Dr. Bruce H. Seidberg discusses how ethical and moral behavior are governed by law
A relationship exists between medicine, dentistry and the law1 (Figure 1). Dentistry is to medicine as medicine is to dentistry: They have a cause and effect on each other; both are subject to ethical and moral behavior; and both are governed by law.
Ethics can be defined as a set of rules provided to an individual by an external source, i.e., a professional organization or the social system. In contrast, morals are derived from one’s upbringing and beliefs, an individual’s own principles regarding right and wrong. Concepts of ethics are learned through education as a framework for acceptable behavior, whereas morals involve behavior usually influenced by family, religion, and the social atmosphere.
You don’t have to be wrong to be sued.2 Doctors are engaged in litigation for many reasons, including, but not limited to, poor or unexpected outcome, patient anger, lack of clear communication, colleagues trying to explain a previous treatment from another colleague without knowing the circumstances, and the lack of morality or breach of ethics (Figure 2). While providing a scientific and technological service, patients may decide that the treatment hasn’t met their expectations. What may have begun as a difference in opinion could turn into a costly and time-consuming lawsuit. There is usually a negative perception of the doctor. Types of treatment know no boundaries. Patients expect to receive the same conscientious care no matter where they are treated or by whom. You need a license to practice dentistry, but you do not need one to practice ethically or morally.
Lawsuits can be avoided not only by keeping good documentation, but also by communicating with compassion, providing adequate informed consent, and following appropriate risk management procedures. Risk management offers a way to improve the profession and our practices before, instead of after, lawyers and juries impose legal precedents. Lawsuits can be diffused by having good interactions with patients (Figure 3). Good risk prevention skills must be adhered to (Figure 4).
The accepted definition of standard of care is that reasonable care and diligence provided for a patient and exercised by members of the profession in similar cases, in like conditions, are given due regard for the state of the art at that time. Standards apply nationally, although there are some localities that accept local standards. It is a myth to believe that specialty organizations set the standard. Actually, in court, the expert witness who is dressed the best and speaks with more convincing authority to educate the jury and judge sets the standard for that particular case. Precedence, reference to specialty organizations guidelines as a basis for evidence or evidence-based studies for that case in question and other salient references can influence the development of the concept of standards of care.
The ethical basis for the standard of care includes beneficence, to recommend the best therapy while minimizing potential harm, avoid placing a patient at an unreasonable risk of harm, and which can be disputed in court by an opposing witness. Notably, there is an interaction between ethics, law, and risk management (Figure 5).
Dentists share an office culture3 that demonstrates a professionalism (Figure 6) that translates to receiving the trust of patients and society. In return, dentists commit to adhere to high ethical standards of conduct as set down by the ADA4 and other organization’s principles of ethics (Figure 7). Ethical behavior encompasses rules and standards that govern members of a profession and a systematic study of moral behavior whose actions must be supported by reason. Ethical concepts include patient autonomy (the patient has the right to understand and consent), nonmaleficence (Hippocratic Oath to “do no harm”), beneficence (doing what’s best for the patient), justice (fairness in allocation of services), and veracity (requires honesty in all dealings) and defined as noted in Figure 8.
Ethics requires that in most cases, patients are allowed to determine their own destiny and that they be given honest, helpful answers to their questions. That is known as the relationship between veracity and autonomy. Patients must be informed of their oral status without disparaging comment about prior services, referred to as veracity and justice. Because one more than likely has not witnessed alleged circumstances of an event between a patient and doctor, one should never be critical about or berate another colleague, or imply negativism about the care rendered. “Differences of opinion should never be communicated in a manner that implies mistreatment. The standard of care allows for variance; reasonable minds can disagree.”5 Always try to remain positive when talking to a patient about previous treatment. Patients are not to be deceived by treatment rendered by a generalist versus a specialist; there has to be the appropriate disclosure of being a specialist or not.
Ethics are derived externally from a social system such as one’s profession and refers to rules provided to the individual practitioners, whereas morals are derived internally from one’s upbringing and beliefs and refers to an individual’s own principles regarding right and wrong. The ethical codes must be followed as set by the profession, regardless of the practitioner’s own feelings. Morals may be influenced by culture or society, but are personal principles created and upheld by the individuals themselves.
There are legal guidelines that govern ethics within a particular time and place. Laws are external, written by a governing power and must be obeyed, or there can be penalties like fines or imprisonment. Ethic laws are internal codes that should be obeyed but can be violated, and then there may be disapproval from peers or disciplinary proceedings that follow. Moral law, in contrast, is sometimes thought to be synonymous with ethical guidelines. The rules of behavior originating from personal conscience are not necessarily part of legislative law and may or may not be legally enforceable.
Ethics, morals, and the law all intersect similarly like other areas already referenced previously. Behavioral differences prevail between ethics and morals. Moral behavior, concerned with the principles of right and wrong, conforms to standards arising from conscience or sense of obligation. Morals define personal character, whereas ethics stresses codes of behavior in which morals are applied. Ethics is knowing what is right and wrong and choosing to do the right thing, whereas morals is choosing to do either the right or wrong thing. Law can cause conflict between ethics and morals, for example, when morality interplays where a lawyer has to ethically defend a client even when he/she knows the client is guilty. Legal ethics must override personal morals for the greater good of upholding the justice system. Also, a conflict between law and morality can exist when there are patients who may be financially compromised and are in need of dental care. In being beneficent, acting in the best interest of the patient, a practitioner may waive the co-payment of an insurance claim so the treatment can be rendered without the patient acquiring additional financial burden.6,7 Here beneficence, morals, ethics, and integrity all interact in a conflicting way. Integrity involves a commitment to common ethical principles in which key components are sagacity and veracity. Waiving co-payments is deceptive to the patient and insurance company, and can be interpreted as a form of insurance fraud.8
When dealing with conflict, be empathetic and put yourself “in the patient’s shoes.” Find a common ground to discuss alternative solutions to the problem, and try to keep conversations on a positive note without losing one’s temper. Handling patient problems is where one can go astray and be vulnerable to litigation. A slow and quiet conversation can defuse a difficult situation.
Two philosophical ideals lead to success. Dr. Herbert Schilder8 stressed to his graduate students to be the best they can be, but that they had to have the absolute desire to do so (Figure 9). He said that to obtain the knowledge to perform a skill, you had to have desire. Lacking one of the elements will undermine the goal to success. Dr. Michael Fallon9 stressed the Three “A’s” for success: Affability, Availability, and Ability (Figure 10). Affability is being able to speak to, be approachable, amicable, and gentle. Availability is to be accessible to anyone in need for whatever reason. And one must have the ability to think, to accomplish, and have the mental or physical power to do something and to do it well. Both ideals include practicing within the standard of care with integrity, ethics, and morals.
Ethics and morals are the basic ingredients of integrity, which then molds character. Integrity is the commonality found in the professions of law, medicine, and dentistry and can be the determining factors for the degree of success of a practitioner (Figure 11). Character is formed from the values of integrity, honesty, and consistency between words and actions. It is the interaction between what we believe and what we do. You have to practice with integrity, morals, and ethics if you want to succeed and avoid litigation. You have to know and understand your limitations and practice only within the scope of your license.
Within the context of the theme of this paper, professional images can be compromised when advertisements appear the same way as a local store. Deceptive advertising slogans influence the perception of the patient after reading and hearing various slogans of who is ethical and moral and who is not. Be aware that wording can be misinterpreted, and either suggest a guarantee or be misleading. Be careful where and how you decide to advertise, and how you describe your practice. The use of catchy telephone book slogans can easily be susceptible to misunderstanding (Figure 12). For example, Gentle Dental Care as opposed to Rough Dental Care? Pain-free Dentistry as opposed to Painful Dentistry? Excellent Infection Control as opposed to No Infection Control? Safe Sterile Environment as opposed to Dirty Environment? We cater to cowards as opposed to We do not treat brave patients? The others listed in Figure 12 can also have an opposing meaning.
There is a relationship between ethics and the law. The law sets a minimum standard below which nobody should fall; ethics can set a higher standard that may be more difficult to attain. It is legal for a graduate dentist to do any phase of dentistry, but is it ethical? All practitioners should know their limitations of what they can do good or not so good. It would be appropriate to use the referral system if your competency in performing a phase of dentistry is not what it should be, or if it would fall below the standard of care. For example, a dentist had her license partially suspended in certain areas until completion of course of retraining in each such certain stated areas, given 3 year probation and a $1,000 fine because she was not proficient in doing endodontics or oral surgery, and most every case she did was incomplete and inadequate11 and required retreatment. She was legal because of her dental degree but not very ethical or moral and lacked integrity because she did not recognize her limitations. She violated the concepts of nonmaleficence and beneficence. There are ramifications that can be devastating to the practitioner and or a practice from being found guilty of various allegations (Figure 13). Licensing boards can suspend licenses, cite and set monetary fines, order retraining or continuing education, or many other remedies
In summation, desire for knowledge can improve your skills. Having affability, availability, and ability helps make you a better practitioner. To practice within the standard of care and communicate appropriately will help you avoid litigation. And finally, you must maintain character with integrity at all times coupled with adhering to ethical guidelines, have moral behavior, and use common sense.
This article was modified from risk management lectures by the author.
- Seidberg BH. Ethics, Morals, The Law and Endodontics. In: Ingle JI, Bakland LK, Baumgartner JC, eds. Ingle’s Endodontics. 6th ed. Hamilton, Ontario: BC Decker; 2008: 66-104.
- USAA Magazine, March 2003
- Schwab D. Office Culture: Who We Are and What We Do. Boston University Endodontic Alumni Association meeting. Sarasota, FL, 2011.
- American Dental Association. Principles of Ethics and Code of Professional Conduct, with Official Advisory Opinions. https://www.ada.org/194.aspx.
- Solomon C. Schadenfreude-an all too common affliction. J Am Coll Dent. 2012;79(1):37-39.
Plunkett L. It may be Legal but is it also ethical. NY State Dent J. 2012;78(3):6-8.
- Blue R. It’s in my patients’ best interests, so what’s the problem? The ethical, legal and professional implications of waiving patient co-payments. J Leg Med. 2012;33(1):129-136.
- Ethical Moment: What are the Ethical Considerations in Accepting Lower Reimbursement; JADA v.144(3), pp 310-311, Mar 2013.
- Schilder H. Boston University School of Graduate Dentistry, Department of Endodontics. Class notes, 1966.
- Fallon, Dr. Michael (Oral Maxillofacial Surgeon), Syracuse, NY: Personal communication, 2005.
- NYSOPD v Dr. DR: Dentist, Lic No 049645, Cal.No. 25407, Nov 2010; https://www.op.nysed.gov/opd/rasearch.htm#redd.