In the past, Texas State Board of Dental Examiners members engaged in behavior that was legal but raised ethical concerns. In 2007, it was reported that a member of the State Board had appeared as an expert paid witness for the defense in a malpractice trial of a dentist who had also been the subject of complaints to the Board. At that time, it was legal for a member of the State Board to appear as an expert witness in a malpractice trial. However, some questioned whether such expert witness testimony created an appearance of impropriety. Responding to such questions, the Texas State Legislature, in its most recent session, passed legislation to make the Dental Practice Act more supportive of professional ethics related to conflict of interest. A member of the Texas State House of Representatives, the leader of a citizen advocacy group, a practicing dentist, and a former Dental Board member of the State of Washington give their viewpoints on this subject. (Their opinions are their own and not those of Dentistry Today or any organization of which they are members.)
REPRESENTATIVE ALLEN FLETCHER
During the past several years it has been brought to my attention that there was a need for revisions of the Texas Dental Practice Act. As a former police officer, I know that the best way to improve public safety in the criminal justice arena is to prevent the most prolific repeat offenders from continuing to practice those behaviors that constitute a clear and present danger to the public. In the case of violent criminals, that often means lengthy periods of incarceration. Such policies serve to prevent those individuals from inflicting further harm on innocent members of the public.
Various citizens informed me that there was a problem in dealing with dentists who repeatedly violated the standard of care. Some of these repetitive violations resulted in patient financial harm, injury, and even death. Those dentists seldom received the punishment that their violations of the standard of care deserved. Too often, plea bargains resulted only in record-keeping violations and the dentist continued in practice with only the most minimal sanctions. The complaining patient was left to wonder about simple justice in the Board’s disciplinary process. Usually the patient was also left to pay for expensive dental work necessary to repair the damage done by the offending dentist.
Dental Board staff complained privately that their ability to take the most serious complaints before the State Office of Administrative Hearings was severely constrained by inadequate funding. This lack of money also pressured the Board to settle complaints without impairing the revenue stream of the offending dentist. Circumstances conspired to create a situation in which the most serious repeat violators of the standard of care remained free to present a continuing threat to public safety and health.
I also became concerned that growing numbers of people were losing faith in the ability of the Board to protect their interests. Some citizens who brought complaints before the Board saw Board members serve as expert witnesses against their interests as complaining patients. Therefore, I appeared before the Public Health Committee to urge their support for a ban on expert witness service by Board members and to provide the financial resources needed to investigate and fairly resolve the most serious complaints received from dental patients. During this process, allegations of significant Medicaid fraud surfaced. After hearing from all sides, legislation was proposed and passed to ban expert witness testimony by serving Dental Board members. Sufficient funding to improve the Board’s ability to competently and completely investigate the most serious and complex charges of dental malpractice was provided. Thanks to the leadership of Representative Lois Kolkhorst and Senator Jan Nelson, these amendments passed with overwhelming bipartisan support in both Houses of the Legislature.
GWEN MITCHELL, PRESIDENT OF TEXANS FOR DENTAL REFORM
Texans for Dental Reform is a voluntary informal organization of dentists and patients formed to advocate for the rights of Texas dental patients. Some of the dentists who played a founding role in our group were exposed to multiple situations where new patients sought correction of mistakes made by previous dentists. When these patients made complaints to the Texas State Board of Dental Examiners, they were not satisfied with either the quality of the investigation or the conclusions reached. In one case, the complaining patient found herself being opposed in a civil malpractice trial by a Dental Board member acting as a paid expert defense witness for the dentist in question.
To me, and others in our organization, this was a gross conflict of interest. It raised the important question of whether patients alleging malpractice to the Dental Board could expect fair and impartial evaluation of their claims. A number of our members began to regularly attend meetings of the Dental Board. We began to use the public comments section of the Board agenda to express our concerns about conflicts of interest and the lack of effective sanctions against dentists with a history of very serious repeated violations of the standard of care.
At first, our members were made to feel unwelcome at the Board meetings they attended. Ultimately, changes in Board membership and executive staff resulted in improved attitudes toward our presence and suggestions. The Board did adopt a rule to limit member participation on expert witness activities but declined to make it an absolute ban. At that point we began trying to convince the State Legislature to write a law to make the ban absolute and to provide adequate funding for investigation of serious complaints. Ultimately, this effort was successful, thanks to the time, attention, and effort provided by Representatives Allen Fletcher and Lois Kolkhorst.
DOUGLAS A. TERRY, DDS
More than 8 years ago, I began seeing a group of 3 patients that I believe to have been seriously mistreated by a single previous dentist. In fact, I thought that the level of mistreatment should properly be defined as malpractice. All 3 patients brought complaints of malpractice against the original treating dentist before the Texas State Board of Dental Examiners. Later, I found out that defense counsel for the original treating dentist met with a member of the State Board at a Board hearing and hired him to serve as an expert witness in a civil malpractice case filed by one of my patients. The complaint brought by my patient to the State Board was still pending at the time the Board member in question agreed to serve as an expert witness for the defense.
Although this seemed to be an inexcusable and unethical conflict of interest, I quickly learned that there was no Board regulation or state statute forbidding such behavior. I also came to believe that certain members of the leadership of various professional dental organizations seemed dedicated to protecting the rights of even the most unethical, unprofessional, and incompetent dentists. These individuals appeared able to exert significant control over the disciplinary actions of the Board. During this period, the Board rarely, if ever, suspended or revoked the license of even those dentists accused of the most serious and repetitive acts against the interests of patients.
I do believe that professional dental organizations have a duty and obligation to protect their members against false allegations of malpractice. I also believe that even the best dentist can make an honest mistake. I do not believe that an honest mistake should result in loss of licensure. However, I also believe that a responsible professional organization can best serve the long-term interests of the profession when it strongly supports the removal from practice of those dentists who pose the greatest continuing threat to public safety and health.
I applaud the efforts of Representatives Fletcher and Kolkhorst to make state law more supportive of good ethical practice. But more remains to be done. First, Texas should consider and adopt effective sanctions against general dentists who falsely claim expertise that the record of their professional education, training, and experience does not support. Any dentist giving false testimony, unsupported by scientific research or fact-based evidence, should also face sanctions. Second, Texas should begin to consider the possible need for adequate mechanisms to prevent retaliation against those dentists who have the courage to support an aggrieved patient in claims of dental malpractice.
FRED QUARNSTROM, DDS
The vast majority of dentists are honest. They have their patients’ best interests as their primary concern. Our profession is different than many other occupations in that we are self-policed. We are responsible for keeping our members in line with the accepted standard of care. To that end, dentists helped form and serve on State Boards and Commissions designed to discipline those who take advantage of this trust. There are other mechanisms that can help prevent patients from being mistreated. The legal profession is always available to patients. To some extent, dental insurance companies and union trusts have some responsibility to avoid abuse of their clients and members.
The State Commission is responsible for the health and welfare of the citizens of Washington. Board members most often scrutinize those dentists who are outliers from what is considered to be the standard of care. Board members are often nominated by the state dental association. If they become too aggressive in sanctioning bad acting dentists, their election to higher office in the dental association may not happen. All too often, Board members become protective of dentists who have complaints filed against them. The nondentist, public Board members help to prevent this. To an extent, the dental assistant representatives on the Commission may do the same. However, the dental assistant Board member jobs probably are at risk if they come to be seen as too forceful in sanctioning dentists.
If the Commission is really going to protect the dental patients of the state, it must appear to the citizens that their concerns will get a fair and honest evaluation. As it now stands in Washington, the dentists can outvote the nondentists by a factor of 3 to one. This has caused several multiple-day reports in our major newspapers about numerous dental cases where it is doubtful that the patients’ families received justice.
Malpractice insurance carriers hire the best legal minds available to protect them from large settlements. It is my opinion that the Commission should be balanced in such a way that patients’ complaints get a fair and unbiased review and not an automatic stamp of approval on everything done by dentists. Adding dental technicians, laypersons, and dental assistants are all steps in the right direction, so long as the numbers of nondentists are adequate to get impartial decisions.
The federal government and the FBI have started to assert jurisdiction in cases involving false claims by dentists against government Medicaid funds intended to provide good dental health for children. There has been some litigation against clinics, clinic owners, and dentists. Large dollar amounts were shown to have been submitted fraudulently. The fines have been in the millions. Some folks are now scheduled to go to prison. Do private insurance companies and union dental trusts have a similar obligation to protect their clients from this kind of abuse?
All of the above are never issues for most dentists. They do place their patients’ health and welfare above self-gain. However, those who choose to perform outside ethical, moral, and standard of care parameters too often do so unchecked while jeopardizing the safety of the public and its respect for our profession.
Dr. Terry is in private dental practice in Houston and is a founding member of Texans for Dental Reform. He can be reached via email at email@example.com.
Rep. Fletcher serves as Chair of the Select Committee on Emerging Issues in Texas Law Enforcement of the Texas State House of Representatives. He can be reached at (281) 373-5454.
Ms. Mitchell is president of Texans for Dental Reform, a public advocacy group for the rights of Texas dental patients. She can be reached via texansfordentalreform.org.
Dr. Quarnstrom is a past board member of the Dental Quality Assurance Commission of the State of Washington and offers this comparative comment on the regulation of dental practice in his state. He can be reached via email at the address firstname.lastname@example.org.
Disclosure: The authors report no disclosures.