are typically several
adequate options in every clinical situation, such as:
1. The optimal treatment (often the most expensive).

Three treatment
options:

2. Alternative treatments (including extractions) that are
acceptable and usually less expensive.

· Optimal tx· Alternatives· Do nothing

3. Doing nothing (patients always have this choice). The choice to do
nothing is rarely life-threatening in dentistry.
These options open the door to numerous complicated opportunities for ethicalchallenges when negotiating a treatment plan, especially when money is tight for thepatient or when dental (insurance) plans are involved in treatment decisions. Decisions
are often complicated by the fact that patients and dentists do not always share thesame values when it comes to dentition. It can be heartbreaking to extract a toothwhen better, more complex and costly options exist, but many patients simply do notvalue their teeth as the dentist does.
Third-party payers (“insurance”) play an important role, for better or worse.
Dental “insurance” is a wonderful and troublesome thing, both at the same time.
It is wonderful because it allows for the cost of dental care to be spread over large
numbers of people and long periods of time, subsidized by employers, so that carebecomes affordable when a patient needs it. However, it is unfortunate wheninsurance rules and cost-cutting measures interfere with good treatment decisions.
Dentists are regularly confronted with quandaries related to dental plan coverage oftreatments. Some patients have become “spoiled” by their medical plans, such thatthey do not feel that they should have to pay anything out of pocket for their care.
Dental insurance, unlike medical insurance, rarely covers all needed treatment. Some21

patients will consent only to treatments that their plan will cover, while others fully
expect their dentist to routinely waive co-payments, which is illegal. Occasionally a plan
will only pay for a treatment that seems inferior.
You are constantly looking at another dentist’s work.
This might not sound like a very big deal, but it can be difficult to know what to
do when you see treatments (or lack of treatment) that seem bad or dangerous. Oftenpatients do not even know that anything is wrong, and they really must be informed. As
you will learn later in this text, you have a duty to inform patients about the “current
status of their oral health.” You must tell them what you see. But, you really don’tknow how it happened, how they ended up with something inadequate or evendangerous in their mouth. So, you must restrain yourself and avoid criticizing otherpractitioners or even speculating much about the situation. This is not always an easy
discussion, and patient reactions vary significantly. Sometimes they are glad that you
told them, sometimes they get annoyed or angry or even suspicious. They are often
confused. Sometimes they might try to recruit you in a blame game that might result in
litigation.
You can always get sued.
The following question inevitably comes up in discussions ofcases involving dental ethics: “Could I get sued…?” The answer in

You canalways get
sued.

every case is: Yes. Health care providers can always be sued. This does not mean thatyou will lose that lawsuit, but it will no doubt cause you some distress. Fear of lawsuits
is a sad component of the American healthcare scene. The upside of suits is thatpatients have some recourse when doctors have done them wrong, made an error, or
mistreated them. Lawsuits do have a way of keeping providers “honest,” but this aspectof the doctor-patient relationship comes with significant negative side-effects.
22Sometimes dentists are victims of specious legal actions. The most pervasive side-effecthowever, is that risk management sometimes takes center stage in patient care.
Discussions of ethics aimed at determining right action get washed away by the specterof a lawsuit. This can cause people to take actions that are aimed at self-protection
rather than the best interests of the patient. This is certainly an ethical problem.
“One of the worst professional or ethical violations is that ofpermitting current risk-management principles to take precedence overhuman interventions.”- Arnold Lazarus, 1994

Ethical practice takes courage, and the most conservative, risk-averse action is
not always the right way to practice. Dental practice involves risk. In the end, there isno certain way around that. The best defense is to practice competently andconscientiously at all times, take good care of patients, have prudent practicemanagement policies, have a thorough understanding of the law and associated rules ofconduct, keep diligent records, always strive for clear informed consent, and maintain
viable malpractice insurance. Sometimes the best defense is to simply say no anddecline to treat a patient. Even then, there are no guarantees that a suit will never be
brought against you.
Sometimes dentists (and healthcare providers in general) respond to this reality
by becoming overly defensive, by viewing patients as threats, and by withdrawing fromall conceivable risks. This can surely result in unethical behavior and poor care and, as
we will see later in this text, it does not tend to keep patient needs in the forefront of
one’s practice. Thus, the role of being a “doctor” requires courage.

23

Section 1.2: Ethics, Law, and Risk Management
Ethics, law, and risk management have differing purposes and goals. Eachis important. It is useful to understand the relationship between them.
Basic definitions are a good place to begin a study of professional ethics. Whendentists and students discuss cases and the matter of ethics comes up, the discussion
often goes into the weeds because discussants do not have a clear framework toorganize their ideas and assertions. This chapter is written to define, organize, andclarify the difference between law, ethics, and risk management in dental practice.
This text focuses on right and wrong behavior in your role as a dentist.
Discerning right from wrong may seem simple at first. However, "right" and "wrong"
are terms that mean different things in different contexts. Consider, for instance, yourchoice of material to be used for a restorative procedure. Choosing the wrong material
in clinical situation might be said to be "wrong" in a technical sense: you should have
known that it would not work well given the clinical circumstances. However, it may
not be "wrong" under the law, and it may not be "wrong" in the ethical sense either. An
action could also be technically correct, but ethically wrong (e.g., putting a perfectcrown on a tooth that did not need a crown). This section will help
make these distinctions clear.
Laws are written by legislators, to create formal rules to constrain
the behavior of practitioners, mostly with a goal of patient safety. As a

Laws
represent thelowest levelof expectedbehavior.

practitioner you obviously have a responsibility to know the law and to practice within
it. These laws form the lowest standard of behavior expected of dentists, hygienists,
assistants, and other providers. If you think about it, they are mostly written forpractitioners who need clear, strict guidance so that they do not do things that will hurtor cheat patients. They are written for the least ethical members of the profession, andmany dentists hardly need to pay much attention to laws because their professional
24

standards are generally much higher than laws dictate. The state is most interested inprotecting the public from people who are not qualified to practice dentistry, who aredishonest, incompetent, or impaired. Everyone needs to be aware of the law, but it isunwise to focus your practice on just meeting legal standards and staying out of trouble.
It is an unsatisfying and often unprofitable way to practice.
Dental law is promulgated in a document called “The Dental Practice Act.” Eachstate has its own Act that is written by experts and government administrators andpublished by the state dental board. Dental law varies somewhat from state to state.
Dental Practice Acts are typically full of bureaucratic language that non-lawyers andregular people cannot readily understand. They contain pages andpages of administrative details, but in the end, the law asserts this:You must practice within the Standard of Care and within your Scopeof Practice. Those two concepts are complex and important, and they
are discussed in detail in the pages ahead. Dental Practice Acts do

You must
practice within
the Standardof Care andyour Scope ofPractice.

relatively little to define clinical standards. Dental law rarely gives specific direction on
how to practice dentistry day-to-day. Legislatures and courts give the profession wide
latitude in deciding for itself how dentistry is to be taught and practiced. You will notfind clinical standards or the ethics of the profession in the Dental Practice Act, nor will
you find the standard of care that determines what constitutes dental malpractice. Thisis good news for dentistry, as it allows the profession to determine these things for itself
for the most part.
Dental malpractice is closely related to law. While both are part of the legal
landscape, dental law is concerned with crimes, penalties, and sanctions imposed by thestate, while dental malpractice is concerned with civil actions (lawsuits brought by
patients). You can commit malpractice without losing your license, and you can commit

25

a crime under the dental practice act without being sued for malpractice. Sometimes
both happen at the same time.
Risk management is an important concept that focuseson the well-being and security of one’s dental practice andlicense. Doctors manage risk so that they (themselves) are safe.
It has little to do with patient well-being, except as it impacts

Risk Management
focuses onprotecting thedentist from harm.

one’s practice. Risk management is about staying out of trouble,
avoiding lawsuits, and maintaining one’s license to continue to practice. This isextremely important, and worth attending to. That said, risk management is not thesame as ethics, and sometimes dentists, when faced with an ethical quandary, focus
first on self-protection. Such a focus can start an ethics discussion off on a wrong track,
where patient well-being takes a back seat. For example, when a student asks how tohandle a complicated clinical-ethical situation, many faculty members answer with theold saw: “Document, document, document.” While good documentation is extremely
important, it is usually not the answer to a question of ethics. This bit of faculty advice— while worthy on its face — is prescribed to protect practitioners from patients andlawyers, and not necessarily to help the patient. If the discussion stops there, ethics
never even gets consideration.
Taken to an extreme, the surest method to minimize risk would be to decline totreat patients at all (except in a medical emergency). That makes no sense.
Ethics is about right and wrong; good and bad; and better orworse. It is about the task of discerning the best, right action andthen taking it. Laws and ethics inform each other and are generally

Ethics isabout rightand wrong.

aligned. Laws, at their best, are a codified version of what the community perceives tobe fair and safe, and one’s ethics typically represent a higher standard than what law

26prescribes. Ethics tend to be aspirational, representing a view of how one would like tobe when they are at their best.
Practicing within the law and avoiding malpractice suits does not make one an
ethical dentist. This concept is one of the most difficult to understand. Many dentists
believe that if they practice within the law and do not damage a patient throughnegligence, they have met their professional obligations. Nothing could be farther fromthe truth. Dentistry is a profession (a term to be defined and discussed later), and those
who become part of the profession agree to abide by its obligations. There are
significant obligations owed by professions in addition to those stipulated by law.
Abiding by the law that governs the practice of dentistry is the absolute minimum
behavioral requirement for dentists. It is possible to do something that is perfectlylegal, but ethically questionable.
Consider this example: you can get your patient to follow your treatment
recommendation by deceiving or coercing them.
This action is not specifically illegal according to the dental practice act andunless your care is negligent and the outcome a bad one, it is not grounds formalpractice. Nonetheless, lying to patients or shading the truth for such a reason istypically considered to be unethical. Along the same lines, it is often possible toconvince patients to consent to treatments that, while perfectly legal, are treatmentsthat are not best for them.
Unlike the situation in dental law, there are usually no sanctions against you forpracticing unethically. That’s mostly true, but if you belong to a professionalorganization such as the American Dental Society, you could lose your membership due
to unethical behavior. As mentioned earlier, legislatures, courts, and society allow thedental profession to be self-regulating; they expect that as a professional you will not27

only practice ethically yourself, but you will take action when other dental professionals
are acting poorly.
This entire text is intended to help you understand exactly what your ethicalobligations are and what is expected of you as a professional.

Section 1.3: Professionalism and the Nature of Professions
Professionalism and the term “professional” are of extreme importance todentistry, yet the concepts are poorly defined and often misused. Clear thinking
about these abstractions is essential to your development and identity.
Every student of the healing arts hears the term “Professional” frequently
throughout their schooling. The sheer number of times you hear it begins to wear on
you soon after matriculation, and problems with the term are magnified by the way thatdifferent authority figures use the word. It’s difficult to know what your professors andmentors actually mean when they urge you to be professional. In fact, it’s entirely
possible that they don’t really know what they mean when they say it. Often the term isused to nudge you to “straighten up,” to work harder, to prepare better, to be on time,
to look neater or more formal, to wear your name badge, and to improve your manners.
These are all good things, but it’s confusing to use the term “professional” tocommunicate them. And it cheapens a very important concept.
The term “professional” and the idea of a profession have a long and interesting
history. Dentistry was not always a profession, and its roots were in the trades.
Historically, craftspeople such as carpenters, electricians, and printers were considered“tradesmen.” Trades people formed unions and guilds which tended to look (only) after
the interest of their members, in a structured way.
Doctors, lawyers, psychologists, and accountants are considered professionals
and are members of a profession. While some of the distinctions are a bit arbitrary and28even self-serving, there is a way to view professions that is of great value. What follows
is a definition and description of the concept of “professional” that should be useful inyour career.
First, clear your mind of all the things you’ve been told about being professional,
especially those things related to manners and dress. This definition has little to do withwhether you wear a tie or appropriate blouse.
The key idea is this: As a professional, people (patients) who are in a vulnerable
position can count on you to serve them well. Your patients do

Patients must

not understand their dental situation in any deep way, and must

trust

rely on you to take care of them. In fact, they must trust you totell them what they need to know, and to do an excellent job.

professionals totake good careof them.

When that job is done, they have no effective way to evaluate what you did, so theymust assume you did the right thing. This differences in the power and informational
dynamics of the relationship are what makes it unique and makes professional behavior
so important.
There are five components of this definition.
Component one. Professionals possess an important and exclusive
expertise. This expertise is relatively rare and hard to come by. Dental
school is difficult, long, and expensive, and few people possess a DDS or

Importantandexclusive
expertise.

DMD. By the time you have a few years of practice experience under your belt you will
possess a high level of competence and you will use special instruments and equipmentthat are not available to the public. Your skills are of extreme importance to thecommunity, and patients become acutely aware of your importance when they have atoothache. They are not aware of the range of devastating things that can happen to
their oral cavity and the potential dangers involved in your treatments (including
possible death). Professionals refrain from taking advantage of their status and do not29hustle the public or make claims that cannot be substantiated. This would be relatively
easy to do, but tends to diminish public trust and jeopardize public health.
Your special expertise and status constitute a monopoly for all intents andpurposes. Only dentists (or other licensed care-givers) can provide dental care.
Unlicensed dentistry is against the law. Patients cannot restore their own teeth. They
occasionally extract a tooth using pliers in the garage, but that’s obviously a terrible
idea. Patients need you, with your special skills and instruments.
Component two. You practice autonomously. No one

Autonomous
practice.

outside of dentistry tells dentists how to practice. There are, of course, laws written bylegislators that constrain dentistry, but those laws essentially require that you practicewithin the standard of care and within your scope of practice. Those two essential
concepts are described later, and they are defined by dentists, not legislators or
bureaucrats.
Professional autonomy is attractive, and you may, in fact, have picked a career indentistry because of the autonomy that dentists enjoy in practice. There are hundredsof examples of your professional autonomy. You can choose what treatments toprovide, you can decide whether you will perform root canals or orthodontics, and you
can add treatments (such as implants) to your repertoire by enhancing your skill set.
Once you have learned how to perform a new treatment, you get to decide when you
are ready to perform it on a real patient in actual practice. You don’t have to check withanybody, and the public must trust your judgment. You can decide whether to practiceon weekends, you can decide who you want to treat, and you decide what you will
charge for your services.
Component three. In exchange for your autonomy you havean obligation to be competent and trustworthy. A professional has
mastered his or her skills, and they continue to sharpen and develop

Competent(excellent) andtrustworthy.

30

those skills and judgment throughout their career. This is something of a “social
contract.” If the public is going to trust you, you must be trustworthy. It’s a kind of an
exchange, although most people don’t think of it very often. Doctors are granted
autonomy as long as they perform an important social good on behalf of patients andthe public. This social good probably includes some responsibility for the dental care of
all the public, and that challenge will be explored in a subsequent chapter. If dentists
were to lose the trust of the public, legislators and lawyers might create restrictive laws
and rules. OSHA regulations are an example. Dentists usually do not like these
constraints.
Component four. Professions create structure for themselvesin the form of professional organizations such as the American Dental
Association. Dentists formally organize themselves to ensure that

Professionals
organize toself-manage.

members are trustworthy. Professionals manage the behavior of other practitioners onbehalf of the public. When they become aware of poor or dangerous behavior of acolleague they find a way to remedy the situation. They self-regulate on behalf of the
public interest, partly because the public cannot do this effectively (they can’t
understand what you do). This self-regulation serves to protect your professional
autonomy, reducing the essential role of government in regulation of the activities ofthe profession, and allows members to take charge of the evolution of the field.
Professional organizations serve to manage the behavior of members, and to enhancethe expertise of practitioners. Professionals are in a far better position to make rules foreach other, as they understand things from the perspective of an insider, and they havethe interests of practitioners as well as patients in mind. They have a more nuanced
view of the situation than legislators typically possess. In addition to providing structureand education, professional organizations also create and reinforce norms for the
profession. Professional organizations publish written codes to express those norms for
all to see, and members strive to adhere to the codes.
31Component five: Doctors sacrifice for the patient’s best interest.
While it is not necessary to put your patient’s interests ahead of your own at all
times, a professional dentist must occasionally be willing to make sacrifices of theirpersonal interests in order to serve their patients properly.
For example, dentists must accept:

Professionals
prioritize
patient needs.

• Greater than normal health risks: Patient care frequently requires one totreat patients with infectious diseases. Denying a patient care due thepatient’s infectious status would be unprofessional in all but rare cases.
• Greater than normal legal risks: every patient encounter could potentiallybecome a malpractice suit. Denying a patient care oraltering a treatment plan to avoid legal risk isgenerally unprofessional behavior.

Professionals
endure risks
and discomfort.

• Greater than normal financial risks: the business of dentistry is not the same
as commercial businesses. Denying a patient appropriate care based on thepatient’s financial situation can be unprofessional. You have duties to yourpatient’s health that are somewhat independent of their payments. The
health and well-being of the patient are central; money is important, but
secondary. This concept is discussed in more detail later in this text.
• Greater than normal inconvenience and personal discomfort: Patient needs
do not always occur during business hours and often require unanticipatedextra time to resolve. Dentistry is physically, emotionally, and mentallychallenging work. Achieving excellence in treatment often takes a toll on adentist’s body.
• Some level of uncooperative patient behavior: denying a patient care solely
due the patient’s uncooperative behavior would be unprofessional in some32

cases. Many patients are lovely people who manifest their fear of dentistryby behaving poorly.
_______________________

There are other qualities that contribute to the concept of professionalism. A
true professional can be counted on in several related dimensions.
• Professionals have mastered their skills, and continue to sharpen and develop
those skills throughout their career.
• Professionals possess a service orientation. They focus primarily on the service
they can provide the public, and they tend to make a good living by doing this.
The health and well-being of the patient are central; money is important, but
secondary to service. (This does not necessarily mean that professionals must
put patient needs ahead of their own at all times, but some self-sacrifice isrequired from time to time).
• Professionals manage the behavior of fellow practitioners on behalf of the
public. When they become aware of poor or dangerous behavior of a colleague
they find a way to remedy the situation.
• Professionals refrain from taking advantage of their status and do not hustle thepublic or make claims that cannot be substantiated. This would be relatively
easy to do, but tends to diminish public trust and jeopardize public health.
Manners and Attire. The way you dress and the way that you treat others is obviously
salient in any discussion of professionalism. Most important is theway that you treat patients and behave around them. Because
patients are the point of the entire professional enterprise, they are
to be treated with the utmost respect. This is true even when they
do not behave ideally, when they are “difficult” or challenging toYourappearance
and behavior
shouldengendertrust and
respect.

you, and especially when they do not understand your care,methods, or treatments.

33

True professionalism requires that health care practitioners befully present when interacting with patients, and not allow themselves
to be distracted by the infinite number of other things there are to

Be fully
present

think about. Professionalism includes a respect for your patients’ time and attention,and you shouldn’t keep them waiting unnecessarily. Your language must be
understandable and respectful, and your attire should communicate conscientious
attention to detail and meticulous cleanliness. The particular clothing or haircut fashion
you choose is your business, but it certainly ought not offend or put your patients off.
The way that you look and behave influences the way that patients decide to trust
you—or not. When they trust you, they can feel safe and can relax and participate
effectively in treatment.
Identity. It is ideal when dental students and young dentists
adopt the identity of a professional. This means that you

Adopt the identityof a professional.

invest in your career in ways that are personal, and that youcome to view your profession as an essential, cherished part of who you are. You don’t
just “do” dentistry; you are a dentist, and you feel a deep sense of pride and joy about
that. A high level of “professional” behavior becomes normal and natural for you. Your
“work” becomes less onerous and more joyful, and care of patients is viewed as a duty
that you feel privileged to discharge. Eventually, it becomes difficult to even think ofyourself detached from your sense of being a doctor. It’s part of who you are.

34

Review: Quick Summary Checklist on Professionalism

A professional: Provides a service that is difficult to learn, involving a skill-set that requires
extensive formal education and training. Few people possess the necessary
skills and knowledge.
 Has mastered the skills. Has a deep understanding of the area of expertise,and can be counted on to deliver services at a consistently high level, evenwhen conditions vary from standard situations.
 Performs activities that are important (they may involve life-threatening or
life-saving situations, or situations that are irreversible and non-trivial).
 Performs services for people who are in a vulnerable position. Dentistry
involves a fiduciary relationship wherein a person must trust a professional.
The patient cannot adequately evaluate the situation or the actions of theprofessional. The person receiving the services is not able to direct theprovider. As a result, the provider must be trustworthy.
 Has a monopoly. People outside of the profession are not permitted toperform these services or activities.
 Makes sacrifices for the benefit of patients. Service to others is central tothe identity of the person and the group (the “profession”). Health andwell-being of the client or patient are central; money is important, but
secondary. (This does not necessarily mean that professionals must put

35

patient needs ahead of their own at all times, but such self-sacrifice isrequired from time to time).
 Belongs to a group of people who formally organize themselves to maintainhigh standards, self-regulate on behalf of the public interest, and maintaina service orientation. This serves to protect professional autonomy,
reducing the essential role of government in regulation of the activities ofthe profession and allows members to take charge of the evolution of the
field.

36

Section 1.4: Standard of Care and Scope of PracticeTwo foundational concepts − standard of care and scope of practice −describe and limit the clinical treatments and activities of dentistry. They arevery important, yet somewhat difficult to define.
While these concepts are essentially legal in nature, they are so fundamental thatstudents must understand them in order to practice ethically.
In every patient encounter, you are confronted by a variety of questions about
what to do. There are technical questions about the right tests and radiographs toorder, the right way to examine the patient, the right way to arrive at a diagnosis, theright way to select therapy that will help the patient, and also questions about what you
are legally allowed to do. These questions are best answered by reference to empiricalresearch and accepted practices and the law. But there are also non-technicalquestions that will determine how you treat patients correctly. These questions involve
ethics, psychology, and communication, and are not easily answered by referring to thedental research literature, accepted practice, and the law.
Dental Practice Acts and Codes of Ethics are essential guides toclinical practice, but they are not always very helpful, as they tend to be

The Dental
Practice Act
is not very
helpful.

vague and offer only guidelines. They almost never answer the following
clinical questions: “What should I do now?” or “What is the correct treatment in thiscase?” or even “What material should I use?” This problem highlights the importanceof ethical decision skills. When laws and codes are vague or insufficient, ethical tools
can fill the gaps.
Most of the answers to these questions are based on patient characteristics andtechnical options, and there are always options. Nonetheless, anything you do for apatient must align with the standard of care and must be within your scope of practice37and competence. This chapter will define both of those concepts and briefly describe
some complications. A more detailed discussion can be found in the essay, “Standard ofCare” by Curley & Peltier (2013).
Standard of Care
Healthcare rules and dental law require that you practice “within the standard ofcare.” In order to meet legal standards of negligence andmalpractice attorneys must show that the behavior of the clinician
was not within the standard of care. Practicing below the standard

Standard of Careis an essential but
difficult concept tounderstand.

of care is considered negligence because it puts patients at risk forharm and will play an important role in deciding whether or not malpractice has
occurred. This obviously means that you must know what the standard of care is at all
times. If you don’t know the standard of care, you must figure it out before you executea treatment.
It is hard to imagine a concept in health care more important thanstandard of care. Virtually every clinical decision must conform to thatstandard. It seems strange, then, that there is so much confusion andmisconception about the concept. This confusion is rarely articulated.
- Curley & Peltier, 2013, p. 53
Standards of care delineate the dental procedures and techniques that are least
likely to harm patients and most likely to help them. These standards are in most cases
rather well established, and should be known by any well-educated and up-to date
practitioner. In some specific cases the standard of care is not clear and can only be
determined by evidence and testimony by experts in the field, usually in a court of law.
In still other cases, there may be no standard of care because there is not enoughevidence to establish one. Nonetheless, the burden is on the dentist to determine what
the standard of care is and whether or not he or she is practicing within that standard.
38

The dentist cannot simply look to legal statutes to determine the standard of carebecause legislatures, in general, do not determine the nature of clinical care; they leavethis up to the profession. It is important to note that the standard of care is not written
down in any one single place. You cannot find a website thatdefines it. Furthermore, the standard of care is dynamic. It’schanging all the time. As new materials, techniques, andThe Standardof Care evolves
over time.

equipment evolve, so do the standards. It’s a moving target and practitioners have tokeep up.
Dental students are confronted with the following koan:
1. You must always practice within the standard of care.
2. (Therefore) you must know the standard of care.
3. There is no single place where you can go to look up the standard of care.
4. It is typically not possible to know, for certain, the standard of care in thecase facing you in your operatory.
We can extend the confusion by adding that various experts and veterans do notalways agree on the standard of care in many clinical situations. To make things worse,
egos get involved, and clinicians sometimes cling to their own preferences as if they
were dogma.
The simple answer. If you call an attorney (who specializes in healthcare) he or
she will tell you that the standard of care is:“The level of care that a reasonably prudent dentist would exercise under thesame or similar circumstances, time, and location.” (Curley & Peltier, 2013).

39

This definition is brief, legal, and actually pretty vague, but it is used all the time.
You will be held to this standard if you end up in court. This definition
implies that you could get a pretty good idea about the standard ofcare if you asked several competent, well-informed, reasonably

The Standardof Care is aessentially agroup opinion.

prudent colleagues.
The more complete picture. While there is no perfect single place where you
can find the answer to the question, “What should I do?” there are obviously manysources to turn to. The chart below shows you most of them.

These are sources that contribute to the standard of care. Some of them (such asprofessional organizations) often think that they define the standard, but they do not.
They contribute in important ways. In actual fact, unless a similar case or situation has
been litigated or regulated, the opinion of professional organizations is just that − anopinion (Curley & Peltier, 2013, p. 56).
40

Happily, it is not up to lawyers or legislators to determine the standard of care for
dentistry. Because of the professional autonomy that dentists enjoy, dentists generally
determine the standard of care in dentistry. While there are a few clear exceptions(HIPAA and some government regulations) the standard gets articulated (only) when
adjudicated in court. In legal cases (when a patient sues a dentist) each side recruits thebest expert they can afford (usually a dentist or a scientist or both), and the experts
opine about theirview of the clinical or
technical standard of

Two situations where you know the SOC for certain:
1. When law defines it explicitly (rare).
2. When a court renders a decision on a specific case (also rare).

care that should havebeen rendered in the case at hand. Then a judge or jury deliberates and decides which
expert was most compelling. That opinion becomes the standard of care for situations
exactly like the one in court, and everyone else watches from the sidelines to figure out
what that legal opinion might mean if they ended up in court in a similar case. This theninforms us of what the standard of care is likely to be in our own clinical situations.
Best Practices. “Best practices” delineate the dental procedures and techniquesthat experts feel are most likely to be effective in helping patients; these are also
determined by research and experience, and are often published in professional
journals. As with standards of care, there are many procedures and techniques thathave been well established as best practices, and other situations that have not yet
been determined to have a best practice. Often best practices are evolving and intransition. It is up to the dentist to be up to date on best practices for any procedure heor she performs. In the absence of evidence for a best practice, a dentist may choose aprocedure or technique that is within the standard of care and has produced goodresults in her or his clinical experience.
In specific clinical cases one may not know the standard of care, so doctors mustpractice based upon their best educated guess of what that might be. This guess is41

called “clinical judgment.” The clinical judgment of a beginner is obviously not as welldeveloped as that of a veteran, so beginners must regularly seek consultation.
There are many different ways to practice dentistry that are within the standardof care. For example, the selection of impression materials and techniques includes
dozens of formulations and technologies. There is wide latitude within the profession
on what procedures and techniques a dentist may use to achieve an outcome and every
dentist has the right to personal preferences when there is no clear consensus on which
procedure or techniques is most effective. The law and the dental profession could not
possibly stipulate every critical technical decision a dentist must make in their treatmentof patients, so a dentist has a general, broad authority to determine how best to
manage any procedure she or he might attempt.
The bottom line. Except when clear regulations exist, there is no way to know
the standard of care for certain ahead of time. Your best bet is:
1. Check to see if a government regulation exists that might cover your clinicalsituation. This is usually not the case.
2. Ask smart colleagues or experts what they would do. Find out what they
think the best treatment or decision would be. Stay connected to yourcolleagues.
3. Read available practice guidelines found in your professional journals. Staycurrent.
4. Take continuing education seriously. You must take a certain amount of CE
courses each licensing cycle. Use those courses to maintain and upgrade
your skills and judgment.
5. Practice as you were taught in dental school.

42

6. Do what is in the best interest of your patient. Keep this in mind at all
times.
Some important things to keep in mind about the standard of care:• Standards do not really vary from community to community (even though many
people think that they do, and actual practices may vary). Today, with easy
access to the same information, all dentists who practice within the UnitedStates can be expected to be held to the same standard of care. Rural dentists
can access the latest innovations and practices using the internet. They caneven get online case consultations from experts at dental schools anduniversities.
• Standards do not vary from generalist to specialists. If you are a practicing
general dentist and are performing a specialty procedure, you will be held to thesame standard that a specialist would. If you don’t think that you can do a root
canal to the standard that endodontists feel is acceptable, refer to someone
who can.
• Standards are not simply determined by what everyone else is doing. If many
dentists are practicing below the standard of care, this does not imply a low
standard. While there is some safety in running with the herd, don’t pick thewrong herd, and be sure to think for yourself. You, alone, are responsible forthe treatments you attempt and provide. (Remember: best interest of thepatient).
• Standards are not determined by the newest technologies. Dentists are allowed
to use traditional methods that produce good results in their hands regardless ofwhat the majority of dentists do. Older technologies often prove to be equal toor better than the newer ones.
43

Ongoing engagement with professional colleagues is a powerful and important
way to stay current with the standard of care. This implies that it is a good idea tomaintain membership in various professional organizations, to attend meetings, and to
take continuing education courses very seriously.
Conclusion. Here is another serviceable definition for the ethical standard ofcare in dentistry: the conscientious application of up-to date knowledge, competentskill, and reasoned judgment in the best interest of the patient, honoring the autonomyof the patient.
To be within the ethical standard of care, the practitioner need only ask, “Am I up
to date in my knowledge of the procedure, sufficiently experienced in the procedure,
and making the best interest of the patient central while respecting the patient’s
autonomy, then acting accordingly?” This is what we mean bybeing conscientious.
Acting below the ethical standard of care implies that one

Was what I did
good for thepatient?

never considered these questions at all or is acting contrary to one’s honest answers tothem. Regardless of outcome, the question is always: Did I act conscientiously? Was
what I did good for the patient?
Scope of Practice
Scope of practice, while just as important as standardof care, is less difficult to define but still subjective. It defines
what a practitioner can and cannot do, based upon their

Scope of Practicedetermines what one
can and cannot dowith a DDS license.

license, training, competence, and experience. Scope of practice dictates and limits
what techniques you can use, what pathologies you can treat, and what procedures you
are allowed to perform. As a simple example of this concept, a dental license authorizes
you to restore teeth but not perform knee surgery. Unlike the standard of care, many44

regulations define the exact nature of the scope of practice, and dentists must practicewithin that scope.
The actual scope of practice of dentistry is defined by eachstate’s Dental Practice Act. The American Dental Associationencourages states to use the following definition:

Legaldefinitionsof Scope ofPractice.

Dentistry is the evaluation, diagnosis, prevention and/or
treatment (nonsurgical, surgical or related procedures) of diseases, disorders and/or
conditions of the oral cavity, maxillofacial area and/or the adjacent and associatedstructures and their impact on the human body; provided by a dentist, within the scopeof his/her education, training and experience, in accordance with the ethics of theprofession and applicable law.
California’s Dental Practice Act defines the practice of dentistry as:…the diagnosis or treatment, by surgery or other method, of diseases andlesions and the correction of malpositions of the human teeth, alveolar process,gums, jaws, or associated structures; and such diagnosis or treatment may include
all necessary related procedures as well as the use of drugs, anesthetic agents andphysical evaluation.
- Section 1625 of the California Business and Professions CodeDefinitions like this are intentionally broad because the state stipulates particular
procedures only in limited circumstances. For example, in California, a dentist may notprovide general anesthesia for treatment without special training and licensure. In
general, state legislatures prefer to leave the fine-grained determination of dental careup to the profession. The definition of dental practice, as stated above, does make it
clear that a dentist cannot provide care that is not directly related to the oral cavity andassociated structures. For example, breast exams are not allowed, nor is the diagnosis
and treatment of diabetes or hypertension, but acupuncture and hypnosis are allowed
as long as the goal of treatment is related to oral health. Each state has its own laws

45relating to dental practice and may define dentistry differently. It is your responsibility
to know the local law in the state where you practice.
Dental practice laws also stipulate what people under your supervision may andmay not do based on their training and experience. These stipulated procedures aremuch more detailed than they are for the dentist, and as an employer you are legally
responsible for the actions of your employees or anyone else you directly supervise. For
example, your dental assistant may take radiographs only if he or she has had theproper training and certification to do so.
There are two components of scope of practice.
1. There is a scope of practice that is defined byyour license as a dentist (or hygienist or registered

Two kinds of Scope:· what your license allows.
· what you are personallycompetent to practice.

dental assistant). This scope is quite broad, and it allows
licensed dentists to perform a very wide range of activities related to the oral cavity(and sometimes outside of that space). It permits the use of hypnosis and acupuncture,for example.
2. There is also a more limited version of the scope of practice based upon eachpractitioner’s personal and professional training, experience, and competence. Just
because a treatment or procedure is within the scope of dentistry, it is not
automatically within your scope of practice. One must be personally competent toperform that procedure in order for it to be within his or her scope of practice. Thisversion is often referred to as “Scope of Competence.” Obviously, one’s scope ofcompetence is virtually always more narrow than the larger generic scope of practice ofdentistry.

46

So, while implants or surgical extractions are within the scope of practice of dentistry,
they are not within your personal scope unless you are fully trained and competent inthose procedures.
Another example of the importance of professional autonomy of dentists is this:dentists determine whether they (themselves) are competent to perform procedures.
Though the law may allow a dentist to perform a variety of procedures, the dentist must
decide if he or she has the competency to do so. The public trusts you to carefully
decide whether you are ready to take on a new procedure in your practice, as well as
when you should stop performing procedures that you may no longer be competent toperform. While this trust results in a great benefit for dentists, it incurs a great
responsibility. Patients must rely on your integrity, especially when financial incentives
nudge you to push the envelope. There are typically no tests or certificates or board
exams required when one acquires a new skill set or sophisticated new piece ofequipment.

47

Once you have obtained a license to practice general dentistry, you are legallypermitted to practice all procedures within dentistry with few exceptions. You areallowed to practice oral surgery, orthodontics, endodontics, implantology andeverything that is within the definition of dentistry. However, it is very unlikely that you
will have the training and experience in each of these areas that would allow you topractice them within the standard of care upon graduation. As mentioned earlier, youwill be held to the same standard in any specialty work you perform. You must judge
for yourself whether or not you have the training and experience and skill to performthe intended procedure. If you would like to expand your personal scope ofcompetency, it is your responsibility to obtain sufficient training and experience before
performing the new procedure. For example, it would be unrealistic to expect that a
weekend course in orthodontics would allow you to competently practice orthodontics
within the standard of care of a specialist who has two to three years of focused,advanced residency training.
Another factor in determining your personal scope of competency is less aboutpast training and experience and more about your current physical and mental
condition. If you are overly tired, physically ill, depressed, distracted, visually or
chemically impaired, or have any other condition that limits your ability (and therefore
your competency) you should reconsider moving ahead
with a procedure.
It is a good thing for dentists to continue to enlarge

You can (and certainly
should) grow your skills to
expand your personal scopeof competence over time.

their personal scope of competence and therefore, their scope of practice, but it ischallenging to determine when you are “ready” to perform a new procedure for the firsttime in practice, especially when there is money to be made by doing so. These
decisions pose ethical questions, to be sure. It is often prudent to recruit an informal
supervisor or colleague to help you decide when you are “ready.”48

Board Certification. Many dental specialists pursue further training andexamination that qualifies them to be "board certified" in their specialty. Thiscertification process is important for the advancement of the specialty, but it is not alegal distinction, and is not required. It does not bestow upon a dentist any additional
legal rights. Board certification is voluntary, and boards are independent fromgovernment. One may practice a dental specialty without board certification. Patients
rarely understand the implications of board certification. Each healthcare profession
has a different take on the importance and role of board certification. For example, in
Psychology, board certification is of little or no practical significance; in Medicine,
certification is a prerequisite for privileges at most hospitals and for credentialing by
most insurers.
Some questions to ponder before you treat:
1. What is the standard of care?
2. Are there best practices established and published for the intended
procedure?
3. What are my personal preferences for a successful outcome? Are mystandards higher or lower than the standard of care?
4. What does the law allow me to do?
5. What does my training and experience allow me to do?
6. Am I physically and mentally capable of performing this procedure?
7. Am I the best person to treat this patient?
8. Are there financial forces (money to be made) that could infuence my decision
to treat or refer?
9. What is in the best interest of the patient?
49

The bottom line.
• You must practice within the Scope of Practice of Dentistry as defined by law.
• You must also practice within your own personal scope of competence, as
determined by you (with some help from others).
Conclusion
The standard of care is not always clear and unanimously understood, and scopeof practice includes much gray area and judgment. This means that — in the end —ethical considerations are an essential component of each clinical decision. They often
carry the day and help finalize the important decisions. Remember that the publictrusts you to make these decisions with their safety and interests in mind.

Section 1.5: Ethical Sensitivity
As mentioned in the introduction, the first step towardenhancing your ability to resolve ethical issues is to be aware ofthem and notice them when they present themselves. This is

You can’taddress ethicalproblems thatyou don’t notice.

called “ethical sensitivity” and it is not easy for beginners. You can’t address ethicalproblems that you don’t notice. Consider the following clinical scenario:
Dr. Lu is a recent graduate of a good dental school in San Francisco. On her firstday of work as a new associate, she sees Mr. Payne. Mr. Payne is in excruciating pain;
he has not slept for two nights, his jaw is swollen and he pleads with Dr. Lu to "extract
the damn tooth." After taking a radiograph and examining the area, Dr. Lu concludes
that tooth #19 is abscessed and is the most likely cause of his pain. She tells Mr. Payne
her diagnosis and informs him of the cost of the extraction. He readily agrees and she
performs the procedure. Mr. Payne is relieved and is completely satisfied with thetreatment. Dr. Jones, the senior dentist in the associateship commends her for a job well
done.

50

Ask yourself if there are any ethical issues here and, if so, what they are.
It may seem at first that this is a simple situation: one that happens frequently indental practice, and it appears that Dr. Lu has acted in a competent and professionalmanner. One might be tempted to say that there are really no ethical issues here at all.
On closer inspection and with more experience you should, however, notice several
ethical problems.
From a technical point of view, Dr. Lu has done a good technical job ofthoroughly examining the patient, taking appropriate radiographs, making a goodclinical diagnosis, and successfully extracting the tooth. From an ethical point of view;
however, several important errors have been made.
Error #1: The patient is in extreme pain and hardly in the best frame of mind to
make an important, irreversible decision. The dentist has an ethical responsibility todetermine whether or not their patient has the capacity to make good decisions.
Error #2: There are alternatives to the treatment suggested and performed. The
dentist has an ethical responsibility to present all viable treatment options: patientscannot give informed consent without knowing their options along with the risks, costs,
and benefits of each. (The authors have much more to say on informed consent in
Chapter 3.)
Error #3: Given Dr. Lu’s training it is unlikely that she thinks that extraction of asalvageable tooth is the best treatment. All dentists are committed to oral health andthe long-term viability of teeth. Dentists have an obligation to do what is in the bestinterest of the patient; simply agreeing to patient demands at all times is not ethicalbehavior, and patient requests do not always represent what’s best for them. This is acomplicated matter, to be sure.
Error #4: Though it may not be as apparent from the brief description of the
scenario, there may be a financial incentive for Dr. Lu to acting quickly and to move on
51

to the next patient. Time is critical to the business side of dental practice, but a doctor’s
financial interests do not trump a patient’s long-term oral health. That said, treatments
aimed at saving that tooth might be expensive, but should have been discussed.
As you can see, there are many things going on in this case that involve ethicalconsiderations. If you recognized all these issues, you have a high degree of ethicalsensitivity. Hopefully, this text and your ethics course will help you with “issue
spotting.” As we have said, each clinical encounter will have ethical components, sokeep this in mind as you go through your clinical training. In each case, see if you canspot potential ethical problems as you learn about the patient, their needs, and any
treatments you might offer.
Start by asking yourself these questions:
1. Is the patient capable of making good decisions?
2. Have I presented all viable solutions to their problems?
3. Have I done a good job of communicating the risks, costs, and benefits ofeach solution?
4. Have I really listened to the patient’s point of view and taken their concerns
seriously? Do I understand the situation and what matters to the patient?
5. What am I willing to do for this patient and what am I not willing to do andwhy?
6. What outside influences (legal, economic, institutional, familial, self-interest)
will impact what is best for this patient?

52Section 1.6: Ethical Decision-Making: Essential Theories and Methods
Good ethical decisions require more than intuition or a “gut feeling,” andmany clinical decisions in dentistry are not easy or obvious. Formal, rational
decision methods are available to help with ethical issues. Each of themethods offered here has a different theoretical basis though they often
produce the same moral conclusions. Each method has strengths andweaknesses. None works perfectly all the time.

Everyone makes moral decisions every day, even when they are not aware thatthey are doing so. In fact, most of the time we are not aware that we are exercisingsome form of moral behavior as we make our way through each moment of each day.
Anytime your decisions affect other people directly, you are in the domain of morality.
Because your decisions about what to do as a health care professional usually impact
others (primarily patients, but also team members and family members) you will findyourself constantly in the moral domain. Most of us don’t usually slow down todeliberately consider the moral implications of our decisions, and yet, as you learn to bea good dentist you will first need to learn to pause and think through decisions involving
patients, colleagues, and the community.
While we usually don’t put much conscious thought into ethical decisions, we dohave some basis for making them. They are rarely random or simply intuitive. Here aresome examples of the methods or ways that people typically deal with day-to-day moral
decisions:
1. We use intuition or we “go with a gut feeling.”
2. We check to see how it’s always been done (tradition).
3. We check to see how others are doing the same thing.
4. We think about practical outcomes (what will yield the most good or the mostbad for us or others).
5. We ask a mentor or trusted friend for advice.
53

6. We check with an authority figure (an expert or teacher).
7. We read an authoritative book or journal, or we look on the internet to see if
there’s anything helpful there.
8. We think about how religion would guide us.
9. We follow such moral maxims as “The Golden Rule.”
10. We anxiously procrastinate until the decision is made for us by default.

These are all normal, standard ways that people deal withsituations with a moral component. Some work quite well inmany circumstances, while some are less effective. Most of us

Clinicians should be
prepared to explain
the rationale for
their decisions.

tend to favor our intuition or “gut.” However, your intuition cannot always be trusted inyour new role as a dentist, and often what you think is a dependable gut feeling is
actually the product of an irrational set of processes that include prejudices,stereotypes, and skewed cognitive patterns that you have developed over the years.
Sometimes our “gut” favors decisions that result in higher revenues. We all use such
irrational thinking…with fair regularity. That said (and much of this text is based uponthis assumption), decisions that are thoughtfully considered have a better chance ofultimately being good ones.
Getting Started
When you are confronted with an ethicalproblem, begin by reflecting on what you would
prefer to do in that situation. Begin with yourintuition about what seems right to you, and thenconsider the following two quick tests of thesoundness of that choice.

Decision Models for Dentists:· Publicity Test
· Driving Home Test
· Principle-Based Method· Consequentialist/Utilitarian· Value-Maximizing (Ozar’s Hierarchy)· Four Quadrant Approach

The Publicity Test: This is essentially a social test. Imagine if your decision weremade public. Ask yourself what other people would think of your decision. If everyone
54knew about your action, would you still do it? If your mother or father or partner knew,
what would they think? How about your instructors and classmates or your dean? How
would you feel if your decision were posted on Facebook or printed in a newspaper? If
your response to this reflection is one of embarrassment or anxiety you may be on thewrong track.
The Driving Home Test: This test uses your “conscience,” and it assumes thatyou have one (some people don’t). In dental school and your career thereafter, you arelikely to find yourself reflecting on your clinical decisions at the end of the day, after thedust settles. You will find yourself wondering — while driving home or lying in bed atnight trying to get to sleep — whether you did the right thing or the best thing. You may
wake up in the morning with a patient or case on your mind. You may not be able to getcompletely comfortable with decisions you have made. Perhaps you sense some regretor remorse. Perhaps you feel that something is incomplete about your exchange with apatient. These are all indicators that further thought and analysis might be needed. Ask
yourself what it would take for you to become comfortable with your decisions.
That said, the fact that you are comfortable with your decision and would gladly
have it publicized is no guarantee that you have made the "right" decision. There are
four more available decision methods.
Formal Decision Methods for Clinical Dental Practice
What follows are several rational methods you can use when confronted with achallenging clinical situation. As you are relatively new to dentistry you may notappreciate how frequently such challenging ethical situations occur and how difficultand even gut-wrenching they can be.
These methods are derived from a variety of normative (prescriptive) theories
developed over the history of philosophy. People have mused about ethical decisionmaking for many centuries. The philosophical derivation of these methods is beyond
55the scope of this text, but we hope that your curiosity about ethics will increase andlead you to some of the references listed at the end of this chapter. The models arepresented here in a very basic, stripped-down form designed to be immediately useful.
Decision Method #1: Principlism, the Principle-Based Method
This approach to ethical decisions is based on the notionthat cases can be decided by reference to a general principle or
to rules that are derived from those principles. For example, if

In this method, an
ethically correct
decision is one
that does not
violate any of theprinciples.

you were to borrow some money from someone and promise to pay them back, thenyou ought to pay them back according to the general ethical principle: We should keep
our promises. Though this example seems simple enough; consider one that you might
encounter as a dentist.
A patient of yours has asked you to keep the results of your examination fromher spouse or parent. What general principle can we look to to make our decision? Ithappens to be that in this case, we could look to the ethical principle of respect forautonomy (see below) that says, in part: always respect the patient's right to privacy.
Applying this principle would lead us to the conclusion to respect the patient's request
and not divulge any information to her family. This method requires that you check to
see if your action would violate or honor certain immutable principles, obligations orrules. If you were to violate a principle, obligation or rule, your action would beconsidered wrong.

56

So, what are the principles, obligations and rules that are relevant to dentistry? Hereis a list of general ethical principles that garner a great deal of agreement among bioethicists and dentists. In fact, these principles form the basis of the American Dental
Association Code of Ethics that we will address later in this text. The descriptions here
are brief, and they are more thoroughly explained in Beauchamp and Childress's
Principles of Bioethics (1994). They are often called “Normative”

The Principles:

Principles because they are prescriptive; they instruct you about· Non-maleficence· Beneficence· Autonomy· Justice· Fidelity· Veracity· Reparations· Mercynorms and standards, and what you should do.

The Normative Principles
Non-Maleficence: Do not harm or hurt people; prevent
harm whenever you are able.

Patients should not end up worse because of their interaction with a dentist. We
shouldn't make things worse for patients, by intention or indifference or incompetence.
Several rules for dentists can be derived from this moregeneral principle:
1. Do not take advantage of patients by deception or

Non-maleficence:
Do no harm; don’t
make things worse.

coercion; patients are in a very vulnerable position and rely on their health careproviders to always act in their best interests.
2. Do not be careless or unprepared in your treatment. Be conscientious and careful,even meticulous in the preparation and execution of care.
3. Do not recommend treatment, exams, or tests that have no therapeutic benefit to
the patient. Do not suggest treatments that may do more harm than good.
4. Do not treat beyond your scope of competence. Seek consultation and referappropriately when the patient's needs exceed your ability; be up to date on all
diagnosis and treatment protocols.
5. Do not do anything that increases the risk of harm to a patient relative to the
expected benefit to the patient.
6. Decline to treat a patient who exhibits behavior that will impede a good outcome.
57

7. Decline to treat anyone if your physical or psychological state prevents you fromperforming in an optimal matter.
8. Prevent harm to patients who are in your practice by reporting colleagues who are
impaired or otherwise practicing negligently.

This principle does not mean that dentists are expected to be perfect;
sometimes, despite their best intentions, dentists do harm patients, as errors are an
inevitable part of life, even professional life. However, the ethical dentist makes every
effort to prevent error, and then deals with it appropriately when it happens.
Beneficence: We should strive always to do somepositive good for patients. This, of course, is what the doctorpatient relationship is all about. Patients should benefit from

Beneficence:

Do something
good; make things
better.

their contact with us; they should be better off after we have intervened.
Some rules derived from this general principle:
1. Work to contribute to the overall health and well-being of the patient.
2. Take actions to remove patients from the risk of further harm.
3. Promote prevention practices that will enhance health.
4. Determine the risks, costs, benefits, and alternatives for any procedure and maketreatment decisions that support the best interests of the patient.
5. Promote and enhance a patient’s understanding of their health status and possible
ways in which to improve it.
6. Collaborate with colleagues and specialists in a manner that enhances the care of thepatient.
7. Share the results of one’s research with all members of the profession.
8. Report instances of abuse to the proper authorities.
9. Support public health initiatives and public policies that enhance oral health.
10. Support dental education and dental research.

58

Respect for Autonomy: Self-rule, self-governance. This
principle is sometimes referred to as “respect for persons,” and it

Autonomy:

Self-governance.

means that we honor the right of each patient to make their own
decisions. Patients have the right to make choices for themselves based on their own
values and beliefs.
We begin with the premise that all persons have autonomy; it comes with being
human. We do not give autonomy to patients. They have it, and we can choose tohonor it or violate it. In healthcare we strive to “honor” patient autonomy. We informpatients properly and include them in the treatment planning process. This means that
we must get patient permission before we touch them or do anything to them.
Autonomy is one of the most important, yet complicated principles.
Beauchamp & Childress (p. 121) define personal autonomy this way:“…personal rule of the self that is free from both controllinginterferences by others and from personal limitations that prevent
meaningful choice, such as inadequate understanding.”
This means that we must honor independence, and we must refrain frommanipulation, as well. It also implies that we must provide adequate information sothat patients can exercise real autonomous choice.
We use the legal mechanism of informed consent to ensure that patientautonomy is properly accommodated. That process is described later in this text.
There are two categories of patients whose autonomy is limited or non-existent.
These are people thought to be incapable of adequately understanding things, such thatthey cannot make proper decisions about their own care. The two categories include
minors and people with limited cognitive or decision-making capacity. People in thesetwo categories generally cannot give consent, although the matter is quite complex inactual practice. For example, can a mature seventeen-year-old elect to have braces59

removed if parents disagree? Can a person with schizophrenia give consent during aperiod when their thinking is quite lucid?
Respect for autonomy is also complicated by culture. Western (northern
European/American) culture tends to prioritize individual autonomy over family
determination and harmonious interdependence. In other cultures, this is not always
the case. For example, in some cultures the decision to have one’s remaining teeth
extracted can be a decision that is to be made by the entire family or by key family
decision-makers, not simply by the patient alone.
Some rules that can be derived from the general principle of autonomy:
1. Make a strong effort to understand, appreciate and incorporate the cultural andworld-view of the patient when making treatment decisions. Respect their views.
2. Be as certain as you can be about the capacity of the patient to make an informed
choice; if you have doubts, get expert advice.
3. Give complete and honest information to the patient.
4. Encourage full participation by the patient in treatment decisions.
5. Inform the patient of all risks, costs, benefits and alternatives to any treatment
decision.
6. Keep patient information confidential.
7. Develop and employ good communications skills. Listen as well as talk.

Justice: Treat people equally. This is the fairness principle.
Everyone gets their fair share. People get what they are entitled

Justice:

Treat people equally.

to and what they deserve, and they do not get treated differently based on irrelevant
factors (such as race, gender, or personal appearance). Most people agree with thisnotion, at least in theory, but the waters get muddy very quickly in dental practice.
There are many ways that some patients get treated better than others. Because
dentistry is practiced in a free-market economy, fee-for-service context, you don’t get
dental care unless you can pay for it, and dentistry is expensive. Dentists deserve to be60

paid for their services, and dentistry is not a hobby. It is hard work, and practiceoverhead is high. This means that people lacking a good dental plan and/or the means
to pay for dental care are less likely to receive high quality care—or any care at all. The
ADA’s code of ethics (p. 8) even states that “dentists…may exercise reasonablediscretion in selecting patients for their practices….” Because of justice, they are
cautioned not to discriminate based upon factors of race, creed, color, sex, or national
origin, but discriminating based upon a patient’s ability to pay is certainly not just, eventhough it happens all the time, for reasons that are completely understandable.
Rules that can be derived from this principle:
1. Treat all patients equally.
2. Support public policies that enhance the health of all people.
3. Support the most effective and appropriate use of society’s dental care resources.
4. Make a reasonable effort to open your practice to all people.

Fidelity: Keep your promises and commitments. Thisrefers to the quality of being faithful, faithful to your word andfaithful to others with whom you have a relationship. It means

Fidelity:

Keep your promises
and agreements.

that you honor your agreements. In dental practice it means that you finish treatmentsthat you start. It would be a violation of fidelity to stop treatment because a patientruns out of money or because their dental plan has been terminated. You cannot leavea patient in temporary crowns after it is clinically safe to do so. Fidelity is especially
important in the doctor-patient relationship because trust is so essential. Patients are ina position where they must trust their doctor because they do not deeply understandpathology, diagnosis, and treatments. In fact, the therapeutic relationship—that which
promotes healing—is directly connected to trust and rapport.
The obligation of confidentiality can also be understood as a function of fidelity.
You owe patients discretion, partly because of healthcare’s implicit, general promise to61

keep patient information private. Most patients expect confidentiality. The doctorpatient relationship is special, perhaps sacred in some sense.

Veracity: Tell the truth. All our professional interactions areto be truthful. Think of it this way: What would you do (as a patient)

Veracity:

Tell the truth.

if you thought that your doctor was being dishonest with you? The answer is obvious.
The relationship collapses, and the care becomes worthless or worse. The doctorpatient relationship is fundamentally built on trust, and that trust is based on honesty
and transparency. This standard seems simple and perhaps a no-brainer, but it too getscomplicated sometimes.
Complex pragmatic challenges arise from the following question: What if lying or
shading the truth might produce some greater good or avoid serious harm? What if you
could help a patient by lying? You will certainly be asked by patients to lie or shade thetruth on insurance forms in the future – so that they can receive much-needed care.
That problem will be addressed elsewhere in this text. On the other hand, what if lying
indemnifies you from embarrassment?
Reparation: Fix what you broke. Dentistry has a long
tradition and culture that honors this principle. It seems woven

Reparation:

Fix what you broke.

into the DNA of the profession. If you perform a procedure ortreatment, and it fails or turns out to be inadequate in some way, most dentists feelcompelled to make things right. The differences between “bad outcomes” and “badwork” will be examined later in this text. Obviously, you are not responsible for all
treatment failures, but dentists are generally quite willing to stand behind their work.
It’s an important component of the professional identity of dentists.

62

Mercy: Treat people with kindness. This one simply meansthat we treat people with kindness and compassion. When facedwith difficult situations or conflict, we favor a humane approach.

Mercy:

Treat people
with kindness.

Using the Principle-Base Approach
Application of the principle-based or deontological method is simple (in theory).
When faced with a difficult decision that has ethical components (which is true for all
clinical decisions), one simply follows these steps:
1. Determine which principles are relevant to the situation.
2. Determine which of the available options honors or violates a principle.
3. Reject any action that violates a principle.
4. Choose the action that honors a principle or principles.
5. Should principles conflict with each other, make your decision using a different
method (the principle-based method is not helpful when this happens).
As an example, if one of the “solutions” to a clinical problem requires lying to apatient, it is rejected (as unethical) because it violates veracity. This seems pretty
simple, and on the face of it, it is. But, in real life things are rarely so simple. Often an
attractive option honors one principle but violates another, and the only reasonableoption that would honor the other principle violates the first one. Any available option
would violate at least one of the principles. You are faced with something called a“moral dilemma.”
In fact, there are three categories of moral
problems within the principle-based decision method:
1. Moral Weakness; when you are choosing
between an option that forwards an interestof yours (such as money) but violates a principle.

Categories of Moral Problems:· Moral Weakness· Moral Dilemma· Moral Uncertainty63

2. Moral Dilemma; as in the example above, where any action you choose will
violate a principle. Principles themselves seem in conflict with each other.
3. Moral Uncertainty; when you must make a moral choice, but are missing
essential information…and you must make the decision without the needed
information.
An example of “moral weakness” is when you choose to falsify an insurance
document, or shade the truth to a patient (a violation of veracity) in order to make moremoney (enhancing your “interest”).
An example of “moral dilemma” is when a friend asks you how you like their new
haircut (it’s awful). If you tell the truth you honor veracity but violate non-maleficence(at the same time) by hurting their feelings. If you lie and say that the haircut looks
great you honor non-maleficence (by protecting their feelings), but you violate veracity.
This is a no-win situation, and when faced with a moral dilemma the principle-based
method does not help much. We need to use one of the other methods instead.
An example of “moral uncertainty” is when a patient claims that a treatment(which has failed) was done recently, but records are lost or incomplete, so you do notknow the truth about when it was done. You must decide whether to redo at no cost or
find some other solution, but you must do so with incomplete information.
More Methods
Most bio-ethicists observe that a strictly principles-based approach has serious
limitations. First, there is no certain way to determine which of the principles is betteror best. Are some of the principles more important or powerful than others? Do sometake priority? If so, when? Second, two principles often clash in a given situation andthere is no obvious or easy way to decide which principle should prevail over the other.
In other words, following one principle may lead to the exact opposite conclusion that
following another principle would produce. For example, if a patient of yours would like64

to have cosmetic veneers placed on teeth that are not periodontally healthy, you would
have a conflict between the principle of autonomy (doing as the patient requests) andthe principle of beneficence (improving the oral health of the patient) and perhaps
nonmaleficence (doing harm). There is no easy way to solve this problem using
principles. In fact, it may be best to view the normative principles as “prima facie,” afirst impression that might be accepted on its face, pending further investigation. In thecase of moral dilemma — when principles clash — a different method is probably
required.
One possible way around this problem is to use a different decision method, onethat uses a “utilitarian” perspective and recommends actions that produce the mostgood while avoiding the most bad.
Decision Method #2: Utilitarian/Consequentialist
This method is highly practical and commonlyused to make difficult decisions. “Utilitarian” means

Utilitarian-Consequentialist Method:· Weigh everyone’s interests.
· Choose a path that maximizes themost important ones.

that the best moral action is the one that maximizes
utility (what is more useful or valuable). Utilitarians are consequentialists, and they
believe that the moral worth of an action is determined solely by the consequences it
produces, regardless of any other moral principles. This method is sometimes referred
to as “the greatest good for the greatest number.” One should act to maximize thegreatest good for the greatest number of people. The consequences or outcome of anaction determines whether it was right or wrong. Are things better or worse as a result,and for whom? That’s the big question. This method can be very useful in clinicaldental practice.
First, you must understand the concept of “interest.” Inethics this term usually means: “stake in the outcome.” It does notmean that you are interested in something like your favorite sports“Interest”

A stake in theoutcome. You are
better or worse
depending on how
things work out.
65

team or your hobby. Having an “interest” means that you stand to be better or worse
off, depending on how things work out. If you own stock in a company you might becompletely uninterested in that company’s product or service, but you certainly have aninterest, a stake in the outcome, given that you gain or lose money depending on how
the company performs.
You start the utilitarian process by determining which parties have interests inthe case or situation. In dental practice this typically includes:
•
•
•
•
•

patients
dentists
practice team members (assistants, hygienists, administrators)
third-party payers, dental plans
family members of the patient

In dental school this typically includes:
•
•
•
•
•
•

patients
students
the clinic, the school
faculty members
third-party payers, dental plans
family members of the patient

Next, you determine the interest profiles of each involved party. Some examples
of interests include:
•
•
•
•
•
•
•
•

money
time
esthetics
functional outcome
self-esteem
pain
reputation
graduation
66

Parties who have interests (in dental school): patients
 students
 the clinic, the school faculty members
 third-party payers, dental plans family members of the patient

Typical interests that they have: money time esthetics
 functional outcome
 self-esteem
 pain / comfort

Typically, patients have money, functional outcome, comfort, and time as
primary interests at stake. Students have graduation, self-esteem, reputation, money,
and time as interests. The clinic has money, reputation, and its survival as anorganization at stake.
Once you have a clear picture of the parties and their interests you determine
how each possible action might enhance everyone's interests. Think of it in this way: if
course of action "A" enhances more interests (or more important ones) than action "B,"
you should choose to do action "A."67

Here are the steps involved in weighing the consequences of each possible
course of action:
1. Make a list of all the people and institutions that have an interest in theoutcome of the situation.
2. Make a list of all viable options.
3. For each option, consider its impact (positive and negative) on those whohave interests and what impact each option has on the interests involved.
4. Weigh the positive and negative outcomes to determine a best choice ofoptions based upon whatever maximizes various interests.
It should be obvious that while describing this process is simple, the actual
decision process can become complicated, even messy. One challenge is to determine
the relative “weights” of each party’s interests. How do you compare a student’s
interest in graduating on time against a patient’s interest in saving several hundred
dollars on a less-expensive treatment? Another problem is that decision-makers often
must act as if the interest of a stranger is as important as their own interests. Critics
note that you might be tempted to put your thumb on the scale when the stakes arehigh. Can you consistently make your patient’s interests equal to your need to graduate
from dental school on schedule, with high grades? Does the well-being of a stranger
count as much as that of your family or kids? There are many other philosophicalchallenges to utilitarianism that are beyond the scope of this text. Consequentialism isoften characterized as “the ends justify the means,” implying that one could justify bad
behavior because it produced a “good” outcome. Notice that such an assertion would
not be justified by a principle-based approach.

68

Decision Method #3: Value-Maximizing Method
One of the most practicalutilitarian methods is David Ozar's (Ozar

Ozar’s hierarcy of values:

1. The overall health of the patient& Sokol, 2002) values-maximizing

2. The oral health of the patient

approach, and it is designed specifically

3. The patient's autonomy

for dentistry. In every ethical situation, if

4. The dentist's preferred method of practice

we ask ourselves what action would

5. Esthetics

produce the most good and avoid the

6. Judicious use of dental resources

most bad, we can produce a clearer picture of what we should do. However, we mustask ourselves what exactly it is that defines "good" and "bad." This is not as easy or
obvious as it may seem. Ozar observes that every profession has certain values that are
essential to proper practice. In dentistry he refers to these as “The Central Values of
Dental Practice.” The values of the dental profession are the things that every dental
professional aspires to achieve. For example, the dental profession holds oral health asa high value; this is why you do dentistry in the first place; to enhance the oral health of
our patients. This makes the values of the dental profession different from, say, thelegal profession, which has its own set of values and priorities. Thus, with a valuesmaximizing approach to dental ethical issues, one should always act in such a way thatmaximizes the values of the profession. Ozar has identified six central values of thedental profession, listed in order of importance:
1. The overall health of the patient
2. The oral health of the patient
3. The patient's autonomy
4. The dentist's preferred method of practicing
5. Esthetics
6. Judicious use of dental resources69

In any given patient interaction, members of the dental profession should aspire
to produce as many of these values as possible when acting. But all professional values
are not created equally and Ozar's theory ranks these values in a hierarchy. Higher
ranking values always trump lower ones on the list. For example, the overall health (lifeor death) of the patient is more important than the oral health (teeth and gums) of thepatient and so on down the list. You can read more about his reasons for ranking thesevalues in the book Dental Ethics at Chairside (Ozar & Sokol, 2002). A third edition will
be released in 2018.
Here is how the hierarchy and theory work: Take the example above where apatient desires cosmetic dentistry on periodontally unhealthy teeth. If you were to
decline the patient's request, you could justify this by saying that while patientautonomy is a high value in the profession, the patient's oral health is a higher value andtherefore more important in deciding what to do. You have maximized value by acting
consistent with the ranking of the profession's values. Think of it this way: the higher
the value is in the ranking, the more good is produced by achieving it.
For any given ethical situation:
1. List the choices available in the situation (not just the ones you might favor).
2. List the relevant professional values (of the six) that come into play.
3. Determine the potential good and bad outcomes of each action on your list.
4. Rank your list of choices by appealing to the values involved and their relative
position in the hierarchy.
5. Justify your rankings by reference to the possible outcomes or consequences(good and bad) for each action and reconciling these with the values of theprofession. Ask yourself: does the number one action on your list best
maximize the professional values involved?

70

Decision Method #4: Four Quadrant Approach
A case-based approach to ethical decisionmaking takes the position that every case is so
unique that applying generic principles or weighinginterests using a formula will not suffice in many
specific cases. A case-based method, sometimes

The Four Quadrants:

DentalIndications

Patient
Preferences

Quality ofLife

Contextual
Featuresreferred to as “casuistry” advocates a thoroughunderstanding of the specifics of the case and then a reasoned application of good
judgment in deciding which specifics ought to determine a course of action. Thisapproach, developed by Al Jonsen (Jonson, Seigler, & Winslade, 2010), is helpful in thatit gets to the specifics of a case rapidly and predictably. Though the “reasoned
application of good judgment” may seem vague, judgment, wisdom and experience playa strong role in all the methods presented here so far. There is no algorithm that willautomatically decide what to do in every case. Law schools and business schools often
use versions of casuistry in teaching.
Quadrant #1: Dental Indications
What can be done for the patient? List the technical facts of the case: What isthe diagnosis? What are the possible treatment options? What are the potential
benefits, risks, and costs of each treatment options? What are the goals of eachtreatment option? What is the prognosis for each treatment option?
Quadrant #2: Patient Preferences
Is the patient capable of making an informed choice? What are the patient’s
expressed preferences for treatment? What does the patient value? What is importantto the patient? Are there unexpressed preferences?

71

Quadrant #3: Quality of life
How will each treatment option impact the quality of the patient’s life? Will
there be compromises to adequate oral functioning? Will there be compromises toother life functions? How much pain or other suffering will the patient need to endure
for the treatment to be successful? For how long?
Quadrant #4: Contextual Features
What other specifics of the case must be considered? List the contextual
features of the case; these include family preferences, legal constraints, institutional
constraints, limited resources, and cultural differences.
Once these questions have been adequately answered, you must weigh therelative importance of each consideration to arrive at an acceptable decision. One
important way to do this is to look for “paradigm cases,” cases that are similar to the
one that confronts you and whose resolution has been generally affirmed and accepted.
Then, compare your case to the paradigm case to determine if it there is enoughsimilarity to decide what to do. If there is, you can have some confidence in yourdecision. If the specifics of your case are so unique that no other case seems to apply,
you must then use your best judgment and justify your decision. As we have said, thistype of judging requires sensitivity, experience, and wisdom. Consultation with others
who have more experience is essential in these situations.
________________________________________________________

Application of the decision methods: A brief illustration
Here is a brief, non-dental example that demonstrates how different decision
methods might result in different decisions about right and wrong action. Consider thefollowing scenario:
72

Your aging mother has become chronically anxious and sometimes agitated.
She lives with you and your family. One evening you slip some marijuana into her
tea without her permission or knowledge. It clearly makes things better. She
calms down and gets a good night’s sleep. Everyone feels better, including her.
The driving-home test is not of much use. As you reflect on your decision you do
not achieve any additional clarity. You can imagine yourself choosing either path(marijuana or no marijuana), and wouldn’t have strong feelings either way. You mightfeel vaguely guilty if you surreptitiously gave her the drug, but don’t really see any
potential for harm, so it doesn’t bother you.
If you apply the publicity test: When you think about going “public” with youraction, you have serious second thoughts. While your mother was not generally a “fan”
of marijuana, she did not have strong negative feelings about it. You’d never actually
discussed the issues with her. What would your father say or have said? What would
your other siblings and family members think? Some would clearly disagree and thinkthat you have taken advantage of your aging, unsuspecting mother. As you reflect onthings, it occurs to you that your plan might be “wrong,” given that you never intended
to offer her a choice. Why not? You cringe at the thought of posting this episode onsocial media (a publicity test).
From a principle-based point of view: not telling your mother violates theprinciple of autonomy (nobody got informed Mom or got consent) and probably
veracity (as it seems deceptive and therefore dishonest). On the other hand, the“medication” seems to have made her feel and sleep better, so the principle ofbeneficence and perhaps mercy have clearly been honored. You are faced with a moral
dilemma (two principles are in conflict). This conflict might have been resolved bygetting Mom’s permission first, but you are pretty sure she would not consent. It is
possible that you favor this action because of your interest in this action: your mother73became less difficult for you to deal with … a clear benefit to you. This looks like a caseof moral weakness.
From a utilitarian point of view: When you weigh things out it appears that moregood than harm was done. Your mother has an interest in feeling calm and getting
sleep. Your family has an interest in a serene evening and some peace. No obvious
harm was done, although you could make the case that your relationship with Mom
could be damaged, especially if she found out. There is also the possibility that she
might feel violated or betrayed, as well.
From a case-based, Four Quadrant point of view: This is not a medical case as aphysician is not involved. However, questions about medical indications in the first
quadrant have not been adequately answered and for that reason alone we should besuspicious of this decision. Similarly, questions of patient preference in the second
quadrant have not been considered at all. There are clear examples (paradigm cases)
through the years wherein physicians have been less than truthful with patients toachieve a benefit for them. One would have to examine this case more closely to see if
this case should be treated the same way. It is highly unlikely that any formal medicalcase (involving professionals) would have come to the same decision given thecircumstances provided.

Section 1.7: Ethics in Dental School
Attention to ethics cannot wait until graduation.
Ethics education is not only focused on future practice. In dental school you findyourself in a pressure-packed ethics lab every single day. Dental school provides anopportunity for you to practice and develop your ethical skills and habits now.

74

Here are some areas of dental education that are ripe for
examination and attention:
Competition and Cooperation. Pre-med and pre-dental

Common ethicalchallenges in dental
school.

students are necessarily competitive. They must compete to secure a spot in a dental
school. Once in school there is further competition for specialty programs and even forgrades. Competition is a good thing when it motivates a person to work harder, work
more, and focus more sharply. That said, healthcare professions such as dentistry arenecessarily cooperative endeavors. Competition can get in the way of excellent
treatment. Dentists must cooperate with patients, and with colleagues, as well. You
cooperate with patients because they are not able to compete with you; you cooperatewith other dentists to share knowledge and provide optimal care for patients.
Many students enter dental school ready, willing, and able to compete with theirclassmates. They have been doing this all their life; it’s normal. However, since
competition is not such a good thing in dental practice, dental school is the time tomake a transition to a cooperative stance. Dental students need to learn to look after
each other, to support each other’s work and success, and to share knowledge andskills. This may not come naturally, but it is essential. Hopefully, your dental school
experience reinforces cooperation. Cooperation can be challenging in a competitive
school culture.
Working for Grades vs. Learning to Serve. Along the same lines, it is very easy to
get caught up in the stress and day-to-day whirlwind of dental school requirements andgrades. Sometimes students lose sight of the real goal: to become an excellent doctor.
Keep your eye on the prize and don’t let the immediate task of grade-seeking get in theway of learning how to be really good at taking care of patients.

75

Patients are Ends Rather Than Means. The eighteenth-century philosopher,
Immanuel Kant proposed a second categorical imperative (an unconditional
requirement), that
One must act to treat every person as an end and never as a means only.
We do not “use” people as a means to get something we want. This imperative is
exquisitely applicable to senior dental students (two hundred years after Kant) who
struggle to fulfill all their graduation requirements on time. Patients are sometimes
valued because they need a treatment that a student must somehow perform or testcase to graduate. Certain patients in the dental school clinic are sought-after because
they can further a student’s progress toward graduation. Students even talk about theirpatients as if they were procedures rather than people. “I’ll trade you my three-unit
bridge if you will give me your multi-rooted endo case.” This is obviously odious when
you stop and think about it. But the problem isn’t that such a trade is possible. It could
be a “win-win-win” if done properly, with good communication, openness, and respect
for patients’ autonomy. But making such “trades” under the table, without patient or
faculty involvement and understanding is ethically questionable at best.
In the “real world”— after dental school — similar temptations arise whenmoney takes the place of “requirements.” The temptation to recommend a treatment
or manipulate patients for profit never truly goes away.
Attendance. Most, if not all dental schools have mandatory lectures, wherestudents are required to attend. Most dental students are used to undergrad systems
where they can pick and choose lectures to attend and others to skip. Some students
skip most or all the lectures in some of their college classes. They find other ways tolearn and pass exams to get an “A” grade. Some students get little from formal lectures,and have come to view them as a waste of time. This becomes an issue in dental
training when faculty members insist that students must be present to adequately learn
76essential material. The classic example is when a faculty member worries that a student
might miss the lecture when appropriate drug dosages for children are discussed.
Students feel imposed-upon and resent being treated like a child without autonomy.
Teachers observe that students are not in the best position to know which lectures they
can miss and which they must attend. Students feel that some lectures are a waste of
their valuable time. The worst ethical scenarios are when a) attendance is low (inviolation of the rules) but never discussed; and b) students sign-in for absent classmates.
Cheating and Whistle-Blowing. There are an astonishing number of ways thatdental students might cheat in school, and dental students tend to be bright and clever.
Some of the potential cheating is significant enough to take one’s breath away, while
many opportunities are “smaller,” more pedestrian, and more easily overlooked. In
theory, no one agrees with cheating. But, in a high stress, high-stakes environment
most people’s impulse control gets tested from time to time. Occasionally dental
students convince themselves that they face an overwhelming situation, and cheating
seems somehow viable, or a necessary last-resort for survival. A cooperative culture isless likely to produce such a situation, but temptations will always exist. They always
have and always will. It’s part of the human condition.
That said, it is essential for dental schools to have sensible systems in place todiscourage cheating, make it harder to do, and to respond when cheating occurs.
Ongoing, open discussions are healthy; denial, whispering, and innuendo are not.
Administrators and faculty members are not as skilled at discerning cheating as
students can be. Often students know much more about these things than faculty. Thismeans that students must be involved in creating a culture and system that limits
cheating and deals with it effectively when it occurs.
Dental students are extremely reluctant to come forward and report the cheating
behavior of classmates, but this must be done from time to time. The “narc” viewpoint,77

one that conflates whistleblowers with tattlers or snitches, rats, stoolies, or informers, iscounterproductive. It makes cultural self-correction impossible. Somebody must step
up and take a stand. Membership in a profession requires that members monitor andmanage each other’s behavior. This task cannot be left to dental boards alone, andpatients rarely discern when they have been cheated. Remember, professionals
monitor each other.
All of this is in service of the fact that patients must be able to trust their doctors.
Without trust, the doctor-patient relationship crumbles. Dental students must learn tobe trustworthy in dental school if they are to practice with integrity in the future. It
makes no sense to hope that students could graduate from a cheating culture one day inJune and then flip a switch to suddenly practice dentistry with great honesty andintegrity, especially when clinical practice gets hard.
Student Autonomy in Treatment Decisions. Obviously, students are notqualified to determine treatments for patients. That’s what clinical faculty are for. They
have the required training, experience, and judgment. Plus, they have a license. But if
you have spent any time in a dental school clinic you notice that it isn’t very hard forstudents to take charge of that process. Students learn to anticipate faculty responses.
They know which teacher is likely to choose one treatment over another. So, theyeffectively choose their patient’s treatments by choosing this faculty member or that
one, based upon how each teacher will respond to the clinical situation. This autonomy
is not absolute, of course, as all clinic faculty are assumed to be making decisions thatare within the standard of care. But students have plenty of leeway, and patients whocome to dental schools must be able to trust them. Keep this in mind when you are
shopping your patient around for the “best” faculty member. Whose interests are being
served? Are you selecting a faculty member because they are likely to recommend atreatment that you need to graduate, or because you have a well-formed opinion thatsuch a treatment is best for your patient, and you know your patient better than a part78

time teacher? Are you shopping because you perceive that one faculty member is an“easier” grader? Are you shopping to avoid performing a treatment that intimidates
you? These are important questions, and students are left to provide answers
themselves. Learning to act in the best interests of your patient and learning tooccasionally sacrifice your interests towards that goal is part of becoming a professional,
and it must begin now.

Section 1.8: Building Moral Capacity
There is more to being a good, ethical dentist than having a highly developed
ethical sensitivity and the practiced ability to apply reasoning methods to ethicalproblems. An ethical dentist also develops his or her ethical character along the way.
Character is a collection of personality traits expressed consistently through behavior.
These traits (sometimes called virtues) can best be described as a person’s tendency toact in a certain, often positive, way. Honesty is such a trait, for example, and having that
trait means that one is more likely than not to act honestly in any given situation. Other
familiar positive traits include being trustworthy, loyal, calm, and reliable. Character
traits can be negative, as well. Virtues are, by definition, positive.
There are some traits that become increasingly essential when one becomes ahealth-care professional. These are traits such as compassion, attentiveness, kindness,caring, conscientiousness, discerning, self-awareness, cultural sensitivity,
responsiveness, sympathy, and empathy. It would be hard to consider a dentist to be
fully ethical if any of these traits are absent or severely underdeveloped.
Though it is often difficult to assess our own character, friends, family andpatients can give us helpful feedback on how we are perceived by others. If we aregood professionals we should seek out feedback and be open to it if we are to grow andkeep our commitment to being the best dentists we can be.

79

Usually it is easier to see a lack of character in others. We recommend that as
you examine cases and observe other students and instructors, ask yourself thefollowing question:
Are practitioners being kind, compassionate, responsive, conscientious, caring,
sympathetic and empathetic? Or are they being dismissive, ignorant, careless,deceptive, insensitive, detached and arrogant? How can you evolve your own capacity
in these areas?

80References
American Dental Association (2012). ADA Principles of Ethics and Code of Professional
Conduct.
(http://www.ada.org/~/media/ADA/About%20the%20ADA/Files/code_of_ethics_2012.ashx).
Beauchamp, T. & Childress, J. (1994). Principles of Biomedical Ethics. (4th Ed.). NY: Oxford
University Press.
Curley, A. & Peltier, B. (2013). Standard of care; The legal view. Issues in Dental Ethics, Journalof the American College of Dentists, Vol 80 (3), 53-58.
Jenson, L. (2014). Six common misconceptions about the standard of care in dentistry. Journalof the American College of Dentists,Vol 81(1):59-63.
Jonsen, A., Seigler, M. & Winslade, W. (2010). Clinical Ethics; A Practical Approach to Ethical
Decisions in Clinical Medicine. NY: McGraw-Hill.
Lazarus, A.A. (1994). How certain boundaries and ethics diminish therapeutic effectiveness.
Ethics & Behavior, 4 (3), 255-261.
Niederman, R., Richards, D., & Brands, W. (2012). The changing standard of care. Journal of theAmerican Dental Association, 143, 434-437.
Ozar, D. & Sokol, D. (2002). Dental Ethics at Chairside: Professional Principles and Practical
Applications. (2nd Ed). Washington, DC: Georgetown University Press.

81

Chapter 2: Your Profession and its Formal Codes
Peltier & Jenson(12/26/17)

2.1 Organized Dentistry
2.2 Codes of Ethics
2.3 Peer Review
References

Key Concepts
 Dentists organize themselves to manage their profession and lookafter the interests of patients and themselves.

 Taken together these various organizations (e.g., ADA, CDA, SFDS
and many others) are referred to as “Organized Dentistry.” While a license to practice is mandatory, membership in
Organized Dentistry is voluntary.
 State dental boards do not look after the interests of dentists.
Their mission is to protect patients and the public.
 Most, if not all professional organizations (and dental schools)
have a published ethics code to guide members.
 Most professional organizations offer Peer Review services tomembers (along with other valuable services).

82Section 2.1: Organized Dentistry
Professions organize themselves to maintain high standards and thetrust of the public.

Our description of“professionalism” (in Chapter 1)
emphasized the concept thatbeing a professional means that
dentists are allowed to practice· Professionals take good care of people who musttrust them.
· Dentists practice with substantial autonomy.
· Autonomy is granted by the public.
· Professions organize themselves to ensure that theyremain trustworthy and maintain autonomy.

with a great deal of autonomy, a good thing for dentists. This autonomy, granted bysociety, obligates members of the profession to be trustworthy and competent, partly
because the public cannot monitor you, because they do not understand what you do, andalso because there is often much at stake. Since patients don’t really understand yourwork, you must – as an individual and as a group – monitor yourselves and the behavior ofyour colleagues. If you can’t or don’t, the public may perceive you as untrustworthy oreven dangerous. They may decide that it is not safe to visit you, or they might feel that
dentists are taking advantage of patients by charging too much or doing unnecessary work.
This would obviously be a bad situation, and patients might reach out to legislators or
attorneys for help in overseeing the profession. If this notion is too
abstract to imagine, just think of OSHA and HIPAA. Most dentists are
not eager for more outside supervision of their day-to-day work.
One way that professionals accomplish this monitoring and

If the public
loses faith inyou it will
create moreregulations.

maintenance of standards is by organizing themselves into “professional organizations.”
Each profession has one, and some have several. Medicine has the AMA; psychology has
the APA; dentistry has the American Dental Association, and many more. Each dental
specialty area has its own organization. Endodontists have the American Association of83

Endodontists (AAE), orthodontists have the AAO, and dental educators (your teachers)
have the American Dental Education Association (ADEA). Many of these nationalorganizations have state branches (such as the CDA) and dental associations have local
branches such as the San Francisco Dental Society (SFDS). There is an international dentalsociety, called the Fédération Dentaire Internationale. There is also the National Dental
Association which began in 1900 (when African-American dentists were denied
membership in existing organizations) and has as its mission, “to promote oral healthequity among people of color.”
Virtually all of these organizations sponsor a journal or newsletter to publish
research and to further relevant interests.
Taken together, these organizations are referred toas “organized dentistry.”
While you are not forced to join any specificTaken together theseorganizations arereferred to as“Organized Dentistry.”organization, being a professional implies that you should participate in some sort oforganization that supports the values of the profession and insists on high technical andethical standards.
Self-monitoring is not the only thing that professional organizations do, however,
and a brief discussion of the differences between professional organizations and othersimilar groups is called for. Dentistry has historical roots in the salon of the barbersurgeon, that person in each community who was most likely to provide oral care fromabout 1500 until 1900 CE. Such practitioners did not always view themselves as“professionals” in the ways that dentist do now, and it is important to distinguish a
professional organization from a guild, a trade union, a craft union, and a fraternity. The
main difference – at least in theory – is that professions are not exclusively self-interested
as those other organizations have tended to be. For example, the ADA code asserts that…dentists have an obligation to use their skills, knowledge, andexperience for the improvement of the dental health of the public and areencouraged to be leaders in the community….
84

andThe American Dental Association calls upon dentists to follow highethical standards which have the benefit of the patient as their primarygoal.
The CDA code says that
Service to the public is the primary obligation of the dentist as aprofessional person. The privilege of being a dentist comes
Service to thewith a responsibility to society and to fellow members of the
public is theprofession to conduct one’s professional activities in a highly
primary obligation
ethical manner. While serving the public, a dentist has theof the dentist.
obligation to act in a manner that maintains or elevates theesteem of the profession.
That said, it does appear that the main professional organizations in dentistry
substantially serve the interests of members, and the ADA and CDA are widely respected
as powerful supporters of the interests of dentists. Here’s a recent quote from the WallStreet Journal. Note that it refers to the ADA as a “trade”:
The American Dental Association is one of the most influential trade lobbies in
the country.
WSJ Capital Journal
August 24, 2012

This matter is somewhat controversial, as some dentists feel that the ADA is “toocommercial” while others figure that the ADA’s primary
purpose is to ensure the financial viability of members' private
practices. Many professions, such as medicine, nursing, andpsychology have made the fiduciary role a pillar of their codes(fiduciary, meaning that one person must trust another to takecare of their interests, because they cannot do it for themself).

Fiduciary: When aperson takes care ofsomeone who musttrust them. A person
who has the power
and obligation to act in
the best interest ofanother.

85

These organizations have much to offer you, and you have much to offer them.
They represent a way for you to stay connected with your profession, with colleagues, andwith the norms, standards, and culture. The ADA and CDA provide a wide range of services
including liability insurance, free consultations, support, and advocacy for issues such as
fluoridation, while lobbying for dentists’ interests in state and national governance. As an
example, the CDA offers a substance abuse diversion program for members who struggle
with addiction.
Organized dentistry is unique in the professions in that it requires you to join threegroups at once. If you decide to be a member, you must join the ADA, your stateorganization such as the CDA, and your local component chapter such as the Alameda
County Dental Society. You cannot choose to join only one or two ofthese. Dentistry is also unique in that it has a very high rate ofmembership, higher than other professions. Typically, 60-70% ofdentists are members, while only 20 – 30% of physicians are

Dentistry has ahigh rate ofmembership
relative to otherprofessions.

members of the AMA and about 40 - 45% of psychologists are members of the APA.
Membership is not cheap, especially when you are starting out, but most organizations
have a discounted dues structure for new members early in their career.

Section 2.2: Codes of Ethics
Professionalism is an agreement among members of a professional groupabout how they expect other members of the group to behave.
David Chambers
CDA Journal, 2014

Most professional organizations have a code of ethics that is written by and formembers to set out aspirations and expected behavior. Codified prescriptions of desired
behavior have been around forever if you include the Ten Commandments, the Five
Precepts of Buddhism, the Persian Furūsiyya, the Hindu Kshatriya, medieval warrior codes,
86and even the Code d'Honneur of the French Foreign Legion. Dental schools all have a codeof ethics, as well, and the Dugoni Dental School also has a formal “Patient Relations
Philosophy Statement” that describes how we aspire to treat patients.
Codes typically are a mix of abstractions, such as “obligations arising from theimplied contract between the dental profession and society” and concrete rules, such as “It
is unethical for a dentist to increase a fee to a patient solely because the patient is covered
under a dental benefits plan.”
The ADA code’s official title is American Dental Association Principles of Ethics andCode of Professional Conduct, and it consists of three sections. Many of the abstract ideas
are listed in the first section of the ADA document titled, “Principles of Ethics.” That
section is organized around five of the Normative Principles described in Chapter One ofthis text. The second section is called “the Code of Professional Conduct,” and it includes
fairly specific rules about behavior expected of member dentists. The third section is titled“Advisory Opinions,” and it is interspersed throughout the document. These opinions
serve to flesh out the meaning of the “Code” sections and provide clarity.
Purposes of Codes
An ethics code typically serves the following purposes:
1. Present shared aspirations. The document expresses the group’s view ofthe behavior expected of all members of the profession, and the goals of theprofession in general. It is an assertion of who you think you are, what you
stand for, and who you strive to be.
2. Provide a starting point for discussion and reflection. It can be very usefulin creating dialogue and thoughtful efforts to enhance the profession.
3. Provide a vehicle for education. Codes are written to be instructive and areused to indoctrinate new members, such as dental students.

87

4. Provide a basis for sanction. A code can be used to decide if a member
deserves some sort of punishment or restriction because his or her behavior isout of line with professional values.
The question of sanctions opens the door to a larger discussion of where ethics andlaw interact in day-to-day practice. The chart below should be helpful.

Concerns:

Admin by:

EthicsLaw

Right-wrong,

Baseline minimal

aspirations,

expectations, protect the

reputations

public

ADA,CDA, SFDS

State Board (DBC)

Organized Dentistry

Dept of Consumer Affairs
Dental Practice Act

Written down:

Ethics Codes(Codes, Regulations)

Vehicle:Peer Review and

Board Staff andEthics Committees

Attorney General

Leverage:

Membership,

License revocation(suspension)

bad publicity

Once again, you can see that law and ethics, while similar and complimentary, exist
in slightly different realms. They have differing concerns, and they are tended to bydifferent agencies. This is important to understand for at least two reasons.
First, the state dental board is not “your board” (as a dentist or student). The
mission of the Dental Board of California is clear:“The Dental Board of California's mission is to protect andpromote the health and safety of consumers of the State ofCalifornia.”

The mission of
the Dental Board
is to look after
the interests ofpatients, notdentists.

DBC Website(http://www.dbc.ca.gov/about_us/mission_vision.shtml)
88

The dental board in California is part of the Department of Consumer Affairs andpatients (“consumers”) are their actual clients, not you. It is the board’s responsibility toprotect dental patients and keep them safe from you, the dentist. It is not their job toadvocate for you or protect your interests. They aim to be polite and civil and fair to you,but they do not look out for you. The reason they administer “boards” (that you must passin order to practice) is to protect the public from you.
So, who takes care of you and your interests? That’s
where your professional organizations fit in. If anyone is going

Who looks after theinterest of dentists?
• Organized dentistry• Your malpractice(liability) insurancecompany.

to look after your interests (aside from yourself) it will be themor your liability/malpractice insurance company, which is likely
to be of great help to you if you are in a fix, because they losemoney if you make a mess or get in “trouble.” They have a financial interest in keeping
you out of trouble, and will offer important assistance if you reach out to them. Do not be
shy about calling them for advice before problems unfold. They have an 800 number forjust that purpose.
The second important thing in the chart has to do withsanctions. Since your professional organization did not issue
your license, the ADA or CDA do not have jurisdiction over it.

The state dental
board hasauthority over yourlicense; organizeddentistry does not.

Only the board has authority to discipline your license. If you violate conditions of theCode of Ethics, the only real power those organizations have is to urge you to get in line or
to dismiss you from the organization and publicize that action. They could, of course,
write a letter to your state board, and the board is likely to take such a letter very
seriously.
As we mentioned at the beginning of this section, you havemuch to offer your professional organizations, and it is wise to join
and remain an active member. Soon after joining you are likely to

A license ismandatory.
Membership inorganized dentistry
is voluntary.

89

be asked to contribute, and one of the many ways you can contribute is to participate inongoing updates and revisions of your codes of ethics.
Ethics Codes in Dental School
Dental schools have a code of ethics as well, and a mechanism for enforcement,
usually called the “ethics committee.” Sanctions in school can be more consequential thanthose found in the profession once you graduate. For example, most, if not all dental
schools are willing (if reluctant) to dismiss a student found guilty of serious cheating,especially when it involves the doctoring of school records or a conspiracy (a coordinatedgroup effort to cheat). Schools must provide “due process,” (a fair administrative process
and hearing) because the consequences can be severe, such as the loss of a career. The
right to confront one’s accusers means that a student typically cannot make anonymous
accusations about another student and expect the school to take action regarding thatstudent (imagine a situation where you have been accused of cheating, and when you ask,
“Who made this accusation?” the response is, “That’s a secret.”). As a result, many
students are unwilling to come forward when they perceive that cheating has occurred.
This is an important problem because, as mentioned previously, professions are expected
to self-monitor and self-manage its members. In the same way that patients do not
usually know when dentists are cheating them, faculty members do not typically know
when students cheat. It would be optimal if the process of group self-monitoring began totake shape during dental school.
When a student is found guilty of an ethical violation, schools are likely to take an
educational-remedial approach to punishment, seeking to turn the cheating episode into a
potential life-enhancing developmental experience. This, of course, is not always the case,as some violations are occasionally so damning as to require dismissal from school.

90Section 2.3: Peer Review
Peer review is designed to resolve disputes regarding the quality andappropriateness of dental treatment between a patient and member dentist,or a dentist and an insurance carrier.
“Peer Review; A Membership Benefit”
CDA Document

The chart above also lists something called “Peer Review,” an important benefit ofmembership in organized dentistry.

Peer Review has two important functions:This service is provided mostly by

1. Resolve conflicts between doctors and patients(or between practitioners)
2. Manage member behavior.

local component (county) dentalsocieties for resolving disputes in afair and impartial way that avoids legal intervention or board involvement. Peer review
may be able to resolve disputes between patients and doctors, between doctors andinsurance companies, and between doctors and other doctors.
If a patient is unhappy with some aspect of your treatment, he or she can contact
the local dental society and ask for help. From your point of view, this is a good thing,because other options are potentially more draconian and expensive. Patients could justdrift away from your practice and grouse about you to their friends… or post a nasty Yelp
review, and that’s not good, either. You certainly hope that they do not contact the dental
board or call a lawyer, although you should never try to stop patients from doing so. There
are almost certainly attorneys in your community who are looking for work, and theirhourly fees are high.
The peer review process involves no fees for dentists or patients, and you cansuggest that vehicle to patients. Peer review is a benefit of membership in the dental
associations. In California the situation is investigated and adjudicated by a minimum of
three other dentists (each with at least five years of practice experience), who may
evaluate your treatment, records, and patient claims. The process tends to be faster than91

legal interventions and tends to be fair. It does not necessarily shield you from asubsequent lawsuit, even though patients sign a form saying that they won’t sue later.
Peer review documents are not discoverable in a subsequent legal action. According to
the CDA, outcomes have historically been evenly divided in favor of patients and dentists.
Peer review is not a punitive system, so you do not have to worry about being punished if
a claim is not resolved in your favor. It is possible that you will be asked to make amendsof some sort, most likely financial.
Once again, this is an area where you can contribute to your profession. You canserve on the peer review committee once you have adequate practice experience yourself.

Reference
Chambers, D.W. (2014). Does the ADA have a code of ethics? CDA Journal, Vol 42 (12), 813.

92

Chapter 3: Commerce and Care
Peltier & Jenson(12/26/17)

3.1: Incompatibilities and Tension (Theory)
Commerce and Care chart
Competition and cooperation
3.2: Making a Living in Dentistry






Dentist owned and operated solo or group practiceDentist owned solo or group practice that hires a
Dental Service Organization (DSO)
Corporate DSO owned group practiceKnox-Keene insurer/provider group practices
Government agency group practice.

3.3: Specific Ethical Traps and Pitfalls in Business3.4: Working with Third-Party Payers (“Insurance”)

Common legal and ethical traps in working with “insurance”

Conclusions
Reference93Key Concepts
 Dentistry is not simply a “regular” business like other businesses in thecommercial marketplace.
 There are irreconcilable incompatibilities between a healthcare practice (such as
dentistry) and a regular business in a market economy.
 The most important difference is that patients must trust doctors to look after
their interests. Doctors and patients cooperate rather than compete.
 Private practice dentists have one foot in healthcare and the other foot in thebusiness world. They must maintain a viable business in order to practice.
Dental clinics typically must do the same.
 The need to make money creates a variety of ethical challenges.
 Corporate practice has its own set of ethical challenges.
 Dental plans (“insurance”) is a blessing and a curse, and are is associated withmany ethical issues.

94Section 3.1: Incompatibilities and Tension (Theory)
American doctors have one foot in each of two conflicting worlds.
- Peltier & Giusti, 2008

From time to time you will hear someone remark, often in passing, that
“Dentistry is a business” (more or less true) or that “Dentistry is justanother business” (not true). The speaker is usually trying to make thesimple point that a dentist must make ends meet. He or she must bring

Dentistry is
not “justanotherbusiness.”in more revenue than they spend to run the practice. That’s obvious.
But, there’s a less obvious component of that remark that must be challenged. The
remark can also imply that a dental practice − first and foremost − must be run like anyother business, and that the business components of practice are the most essential.
This is wrong, as there are core aspects of a healthcare practice that are incompatible
with a “regular” business, and while the “business” components might seem more
important to the dentist, they certainly are not the most important to patients. These
incompatibilities are irreconcilable, and they create an ongoing tension in dental
practice. That tension never goes away. While some dentists do not seem to notice thetension, most do. The challenge is important enough in a small private practice, but the
implications loom especially large in the emerging world of for-profit “corporate
dentistry.”
The discussion begins with an acknowledgement that American dentistry ispracticed in the context of a capitalist market economy characterized by competitive
relationships between buyers and sellers. As with any system, there are distinct
advantages and disadvantages associated with this system of conducting business. The
main advantages derive from the ways that decisions by independent buyers and sellers
set the proper price (and actual value) of goods and services in the marketplace. This95

opens the door to competition, and such competition stimulates innovation andproductivity. It also results in long hours, hard work, keen focus, risk-taking, and stress.
Small business owners tend to get up early, stay late, work on weekends, and worry
about the competition.
The chart below depicts key differences between the dynamics of the commercial
marketplace in a capitalist economy and contrasts them with the ethics of healthcare(specifically, the doctor’s office). The remainder of this section will discuss thosedifferences, one by one. This matter is described in greater detail here .

Here is an explanation of these differences, one by one:
Overarching goals. In a commercial enterprise, the main goal is profit. That’s what abusiness is all about. In the small business arena, if you do not make a profit you will
have to close your business. In fact, the IRS will not allow you to deduct the cost of
doing business (rent, supplies) from your taxable revenue unless, at some point, you
96

make a profit. They will consider your “business” to be in reality, a hobby. In thecorporate world, officers of a publicly held company view the task of “enhancing
shareholder wealth” as an ethical duty. They must make a profit.
In healthcare, the whole point of the enterprise is different. The doctor’s office isfocused, first and foremost on the well-being of the patient. Enhancing patient health is
the goal. Patient needs are the point.
Money. In the commercial world, the acquisition and accumulationof money is central. It is the force that drives ideas and efforts, and itis the way that people keep score. You are doing “well” if you makeIn thecommercial
world profit
is the point.

more money; you are doing poorly if you do not. You focus your attention on making
money. The vast majority of business owners would quit if there were no money to be
made.
In healthcare, the focus is on patient welfare and care. That is the point. If
patients are doing better, you are doing well. Money, in this arena is derivative,
meaning that when you take good care of patients, money will follow. This has certainly
been the case in dentistry in the recent past. Whether it continues to hold true is an
open question.
Customers and patients. In the commercial world customers are
only of interest because they are the means by which money ismade. Businesses need customers in order to succeed. They are ameans to an end. Large corporations do not care deeply about you;

Customers
are ameans toan end.

they need you to purchase their goods and services so that they can succeed. They careabout that. They are focused on producing things that you need or want, because thatis how they make money. This is no secret; everyone knows it.
In healthcare we don’t even call them “customers,” and we view patientsdifferently. We care about them because, in a professional sense, they are what we are97all about. They are the point, not a means to something else (money). We don’t needto place their interests above ours (if we consistently did so, we would probably burnout fast), but we do make them central to our practice. We do not use them to getsomething that we want or need. Our job is to take care of them.
Competition and cooperation. The most important difference
between the worlds of commerce and care is in the dynamics ofrelationships. The essential nature of the American market
economy is competitive. Competition is what makes it all work.

Businesses arecompetitive;
healthcare iscooperative.

This competition exists in two dimensions: in relationships between businesses and also
in relationships between buyers and sellers.
Businesses compete with each other to survive. If you do not compete wellenough, other companies will take your customers and share of the market and yourbusiness will fail. You do not share information with competitors or do anything elsethat might help them succeed. In a sense, they are your enemy. They are surely athreat.
In the commercial arena there is a competitive relationship between buyers andsellers. Each has a duty to take care of their own interests and they cannot expect theother to do this. Buyers strive to get the most they can for the lowest price; they aretrying to get the “best deal” they can get. Sellers do the opposite: they strive to givethe least amount of product or service at the highest possible price. This is no secret, as
everyone understands the rules and the game, and the tone of negotiations is usuallyfriendly. But sellers do not do things just to be nice, and they do not “share.” They
always have an ulterior motive in mind, and everybody knows it. There is nothing
wrong with any of this. It’s how the system works, and as noted above, it has its clear
and compelling benefits.
Healthcare services are cooperative, not competitive. Since the whole point is toserve patients to enhance health, doctors cooperate with each other on behalf of98

patient needs. If another doctor can help with your case, they do so. This system
becomes confusing when some doctors do not understand or buy into the need forcooperation. They view dentistry primarily as a business and see other dentists ascompetitors. This confuses patients and creates problems for the profession. Patientssometimes behave like consumers in response (shopping around, haggling over price),and dentists do not usually like this.
The most important lesson from the chart, however, is this: thedoctor-patient relationship is cooperative, not competitive (as is thebuyer-seller relationship). The doctor-patient relationship cannot be

Patients
can’t
compete.

competitive because the buyer, in this case the patient, is in no position to compete. Heor she does not have enough information or training to know what’s going on. They do
not understand the circumstances, the risks, the possible consequences, thealternatives, or even how the treatment is performed. They don’t even know what toask. It’s not an even playing field or a fair fight. Competition won’t work. Patients must
rely on doctors to look after the interests of both parties, not just their own. This is aradically different relationship from that of the buyer and seller. It means that patients
must trust doctors; therefore, doctors must be trustworthy.
Creating demand vs. prevention. In the business world, it isperfectly OK to use marketing and advertising to increase demandfor products or services. Companies must do a good job of making
potential customers yearn for their goods. As consumers,

Doctors don’t
try to increase
the need fortheir services.

sometimes it’s difficult to discern the difference between what we “need” and what wewant. Sellers love to convert wants into needs. We now all need a smart phone. Moreneeds equate to more sales and more profit. The opposite is true in healthcare.
Doctors actually strive to decrease needs through promotion of prevention practices
and patient education (and fluoridation). We all know that prevention of disease is far
more effective and efficient than restorations, even though such treatment enhances99

our bottom line. But, prevention is better for patients, so we focus on it, and we treat
when we must, as something of a last resort. If dentists really treated their practices asa pure business, they would provide soda pop in the reception area and lolly pops on
the way out the door. The conflict between these two worlds is clear in the following
example: A large, complex treatment plan is not great for a patient (as compared toprevention), but is very good for a dentist’s business. These issues are not simply
abstract. They are a fact of everyday chairside interactions, especially with patients who
do not understand prevention or view their teeth as the dentist’s responsibility rather
than their own. Dentists are face to face with this conflict whenever they help patientschoose between treatments, especially when one treatment is more expensive than theother. The tension is real. Dentists make more money with one treatment rather thananother, and patients don’t know how to choose.
Monopoly status. For competition to work its magic in the economy there must be alevel playing field, and government must serve as a referee in the game. If one
company gets big and wealthy enough it can distort the natural competitive forces, andtilt the playing field. When one company has a monopoly, it does not have to lower its
price in the face of competition (because there is none), so monopolies are prohibited.
This is not the case in healthcare. Since cooperation and trust are norms, dentists
essentially have a monopoly on dental practice. Only dentists canprovide dental care. You must be licensed by the state, and you do
not have to worry about non-dentists providing cut-rate, low qualitycare. Dentists often feel threatened when lower cost practitioners,

Dentistryhas
monopoly
status.

such as denturists or dental therapists are permitted to practice.

100

Evidence. In the commercial world where advertising plays animportant role, endorsements (when a famous person or celebrity
touts a product) and testimonials (when a non-famous person does

Dentalpractice relieson science.

the same) serve as evidence of the value of a product or service. This is not the case inhealthcare, where much more is at stake (life and limb). In healthcare we insist on
empirical evidence; that is, science, not endorsements. We test things out under
carefully controlled conditions to make certain that they are true. We do not rely on
what celebrities say, nor do we use materials based upon testimonials. Science is ourguide.
Commodities vs. health. One final difference is in the actual
services you provide and what’s at stake in the outcomes. In thecommercial world where everyday things are bought and sold, one
can survive the purchase of a defective or crappy product. But in

The stakes
are high inhealthcare,sometimes
life or death.

the healthcare arena, you may really suffer if you receive inadequate or poor care. Youmight even die. There’s much more at stake. That’s why trust and science are so
important.

Summary
Commerce and health care are different in fundamental ways that most people do not
clearly grasp. The basic principles and dynamics of the marketplace are incompatible
with the ethics of a doctor’s office. These differences are not reconcilable in any neat orcomplete way. As a result, doctors and other health care providers must be aware of
the differences and prepared to live with the day-to-day tension that is always present.
This tension must be managed. Many practitioners are not aware of these differences,resulting in confusion on the part of doctors and patients, as well. Dentists who work incorporate settings or in large clinics must be especially vigilant about potential abuses
that can emerge when the norms of commerce prevail.
101The “bottom line” in healthcare is that patients must beable to trust doctors and other care providers. Patients are notcustomers who can readily or effectively compete in a caveat
emptor (let the buyer beware) arrangement. Doctors look after
patient interests as well as their own. The patient’s health is thePatients must
rely on doctors
to look after
patient
interests, notjust their own.

primary concern of a dental practice.

Section 3.2: Making a Living in Dentistry
Dentists must attend to the economic realities of practice or risk
failing at business and being of no service to anyone.

While the practice of dentistry may be satisfying and even exhilarating at times, it isgenerally not viewed by practitioners as a hobby. The work is challenging and sometimes
risky, and no one expects you to do it for free. Dental faculty members and dental patients
hope that you will make a very good living at it.
While things are changing rapidly now, there are currently five main businessmodels plus a variety of hybrids that you will encounter in the real world. Hopefully, yourpractice management class will prepare you to effectively engage with them and makeyour way into the one with the best fit. They are:(Natasha Lee, personal communication, email of February 7, 2016)

1) Dentist owned and operated solo or group practice where thedental practice is owned and operated by a practicing dentist or

Current
businessmodels indentalpractice.

dentists. The dentist-owner does it all and takes all the risk and all the profit, and heor she must become a competent business practitioner and marketer as well as an
excellent clinician. Some of these practices hire young dentists to serve as“associates,” occasionally with the purpose of grooming them to purchase thepractice in the future.
1022) Dentist owned solo or group practice that hires a Dental Service Organization (DSO)
for management support. In this model, the dentist-owner hires professional
managers to take care of the essential business components of practice. This allows
the dentist to focus almost exclusively on oral health treatment. Hopefully, the DSO
is really good at the management of the practice.
3) Corporate DSO owned group practice that employs dentists and sometimes offers
opportunity for partial ownership in one or more locations in the form of employee
stock shares (e.g., Heartland, Pacific Dental Services).
4) Knox-Keene insurer/provider group practices that own and operate the practice, act
as the dental managed care plan and provider, and hire dentists as employees (e.g.,Western Dental, Kaiser). The term “employee” has important and complex legal
implications in the business and tax world. Clinicians work on a structured “nine-tofive” kind of basis with occasional weekend work and vacation time that is
guaranteed. Work days and times are negotiated and negotiable. Employees arelikely to be paid a salary with benefits such as matching retirement contributions,health care, and disability insurance. They carry less day-to-day responsibility tomake ends meet, and substantially less risk. Employees tend to share after-hours
responsibilities.
5) Government agency group practice. In this setting dentists are members of theagency (e.g., military personnel in the case of the Armed Forces). Their work issupervised by the agency and its rules, and they typically receive significant benefit
packages. These agencies are often committed to societal or educational goals that
extend beyond making a profit (e.g., Indian Health Services).
"Corporate" practices like to call their practices "private" in the same way thattraditional dentist-owned practices call themselves "private." The word "private" is now
often used to differentiate a "private practice" from a "public health practice."
103

Ethical challenges in each model
Regardless of the type of dental practice all the models share a common demand:revenues generated by dental care must exceed the expense of providing that care.
While each practice configuration poses special challenges, dentists in a private
practice situation are often in the best position to fulfill their ethical duties and obligations.
The more control a dentist has over their work environment the more control they have indecisions that directly affect patient care. In an institutional setting, the dentist loses some
control over treatment decisions, but may have considerable input in how the organization
sets patient care policies. In most situations, a dentist in a corporate setting has the least
personal control over policies and procedures that are typically designed to maximize
profits.
The ethical challenges of solo private practice. Many people choose a career in dentistry
so that they can “be their own boss” and run their dental practice as they choose. For
these entrepreneurial types, a private practice situation is the obvious best choice. Let’slook at some of the ethical challenges being such an entrepreneur presents.
As with any business the formula for success is rather simple: revenues must exceed
expenses (the dentist’s desired salary being one of those expenses). The dentist is thenpresented with two strategies for success: increasing revenue and decreasing expenses.
Both strategies can present ethical challenges, but each can be managed in such a waythat ethics are not compromised.
First, the pressure to make money can be intense in a private practice, especially ina new practice. Sometimes a practice must accept debt at the beginning, on the premisethat a loyal patient base takes time to develop. Even with a loyal base, practices mustendure occasional dry spells, soft months that recur each year, and national or regional
economic downturns. The pressure can become intense, especially when others (such asstaff members and family) are depending on the practice for their financial survival.
104

Unethical practices can seem attractive under these conditions, and humans are capable ofpowerful rationalization in the face of crisis.
One of the most powerful challenges lies in the fact that solo practice is just that:solo. This means that the dentist-owner may be so independent as to be isolated.
Essential business decisions are made alone, without consultation with others who mayadvise restraint or a view that might result in higher expense or lower revenue. As a solo
practitioner feeling the intense pressures of a high-stakes small business, it is easy torationalize effective business decisions that are − in a clinical sense − unethical. And there
is no one to check you. Unethical practices can go on for years if they are not scrutinizedor challenged, until a crisis evolves. The solo dentist is surprised because he or she thinksthat the thing they were doing was fine simply because they’ve been doing it so long, withzero consequences. This problem is less likely to happen in group practices or largeorganizations where many people are involved in decisions and daily practice.
Another challenge in solo practice is this: if the practitioner cannot create leverageby hiring another dentist, there are two obvious ways to increase revenue. The first is topersonally work more hours and see more patients. This is stressful and exhausting, andcan set one up for poor decisions. The second is to ask auxiliary team members to do
more. This can cause them to cross legal and ethical lines to do things that are outside of
their scope of practice.
Some solo practices address this challenge by creating incentive plans, and theseplans usually establish financial goals for specific time periods (days, weeks, and months).
While they certainly help to focus everyone’s attention on efficiency, they can have theeffect of focusing the practice on money ahead of real patient needs. Team members
sometimes become uncomfortable “selling” dentistry. Others, especially when they havebeen taught dentistry by a dentist who is aggressive, may naively embrace selling without
understanding the ethical implications.
105

The ethical challenges of corporate practice. It is easy to see that the dentist in a
corporate setting typically faces significant ethical challenges. That said, there arecorporate dental entities that do an exceptionally good job of creating clinicalenvironments that support the values and ethics of the profession. In fact, a well-run
corporation can provide better access to care and more consistent and efficient care for
their clients than many non-profit and private practices. Large entities have the advantage
of economy of scale, and they can use their size to institute quality control measures andcan often afford the most modern instruments and equipment. They can also provide
ongoing training that might be prohibitively expensive for a solo practice. Small dental
practices must shut down for a day if serious continuing education for team members is totake place.
The most important thing to know about working in a corporate situation is that thedentist cannot defer to any illegal or unethical policies of the company. The ultimate legal
and ethical responsibility for patient care is always that of the individual provider.
“Company policy” is no defense in the case of malpractice or ethical breeches. While thecorporation might provide legal defense for their employees, they have no obligation to doso, and the fate of the individual’s license to practice and any malpractice losses are
entirely placed on the treating dentist. The risk is yours. It is always your license that is at
risk, even though you work for a large company that directs your work.
Young practitioners should carefully investigate (before signing into) any potential
employment contract or practice environment, and decline to join any business that does
not uphold the values and ethics of the profession. Your professional organizations, suchas the CDA may offer guidance to young members. One cannot sign away one’s
professional responsibilities no matter what the contract states, so always obtain legal
advice before signing, and always review a contract for clauses that may compromise yourability to practice ethically. For example, if the corporate situation takes away your rightto diagnose and treatment-plan the patient as you see fit, then you are already at high risk
106

for a legal or ethical breech. Treatment plans that are profit-oriented are rarely in the bestinterest of the patient. As we know, patient autonomy is of utmost importance in dental
ethics and autonomy is violated when all reasonable alternative treatment plans are notoffered. “Selling” an ill-suited treatment plan is unethical and often illegal, as well. While
expensive treatment plans are better for the practice or company, they are not always
best for a patient. Corporate practices commonly use formal incentive systems tomotivate and track clinician behavior (such as how long each appointment takes). Suchsystems can cause significant conflict and stress for practitioners. Extracting one’s selffrom such situations is usually more difficult than avoiding them in the first place.

Section 3.3: Specific Ethical Traps and Pitfalls in BusinessBusinesses succeed by increasing revenue and/or decreasing expenses.

Here is a partial list of general and specific ways that dentists encounter potential
ethical challenges on the business side. They are divided into two types, those involved inefforts to decrease expenses and those aimed at increasing revenue.
Efforts to decrease expenses:• Negotiate favorable lease conditions or invest in aphysical facility.

Ethical challenges
when cutting costs.

Ethical Pitfall: It is the dentist’s responsibility to ensure that the facility inwhich they offer treatment is safe, up to date with regulations, and accessible
to all patients.

• Control or reduce the costs of materials used.
Ethical Pitfall: The dentist is responsible for the outcomes of the care provided.
If excellent results cannot be obtained with cheaper materials, equipment, or
techniques then they must be avoided.

107• Maximize the life span of equipment.
Ethical Pitfall: Dentists are expected to have up-to-date equipment, especially iftreatment outcomes and patient safety are at risk. Old or outdated instruments
and equipment must be renovated or replaced in a timely manner.

• Control or reduce the costs of labor.
Ethical Pitfall: Dentists are responsible for all care provided by staff members.
It is the dentist’s responsibility to determine if a staff member has theappropriate training, experience, and licenses to provide care. All clinical work
must be properly supervised, and work done by assistants and hygienists must
be within their scope of practice.

• Control or reduce the costs of dental laboratory fees.
Ethical Pitfall: Utilizing a dental laboratory that produces inferior quality
restorations or uses questionable restorative materials is unethical. The dentist
is ultimately responsible for the fit, appearance, and quality of the final
restoration.

• Limit the number of patients who demand more time or who cannot
afford extensive or expensive care.
Ethical Pitfall: Dentists have an obligation to make their services available to all
people. Every dentist has an ethical obligation to accept patients with limited
ability to pay and patients who present physical and behavioral challenges.
Such patients cannot be systematically avoided and left for “other” dentists totreat.

Efforts to increase revenue:• Attracting new patients.

Ethical challenges whenenhancing revenue.

Ethical Pitfall: Advertising must not be false or misleading in any way.
Ethical Pitfall: Fee splitting is not allowed. You can’t pay someone to send you
patients, because it creates a conflict of interest. Offering discounts in
exchange for patient referrals is illegal.
Ethical Pitfall: Claiming superior treatment or technique.
Ethical Pitfall: Claiming to be specialized in areas without the proper training
and experience.
108

Ethical Pitfall: Claiming to be a “specialist” in areas that are not recognized as
specialties.

• Encouraging patients to buy more services.
Ethical Pitfall: Encouraging patients to consent to services that are either notnecessary, not in their best interest, or inappropriate considering their values.

• Expand the number of different services offered (e.g., implants, Invisalign).
Ethical Pitfall: Attempting procedures without the proper training and experience.

• Maximize the insurance benefits of third party payers.
Ethical Pitfall: Submitting an insurance form that does not accurately represent
the diagnosis made; this is both illegal and unethical. Adapting or
recommending treatment plans based mostly on insurance compensation.

• Increase office efficiency to provide more care in less time.
Ethical Pitfall: Increasing efficiency by delegating tasks to dental assistants andhygienists that are not within the scope of their practice.
Ethical Pitfall: Ordering radiographs without interviewing or examining thepatient.
Ethical Pitfall: Allowing the hygienist to begin treatment before the dentist
examines the patient and makes a diagnosis and treatment plan.
Ethical Pitfall: Allowing associate dentists to perform treatment that they did
not treatment plan.
Ethical Pitfall: Loosening or ignoring rules about General and Direct Supervisionof assistants.

• Maximize the use of the clinical facility.
Ethical Pitfall: Including specialists within the general practice, creating a
conflict of interest when the patient is not given a choice of specialists elsewhere.
Ethical Pitfall: Allowing staff members to conduct inappropriate treatments orprocedures when the dentist is not present.

• Incentivizing staff.
Ethical Pitfall: Creating a business system and culture that emphasizes financial
goals ahead of clinical goals.
109Ethical Pitfall: Creating specific incentives that encourage team members tosell dentistry rather than treat patient needs and wants.

Section 3.4: Working with Third-Party Payers (“Insurance”)
This is an area rife with potential for legal and ethicalchallenges. The main source of these problems derives fromdifferences in the basic goals and values of dental practice versus
third-party payers. As noted at the beginning of this chapter, theDentists andinsurance plans
live in different
worlds.

goal of dentistry is care (of patients), while the goal of third-party payers (who live inthe world of commerce) is profit.
We will use the term “insurance company” in this chapter because that term issynonymous with “third-party payers” in dentistry. The word “insurance” is nottechnically accurate because these dental companies do not actually provide insurance.
They provide dental benefits agreed-upon by patients and their employers, often forregular, expectable, ongoing care. Unlike real insurance they are not in place to help
clients recover from an unlikely disaster, such as an auto collision or flood or fire in theirhome. They are a “plan,” typically tied to one’s job, offered as a benefit of employment.
These dental plan companies provide a valuable service to patients and society,as they allow dental expenses to be spread across large numbers of people over long
periods of time, making dental care affordable to many people who
could not or would not pay for the care they need at the time theyneed it.
Despite this service, and because of the difference in values

Dentists andplans aretrapped in atreacherous
game.

(between dentists and insurances) dentists sometimes feel victimized, and they vilify
insurance plans and their rules and behavior. Sometimes the behavior of dental plans
tempts dentists to cut corners or to take actions to deceive those plans. Some dentists
feel justified in doing so, thinking that dental plans are out to cheat patients and110

dentists. It becomes a bit of a game, with dentists trying to retaliate for what they
perceive as unfair treatment by the insurance company, which causes insurancecompanies to create rules to prevent this from happening, which in turn makes dental
care more difficult. It becomes a circle of distrust. This is a very dangerous game,because insurance companies typically follow strict (and legal) rules of engagement, andare unhappy when dentists do not follow them, especially since dentists have signed
formal agreements to participate.
There are several areas where this creates ethical (and typicallylegal) problems.

Commonlegal andethical traps.

• Waiving the co-payment. This tactic is illegal andinsurance companies make this fact crystal clear. They even send notices topatients about it. In their view, when dentists waive the copay they are actually
reducing their fee. Therefore (in the view of payers) dentists have falsely billed
the insurance company, causing the company to pay out more than they should.
That said, patients usually love to have their copay waived, and some even
expect it (or worse—demand it as a condition of treatment acceptance).
• Jiggering the treatment plan. In response to a perception that plans are notpaying a “fair” amount for treatments, some dentists adjust their treatment
plans to cause the dollar amount of treatment to be higher, in effect making up
for the amount that they feel the insurance plan should pay. In addition to the
ethical and legal problems involved, this behavior is, to put it simply, crazy (anddangerous).
• Altering dates of service. Patients are often the ones initiating or requesting thisbehavior, and it is obviously illegal and unethical (and crazy, too). But it can be
surprisingly tempting when a patient has lost his or her job or just gotten a newjob, or when their employer has made a unilateral change in benefit plans. If you
just perform the treatment now and submit a claim stating that the treatment
was done on a different date, the patient can take advantage of a plan that willallow them to “afford” the proper treatment. Patients will sit in your chair andplead with you to “help” them in this way. While it can make for a difficult
discussion, the bottom line answer is that: 1) you do not do dishonest things111

such as writing falsehoods on documents; and 2) you could lose your license topractice if you were to do so. Many patients are not aware of the severe
consequences attached to this behavior and view it all as simply facilitating
maximum use of the benefits they have earned or deserve. Some may even have
had previous dentists offer to do this. Other patients figure that “it never hurts
to ask.”• Treating to the insurance plan rather than (clinical) patient needs. This is
another tempting but very problematic behavior, and it represents something ofa conspiracy between patients and dentists. Patients open the bidding with acomment like this: “Does my insurance cover it?” or even “Just treat what theplan covers.” All dentists have heard these questions and comments, and they
are completely understandable. Who can blame a person for trying to minimizeout of pocket expenses? But, some patients have been covered by excellent
dental plans for so long that they really don’t expect to have to pay anything fortheir care. In a sense, they have been “spoiled.” Others are living from paycheckto paycheck, are striving hard to make ends meet, and complex dental
treatments can seem very expensive to average Americans.
This scenario becomes especially problematic when the ideal or proper
treatment is not “covered.” The dentist is clear about what should be done, andthe insurance plan does not reimburse for it. This seems strange to the welltrained, conscientious practitioner, and makes no sense from a “care” point ofview. Sometimes dentists get angry and feel justified in breaking the rules (seethe examples above), and sometimes they are tempted to only perform
procedures condoned by the insurance (especially when patients assert that they
will only consent for treatment that is covered by the plan). The picture getseven more complicated when a dentist perceives that their patient might decline
a treatment plan or even disappear without any treatment at all.
Of course, it is unlikely to be a good idea to “treat to the plan” or treat tothe specifications of the insurance company, especially if such a path would notconform to the standard of care. While it is relatively easy to rationalize andconclude that some care is better than none at all, even if this is true, a doctor
must still be able to justify treatment based upon the standard of care.
When doctors are unwilling to conform to the plan’s dictates, they thenmust assertively explain their reasoning to a disappointed patient.
112

Conclusions
The fact that American dentistry (and all of healthcare) operates in a competitive,
market-based economic environment causes intractable conflict. This conflict isunavoidable, confusing to practitioners and patients, and the source of many ethicalchallenges. Doctors must resist market forces to provide good ethical care to patients, tostay out of legal trouble, and they must effectively manage market forces to run afinancially healthy practice.

Reference
Peltier, B. & Giusti, L (2008). Commerce and care: The irreconcilable tension between sellingand caring. McGeorge Law Review, University of the Pacific, Vol 39 (3), p. 785-800.
(http://www.mcgeorge.edu/Documents/Publications/08_Peltier_MasterMLR39.pdf).

113

Chapter 4: Informed Consent
Peltier & Jenson(12/26/17)

4.1 The Basic Concept: The Patient’s Right to Choose
The Autonomy-Paternalism Spectrum
General Components of the Informed Consent discussion

4.2 What to Do and How to Do It
Specific components of the discussion

4.3 Who Can Consent for What?
Adults Who Cannot Consent for their Own Treatment

Summary
References

Key Concepts
 The informed consent duty derives from the principle of Autonomy.
 Patients and practitioners both have autonomy. They can both say “No.”Neither can prevail on the other.
 Informed consent is a process of communication that results inagreement.
 Signatures on paperwork are not “Informed Consent.” They are
documentation.
 The practical meaning of autonomy varies from culture to culture.
 Minors (and several categories of others) cannot typically consent for theirown treatment.

114Section 4.1 The Basic Concept: The Patient’s Right to Choose
Informed consent is a process of communication; of informing and getting
permission. It is a person’s voluntary authorization for a procedure based
upon that patient’s understanding of all necessary and relevant information.
The patient grants consent for treatment.

To adequately understand informed consent, you must endure a brief history
lesson combined with a little philosophy and some law.
Consent in medicine and dental practice is relatively new (Faden &Beauchamp, 1986). Doctors have historically practiced paternalistically, meaning:
Father knows best. This notion seems more ridiculous with each passing day, but it
wasn’t long ago when that mode of practicing was dominant in dentistry. It still
happens in some places and some practices. Baby boomers such as the authors of
this text can clearly recall the way that care was administered when they were young:
The dentist typically said something like this: “OK. Today we’re going to do a coupleof fillings, so open wide and let’s get started.” That was the extent of the“discussion,” if any discussion took place at all. This is not to criticize or paint thedentist as a bad guy (they were, actually, almost all men). It was the way things weredone, and for the most part, nobody complained. If the dentist was earnest,
competent, and trustworthy, things went pretty well.
But society and American culture has evolved, and paternalism has fallen out
of favor, especially among younger people. Still, informed consent is relatively new inhealthcare, and some practitioners find it hard to fathom. Some seem to view it as an“inconvenience,” like a speed bump.

115

The requirement for consent derives from the normative
principle of autonomy, the right of people to govern themselves(“agency”), and to choose for themselves what they will volunteer
for among the available options. While paternalism was common
practice in the 20th century, the legal right to autonomy inInformed
consent isderived fromthe principleof patientautonomy.

healthcare is not especially new.
Every human being of adult years and sound mind has a right to determine whatshall be done with his own body; and a surgeon who performs an operation
without his patient's consent, commits an assault . . . .
Justice Cardozo, 1914
Schloendorff v. Society of NY Hospitals

The moral definition of individual autonomy is clear and helpful:
Individual autonomy is generally understood to refer to the capacity to be one's
own person, to live one's life according to reasons and motives that are taken as
one's own and not the product of manipulative or distorting external forces.
Stanford Encyclopedia of Philosophy
Christman, 2015

Paternalism, on the other hand is somewhat the opposite. It interferes with aperson’s capacity to choose things for their own reasons, and it acts on behalf ofsomeone without their knowledge or perhaps against their wishes. Paternalistic
action is justified by the claim that the paternalistic choice will be better for that
person. No malevolence is intended. It’s just that the paternalistic
one knows what’s good for the other person. To some extent this istrue in dental care. The dentist does know better, at least in someways. The dentist knows much more about dentistry, teeth, oral
health, disease, and the consequences of everything involved.

Dentists know
about
dentistry;patients know
about
themselves.

Patients know very little of this. But, patients have their own special knowledge
domain: that of themselves, their lives, their families, their history, their values, their116

resources, their habits, their dreams, and their responsibilities. Both sets of expertisemust be included in treatment decisions.
The chart below may help sort this out.

The issue of autonomy vs. paternalism is not as simple as the chart implies, as
there are philosophical categories of paternalism such as hard and soft, weak andstrong, broad and narrow, pure vs. impure, and moral vs. welfare paternalism.
Paternalism is not universally bad. As an example, is it wrong to stop a person fromwalking in front of a bus while they are texting, or to stop a person from jumping
from the Golden Gate Bridge, or to insist that people wear helmets or seatbelts andto install buzzers that annoy them when they do not buckle up? It’s complex, likemost ethical issues.
117

The matter is further complicated by the fact that individual autonomy is notuniversally embraced or seen as the ideal. It is a modern, humanistic, and westernconcept, for the most part. Different cultures view autonomy and even the idea of“self” differently, and American culture (especially the white, northern European
components) tends to prioritize individual rights and personal autonomy. Alternative
views assert that the self and identity are intrinsically connected
to others, to family, and to community. For many people, theessential decision-making unit is family rather than self. Thisdifference is not just an abstraction, as you will encounter clinicaldental situations where a treatment decision is viewed as a

In many cultures,
importantdecisions are notmade withoutfamilial
involvement.

family matter. Often a person cannot and will not consent to a treatment without
checking with their spouse—or an elder.
That said, the legal requirement for consent is an individual one, based on thepremise that it is the individual person who must live with the discomfort of theprocedure, the outcome of treatment, and is held responsible for payment.
The matter is even more complicated when you factor age and competency
into the mix. The legal age of consent is, of course, eighteen. But the matter ofgetting consent for and from minors can be frustratingly complex. And there are
adults between the ages of 18 and 65 who are “developmentally disabled” or“intellectually disabled,” in ways that impair their capacity to understand andconsent.

Section 4.2 What to Do and How to Do It“The dentist should obtain the patient's informed consent through aface-to-face discussion that allows the patient sufficient time to make an
informed decision. The discussion should be appropriate to the patient's
level of understanding.”– California Dental Association (CDA Online)

118

The Informed Consent Exchange
Most people do not really understand the consent process, and few healthcare
practitioners do a really good job of it. Most patients don’t help
much either, partly because they do not know what to expect andpartly because they trust you and would rather not make the effort
to understand the big picture or the details. Some are so nervous

Some patientsaren’t all thatinterested in theinformed consent
discussion.

that they just want to get the process over with. Others feel that they would bother
their doctor if they asked too many questions. Some don’t generally understandwhat they are reading or hearing and do not want to seem dumb. Many patients justwant to seem cooperative and nice. Some doctors and patients treat informed
consent in the same way that they deal with the process of downloading softwarefrom the Internet. They just hit “Agee.”
Doctors are often unaware when their patient does
not adequately understand the situation and theimplications of treatment (Peltier, 1998).

Doctors are often
unaware thatpatients don’t
understand.

The first thing to remember about informed consent is that it is a discussion,an exchange of information. Obviously, you the dentist or
dental student know far more about teeth, gums, and oral
health and disease than almost any patient. Less obvious is theInformed
consent is aprocess ofcommunication.

fact that your patient knows much more about his or her life than you do. So, youboth must exchange information about your respective areas of expertise. Informed

Informed consent is a discussion that includes these elements:
1. The doctor (or assistant) provides information and offers treatment choices.
2. The patient asks questions.
3. The doctor answers those questions.
4. The patient makes choices and gives consent.
119consent involves a discussion, and it is not a one-sided discussion with the dentist
mechanically reciting a long list of things that could go “wrong.”
This process is best done with the use of visual aids such as models, pictures,
diagrams, radiographs, or even videos. It is hard to imagine an effective informed
consent process without some use of visual aids. Many dentists do not use visual
aids, partly because they were not taught to do so, and did not have teachers whomodeled such behavior. Some busy dentists may feel that the use of visual aids
would slow them down, but the benefits of visual aids far
outweigh the cost in time and effort. While the informed
consent discussion can be done by dental assistants or otherstaff, and videos are very helpful, the doctor must be involvedin the process and take ultimate responsibility for it.

Use visual aids
· Photos· Radiographs· Drawing· Cast models· Internet

The point, of course, is that patients understand the situation so that they canmake an informed decision. This means that the discussion must be done in languagethat is comprehensible to them. There are two types of language usage that must be
considered. First, patients and doctors don’t always speak the same “native”
language. The United States has always been an immigrant nation, and many
languages are spoken here. In California dental schools one can expect to regularly
encounter patients who speak one of five different languages. A quick internet
search indicates that more than 100 languages are spoken in California and roughly
half of Californians grew up in a family that spoke a language other than English. (Thistrend is common throughout the United States now.) The language challenge must be
dealt with successfully, involving the use of interpreters and translation as necessary(interpretation is an oral process; translation is a written one). Family members canserve this purpose, but there are complications that can make this strategy
problematic. Personal health information can be sensitive and very personal, and120

family dynamics complex. No matter: the problem must be solved. There is no
informed consent when patients do not comprehend what they are being told.
Second, dentists have their own special technical language that they use tocommunicate with each other which includes terms such as periapical, buccal,
vestibule, mesial, and tori. Patients have no idea what these terms mean, and they
are mystifying. Because they do not want to seem “dumb,” unsophisticated, orbothersome, many patients will not ask you to define your terms. They simply nod
and allow you to move on to the next topic. This means that you must track theirunderstanding, checking along the way to ensure that they really know what’s goingon and what you intend to do to them. This is an important component of informed
consent…and it’s only fair. This means that you must develop two different
vocabularies, one for colleagues and faculty members, the other for patients andtheir families. And you must pay attention to the language you use with eachaudience. Do not assume that patients understand what you told them.
The Role of Documentation
While documentation of informed consent isextremely important, it is widely misunderstood.
Many, if not most patients and healthcare
practitioners mistakenly think that the signing ofThe central task of informed
consent is not to simply geta patient’s signature.
(That’s “documentation.”)complicated forms is the central focus and essential part of consent. It is not.

121

Take a look at the form below:

Ask yourself this question: Does a signature on a form like this constituteinformed consent? Many healthcare practitioners seem to feel that when they get apatient’s signature, they’ve done their job and all is well, so they focus their energy
on getting that signature.
This is the way it is supposed to work:
Doctor andpatient have a
discussion.

Patient makes adecision and gives
consent to treat.

Doctor (or staff) get
forms signed to
document consent.

This means that the most important component of the process is theinteraction between doctor and patient that results in a truly informed choice on thepart of the patient. Once this choice is made, the choice and the process are122

documented in writing. The information is for the benefit of the patient; thedocumentation is for the benefit of the doctor or practice.
Both parts are essential. That said, the interaction benefits
both parties, as a good discussion enhances trust and rapport,
and connects patient and doctor in a collaboration. Be wary of

Two parts of theinformed consent
process:
1. Discussion
2. Documentation

patients who are unwilling to participate in an informed
consent discussion. It is simply not healthy for patients to ignore essential treatment
information. Such patients may not feel ownership of the process, may not feel
responsible for their own health and homecare, and may not feel that they have any
important role in their treatment or follow-up. They may not follow through withmedications, home care, or even payments.
The three-block diagram above also points out that it is the patient who gives
consent. Sometimes you will hear healthcare practitioners say that they “gave (thepatient) informed consent.” This is a misguided use of language, because it is thepatient’s right and duty to “give” (or decline) consent to the practitioner. So, doctors“get” informed consent from patients. They don’t give it. They give information and(hopefully) get consent in return.
What’s Included in the Consent Discussion?
The overall concept is that patients should be provided with all the necessary
information needed to make an informed decision about their treatment. This is
generally thought to include: the nature of the pathology and treatment
 the pros and cons of proposed treatment
 alternatives, including no treatment
 risks and implications (for the future) possible side effects of medications
 costs123

As you can see, there is more to be discussed than just RBA’s (risks, benefits,alternatives), and costs are to be discussed ahead of time, mostly because patientsfrequently make treatment decisions that are influenced by cost, especially when
they are paying “out of pocket.” The alternative of no treatment should be discussed
as well. Doctors should describe a prediction of what is likely tohappen if no treatment is performed or the treatment is
postponed. The most challenging task is often the discussion of
the “cons” or negative aspects of the recommended treatment.
This can be hard because it requires that you inform your patient

Patients must be
informed of therisks andnegatives
associated witheach treatment.

about the downsides of the treatment you are proposing. That said, such a discussion
can really save the day if the downside rears its ugly head. As an example, if you havewarned your patient that preparing a tooth for a filling might result in the need forroot canal treatment, you seem smart and competent when you announce that RCT isindeed required. If you failed to mention that possibility ahead of time, and yourpatient is surprised, and you may end up with egg on your face…along with a
confused and annoyed patient. Such a patient is likely to lose faith in you.
This does not mean that a dentist must discuss every single possible risk or
side effect. The legal question of “how much information?” was resolved in theclassic case of Cobbs v. Grant in 1972. The court found the following:• disclosure need not be made if the procedure is simple and any danger isremote, or the harm is quite minor.
• doctors need not disclose risks when the patient requests not to be informed.
(This means that a practitioner can skip the informed consent discussion when
patients insist that they do not want to participate. As you might imagine, this is a
bit risky, and you should carefully document things in the record. It’s probably wise
to insist that your patient hear at least the most compelling aspect or risk involved in
the proposed treatment.)124

• doctors need not disclose risks when disclosure would so seriously upset thepatient that the patient would not be able to dispassionately weigh the risksof refusing to undergo the recommended treatment. (If disclosure would
frighten them so much that they would not be able to respond rationally or
might even flee treatment). This is called the “therapeutic exception” or“therapeutic privilege.”

Section 4.3 Who Can Consent for What?
Typically, patients give consent for their own treatment.
MinorsDespite the above, patients are not always allowed to consent for their own
treatment. The most common exception is when your patient is a minor (someone
under the age of 18, the age of “majority”). In that situation it is the parent who must
grant formal consent…and sign documentation. When this happens, it is a good idea
for you to get the minor patient’s assent, which is their explicit or implicit agreement
to the treatment. Assent is generally informal, and it involves a disclosure discussion
with the young patient, conducted at an intellectual level appropriate to the patient’s
age. It’s never fun or optimal to provide treatment to someone who objects to thattreatment, although it is occasionally done (with parental consent, of course). If
parents are divorced and do not share custody, then the custodial parent must give
formal legal consent. The exact rules about parental consent get quite complicatedwhen parents of a child are not married to each other, or are deceased or not
involved, so check local law before you treat a minor in thissituation.
Most states (California included) have laws that allow
minors to consent to some treatments without parental
permission, consent, or knowledge. Parents balk and cringe

Minors can consent
to several kinds ofcare (depending
on state law), but
not for dental
treatment.

125

at the thought of such a situation, but these laws serve to protect minors when it is in
the minor’s best interest to be able to receive care without parental involvement. All
states allow emancipated minors (under the age of 18 who have a court’s finding that
it is in their best interest) to live self-sufficiently and without parental constraint.
Non-emancipated minors have some rights to consent for their own care, as well. In
California for example, minors (over the age of 12) are permitted to consent to an
abortion (American Academy of Pediatrics v. Lungren 16 Cal.4th 307, 1997 and (Cal.
Health & Safety Code §§ 123110(a), 123115(a); Cal. Civ. 56.10, 56.11) withoutparental notification, to consent for mental health care, for alcohol and drug
treatment, for contraception and treatment of sexually transmitted infections, andfor HIV testing. While these exceptional situations do not include dental care they
can complicate discussions with minor patients. The case of an adolescent who ispregnant can precipitate a complex legal and ethical situation when decisions about
radiographs are concerned (study the current standard of care regarding x-rays andpregnancy as it evolves). It is conceivable that a dentist might not be permitted to
discuss the situation with parents of the pregnant minor. Obviously, dentists need toknow when their patients are taking oral contraceptives, and youthful patients may
be reluctant to share that information if they suspect that dentists will inform theirparents.
Adults Who Cannot Consent for their Own Treatment
Here are some other complicated areas where someone other than the patient
can provide consent for treatment. These situations are quite rare in generalpractice, often associated with developmentally disabled, intellectually disabled, or“incompetent” patients, and one should consider legal advice before proceeding.
••••

Legal guardian
Public guardian
Regional Center Director
Prior power of attorney126• Judge (Court order)• Next of kin• Two uninvolved physicians or dentists (in emergency)
Summary
While everyone in healthcare knows about Informed Consent, it is not always
conducted properly, especially when viewed from an ethical point of view. Many
practitioners think of it as a “paperwork” requirement, which is a misunderstanding.
Informed consent honors patient autonomy and requires a clear and thorough give-andtake discussion between doctors and patients. Documentation is important, but it
follows the verbal exchange. Absent such an exchange, patient understanding, andverbal agreement, informed consent has not taken place.

127References
American Academy of Pediatrics v. Lungren 16 Cal.4th 307, 1997.
California Health & Safety Code §§ 123110(a), 123115(a); Cal. Civ. 56.10, 56.11.
Christman, J. (2015), "Autonomy in Moral and Political Philosophy," The Stanford
Encyclopedia of Philosophy (Spring Edition), Edward N. Zalta (ed.), URL =(http://plato.stanford.edu/archives/spr2015/entries/autonomy-moral/).
Cobbs v. Grant (8 Cal. 3d 229). California State Supreme Court, 1972.
Faden, R. and Beauchamp, T. (1986). A History and Theory of Informed Consent. NY: Oxford
University Press.
Peltier, B. (1998). Ethics and psychology: Informed consent. Contact Point (August).
Schloendorff v. The Society of the New York Hospital, Court of Appeals of New York
211 N.Y. 125; 105 N.E. 92. Decided April 14, 1914.

128

Chapter 5: Professional Relationships
Peltier & Jenson(12/26/17)

Cooperation and Self-Regulationo Sharing patientso Erroro The work of other dentists
o Gross or continual faulty treatmento Impaired colleagues
References

Key Concepts
 Dentists cooperate and collaborate (rather than compete) with patientsand other practitioners.
 Professionals self-regulate in order to protect the public.
 Dentists are obligated to inform patients of their current oral health status(the result of the dentist’s examination) without disparaging comment
about prior dental services.
 Patients cannot tell the difference between bad outcomes and bad work.
 Dentists have a duty to take action when a colleague produces “gross orcontinual faulty treatment.” Dentist have a duty to take action when a colleague is impaired.

129

Cooperation and Self-Regulation
You may recall from Chapters 1 and 3 the idea thatcooperation is an essential component of the professional’s
identity. Doctors are members of a profession, a group ofDoctor cooperate
on behalf ofpatient needs.

people committed to the care of other people who are in a vulnerable position
because of their maladies, pain, and relative lack of information about dentistry.
Doctors cooperate and self-regulate the profession because the public is illequipped to do so. Remember that your professional autonomy, the ability to
conduct your practice in ways that suit you, is granted to you by the public. It is nota right or a given. When the public loses faith, legislation and regulation follow.
Therefore, it is in dentistry’s best interest to maintain high standards so that it isperceived as trustworthy by the public.
Dentists cooperate with patients and they collaborate withother healthcare providers on behalf of the needs of patients. It is
unprofessional to compete with others in your profession,
especially if patients lose as a result. Doctors share information and

It is unprofessional
to compete withother practitioners,
especially when
patients are
deceived or
harmed.

expertise, and to a considerable extent, they look after each other.
This chapter explores some of the specific guidelines and behaviors associated withintraprofessional cooperation, including:• How do you handle referrals (sharing patient care with another dentist)?
• What do you do when treatments (done by others) are sub-optimal?
What do you say to patients?
• What do you do when you think that a colleague is behaving poorly?
• What do you do when you perceive that a colleague is impaired in some
way?

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Sharing patients
Obviously, no single dentist can provide all the services that every patientneeds. Your scope of practice dictates that you refer patients to other dentists fromtime to time, so that patients get the best possible treatment. Dentists refer toother generalists and to specialists depending on patient needs. If you decide toperform a root canal treatment, you must be able to do it to the standard expectedof a specialist. If not, refer to one. This situation becomes ethically complex when apatient rejects your referral. Sometimes patients balk at the cost of specialty care,sometimes they do not want to drive a longer distance for treatment, andsometimes they simply trust and like you, their current dentist.
When a patient is referred to you, communicate with the referring doctor toensure that you understand your proper role. Return that patient back to thereferring doctor for ongoing care as appropriate (unless the patient volunteers thatthey do not wish to return), and do your best to support the relationship that thispatient has with his or her current dentist.
Error
Dentistry is a very challenging profession. Dentists, hygienists, and assistants
perform difficult, intricate tasks in the mouths of live human beings who move andjolt, produce saliva, and feel what is being done to them by hand pieces and burrsthat rotate at 400,000 RPM. Variations in anatomy and patients are common.
Mouths and tongues are large and small, pain tolerances high and low, patient
responses to anesthesia differ, and tooth and nerve anatomy vary from person toperson. Some patients are super cooperative while others, not so much. The list
goes on. Dentists treat fifteen to twenty patients a day, sometimes more.
Orthodontists treat thirty to one hundred patients in a single day, day after day.

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Everyone makes mistakes. No one likes to think about
doctor error, and as a result medical error sometimes does

Everyone makes
mistakes.

not get the attention and recognition it deserves. Doctors and hospitals are notimmune to error, and this presents a significant challenge. For a chilling analysis of
medical error and its prevalence, click here.
What follows are some thoughts about your own errors. First, do everything
you can to prevent or minimize error in your work. There are four main ways to do
this:
1. Continuously grow your knowledge and skills. Get as much continuing
education as you can. Stay involved with study groups, organizeddentistry, and professional inquiry. Real doctors never stop learning.
Refresh your professional joy by expanding yourself. That said, do notstretch yourself beyond your capacities, especially when tempted by the
chance to make more money. Be sure that you know what you are doing
before you start a treatment.
2. Prepare for each appointment adequately. Mistakes are sometimes
made when a doctor is not prepared for a treatment or has not studied
the patient’s chart.
3. Put systems in place to minimize error. Use routines and checklists
that require safe practice, including double-checking by at least two setsof eyes. Do not assume that you will naturally notice or catch every
possible error. Do not assume that you will not make mistakes; assume
the opposite.
4. Slow down. Many errors are made by clinicians who are simply
moving too fast. There are many forces in daily dental practice that tend
to push practitioners to move too fast.
When you make a mistake, own it. Be truthful to patients
about the situation. This is often embarrassing and truly
difficult to do. Do not make the situation worse by offering

Take responsibility
for mistakes or
sub-optimal
outcomes.
Tell the truth.
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misinformation or a lie, even though it may be tempting to do so. In the end mostpeople will respect you for stepping up and taking responsibility, even though it canbe awkward and distressing. You may lose a patient, but when you step back andthink about it, isn’t that better in the bigger picture than telling a professional lie? It
may help to know that state dental boards are unlikely to severely discipline
practitioners for one simple mistake. They do, however, punish providers whocover mistakes up. Never alter or falsify records. Contact your malpracticeinsurance provider for help with error as necessary.
The work of other dentists
All dental practitioners encounter dental work that appears suboptimal.
Sometimes a restoration looks wrong or even strange. How should you respond?
What are the ethics involved in this everyday situation?
Bad work versus bad outcome. The first step in sorting
things out requires a look at the distinctions between arestoration that was poorly done and one that was done

Bad Workvs
Bad Outcome

properly (or as well as could be done under the circumstances), but did not result inan optimal outcome (Ozar & Sokol, 2002).
Bad work is defined as
Diagnosis, treatment, or communication that falls below thestandard of care. Poorly, improperly done, or a “mistake.”
There are several possible causes of bad work.
ʘ
ʘ
ʘ
ʘ
ʘ
ʘ

poor or inadequate techniquewrong diagnosis
mistakes in preparation or restoration of a toothpoor lab work
inadequate quality control and follow-up
speed and greed
133Bad outcome:Work that fails to accomplish a benefit to the patient or involves
harm or risk; not the result of “bad work.” May be the best that
could be accomplished under the circumstances.
There are many possible causes of bad outcome.
ʘ difficult or challenging patient conditionso small oral openingo patient could not sit stillo patient could not get numb

ʘ temporary restorations still in place; the patient did not
follow through to receive the permanent restoration
ʘ patient had limited resources and dentist provided a lessgood treatment, perhaps as a stop-gap or temporary
measureʘ restoration did not work out well, patient did not return forre-doʘ patient did not employ adequate home care
Patients typically cannot tell the difference between bad workand bad outcome. Sometimes—especially when clinical rapport
is not good—patients assume that a bad outcome is bad work,“the doctor’s fault.” Other times, especially when rapport isgood, patients give their dentist the benefit of the doubt,

Patients cannot
tell thedifference
between bad
work and bad
outcome.

excusing bad work and figuring that “it was just one of those things” or “everyone
makes mistakes.”
An ethical response to sub-optimal work requires great care and skillfulcommunication. The ADA’s Code provides the key to such communication:
Patients should be informed of their present oral health status
without disparaging comment about prior services.
This implies that a) you must comment on the condition of a patient’s oral health,including any work that seems problematic; and b) you should do so without
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criticizing. This can seem hard to do when you encounter a restoration that looks
horrible, but no matter what you assume, there is almost always an alternative
explanation. Sure, bad work exists. It’s out there in patients’ mouths. But, forevery restoration that looks terrible, there is a possible exculpatory explanation thatwould make it a bad outcome. You just don’t know because you weren’t there
when it all went down. For example, there’s always the possibility that the treating
dentist placed a crown or bridge, realized that it was inadequate, informed thepatient, and instructed them to come back in a week to have that restoration
replaced with a “good” one. The patient never came back and then forgot about it
completely after a couple of years. Now, it certainly looks like bad work, but it’sreally a case of bad outcome, compounded by patient indifference or
misunderstanding.
Your ethics codes say that:…when informing a patient of the status of his or her oral health,the dentist should exercise care that the comments made are truthful,
informed and justifiable. There will necessarily be cases where it will bedifficult to determine whether the comments made are justifiable.
This means that dental providers must come up with scripts and phrases to use insuch situations, and the phrases need to be truthful. First, describe what you see inobjective terms rather than judgmental ones.
Judgmental:“This crown was poorly done.
This is a poorly constructed bridge.
Wow! Where did you get this bridge done?”
Objective, without disparaging comments:“The crown on tooth number 14, the first molar on your upper left side,
has an open margin. We really need to replace it, because there’s a135space around the gum line that is likely to allow bacteria to get inside thecrown and damage the tooth. (Let me show you with this picture).”If your patient asks why or how this happened, you can answer:“It’s impossible for me to tell. I can tell you that at this point it’s importantthat we remove the crown, inspect the tooth structure underneath, andreplace it.”
These conversations can be difficult, especially when patients (understandably) ask
probing questions about prior services or assert that the restoration was done
recently, and that they paid a significant amount of money for it. You can certainly
recommend that your patient contact the previous dentist, and you could evenoffer to do this for them. But, refrain from speculation about how that open margin
came about. The Golden Rule applies here: remember that there are probably
restorations out there in the world that you placed that are not working out
perfectly. Think about how you would like a colleague to handle that situation.
Gross or continual faulty treatment.
All of this is not to infer that you should cover up for colleagues. A profession is nota group of people who circle the wagons and simply look out foreach other, reflexively protecting themselves from patient
criticism. Remember that the point of a profession is to use yourGross orcontinual faulty
treatment.

special knowledge and skills to look after the interests of people who are vulnerable
because they cannot evaluate your recommendations or treatments. In fact, ethics
codes also say this about the work of colleagues:“Dentists shall be obliged to report to the appropriate reviewing agency… instances of gross or continual faulty treatment by other dentists.”136

This means that you have a professional obligation (to the public) to monitor andhelp manage colleagues who are practicing below the standard of care. This could
include:····colleagues who have inadequate training or skills
colleagues who are attempting treatments that are beyond their skill set
colleagues experiencing a loss of skills due to medical or cognitive
conditions or age-related deterioration of abilities
colleagues who suffer from substance abuse or addiction

Impaired Colleagues. Often dentists in the above categories do
not or will not recognize their limitations, and need outside
help to adjust or retire. Patients depend on professional

Confronting
impairedcolleagues.

colleagues to intervene. There are several possible actions to be taken.
1. Meet with the colleague in person and discuss your observations
2. Contact your local peer review committee for help
3. Contact the state dental board
Such interventions are mandatory. Ethics codes require some kind of appropriate
action. Gossiping or grousing to colleagues without taking action is professionallyinadequate and unacceptable. The ADA Code also says this:
It is unethical for a dentist to practice while abusing controlled substances,alcohol or other chemical agents which impair the ability to practice. All
dentists have an ethical obligation to urge chemically impaired colleagues toseek treatment. Dentists with first-hand knowledge that a colleague ispracticing dentistry when so impaired have an ethical responsibility to reportsuch evidence to the professional assistance committee of a dental society.
Most if not all states offer diversion programs for addicted healthcare providers.
California has two, one run by the dental board, the other by the California Dental
Association. Diversion programs typically allow a practitioner to enter treatment
137

and continue to practice with a license (while being monitored for compliance andsobriety).
Summary. Dentists are expected to cooperate with each other on behalf of patient
welfare. This means that they accurately and objectively inform patients of their oral
health status without criticizing colleagues. This constraint is not in place simply formembers of the profession to protect each other, but is necessary because one neverreally knows what happened or why a restoration looks “bad.” That said, dentists dohave a duty to act when a colleague is impaired and likely to harm future patients.

References
American Dental Association (2016). Principles of Ethics and Code of Professional
Conduct.
http://www.ada.org/~/media/ADA/Publications/Files/ADA_Code_of_Ethics_2016.pdf?la=en .
California Dental Association (2012). CDA Code of Ethics.
https://www.cda.org/Portals/0/pdfs/code_of_ethics.pdf
Leape, L. (1994). Error in medicine. JAMA, Vol 272 (23), 1851-1857.
http://www.uphs.upenn.edu/gme/pdfs/Leape_Error%20in%20Medicine_JAMA.pdf
Ozar, D. & Sokol, D. (2002). Dental Ethics at Chairside. Professional Principles andPractical Applications. (2nd Ed). Washington, DC: Georgetown University Press.

138

Chapter 6: Confidentiality and Mandatory Reporting
Peltier & Jenson(12/26/17)

6.1: The Nature and Importance of Confidentiality
6.2: Managing Confidential Information

Record-keeping and record management

6.3: Exceptions and Mandatory Reports
Categories of abuse
Child abuse
Elder abuse
Domestic violence and abuse
Developmentally disabled adults

6.4: Other responsibilities related to confidentiality
Dangerous or suicidal patients
Criminal patients
Patients with infectious diseases
Adolescent patients

Summary
References
Additional Resources

139

Key Concepts
 Start with the premise that everything you learn about your patient isconfidential.
 Patients generally expect a confidential relationship. This allows them to beopen and honest with you.
 Electronic communication, while generally favored by patients, is problematic.
Assume that an electronic message is public – or could be.
 While doctors and clinics essentially “own” patient records, patients typicallyhold the legal privilege (regarding who can access them).
 Patients have a right to access their own records.
 Dentists, hygienists, and assistants are mandated reporters in several important
areas such as child abuse, elder abuse, and domestic violence. There is an
epidemic of abuse in these areas in the United States, much of it hidden or kept
secret.

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Section 6.1: The Nature and Importance of Confidentiality
Whatsoever I shall hear in the course of my profession…I will neverdivulge, holding such things to be holy secrets.
- Hippocratic Oath
Confidentiality is important for at least two reasons:
1. Absent a confidential relationship patients are unlikely to shareessential information accurately with their doctors, because•••

Without
confidentiality,
patients won’t
provide accurate
and complete
information.

Some patients have a medical, dental, or a health history that isembarrassing to them (HIV, Hep C, herpes, mental health, phobias,
addictions, seizures, allergies, pregnancy), and patients are quite
private about their bodies, their maladies, and treatments. In manycases you absolutely need accurate medical information. Most people prefer not tofeel judged about these things. Some fear that a new doctor might reject them ifthey know about their extensive and challenging health history.
You also need to know about patient values, especially what they care about in
dental care.
You need a certain amount of (accurate) information about their finances when you
discuss treatment options.

2. Disclosure of private information to third parties can cause real harm. People canbe embarrassed or ashamed, and disclosure could damage a marital or intimate
partner relationship, might cause job loss, or loss of prestige in the community.
Friends and family can be hurt by previously undisclosed sensitive information.
Business deals could be damaged or undone.
The expectation of confidentiality is central to a patient’s trust in theirdentist and dental team.
- theyoungdentist.com
Patient expectations of a confidential doctor-patient relationship run along a
broad spectrum. Some patients (likely a small number) have never thought about
confidentiality when they visit their dentist. Some may expect confidentiality fromtheir physician, but not their dentist. Others could not care less in any case. But mostpatients do care, and they enter the relationship with an expectation that the things
they tell their doctor will be kept private. That private relationship is vitally141

connected to trust, which is central to dental care and treatment. Absent a
confidential relationship, treatment is fundamentally limited.
Here’s a cautionary tale. Many dentists have had this experience or something like it.
A new patient comes into the practice, and during the initial examination
informs the dentist that he or she cannot tell the patient’s spouse that thepatient wears dentures. It’s a secret.
While this scenario can be difficult to imagine, it happens,Err on the sidewhich means that you never know what people consider privateof caution in
and what’s public for them. Some patients are deeply distressed
maintaining
about something you consider trivial. You cannot apply your own
confidentiality.
standards and values to the situation. You must simply treat
everything that you discover in your professional practice to be confidential. Err on
the side of caution when it comes to confidentiality. This includes
•
•
•
•
•

Everything that your patient tells you
Everything that you read in their records
Everything that you discover in your examinations
Everything that you do for them
The fact that they are a patient in your practiceSection 6.2: Managing Confidential Information
This requirement of confidentiality constrains your behavior when you need tocommunicate with other healthcare providers in the following ways:
You can get
1. If you can get a consultation without revealing the identity ofanonymous
your patient, you are free to do that as you wish. This means
consultations
that you can get advice about how to treat a “34-year-old
about patientsfemale with a blood pressure of 160/100 and a resting pulse
without theirrate of 80.”
consent.
2. If the information you would like to share will necessarily
reveal the identity of your patient, you should get your patient’s explicit
permission first. Be sure to document that you did this. Although it is generally
acceptable in healthcare to get verbal permission and then document thatconversation in the records, dental schools have a form for patients to sign, andpractitioners are safer (from a risk management point of view) when they have142

such documentation. Sometimes patients forget that they previously gave you
permission over the phone. That said, most patients are happy to find out thatyou are consulting with other doctors, or others who can help with their care.
In a dental school or large clinic, you can consult with other members of theclinical team in the same organization without special permission from your patient,and it is a good idea to inform patients that this is liable to happen by stating it in
written intake forms. This means that you can share information with dental faculty
members and get advice to enhance care or advance your learning.
When you share confidential information, reveal only relevant informationneeded to get the job done. Do not “overshare.” A discussion about a patient’s
treatment plan should not include extraneous gossip.
The last item on the bulleted list above is called “contact
confidentiality,” and it requires you to keep your list of patients
confidential. You should not reveal the fact that a person is a

Contact
confidentiality:
The fact thatyour patient isyour patient isconfidential.

patient in your practice (without permission of your patient). Occasionally people do
not want others to know that they are visiting an orthodontist, “esthetic dentist,”
prosthodontist (for denture care), or other specialist, for example. They may notwant their previous dentist to know that they are seeking advice or treatment from a
new dentist, especially if they felt mistreated by the first one.
At first glance the requirement of confidentiality seems simple. But, in real life, it
is often complicated and sometimes vexing. For example, what do you do when aspouse calls to inquire about his or her partner’s treatment…or their attendance atappointments? Some spouses push their partner into dental care (for their own good),then call to make sure that their partner is complying. Sometimes spouses wonder
where their partner spends their time. Sometimes high schools request documentationthat a student was at your office when they missed class (were they actually at your143

office?). What do you do if a patient’s employer or HR department calls to find out
about your patient’s treatments? The answer to these questions is generally something
like “We can’t answer that sort of question….HIPAA regulations don’t allow us to dothat. I’m sorry I can’t help you.”
But, what about a patient who is HIV or hepatitis positive and has not told his or
her partner? Or a pregnant teenager who begs you not to tell her parents that she’s
taking birth control pills or is pregnant. Those are challenging topics for ethics
discussions, to be sure.
Texts and email communication pose a significant threat toconfidentiality, and a good general rule is to avoid these media except

Emails andtexts posesignificant
privacy risks.

for routine messages regarding scheduling, cancellation, and basic administrative
functions. There is surely a slippery slope in this area, as administrative messaging caneasily slide into confidential treatment content over time. This can be a challenge topatient privacy and confidentiality. Electronic messages to patients and to colleagues
are extremely convenient, but bear in mind that an electronic message is basically apublic message. Assume that everyone in the world can and will see it someday. Thatsaid, you will find that many patients, especially younger ones, seem quite happy toshare private information in text or email messages. When this happens, you should
caution your patient, and you need to post a cautionary boilerplate message on yourown email messages. We recommend a short, clear message that people might actuallyread.
Confidential treatment also requires a modicum of physical privacy. Operatories
are problematic if they are not private, and when that is the case, practitioners musttake necessary steps to enhance patient privacy. This matter is typically resolved – forbetter or for worse – on a case by case basis depending on the circumstances andpractitioner resourcefulness. As an example, sometimes state dental associations such144

as the CDA offer free dental care to large numbers of people in an open area such as a
gymnasium. Sometimes dental school operatories are quite close together. It is
important to lower one’s voice and take sensitive conversations to a private place inthese compromised situations.
It is a good idea to take special care of information or records related to sensitive
issues, such as HIV seropositivity, chemical dependency, or sexual orientation andgender identity. Work closely with your patient and align closely to their preferences
for sharing. If they are open about these issues, do not necessarily assume that you canbe open about them.
These requirements are legal as well as ethical. The legal nature of patient
privacy has been codified in HIPAA, the Health Insurance Portability and Accountability
Act of 1996. That federal law – designed to protect insurance coverage for people whochange or lose their job – also created standards for electronic billing, and along the way
created formal rules for the handling of “PHI,” protected health information. The law
really got the attention of dentistry, and it sets out strict rules for record-keeping andinformation sharing. Among other things, the law requires practices to appoint a
privacy officer and post privacy practices.
Record-keeping and record management
Patient records are written and maintained for two
clinical reasons and several business ones. The clinical

Keep good records for:• Continuity of care
• Risk management

reasons are:
1. Continuity of care. To help clinicians recall and integrate consistent treatment
planning and safe practices regarding medication, allergies, radiographs, and otherfindings (for the benefit of the patient).
2. Risk management. Documentation can protect a practice from false or
erroneous claims (for the benefit of the doctor and practice).
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To understand how to manage records confidentially and properly, it is importantto understand the legal concept of “privilege.” Privilege is a legal term which generallymeans “a special right, advantage, or immunity granted or available
only to a particular person or group of people.” In healthcare thedoctor or the clinic “owns” the records. They write and manage

Patients
typically holdthe privilege.

them on behalf of the patient who holds the privilege. This means that it is the patient
who has the privilege to control legal access to their records (not the doctor). Doctors
physically manage those records on behalf of the patient, and they must (typically) get
their patient’s permission to allow any third-party access. This is true even after apatient has died, and you must get permission from an authorized party in order toshare the deceased patient’s information.
Records must be maintained carefully and stored safely. When they are paper
records, they must be kept in a secure place. When they are electronic, various
safeguards must be used (such as encryption, passwords, and malware protection).
These practices should be established and published in the practice’s privacy policy, andpatients should have access to them.
It is not only the doctor who must honor the privacy and confidentiality of patient
information. All members of the dental treatment team must do so, as well. It is the
responsibility of the doctor or practice owner to ensure that everyone in the officeunderstands the importance of confidentiality and privacy, and new team members
must be trained. Create and maintain a culture of confidentiality in your practice. Do
not expect that people hired to work in a dental practice understand and appreciate
healthcare confidentiality.
Patient access to records. If patients hold the privilege, then it
follows that they have access to their own records. A doctor orPatients have aright to accesstheir records.
146

practice cannot refuse a patient’s request for records. While state laws no doubt vary,in California a patient is allowed:• a copy of the records, sent within 15 days of a written request (neverrelinquish the original records)• opportunity to inspect the records within 5 business days (and patientscan bring one other person with them)• receive a summary of record content related to the patient’s request(within 10 to 30 days depending on the size of the task)
Patients can request that their records be sent to a third party, such as anotherdentist. Dentists must comply with patient requests for records whether or not there isan outstanding account balance (the patient owes money). Practices can charge a“reasonable cost-based fee” for providing the records or summary.
The idea that patients could access and read their records should always be on
your mind when you are writing charts and notes. Write nothing that you could not
objectively defend, and avoid negative behavioral judgments. For example, instead ofwriting “patient was drunk,” write “patient’s breath smelled of alcohol, gait was
unsteady, and speech slurred.” Do not offer assessments that are outside of your scopeof practice such as, “patient seemed depressed,” or judgments such as “patient was
hostile.” (You do not know that for a fact.).
From time to time you will receive a subpoena or court order for patient records.
You may also receive a request for information from a licensing board. Do not panic.
The rules are complicated, so respond immediately by contacting your malpracticeinsurance company or your attorney for advice about how to proceed. There are manykinds of subpoenas, and each should be dealt with somewhat differently. Even so,never ignore a subpoena. Respond in a timely manner in some way.

147

Section 6.3: Exceptions and Mandatory Reports
Now that it is clear that everything you know about yourpatient is confidential and private, it is time to learn about a seriesof exceptions to that rule. The basis for these exceptions is that
there are times and circumstances when the good of the public (orLaws requirethat you break
confidentiality
from time totime.

third parties) conflicts with a patient’s right to confidential treatment. While there areseveral types of exceptions, they are exceptions, not the norm. But these exceptions
require that you break or violate the confidential relationship you have with yourpatients.
Dentists, hygienists, and assistants are mandated reporters in the following
situations in all fifty states:o child abuseo elder abuseo domestic violence“Because 65 percent of all physical child abuse and 75 percent of all physicaldomestic violence results in injuries to the head, neck, and/or mouth, the dental
professional is often the first person to render treatment to abuse victims as well as
being their first line of defense. The dental community can make a difference.”- Dental Professionals Against Violence

The demand for a mandatory report is a challenging one, and dentistry hashistorically fallen short in its duty to report (ADA, 1998). Statistics indicate that while
65% of all child abuse injuries occurred to the head, face, and neck,only 1% of reports have historically come from dentistry. Dentists
sometimes do not know the law or reporting requirements, sometimes
do not want to alienate a patient, perhaps do not truly embrace theduty to report, and sometimes are just fearful about conflict. The
situation has no doubt improved since 1998, partly because dental

There is an
epidemic ofdomestic
violence andchild and elder
abuse in the
United States.
148

students typically receive at least some training in this area. Some states mandate
regular continuing education on abuse and reporting as a licensure requirement.
This matter is important for at least two reasons: 1) There is a lot at stake.
Children, elders, and spouses or partners die sometimes when they are abused orneglected. The emotional costs to victims are extremely high and long-lasting; and 2)
There is an epidemic of abuse in each of these three reporting areas, mostly
unrecognized because of the shame, fear, and secrecy surrounding them. For example,
statistics indicate that there are at least 40,000 intimate partner relationships in every
major city that could be characterized by “regular, severe violence,” and that physicalassault is widespread in American society: 51.9 percent of surveyed women and 66.4
percent of surveyed men said they have been physically assaulted at some time in theirlife by an adult caretaker as a child and/or by another adult as an adult (CDC, 2000).
“Overall, lifetime and one-year estimates for sexual violence, stalking, and intimate
partner violence are alarmingly high for adult Americans; with intimate partner violencealone affecting more than 12 million people.” (CDC, 2010).
While specific laws vary from state to state, ethics codes encourage reporting.
The ADA’s Code says that
Dentists shall be obliged to become familiar with the signs of abuse
and neglect and to report suspected cases to the proper authorities,
consistent with state laws.
- ADA, 2016
Laws in California (and most states) require dental practitioners to report when
they have “reasonable suspicion” that abuse has occurred.
Reasonable suspicion means that you must consider whether the
hypothetical reasonable practitioner would have suspicion. If they

Every dentist willencounterabused patients.

would, you should. A “reasonable practitioner” is someone who has adequate training
and mainstream judgment. You do not need to investigate, you just report your149

professional suspicion and let the investigative officers do their job. You are allowed totake photographs or radiographs to document or track your suspicion. Dental records
sometimes play an important role in abuse cases, so document carefully. You are
immune from liability if you make an earnest report. While investigators will not reveal
your identity, you do have to provide your name on reporting forms. Patients are likely
to be able to figure out that it was you who made the report, so you must be prepared
for that to happen, although it is very unlikely that anything bad will happen to you as aresult. Patients sometimes even thank their doctor for reporting. The reason forreporting is not to arrest perpetrators (although this could happen). The reason is toprotect people who are in a vulnerable position (children, elders, victims of domestic
abuse).
Dental hygienists and assistants are also mandated reporters, independent of
their dentist. They are required to report even if their doctor does not agree that such areport is necessary.
There are several types of abuse in each category
Child abuse. A child is anyone under the age of 18.
There are four categories of child abuse including
emotional abuse, sexual abuse, physical abuse, andneglect. Dentists are likely to encounter physicalTypes of Child Abuse:· Physical· Neglect (including dental neglect)· Sexual· Emotional-psychologicalabuse, defined as “non-accidental physical injury caused by another.” Corporalpunishment such as spanking is allowed in California and many other states, but withnarrow restrictions. Parents are the only ones allow to administer corporal punishment.
It must be reasonable, applied to the buttocks and back of the legs, and not to the faceand head. Any punishment that requires dental or medical treatment is almost certainly
to be against the law in California (see Gonzalez vs. Santa Clara County, 2014).

150

Neglect is a very significant issue for dentistry, as many American children aredentally neglected. The law requires parents to provide adequate dental care for theirchildren, and many children do not receive that care. It is important to note that areport of neglect to Child Protective Services is not likely to instigate police action. CPS
workers aim to solve the problem of neglect, not punish the parents.
The law (in California) requires an immediate phone call to CPS, followed by awritten report within 36 hours, using a form that can be found at the end of thischapter.
Elder abuse. An “elder” is anyone over the age of 65. Types of elder abuse include
physical abuse, neglect, abandonment, abduction, isolation, mental suffering, andfiduciary-financial abuse. Mandated reporters can call the police, local elder abuse
services, and in California (when the abuse takes place in a care facility) you should callthe county Ombudsperson (https://www.aging.ca.gov/programs/ltcop/ ).
Domestic violence and abuse. While there are several types of domestic abuse, dental
practitioners (and many other healthcare providers in California) are required to make areport to local law enforcement if he or she “provides medical services for a physicalcondition to a patient whom he or she knows or reasonably suspects is suffering fromany wound or other physical injury that is the result of assaultive or abusive conduct.”This requirement applies to domestic violence only (not to injuries incurred in a bar fightbetween strangers). It does, however, require reporting of sexual assault and spousal
rape. (California Penal Code 11160 - 11163.6).
Developmentally disabled adults. These are people between the ages of 18 and 65
who are unable to take care of themselves because of cognitive-intellectual disability.
Dentists are mandated reporters of the abuse of developmentally disabled adults in
California. Categories and reporting requirements are basically the same as for theabove groups of people. California is divided into regions, each having a “Regional
151

Center” that administers and coordinates state services to developmentally disabled
adults.
Section 6.4: Other responsibilities related to confidentiality
Dangerous or suicidal patients. Occasionally dentists encounter a patient who issuicidal or dangerous to others. You will be surprised sometimes at how open yourpatients will be when they visit you for care. They frequently reveal very personal
information, and this implies that they trust you. It probably means that you have donea good job with rapport, although it could also imply that they have no one else toconfide in.
Dental law and ethics codes have little or nothing to say about such patients, so
we will extrapolate from how other healthcare professions handle these things, andmake some calculated speculations. Obviously, a dentist ought to do what is in the bestinterest of a patient’s (and the public’s) well-being, so ignoring a suicidal or homicidal
patient makes no practical or ethical sense.
Psychotherapy law provides some guidance. The first principle is to protect apatient’s privacy and the confidential relationship between doctor and patient. If apatient poses an active danger to self or others, the least intrusive effective intervention
is preferred. When contacting third parties, provide just enough information required
to resolve the problem at hand.
The rules for psychotherapists require them to conduct an adequate assessment
for suicide and then respond appropriate to the results. In actual practice this usuallymeans that they must take some kind of action, and such action may mean breaking
confidentiality by warning or the enlisting help of a family member or the police. No
one expects dentists to conduct a suicide assessment or a psychological intervention,
but dentists should consider calling a patient’s family member, a suicide prevention line,152

or the police, who might implement an involuntary psychiatric hospitalization (for 72
hours). If there is time, a professional consultation with a psychologist or malpracticeattorney is a very good idea, from a practical and risk management perspective. While itis certainly risky to call a third party to warn them about a suicidal patient, imagine how
you might feel if your patient did kill themself shortly after their appointment with you.
Risk aversion seems unethical when a patient’s life is genuinely at stake. It is hard to
imagine that you would lose much if a suicidal patient complained that you called his or
her family member, especially if you have properly documented the discussions ofsuicide.
Psychotherapists have a duty to act to protect third parties from patients theyknow to be dangerous. As mentioned above, no one expects dentists to perform theduties of psychologists, but if a patient is clearly dangerous to another person or to the
public, it is highly unlikely that you would “get in trouble” (whatever that is) by alerting
authorities of the danger. Be careful, however, and get consultation if time permits.
You certainly do not want to violate the confidential doctor-patient relationship based
upon a “hunch” that your patient is a bad actor. Such a violation could be legallyconstrued as slander. But, if you have credible evidence or reasonable suspicion thatyour patient intends to physically harm others you ought to consider action, such as
calling the police or warning a third party. Excellent documentation is, of course,
essential.
Criminal patients. This area is unclear, and regulated on a state by state basis. Whilethe law tends to require third party warnings of intended dangerous conduct in the
future, previous criminal conduct is likely to be viewed as confidential (Applebaum &Meisel, 1986). The law discriminates between actively concealing a crime (illegal), andsimply not reporting one. Laws in this area typically focus on felonies, implying thatmisdemeanors need not be reported. Actively helping to conceal a crime is illegal153

(“misprision”). Asserting privilege (reminding authorities that the relationship with yourpatient is confidential) seems unlikely to be considered concealment. Remember thatyour professional role is that of a healthcare provider, not an officer of the law. Your
patients probably expect you to keep things confidential. Applebaum and Meisel assertthat “fear of prosecution for failure to report a past crime should not be a factor in
deciding on a course of action” (p. 221). (Please do not construe anything in this text to belegal advice. The authors are not attorneys, and much of the above is speculation. Contact anattorney for legal advice.)

Patients with infectious diseases. According to the AIDS.gov website (2017):“Many states and some cities have partner-notification laws—meaning that, if you test
positive for HIV, you (or your healthcare provider) may be legally obligated to tell your sex or
needle-sharing partner(s). In some states, if you are HIV-positive and don’t tell your partner(s),you can be charged with a crime. Some health departments require healthcare providers toreport the name of your sex and needle-sharing partner(s) if they know that information—even if you refuse to report that information yourself.
Some states also have laws that require clinic staff to notify a “third party” if they know that
person has a significant risk for exposure to HIV from a patient the staff member knows is
infected with HIV. This is called duty to warn. The Ryan White HIV/AIDS Program requires that
health departments receiving money from the Ryan White program show “good faith” efforts
to notify the marriage partners of a patient with HIV/AIDS.”The Centers for Disease Control and Prevention offers a compendium of state laws
related to this issue: https://www.cdc.gov/hiv/policies/law/states/index.html .
Adolescent patients. As mentioned in Chapter 4,
minors (typically thought of as over the age of 12) canconsent for certain kinds of medical treatments, suchas treatments related to pregnancy and substance

Adolescents can consent for
their own treatment inseveral arenas other thandental care. Laws vary fromstate to state.

abuse. As an example, regarding pregnancy,
contraception, HIV testing, and substance abuse treatment, California law states:
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“The health care provider is not permitted to inform a parent or legal
guardian (that they provided such treatment) without the minor’s consent.
The provider can only share the minor’s medical information with parents
with a signed authorization from the minor.”- (Cal. Health & Safety Code §§ 123110(a), 123115(a) (1); Cal. Civ. Code §§ 56.10, 56.11)

When you become aware of these conditions in your youthful patients (as you should),
it is probably a good idea to discuss confidentiality with the minor patient. (It’s optimal
to discuss confidential arrangements and conditions before a complicated crisis
unfolds.) Find out how they want you to handle information related to their treatments
and conditions, specifically whether they would like you to inform their parents or not.
While dental law is not especially clear in this area, it is probably wise to start from thepremise that the information is private and should be keep confidential, between
patient and doctor. That said, parents generally hold the legal privilege regarding
treatment of their children, and when that is true, have a right to access records andinformation. As a dentist you must document your findings, diagnoses, and treatments(or decisions not to treat), and parents generally have a right to view those records. It issometimes possible to have parts or all of your records shielded under certain
circumstances (e.g., if revealing the records would harm the patient), so seek legal
advice right away. It is also possible to make (and document) arrangements withparents that allow you to treat their children more or less confidentially.
Summary
While patient care is generally confidential, there are several situations where dentists(and assistants and hygienists) are required to make reports to authorities when abuseor danger are present. This duty is complicated and challenging, but must be taken
seriously, as there is currently an epidemic of domestic abuse and neglect that places
many vulnerable people at risk. Dentists are often the first to notice abuse and neglect.
Consultation in this area is often indicated.
155

References
AIDS.gov (2017). HIV disclosure policies and procedures.
https://www.aids.gov/hiv-aids-basics/just-diagnosed-with-hiv-aids/your-legalrights/legal-disclosure/ (Accessed on 3/5/17).
American Dental Association (1998). Proceedings: Dentists C.A.R.E. (Child Abuse
Recognition and Education) Conference Report, July 31 – August 1, 1998.
(http://www.mchoralhealth.org/PDFs/ADAProceedings.pdf)
American Dental Association (2016). Principles of Ethics and Code of Professional
Conduct.
(http://www.ada.org/~/media/ADA/Publications/Files/ADA_Code_of_Ethics_2016.pd
f?la=en).
Applebaum, PS & Meisel, JD (1986). Therapists’ Obligations to Report Their Patients’
Criminal Acts. Bull Am Acad Psychiatric Law, V 14 (3), 221-230.
Centers for Disease Control (2010). National Intimate Partner and Sexual Violence
Survey. (http://www.cdc.gov/violenceprevention/nisvs)
Centers for Disease Control (2000). Full Report of the Prevalence, Incidence, andConsequences of Violence Against Women.
(https://www.ncjrs.gov/pdffiles1/nij/183781.pdf)
Dental Professionals Against Violence (DPAV). Family violence is a social and healthcare
issue. (http://www.cdafoundation.org/portals/0/pdfs/dpav_ref_manual.pdf)

Additional Resources (California)
Child Abuse & Neglect Reporting -- Penal Code sections 11164 - 11174.3

leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PEN&division=&title=1.&part=4.&chapter=2.&article=2.5.

Domestic Violence -- Penal Code sections 11160-11163.6

leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PEN&division=&title=1.&part=4.&chapter=2.&article=2.

Dependent/Elder Abuse & Neglect Reporting -- Welfare & Institutions Code sections 1563015632

leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=WIC&division=9.&title=&part=3.&chapter=11.&article=3.
156

Child Abuse Mandated Reporter Training – California Department of Social Services
http://mandatedreporterca.com/training/generaltraining.htm
Childhelp: USA National Child Abuse Hotline – (800) 422-4453 http://www.childhelpusa.org/
The National Domestic Violence Hotline – (800) 799-7233 http://www.ndvh.org
California Elder & Dependent Adult Abuse/Neglect Hotline – (888) 436-3600
http://www.aging.ca.gov
Training for dental offices:
P.A.N.D.A. (Prevent Abuse and Neglect through Dental Awareness). Nation-wide public-private
partnership designed to train dentists, dental hygienists and other professionals to recognize
and report or refer suspected cases of abuse and neglect.

Reporting forms (California) can be found here:• Elder Abuse Reporting –https://www.smchealth.org/sites/main/files/file-attachments/soc_341.pdf• Suspected Child Abuse Report Form –http://ag.ca.gov/childabuse/forms.php
or http://ag.ca.gov/childabuse/pdf/ss_8572.pdf• Suspicious Injury Report –http://www.publichealth.lacounty.gov/mch/cpsp/forms/Suspicious%20Injury%20Report%20&%20Instructions.pdf

157Chapter 7: Challenges in the Doctor-Patient Relationship
Peltier & Jenson(12/26/17)

158

Key Concepts
 Dentists and patients do not always share the same values regarding
dentition. This can challenge treatment decision-making, where patients
do not desire the same treatments that dentists prefer.
 Dual relationships (where doctors and patients have more than one
relationship) tend to complicate treatment and create ethical challenges.
 Dual relationships are not illegal, not necessarily unethical, and aresometimes unavoidable.
 Problems in dual relationships are typically not obvious at the onset oftreatment.
 Patients are generally unaware of potential dual relationship problems, so
dentists must take professional responsibility.
 Sexual interaction between dentists and patients is explicitly illegal (inCalifornia).
 All dentists must learn how to say “No” and to end the doctor-patient
relationship appropriately.
 You must complete all invasive treatments or phases of treatments thatyou begin.
 Dentists must be familiar with sexual harrassment law and dynamics andmanage their office environment in a healthy way.
 Gifts from patients can complicate the doctor-patient relationship andmust be managed appropriately.

159

While treatment relationships are often positive and gratifying to bothpatients and doctors, dentistry can present challenges, many because of differences
between the two main parties. Patients are at a clear disadvantage, as dentists
know so much more about oral health and disease, and patients are typically uneasy
or even terrified and disoriented in the operatory. Few people look forward todental appointments.

Section 7.1: Doctor Values and Patient Values
Everyone has values. Differences between the values ofdentists and those of patients in the oral health arena can cause
distressing challenges. Dentists typically value dentition, and theloss of a tooth is a big deal to them. Some teeth are somewhat

Dentists andpatients do
not value
oral health in
the sameway.

more important than others, but to a dentist they are all important. You might evensay that dentists orient their entire professional life toward saving and maintaining
teeth, gums, and bone structure. Patients sometimes do not share these values. For
example, many patients seem to place a pretty low value on teeth relative to theirfinancial circumstances and decision-making. Some prefer their flat-panel TV or
historically restored car – or even their drug of choice. Others may be financing thefirst person in their extended family to ever attend college, while others live frompaycheck to paycheck. When a patient has a tooth that is dead, dying, or infected,
dentists strive to save that tooth. They may recommend root canal therapy, andpatients naturally inquire about the cost. Sometimes they gasp at the price of a root
canal and crown. They ask if anything else can be done to remedy the situation.
Extraction is often an option, and when told the price of that procedure, they choose
it without much reflection. They do not value that tooth as much as the amount ofmoney it would cost to repair and keep it. This breaks dentists’ hearts, because they
perceive the value of that tooth differently, while most non-dentists do not think160

much about teeth and gums. These differing values cause all kinds of challenges,
and they highlight the importance of effective informed consent discussions.
It is best to remain non-judgmental about the way that patients think about
their teeth and remember that all patients have strengths in other areas that you
don’t have. Frequently, very smart and competent people don’t know much about
their teeth, and some don’t even seem to care.
What follows are some relationship challenges commonly found in the dental
office along with ethical implications.

Section 7.2: Dual Relationships
A “dual relationship” exists when a doctor andpatient have a second, different relationship outside of
the treatment relationship. A dual relationship exists
when you have more than one relationship with apatient at the same time … another relationship in
addition to the doctor-patient relationship. When you

Dual relationship:
When a doctor andpatient have an“outside” or second
relationship in
addition to thetreatment.
relationship.

treat the owner of the local hardware store, you have a merchant-customer
relationship at the same time that you have a doctor-patient relationship. When you
treat your spouse, you are involved in a spousal relationship while you have adoctor-patient relationship.
Examples include:
a business relationship outside of dentistrya customer relationship where the dentist is the customer of the patienta friendshipa family relationship (mother, father, sister, brother, cousin, aunt or uncle)
friendships or romantic relationships that evolve from the doctor-patient
relationshipo a bartering relationship
o
o
o
o
o

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Many such relationships exist, and there are few rules that prohibit them.
They are generally quite legal, except when sex is involved. Sexualinteraction between dentists and patients is explicitly illegal in
California and no doubt other states, as well.
Many dual relationships are innocuous or even mutually
beneficial. Sometimes trust has been established in the outside

Dual relationships
are generally notillegal orunethical, but canbecome anightmare.

relationship and it enhances the treatment relationship. Many patients would preferto be treated by someone they already know rather than a stranger. On the other
hand, there are many potential ethical and legal problems lurking behind thecurtains, and young, inexperienced practitioners are especially vulnerable. Dualrelationships seem so convenient at first, and so friendly. Who doesn’t want to help
friends or family members in need?
But, the problems associated with dual relationships are not obvious at theonset of treatment or the beginning of a new relationship. They pop up suddenly
when it is sometimes too late to “go back.” Here’s an example:
You offer to treat your Aunt Mildred after you graduate from dental
school. When she arrives for treatment your office staff hands her a healthhistory checklist on a clipboard. As she fills it out she suddenly notices
questions about her medications and health conditions. Sadly, she has sufferedfrom a bipolar disorder for years, and it has been well-managed with Lithiumand Depakote. She also has Hepatitis-C, and that malady is also being treated
medically. She absolutely does not want you or other family members to know
these things, so she is now faced with a terrible decision: tell the truth andreveal her secrets to her nephew, or lie on healthcare documents. As hertreating dentist you need to know this information to properly treat her.
Obviously, Aunt Mildred does not want you to know her
medical history. She is now in the very awkward position of
having to decide whether to lie on her health history form. You

All patients
must provide
their relevant
medical history.
162are in the unfortunate position of potentially treating someone who has relevant
medical conditions you are not aware of.
Health history forms obviously must be completed fully and accurately. If
your doctor is also your friend or your tennis partner, do you want him or her toknow all about your health history? If you go to church with your patient, do you
really want to know about their history of substance abuse problems, or herpes, or
hyperlipidemia? If you treat your friends’ children, do you want to be the first one tofind out that a daughter is secretly pregnant and thinking of an abortion? Or that
she is taking birth control pills that her parents are not aware of? Maybe so...but
maybe not.
The doctor-patient relationship is special. At its best, it creates a trance statethat results in trust, treatment adherence, and healing. When it goes bad, it can
result in nightmares for both doctor and patient. Both parties must
deeply engage in their respective roles for treatment to go well.
Doctors must think and behave like doctors; patients must thinkand behave like patients. Doctors must be able to confidently andProtect the
special natureof the treatment
relationship.

decisively produce mandibular blocks, cut deeply into gingival tissue, and carve out
technically precise preparations while looking into a small mirror. Patients must beable to trust in the judgment of their doctors to make good decisions, to take care of
their patients’ interests, and to do the best work they possibly can. Both parties
must be able to disagree with each other. Patients must think that their doctor is
special, patients must be treated as if they are special. It is a “special” relationship.
There are several formal areas of ethical concern regarding dual relationships:o Are arrangements in the best interest of the patient – or does they
unduly favor the dentist? Bartering relationships, for example, are legal(when income is posted as revenue on tax forms) but can result inpatient exploitation, especially when the fees charged by the patientare significantly lower than those of the dentist. The arrangement can163become akin to indentured servitude. How does a person who
generally works for $30 per hour barter with someone who charges$3,000 for a root canal and crown on one tooth? The dental treatment
is equivalent to 100 hours of patient labor.
o Justice (each person gets their fair share; equal parties are treated equally)is threatened by dual relationships. Are all patients treated equally? Do
some get extra-special treatment and care? Is this justified by familial
bonds? Shouldn’t you treat your parents better than others?
o Is confidentiality – or the perception of confidentiality – threatened ordamaged? Sometimes entire families become aware of the details oftreatment when the dentist is a family member.
o What happens when the dentist makes an error, or when treatment fails?
How does this impact the future second relationship? What if a patient
experiences a significant negative health outcome subsequent to dental
care (such as a cardiac event)? What if your treatment harms a parent or
friend?
o What should dentists do about the inherent power differential in various
relationships, such as the doctor-patient relationship and the parent-childrelationship? How do you feel when your mother or father is in your chair?
Are they able to let you do your job?
There is a variation of Murphy’s Law that sometimes applies here. Manyexperienced dentists do not treat family or friends because they
discovered that something always seemed to go wrong. The
pattern was almost magical, and they became superstitious about
it, and simply stopped. Similarly, family members can be “difficult”
patients for various complicated reasons, while colleagues haveabsolutely no trouble treating your mother (even though you can’t

Manyexperienced
dentists do nottreat family or
friends because
they discoveredthat somethingalways seemed
to go wrong.

seem to make it work).

164

Dual relationships usually start out in a simple and harmless manner. A
patient asks you out for coffee, a friend refers a friend, or your accountant asks you
if you would help them with their dental care. It is later in the relationship that
unforeseen events unfold. For example, how do you treat your accountant if hemisses a filing deadline? How does he think you will treat him after that? Will there
be tension in the air? Such tension is avoidable if the accountant-patient sees adifferent dentist for his or her care.
How do you charge your friends and family? Do you simply show them yourfee schedule and, being fair, charge everyone in your practice the same fees? Do
you treat your family for free? Do you charge them for the lab fees? Patientstypically do not consider lab fees. How could you charge your husband or your wife?
What about your brother? How could you charge him money? What about yourcousin? She didn’t charge you when she took your son to Disneyland! What about
the differences between good friends and acquaintances, especially people who
think they are better friends than they really are? If you don’t charge some family
members for treatment, where do you draw the line? Your sister talks to yourcousins, of course, and they might figure that they are lucky to have a dentist in thefamily.
What about hygiene and dental habits? Do you get tired of treating a friend
who just won’t pick up a toothbrush? When you notice a friend clenching his jaws
during a social conversation, do you think of all the hard work you put into thoselovely crowns you made for him? What do you do when one of those crowns wears
out after a couple of years?
Small towns pose a special problem for health carepractitioners. When there are only a few dentists in town, it isinevitable that dentists and patients maintain multiple

Rural dentists must
expect to encounter
dual relationships.

relationships. You treat the mayor and play tennis with her.
165

You take care of your Internist and he coaches your daughter’s soccer team.
Dentists in small towns must learn to navigate through the dual relationship minefield. As a result, some dentists choose not to reside in the same town where they
practice.
Dual relationships highlight the importance of assertive communication skills
and the capacity of dentists to say “No” appropriately and skillfully. Remember thatpatients cannot be expected to have a sophisticated view of dentistry or thetreatment relationship, so it is incumbent upon the dentist to raise the issue of dual
relationship complications. Do not expect friends, family
members, and other non-dentists to be aware of all the possible
complications related to dual relationships. Dentists must raise
the issues and make sure that the risks are clear upfront.

Respect thecomplexityof dualrelationships

Section 7.3: Unacceptable Patient Behavior
Not all patients are alike. Some are angels; pleasant, positive, impeccably
reliable, completely cooperative, and eager to please. They make your work easy.
Others, not so much. Remember that dentistry scares most people, and some react
to their fear by behaving poorly. Competent people become unreliable, they show
up late, they seem grumpy and disagreeable. They don’t listen very well and can’t
remember what you said. A few patients lack integrity, some are disorganized,
others have political views that clash with yours and offend you. Some are racist or
sexist.
As you will see in the text below, you do not have to put up with offensive
behavior or even patients that you do not like. But you cannot decline to treat
every patient who misses an occasional appointment or tells a joke that makes you
squirm. You must decide how far your duty to treat the public takes you. It’s apersonal, moral decision that you get to make. You do not have to put up with
166

offensive behavior or harassment as you will see in the pages that follow, but you
certainly have some duty as a licensed doctor to provide care to people with difficult
personalities and suboptimal habits. Remember your ethics codes’ call to service.
That said, everyone who works in a dental office or practice has the right towork in an environment that is not offensive or hostile, and that issue will becovered below. In the end, the owner of the practice has a duty to protect his or her
team from harm, humiliation, discrimination, abuse, and offensive patient (or staff)
behavior. This means, of course, that you must occasionally speak with and confront
those whose behavior causes problems: patients, colleagues, team members, andothers who visit the practice (vendors or delivery people).

Section 7.4: Ending the Doctor-Patient Relationship
While you have few formal obligations to people whoare not patients in your practice, once a person becomes a

Do not abandon“patients of record.”“patient of record” you cannot simply walk away or abandon
them. There are specific legal and ethical rules to guide you in this area.
 You are not obligated to provide emergency treatment to someone who is nota patient of record. You may provide emergency treatment for “strangers” if
you choose, and this can be a great way to build a practice. You are requiredby ethics codes to “make reasonable arrangements” for people who havedental emergencies but are not patients of your practice. While this does notmean that you must treat them, you should not ignore them, either. (Youmust step in to handle any life-death emergencies that you encounter, but
those are very rare in dental practice). While it is not entirely clear what theterm “reasonable arrangements” means, it clearly does not mean that you
can simply tell them to go away.
 You must finish all invasive treatments that you start. If you have placed
temporary crowns, for example, you can only leave those “temps” in place aslong as the standard of care dictates that it is safe and reasonable to do so.
167

If the standard of care implies that it would be unsafe or even bad for apatient to leave temporary crowns on for one more day, they must be
replaced whether or not that patient has paid their bill. You cannot terminate
care for a patient unless you have completed the treatments you have started
or arranged for that to be done. Treatments can be phased, and you do notneed to start a new phase of treatment.
 You do not need to continue to treat someone you’ve come to dread. If apatient’s behavior is problematic or if the doctor-patient relationship hassoured, you are free to end it (as is your patient). You cannot simply walkaway, but there is a legal process (send them a letter that includes a
description of their oral health situation along with referral information, andoffer emergency care for thirty days). You do not need to provide a reason
for the termination of care.

Section 7.5: Harassment and Hostile Environment
American workers have a legal right to a workplace that is not hostile oroffensive to them. This means that employers have a duty to protect that right.
When patients or staff members behave offensively, the dentist must takeappropriate action. Such action is hard enough when the offensive behavior is clear
and obvious; it gets more challenging when the behavior is subtle or when parties
disagree about what’s appropriate and what’s not (such as a joke with sexual
content or comments that include innuendo). The duty is also complicated when alegal level of harm is not met, but subtly offensive behavior threatens the good
morale of an office. These situations are somewhat common in dental practice, andthey ought not to be ignored (even though it is tempting to do exactly that).
Sexual harassment generally involves unwelcome sexual behavior and otherunwelcome verbal or physical conduct. There are two forms, and they are bothTwo types of Sexual
Harassment:

illegal:1. The quid pro quo, when compliance with arequest impacts future benefit or opportunity

 Quid pro Quo
 Hostile environment
168

(an exchange of some sort, such as sex in exchange for better work
situations). This does not necessarily require overt sex, but can include
toleration of sexually charged behavior such as lewd comments or jokes orinformal touching that has sexual connotations.
2. Sexualized behavior that creates an intimidating, offensive, or hostilework environment.
Patients, as well as staff members and dentists can be perpetrators of harassing
behavior, and it is the practice owner’s legal and ethical duty to notice it, stop it, andto prevent it.

Section 7.6: Gifts
Patients frequently gift their doctors, and while such gifts represent lovely
gestures and sentiments, they are not without problems.
Why do patients give gifts?
There are several different reasons that patients give gifts to doctors or theiroffice team.
Sometimes they are given to simply thank the doctor for providing excellent
care while showing kindness. The gesture is simple and gracious, without ulterior
motives or subtext. Many patients are greatly relieved when the care is finished andhas gone well. Some patients are just generous people who are good at expressing
gratitude. Others may have difficulty speaking their thanks, so they express it with aphysical gift.
Occasionally, the gift is more complicated. Another motive
is to level the interactional playing field. Some patients areuncomfortable with the power relationship of the doctor-patient

Gifts cancomplicate
things.

relationship, and seek to “level the playing field.” Their gift, especially if it is an
expensive one, tends to even things out or even tilt things in the patient’s direction.
Both parties have given, and both have received. The patient can then feel just as169good as the dentist might feel about his or her contribution. The patient might feel alittle less in a “one-down” position.
Some patients give gifts to explicitly or subtly enhance future care. The
doctor now owes them something, if not something tangible at least some special
attention. The doctor cannot simply treat that patient as just another anonymous
name on the day’s appointment list.
Lastly, gifts are sometimes a result of cultural tradition and expectation. In
some cultures and countries, a visit to the doctor includes a small gift or dish of food.
Some patients could not imagine going to the doctor empty-handed.
Potential problems.
There are known problems with gift-giving and receiving in the doctor-patient
relationship. They include:• Changes in the relationship. The exchange shifts from a simple providerreceiver-of-services relationship and can become complicated. Sometimes
the receiver of the gift struggles to determine whether the gift creates a
demand in the future. It can be difficult to discern whether a patient
expects anything different because of the gift. That patient may perceivethat the relationship is suddenly closer than the doctor would like it to be.
The relationship can really change if the doctor decides to decline the gift.
• The gift might be accompanied by an expectation for special treatment in
the future. Should that patient expect more timely or convenient
appointment times? Longer or shorter appointments? More attention – orworse, fudging on insurance forms to benefit the patient?
• It is possible that a nice gift might even change the clinical judgment of thedentist.

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• If other patients become aware of the gift they might logically wonder ifthey need to also give a gift in order to get more attention or the highest
level of care. They might wonder what benefits the gift-giver is receiving or
what else might be involved in the exchange.
How to decide?
While there is disagreement in the profession
regarding the acceptance of gifts, there is general agreement

Gifts must be of“non-lasting value.”that accepting all gifts is not appropriate or smart (Caddell &Hazelton, 2013). There are two relatively clear criteria for acceptance. First, the giftshould not be too expensive or valuable. The general standard in American industry
is that a gift must be “of non-lasting value.” It is not always easy to determine what
the term “lasting” actually means. Even a small amount of money (like a tip) is of
non-lasting value, but any cash gift is typically understood to be unacceptable inhealthcare. The patient is already paying a fee for the service, and most doctors
wouldn’t feel great about accepting a “tip.” A larger amount of money begins tosmell like a bribe. When you accept a valuable gift – even of non-lasting value suchas a ticket to a special sporting event – you are at risk for being “on the hook” toprovide favorable service in the future.
A second useful standard is appropriateness. While this criterion is vague, it isstill of value at the extremes. Some gifts are clearly problematic. When a gift has
overt sexual tones, is way too personal, or has troubling political or ethnic overtones,
it must be rejected.

171How to respond?
There are three general ways to respond to a gift from a patient.
1. Accept the gift gratefully.
2. Accept the gift on behalf of the office team and share it
openly with team members.
3. Reject the gift graciously.
When you accept a gift, it is a good idea to do so in the open rather thanbehind closed doors. If you are uncomfortable with the gift, it’s probably not a goodidea to accept it in the first place. Consider whether it’s a good idea to display thegift in the office (considering what other patients might think). Thank your patient
appropriately and promptly, perhaps with a short note.
Consult with a trusted colleague when you are unsure about what to do. If
you accept a gift, don’t let it go to your head, and avoid providing inappropriate
special care to that patient in the future.
If you decide to reject a gift, do so – as best you can – without rejecting thepatient or the sentiment involved.
“Thanks very much for the lovely offer. That’s really nice of you, andit’s great that you are happy with the care we’ve provided. But ourpolicy doesn’t allow me to accept gifts like this. It’s really nice of you,and I hope you understand.”(For a more detailed discussion of these issues, see Chapter 25 in Bernard Lo’s
Resolving Ethical Dilemmas, 2013).

Summary
The dentist-patient relationship is of consummate importance to a dental practiceand while it is often positive and friendly, it can offer challenges. Patients are172

typically nervous about office visits and procedures, and they know little about
dentistry and oral pathology. Many have had previous life experiences that weretraumatic or unsatisfactory in some significant way. Attention to these potential
challenges can head off problems and enhance your practice. It is the doctor’s duty
to anticipate challenges and confront them appropriately.

References
Caddell, A. & Hazelton, L (2013). Accepting gifts from patients. Canadian Family
Physician. Dec; 59(12): 1259-1260.
(https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3860914/).
Lo, B. (2013). Resolving Ethical Issues. 5th Ed. Philadelphia: Lippincott, Williams, &Wilkins.

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