© Gary Inglese
Dental Defense - Illinois Department of Financial and Professional Regulations Defense - Dental-Legal Issues - Dental Risk Management - Dental Contracts and Business Issues - Dental Office Transitions
Dental legal misconceptions
Misconception # 1: A refund to the patient is an admission of guilt
The law in Illinois is very clear. A refund of fees to a patient is not a sign of guilt. It cannot be used against the dentist should the case every blossom into a lawsuit. In some circumstances, it may be considered a wise business decision that avoids years of litigation. It is not a “failure” on the dentist’s part to refund money. Make sure that if you refund money, have the patient sign a “release.”
Misconception #2: Consent forms do not hold up in court.
When properly presented, written consent forms are a powerful defensive tool in litigation. Obtaining proper patient informed consent is more than handing a piece of paper with risks outlined for the patient to sign. It is a verbal process memorialized by the written consent form. Knowing the consent form is not insulation against liability, it shows that the defendant dentist is thorough and the patient knew the risks prior to undertaking the procedure.
Misconception #3: It is not necessary to have an attorney when talking with investigators.
Never, ever talk to an IDFPR or other investigator without an attorney present on your behalf. The dentist should always consult with an attorney who has experience with IDFPR matters because IDFPR operates differently than an enforcement type agency. Even though the investigator may have a pleasant demeanor and appear to only be fact gathering, a minor matter can expand into a serious problem without legal guidance [see article about IDFPR investigations]. It is hard to re-stuff a feather pillow ounce the feathers are out or to un-ring a bell. Just remember that every encounter with a dental investigator from IDFPR is memorialized in a written report. Most often, the investigator is not your friend. This same advice also applies when the practice receives a letter from an insurance company that they want to review patient records.
Misconception #4: If you document a patient’s refusal to take x-rays, you can’t be sued.
Yes, it is important to document a patient’s refusal to undergo a dental procedure or diagnostic test, but merely documenting the refusal may not be enough to avoid liability. The dentist must explain why x-rays are a critical part of the diagnostic process to discover tooth decay or periodontal disease. To shirk this responsibility is practice below the standard of care and may expose the dentist to a malpractice suit.
Misconception #5: Hiring Independent Contractors insulates the dental practice from liability.
It is a false assumption that designating a dentist or staff person as an independent contractor insulates the practice owner from liability if the independent contractor commits malpractice. Under Illinois law, a practice may be vicariously liable for negligent acts by any staff person working in the practice under the legal theory of “agency,” Unless the patient has been advised prior to any procedure of the professional status of the independent contractor, it is reasonable for the patient to assume that the independent contractor is an employee of the practice.
Takeaway: Discerning fact from myth, you are in a better position of avoid unintended legal consequences.