When Ethics and Law Collide with ProfessionalismBy Kevin Huff on August 21, 2019 | comments
Ethical codes in health care outline principles that can guide decision-making for appropriate therapy in an objective manner. Professional ethics – based on tenets such as autonomy, veracity, non-maleficence, beneficence, and justice – are teachable principles.
Ethical decision-making processes can be taught in organized courses of study. However, dentists often face circumstances in caring for their patients that require decisions of morality.
Morality, which is different from ethics, is completely subjective. The ability and responsibility to determine right from wrong is inherent in the way individuals are raised and cannot be taught in courses of study. Added to the juggling of ethics and morality, laws dictate permissible health care practices that are determined by state. While ethical principles are developed based on morality, laws of the land may not.
In general, laws are ethically derived, even though they may not necessarily be moral. The ethical tenet that balances law and morality is justice.
Justice is the concept that dentists have a moral responsibility to be fair in their dealings with patients, colleagues, and society. Practicing justice is broad in scope, including serving patients without discrimination against race, nationality, religious beliefs, skin color, sex, or sexual orientation.
Since dentistry is a proudly self-policing profession, dentists have an obligation to endeavor to uphold the integrity of the profession when ongoing negligence or dishonesty is recognized through the peer review process or through reporting of obvious crimes by another dentist to appropriate authorities.
However, dentists are cautioned against unjustifiable criticism of colleagues based on preference of approach rather than objective assessment of the treatment provided based on the evidence-based treatment model. In fact, when a dentist is called upon for professional and expert opinion, it is only ethical that the dentist provides objective testimony based on the facts of the case while avoiding interjection of personal preference of care.
Furthermore, a consulting clinician has a duty to provide or refuse care without undermining reasonable treatment given by a previous treating dentist, bearing in mind that the ability to render ideal care and obtain ideal results in every situation is not a realistic expectation. Optimal care may result in a less-than-ideal outcome depending on the specific circumstances surrounding when the treatment in question was rendered. However, if gross or continual faulty treatment is observed by a clinician, the witnessing dentist has a duty to address the compromise to standards of care or practice appropriately and without malice to uphold the integrity of the profession of dentistry.
Usually, the first step might be to personally contact the offending dentist to discuss the matter kindly and professionally. If appropriate and by mutual agreement, assistance with the situation or an appropriate referral may be provided in the best interest of the patient. If the violations continue or if the initial contact is met with animosity, then reporting the matter to the local peer review committee is a reasonable option.
In the most severe situations of violation of standards of care or practice, it may be necessary to encourage the patient to report the situation to the state dental board for investigation. As an advocate for the patient, if the patient is in immediate danger or their basic rights are being violated, it may be appropriate to report the situation to local law enforcement. Doing so can be one of the most difficult ethical challenges for a dental office.
The following is an example where a dentist must exercise justice while considering other ethical principles in deciding how best to address the situation:
During a morning meeting with her regular employer dentist, a hygienist who also substitutes for other hygienists on a part-time basis raises a situation for discussion in which she was an unwilling participant. She explained that she had worked in a primarily Medicaid-supported practice in which she had 13 patients in an eight-hour timespan with additional patients double-booked to account for a normal no-show rate in that practice.
Surprisingly, nearly every patient showed up, making it impossible for the hygienist to keep up with the patient load. Since she was unavailable to see all the patients without compromising her personal standard of care, the doctor instructed his assistant to “do a prophy” on some of the patients, which consisted of coronal polishing and flossing. The hygienist discovered that Medicaid was billed for prophylaxes, even though the “prophies” were not performed by the hygienist. The hygienist was concerned about negligent care and possible fraud.
What is the hygienist’s primary employer’s ethical and legal duty, and what is the hygienist’s obligation?
A knee-jerk reaction might be, “He’s committing fraud! Let’s get him!” However, if one steps back to look at this situation from an objective ethical perspective, the way to handle this situation may be much different.
First, from a standpoint of veracity, all the facts are not fully understood. For example, could the dentist have performed examinations and determined that calculus and/or accretions were not present or have scaled the patient before asking an appropriately qualified assistant who is legally certified to perform coronal polishing in that state?
If the assistant was known to not be appropriately certified, then there would be a concern to address. Considering the tenets of benevolence and non-malfeasance, could it be possible that the patients treated with prophylaxes in this matter were helped by removal of plaque, or was there actual harm caused to the patients by having less than ideal care?
For that matter, what proof is there that the care was less than ideal? Since the hygienist raising the concern admittedly did not evaluate these patients, justice and veracity would demand that rendering an opinion in this situation may be unethical because information to make a reasonable, fact-based opinion is lacking.
However, if evidence of substandard care, harm to the patients, or fraudulent billing is available, then justice would suggest that the patients should be encouraged to report the situation to the state dental board, or the hygienist could file a complaint depending on the dental board rules for reporting in this particular state.
So, what should the hygienist do? Based on the lack of all reasonable facts, the hygienist should avoid rendering an opinion based on assumption and professional discomfort alone. Likewise, the hygienist’s regular employer should likely avoid any comment or action because any action taken would be based on second-hand report, or hearsay.
However, if continued reports of similar situations occur, then the concerned dentist should probably make a professional courtesy call to the alleged offending dentist to discuss the potential compromise to standard practices and then attempt to ascertain whether reporting to the appropriate authorities should be contacted in the interest of public health.
Kevin D. Huff, D.D.S, M.A.G.D, is a Fellow of the American College of Dentists and International College of Dentists. He is a member of Spear Visiting Faculty, moderator on Spear Talk and contributing author to Spear Digest.