Indiana Dental Association Ethics

In the IDA's Journal; summer 2013 edition, the Letters to the Editor section featured letters from two distinguished members of the Association. Dr. Michael D. Rader reviewed the 155th Annual Session and posed the question: "Who is Responsible for Ethics at the Indiana Dental Association?" Dr. Rader used the Judicial Council as an example of the state of disarray within our organization and I quote his letter: "It should be noted that the Judicial Council has only three members, has NEVER met and two of them thought they were the chairman of this mysterious council...". Dr. Rader went on to declare the Judicial Council to be "...a council without any history of accomplishment."

My only surprise is that it has taken Dr. Rader this long to see the light!...and I can only hope he will join me in seeking a resolution to our Association's mismanagement.

 

But wait, there's more to the Editorial story! A second Letter to the Editor appears in the this same IDA edition. Dr. Richard E. Jones, the Association's one time Ethics chairman (and possibly still the current chairman?) penned his own assessment of our professional state of affairs with regards to the ADA's Code of Ethics and Professional Conduct. He implores members to "speak up, act upon concerns and talk about ethics, professionalism and management practices with colleagues".


As I have previously posted within the Peer Review Forum blog, Dr. Jones was made aware of my Ethics complaint filed in the IDA's prescribed manner more than 5 years ago. Reading these Letters causes me to ask: Gentlemen, where have you been? And let me remind them, there is no statute of limitation that would prohibit the IDA from acting upon my Ethics Complaint. I look forward to these respected leaders of organized dentistry joining my cause to have my Ethics Complaint heard before a functional Judicial Committee.

The Bylaws of the Indiana Dental Association adopted May 1987, define the Judicial procedures (exerpted):
     Section II: Filing and Assignment of an Ethics Complaint
              C. The IDA shall assign the Complaint to the Proper Component Society Committee.

I interpret 'shall assign' to mean the Complaint 'will be assigned'. To not assign the properly filed Complaint constitues a violation of our Bylaws. 'Shall assign' is not ambiguous. Perhaps legislation should be enacted to change the Judicial Procedures language:
               C. The IDA's Executive Director may consider the Complaint's appropriateness and perhaps assign it to the proper Component Society Committee.

An additional legislative action should be enacted to exempt Member Peer Review committee participants from the Principles of Ethics and Code of Professional Conduct.

I have spoken up, acted upon my concerns and talked about ethics.
And...Who Is Reviewing Peer Review? See my post dated 1.22.11.

A Call to Cease and Desist ADA's Member Peer Review Program

Stats?...We Don't Need No Stink'in Stats!

Member Peer Review operates under the direction of the Council on Dental Benefits Program and since 2001 the Council has published a Methods and Outcomes Report every other year for the benefit of its members. The M & O reports are created from statistics provided by individual state Peer Review Committee activity with reporting apparently being elective, as not all have reported their activity on a regular basis. *See my blog post: Who Is Reviewing Peer Review?

 The ADA proudly touts the Peer Review program's unbiased dispute resolution process and its benefits to members. The ADA has repeatedly pronounced a resolution rate of approximately 50%  patient to doctor settlement success by citing their statistical analysis. *See my blog post: Who Is Reviewing Peer Review?


For the past several months I have been in contact with Krishna Aravamudhan, Sr. Manager, Office of Quality Assessment and Improvement, Division of Dental Practice about the availability of the 2009 and 2011 M & O reports. It was implied that the information was being collected and the M & O reports would be available soon. Recently I received the following notice:

Hello Dr. Batton:

As I mentioned to you in my previous email, the 2007 data is the most current. We have not gathered data for 2009 and 2011. The Council on Dental Benefit Programs recently reviewed the survey and has decided to discontinue collecting data for future years.

Please let me know if I can be of any further assistance

Thank you

Krishna

Krishna Aravamudhan, BDS, MS aravamudhank@ada.org
Sr. Manager, Office of Quality Assessment and Improvement
Division of Dental Practice
312.440.2772

I advised Ms. Aravamudhan that I would like to discuss this revelation with a dentist member of the Division of Dental Practice but I've not been contacted to date.

I find it most disconcerting that the ADA abruptly decides to no longer publish key data relevant to one of its most highly advertised benefits: Dispute Resolution, to its members. Furthermore it is suspicious that the Peer Review statistics will no longer be published following the questioning of the inherent bias and unethical method of administration of the program. And I have repeatedly asked the Council on Ethics, Benefits and Judicial Affairs to investigate member Peer Review's biased nature.

I now ask the American Dental Association to issue a cease and desist order on Peer Review actions until the allegation of bias and unethical methods of administration of member Peer Review are resolved.

BUT I PROMISED! A CONVERSATION ABOUT MY PROFESSIONAL OATH AND RESPONSIBILITY.

The Indiana Dental Association's Journal, Fall 2011 "Ethics" issue has arrived and I wish to commend all of the authors on their submissions. The contributors include our Executive Director Doug Bush, President Terry Schechner DDS, Assistant Executive Director Jay Dziwilik and Director of Professional Services Ed Rosenbaum, among others. The articles, prepared with brevity, discuss the responsibilities and dilemmas today's dentists encounter in their daily practice. Mr. Dziwlik's "But You Promised: A conversation about your professional oath and responsibility" caused me to reflect upon my Peer Review experience. Ethicky is a term I've coined to describe the event and I have a few thoughts to share with the IDA Officers,  IDA Trustees, IDA Central Office and most importantly my colleagues. 

I Made a Promise...The Oath For Dentistry is a pledge to 'faithfully observe the principles of ethics for the profession.' I pledged to be no less ethical with my colleagues than with my patients, staff or vendors. In previous posts I discussed how the IDDS and the IDA failed to follow our association's bylaws regarding the administration of a ethics complaint filed per the prescribed procedures set forth in our bylaws.

I Made a Promise...To accept responsibility and pledged that I would lend my influence and support to organized dentistry. Over the past 4 years, I've challenged the leadership of the IDA to follow our bylaws, but to no avail.

I Made a Promise...To remember human limitation and accept that we are not perfect. It has been years since the IDA and the ADA were notified of a violation of our bylaws. We all make mistakes and commit errors of judgement, but when bylaw violations are brought to the attention of those in the position to take corrective action and the bylaw violations are ignored, that is cause for concern.

I Made a Promise...To faithfully observe the Principles of Ethics. I promised to observe the concept of Justice. The Principles of Ethics and Code of Professional Conduct, Justifiance Section 4.C and Advisory Opinion 4.C.1, are not elective.

Luke 4:23: Physician, Heal Thyself..."Suppose that a man should attempt to heal another when he was himself diseased in the same manner, it would be natural to ask him to first cure himself, and thus to render it manifest that he was worthy of confidence".

The irony of it all. The Indiana Dental Association and The American Dental Association, two organizations that define, enforce and are the defacto face of our professional ethics can not themselves be held accountable to the same standards of ethics? This is shameful.   


Again I ask, Who Is Reviewing Peer Review? (1.21.2011) Ed Rosenbaum cites a 10 year average Indiana Peer Review case resolution rate of 35 % dentists favor verses 65 % patient favor. But in 2007, Full Panel resolutions favored the patient in 92% of the cases! How about Texas and Georgia favoring the patient 100% in a recent year while New Hampshire, Idaho and South Dakota favored the dentist 100%? How logical is this? I maintain this is an indication that peer review as it presently is conducted is biased. And if this isn't a clear case of bias...What would be?

Peer Review Peril: Day 1,314

It has been more than three and a half years since my peer review experience began. I've chronicled the events and conversations, disclosed the related documents and detailed the actions prescribed by our Association's Bylaws to file the appropriate requests for an Ethics Hearing. See my Post of 1.1.11. 

Now I ask...What should I do?

Some have said, "Life's too short, get over it and move on."
To them I say, I'd be shirking my professional responsibility if I didn't disclose this ethical violation of our Association Bylaws.

Some have said, "What's the use, you're not going to change the system."
To them I say, I'm not trying to change the system, I'm simply stating the facts of this event; much as Evidenced Based Dentistry is founded. I'm only expecting the Indiana Dental Association to recognize and abide by the ADA Code of Ethics.  

Some have said, "This doesn't look right to me, but the IDA's Attorney said they didn't do anything wrong."
To them I say, generally, the IDDS peer review committee followed the rules - what concerns me is ethics. For example, peer review committee members are to excuse themselves if they have a social relationship with the dentist under review. I would expect a peer review committee member with 9 years of experience, who is also the committee chair, to know the rules. The IDDS didn't violate any legalities. This issue is specific to the Code of Ethics Section 4.C and 4.C.1. The IDA's Attorney isn't authorized to make determinations regarding ethical violations; only dentists make that determination. 

Some have said, "I really don't know anything about Peer Review but the IDA says the members of peer review committees are experts and wouldn't experts know what's ethical?"
To them I say, There is no expert qualification to be a peer review committee member. The ADA conducts orientation workshops and provides literature to train members in the procedures of peer review. IDA peer review members are selected by other members; much like an invitation to join a study club.

Some have said, "What's the big deal, I see patients for second opinions all the time and the ADA Code of Ethics says I have the authority and responsibility to tell them my opinion of the efficacy and quality of another dentist's treatment, right?"
To them I say, Right! and the ADA's much regarded Ethical Moment addressed that topic in 2005 and I've provided a reference to that article: Is It Ethical To Criticize Other Dentist's Work?
http://jada.ada.org/cgi/reprint/136/6/812 . Within the body of the article the authors emphasize,..."It is ethically wise to apply a strong burden of proof requirement to ensure that the statement is informed and totally justifiable." 
You see, that pesky Justifiance Section 4.C and the Advisory Opinion 4.C.1 keeps coming up in the discussion of ethics. So we're back to the question, 'Does the Peer Review Examination Form support the Findings contained in the Letter of Resolution?' See my Post dated 1.1.11.

Some have said, "OK, so you're granted an Ethics Hearing and the Ethics Committee says you're right, then what?"
To them I say, The Bylaws of the Association provide the guidelines when the ADA Code of Ethics is violated. Again, the ethics violation is issuing a public statement that is unsupportable. My peer review case is no different than rendering a second opinion, as discussed in the Ethical Moment article previously referenced. While we're on this subject, the IDA Executive Director and the IDA's Attorney have maintained that after a period of 30 days a case cannot be reopened. However, in my review of the ADA Peer Review rules, I'm unable to locate any statements to that affect, therefore I suspect it is a discretionary Policy of the Indiana Dental Association. Is there a statute of limitation pertaining to ethical violations?...In my opinion that answer is NO, and I can only trust you agree!

Some have said, "I'm very troubled about this situation but I know some of the dentists and they are personal friends, good dentists & I believe they mean well. I just don't feel comfortable getting involved."
To them I say, I also believe the volunteers who serve on the peer review committees are well intentioned. I also believe the IDA Executive Director and his staff are sincere and they have been completely professional in their communications with me. The only questionable experience with the IDA was related to Mr. Jerry Jenkins' action during a March 2010 Statewide Peer Review Workshop. I sent this letter following that meeting to address my objections.

April 12, 2010

Douglas M. Bush

Executive Director

Indiana Dental Association

401

W. Michigan St

.

Indianapolis, IN 46202

Ed Rosenbaum

Director of Professional Services

Indiana Dental Association

Richard Jones, DDS, MSD

IDA Council on Peer Review Chair

Jerry Jenkins, Esq.

Partner, Baker Daniels

Thomas Barrick, DDS

Associate Professor IUSD

CEBJA/ADA

Principles of Ethics and Code of Professional Conduct

ethics@ada.org

Thank you for allowing me to participate in the March 12^th, 2010 Peer Review/Mediation Workshop sponsored by the IDA. I was advised by Ed Rosenbaum prior to the meeting via e-mail: “…be aware that specifics of your case (or any other peer review case) will not be discussed”. It was my intention to honor that admonition and I couched my inquiries and comments to reflect general information related to Policies and Procedures of Peer Review. During this meeting I was targeted and silenced by Mr. Jenkins for my questions, which I felt appropriately reflected, the understanding I had reached with Mr. Rosenbaum prior to this meeting regarding my participation. I have reviewed the day’s Agenda and my notes and I would like to share my experience and thoughts from the proceedings:

Mediation – First Step in Process

Richard Jones, DDS, MSD

            Question by Dr. Batton: Is a Patient restricted in the distribution/publication of a Letter of Resolution?

            Answer by Dr. Jones: NO, a Letter of Resolution is a Public Document but is not admissible in a Court of Law in Indiana. However, a patient is not legally prohibited from distributing or publishing the document if or as they desire.

            Question by Dr. Batton: Is the Panel member’s examination of the patient characterized as comprehensive or cursory?

            Answer by Dr. Jones: Neither, the examination is limited in scope but detailed in nature. It would be considered a Limited-Detailed Examination.

Hearing Panel – Second Step in Process

Thomas Barrick, DDS

            Question by Dr. Batton: In a Panel case involving a Removable Prosthesis, how is the Denture(s) in question verified as to be fabricated by the involved Dentist?

            Answer by Dr. Barrick: There is no contact between a Dentist and Patient at the examination. Origin can’t be verified.

            Questions by Dr. Batton: In a Panel examination, is the involved Dentist permitted to know who the Panel examiners are? And if there appears to be a conflict of interest, what is the appropriate action?

            Answer by Dr. Barrick: Yes, the Panel members who will examine the case are provided to the involved Dentist prior to the Patient’s examination and the Dentist has the option to exclude an examiner if the Dentist feels there is conflict.

            Question by Dr. Batton: Do each of the three Panel examiners complete a separate Peer Review Examination Form?

            Answer by Dr. Barrick: Yes, there are three PREF’s for each case.

2008 and 2009 Activity Report

Ed Rosenbaum, IDA Director of Professional Services

            Mr. Rosenbaum distributed the above referenced reports and discussed the details of the Peer Review Methods and Outcomes.

            Comment: I asked Mr. Rosenbaum if he had the IDA Peer Review Methods and Outcomes reports for years 2000 – 2007 available.

            Answer by Mr. Rosenbaum: No

            Comment: I had those reports and I reviewed the statistics for the years 2000 – 2007. I suggested a discussion was pertinent as the Outcomes could possibly imply partiality in the rendering of Peer Review decisions.

            Comment: Mr. Jenkins interrupted the discussion between me and Mr. Rosenbaum to interject the premise by which I was allowed to attend the Workshop and that I should abide by the agreement.

Throughout the Workshop, questions were accepted and answered by the various presenters from the members in attendance. And there were instances where Peer Review case specifics were discussed by the group of attendees. I submit my questions and comments were restricted to the Policies and Procedures of Peer Review and did not compromise the Pre-Workshop gag-order pronounced by Mr. Rosenbaum. If the IDA demonstrates otherwise, I will issue a letter of apology to the Association and my fellow Colleagues in attendance. If the IDA doesn’t provide exception to my statements; I would request that they submit to me a letter of apology from the Association and Mr. Jenkins for inappropriately singling out my comments during this meeting. I am happy to see that the IDA is making an effort to disseminate information regarding the peer review process. However, based on the answers provided by the presenters detailed above and other discussions throughout the day, I believe that there is still much work to be done to provide a fully informed and fair process what will benefit the member dentists and their patients. It is my hope that my persistence in approaching this topic with you will result in a more complete conversation, which could benefit all parties involved. As always I would welcome the opportunity to speak with you in greater detail regarding these concerns.

Sincerely,

Phil Batton DDS 

The IDA responded to my letter with this statement: "Respectfully, the IDA does not believe an apology is warranted. The IDA's actions were taken to ensure that the program would remain focused upon the peer review process in general rather than any practioner's particular peer review case."
To this I say, impartiality is the keystone of the peer review process and should be discussed openly. There is no place for censorship in Organized Dentistry. (See my Post: Who is Reviewing Peer Review?) I want to again emphasize, I witnessed  several participants at the Workshop asking questions specific to peer review cases they had managed or were currently managing.


Of the Officers, Trustees and Members of the IDA I ask, "What should you do?"
To you I say, "Summon the courage to perform your professional duty. It is your Ethical obligation."

A letter to the Officers and Trustees of the Indiana Dental Association

Peer Review Committee members enjoy protection from legal prosecution within the parameters of the State Dental Practice Act. The case I reviewed in my IDA Overview Post dated 1.1.11 is not a legal offense but rather an Ethical Violation under the American Dental Association Principles of Ethics and Code of Professional Conduct; Section 4.C and 4.C.1. It is the responsibility of the Officers and Trustees to enforce the State Association Bylaws. I have sent the following to those leaders:

January 31^st, 2011

To: The Officers and Trustees of the Indiana Dental Association

I have established a Weblog to share my concerns regarding the administration of the Indiana Dental Association Bylaws. The web address follows and the details of my concerns are within the Post dated 1.1.11. I also urge you to read the Post titled Who is reviewing Peer Review?

www.peerreviewforum.blogspot.com

As Officers and Trustees is it your responsibility:

SECTION 100. COUNCIL ON JUDICIAL AFFAIRS.

The duties of the Council on Judicial Affairs shall be but not limited to:   

(A) Promoting the ADA Principles of Ethics and Code of Professional Conduct to members of the Association and the public.  

(B) Serve as a resource to component dental societies and the membership at large regarding compliance with and enforcement of the ADA Principles of Ethics and Code of Professional Conduct.

(C) Consider appeals from members of the Association under sentence of censure, probation, suspension or expulsion by a component society and hold hearings and render decisions thereon. The method of procedure shall be that prescribed by the Council on Judicial Affairs of the ADA.

As a lifelong member of the Indiana Dental Association I urge you to convene and take the necessary action of granting an Ethics Hearing following a filed Complaint, as required by the Association’s Bylaws.

Thank you for this consideration,

Philip J. Batton DDS

I urge members of the Indiana Dental Association to contact the Officers and Trustees and encourage them to fulfill their responsibility.

Who is Reviewing Peer Review?

Peer Review is designed to provide an unbiased opinion rendered by experts in dentistry. I've discussed the Peer Review mechanism in a previous post 1.1.11; describing the Mediation phase and the Full Review components. Like many ADA members, I knew nothing about the PR process until I had the opportunity to experience the system in 2007; again visit my Post of 1.1.11. Let's look at this from a National viewpoint: Would it be logical that patient complaints for any given State Dental Association would be justified 100% of the time? And conversely, would dentists be faultless 100% of the time?

I've compiled statistics from the ADA and the Indiana Dental Association that merit attention.

INDIANA DENTAL ASSOCIATION DISTRIBUTION OF FULL CASE REVIEWS               

Year                Patient Favored                       Dentist Favored      

2000                7                                              3                           

2001                14                                            6                           

2002                7                                              4                           

2003                7                                              4                           

2004                2                                              0                           

2005                4                                              1                           

2006                7                                              3                           

2007                12 (92%)                                 1 (8%)                   

                  ________                               __________

Total                60                                            22

                        73%                                        27%

The ADA Distribution of Peer Review Cases: Methods and Outcomes is available for the most current year from the the ADA Website. You'll need to contact Krishna Aravamudhan for previous year stats, however. I've provided a few stats to whet your appetite.

ADA Full Review Case Distribution: Methods and Outcomes.

Year                                 Patient Favored         Dentist Favored

2001

Kentucky                             100%

South Dakota                      100%

2003

Georgia                               100%

Tennessee                                                                  100%

Louisiana                             100%

Mississippi                                                                  100%

2005

Washington                                                                  100%

South Carolina                    100%

Pennsylvania                       100%

Mississippi                                                                   100%

2007

New Hampshire                                                           100%

Idaho                                                                             100%

South Dakota                                                               100%

Texas                                   100%

Georgia                                100%

Within the ADA Methods and Outcomes Reports the breakdowns of Mediated cases are viewable and it is surprising to me how many of the States appear to demonstrate a bias of those cases also. Unfortunately, not all State Associations report their statistics every year. Texas for example has only reported 2007 results. It would be very interesting to see their stats for a 10 year period as they are a very large State, therefore they have a larger number of cases to review. I have emailed the CEBJA about this to get an explanation;  perhaps the Report Stats are in error? I've been waiting for over two years and as yet I've not received any response or even an acknowledgement of my inquiry from the ADA.

Again, Who Is Reviewing Peer Review?.

Peer Review: Indiana Dental Association Overview

The patient files a complaint with the Indiana Dental Association (IDA) and the IDA reviews the case to see if it fits within the guidelines of Peer Review (PR). If so, the case is assigned to the involved dentist’s Component Society PR Committee. A Committee Member is designated as a Mediator and they contact the patient and the dentist to attempt to negotiate a resolution. If an agreement is reached, the case is settled and closed. If the Mediator is unable to reach an agreement between the parties, the case is referred back to the Committee for a Full Review. In a Full Review, the patient may volunteer to be examined and/or the dentist may volunteer to present their records and discuss the case with the PR Committee. The Component PR Committee renders a Committee Report and forwards it to the IDA who in turn notifies the patient and the dentist of the Findings and Recommendations via a mailing.

So far, so good…and this sounds rather innocuous doesn’t it? However, the devil is in the details and it is the action of forwarding the patient a copy of the Committee Report detailing the Findings  which I consider an unethical action. For example, in 2007 I participated in a case upon the filing of a complaint by a patient I treated. The IDA sent the patient a Resolution letter (September 11, 2007) that included the Indianapolis District Dental Society (IDDS) Peer Review Committee Report that stated "...the dentures were below the standard of care and were obviously too big and did not fit her."  On September 28th, 2007 I requested the records of the case to review the IDDS documentation and the Sources of the Standard of Care guidelines relied upon in making the determination. Another IDA letter of Resolution followed on October 11th, 2007; and was mailed to the patient and myself, indicating that the previous letter was only a Preliminary Report and the 10.11.07 letter was the Final Report. The Findings of the 10.11.07 Report read as follows:

“The denture and partial were adequate as far as esthetics and phoenics (phonetics). The max denture is non retentive as the teeth had not been set over the ridge, and the additional length of the incisors only exacerbates the problem. The patient could not function with the set up that was provided. It was determined that a reline would not help in the retention. The Mandibular Framework is not retentive at all and the major connector is too far out from the tissue such that the tongue is catching and always irritated. She did sign a consent form that she declined ‘mouth preparation’ but other designs could have made it more retentive. There is no posterior occlusion.”

On November 14th, 2007 a second request for records and documentation was requested. On January 31, 2008 a third request for records and documentation resulted in the release of the following from the IDA:

Peer Review Examination Form

Occlusion: Open on the left side

Esthetics  : Adequate 

Phonetics : WNL

Tissue Adaptation : WNL

(Edited 6/2011) Many colleagues have said something to this affect: "The PERF is confusing but without seeing the clinical case, it wouldn't be appropriate to comment let alone condem the Peer Review decision." Well OK, check out the clinical photos of this case.

Post Op

Pre Op

Right Post Op

Right Pre Op

Left Pre Op

Left Post Op

Please note the left side 'open bite' this patient exhibits in both poses and was referenced in the PREF. Examine the the full face photos, you'll notice the left droop of the patient's lip. She was in an accident years ago and the left side of her face suffered nerve injury. She occludes under function but poses with this presentation. Only after multiple bite registration corrections did this become apparent to me.

I ask you to re-read the Findings of the 10.11.07 Letter of Resolution and the clinical notations of the Peer Review Examination Form. Do the clinical records contained within the PREF support the Findings? Is the PREF indicative of records from a Comprehensive Examination performed by Expert dentists? Are the comments contained in the Findings Truthful, Informed and Justifiable? Do the Findings contain any disparaging comments? Do the Clinical Examination notes contradict the Findings?

I contend this constitutes a blatant violation of the ADA Code of Ethics Section 4.C and 4.C.1.

I will continue this story another day. You won't believe what the Indiana Dental Association Director of Professional Services told me about why the ADA Code of Ethics Section 4.C and Advisory Opinion 4.C.1 do not apply to Peer Review. And...exactly what places an IDA/Peer Review Letter of Resolution into the public domain? The IDA Director of Professional Services & Peer Review seems to disagree with the Indiana Dental Association State Ethics Chairman, Dr. Richard Jones. 

                                             

So What Does the Indiana Dental Association Have to Say?

In September 2008 I questioned if Peer Review is exempt from the ADA Code of Ethics and Professional Conduct. This was the response from the IDA's Executive Director of Professional Services:

The provisions of the ADA Code of Ethics are intended to address the dentist's ethical obligation when asked to comment about another dentist's treatment in a practice setting. Comments made in a Peer Review setting would not apply because the dentist agreed to the Peer Review process, in advance...in short, Peer Review activities would not be subject to the Code of Ethics Section 4.C and 4 .C.1.

Conclusion: Peer Review members are not required to adhere to the ADA Code of Ethics and therefore enjoy ethical immunity.

Another question asked of the IDA Director of Professional Services was "Is the Letter of Resolution that the dentist and patient receive a public statement"? The response I received on November 10th, 2008 follows:

Peer Review determinations are not public statements and, therefore, the provisions of the ADA Code of Conduct 4.C and 4.C.1 are not applicable.

On March 12th, 2010 the IDA held a Statewide Peer Review/Mediation Workshop. I attended that meeting and asked the State IDA Council on Peer Review Chair, Dr. Richard Jones the following: Is a patient restricted in the distribution/publication of a Letter of Resolution?

Dr. Jones' answer: "No, a Letter of Resolution is a public document but is not admissible in a Court of Law in Indiana. However, a patient is not legally prohibited from distributing or publishing the document if or as they see fit".

This means the contents of the 10 11 2007 Letter of Resolution including the Findings of the Report dated 10.11.07 can be freely distributed. For instance in a Newspaper, Church Bulletin or even the INTERNET!

Conclusion: The IDA Director of Professional Services and the State Peer Review Chair have made conflicting statements regarding the Letter of Resolution and its application to the Code of Ethics Section 4.C and 4.C.1.

Well, what do the Peer Review rules of conduct say?

The ADA document How The Dental Peer Review Program Works and What You Can Expect From It reads: "...peer review committees do not provide the parties in the case with any of the peer review committee's notes or records of the case".

...And, about the Peer Review clinicians' examination of the patient...I asked Dr Jones, Would the examination be characterized as comprehensive or cursory? Dr. Jones, "Neither, the examination is limited in scope but detailed in nature. It would be considered a limited-detailed examination".

I ask you to return to the Peer Review Examination Form, are the notations indicative of a detailed examination?

Next we'll see what the Indiana Dental Association's Bylaws tell members to do if they have an Ethics Complaint. And guess who the IDA feels is responsible for determining the validity of an Ethics Complaint? Hint: It is not a dentist!

In case you didn't have time to review the ADA Principles of Ethics and Code of Professional Conduct: Justifiable Criticism, Section 4.C , it reads in part:..Patients should be informed of their present oral health status without disparaging comment about prior services. Dentists issuing a public statement with respect to the profession shall have a reasonable basis to believe that the comments made are true.

And Advisory Opinion 4.C.1 further states...A difference of opinion as to preferred treatment should not be communicated to the patient in a manner which would unjustly imply mistreatment. This section is phrased to address the discretion of dentists and advises against unknowing or unjustified disparaging statements against another dentist. However, it should be noted that, where comments are made which are not supportable and therefore unjustified, such comments can be the basis for the institution of a disciplinary proceeding against the dentist making such statements.

The Indiana Dental Association Judicial Procedures states:

     I.General Provisions:

             E. Other Governing Rules. All procedures and decisions of the Committee shall conform with the Constitution and the By-Laws of the ADA, the Indiana Dental Association and the Component Society.

    II. Filing and Assignment of Complaint:

             B. Any dentist or member of the public ('Complainant") may file a complaint. Complaints must be filed in affidavit form with the Secretary of the Component Society and with the Secretary of the IDA.

             C. The IDA shall assign the complaint to the proper Component Society Committee by delivering the complaint to the Committee Chairman.

'The IDA Shall assign' is unequivocal. If the intention was to assign a Complaint to the IDA Executive Director to determine the appropriateness of a Complaint, the Judicial Procedures would state as much. On January 14, 2010 a Complaint was filed for a Request for Decision from the Judicial Council regarding the administration of the Peer Review process conducted by the Indianapolis District Dental Society as well as an Affidavit of Philip Batton DDS.

The response from the Indiana Dental Association:

February 2, 2010

I have received and reviewed Dr. Batton's Request for Decision from the IDA Judicial Council.

Dr. Batton's complaint and documentation relate to question regarding IDA peer review proceedings. The only proper committee for consideration of such complaints is his Component Society peer review committee. His only means available under our procedures to question that committee's decision expired long ago. There is no judicial procedure that would permit Dr. Batton to raise objections related to his peer review case.

Sincerely,

Douglas M. Bush

Executive Director

A letter of challenge was forwarded to the IDA on March 12, 2010.

Mr. Douglas M. Bush

Executive Director/IDA

IDA Judicial Committee

Indiana Dental Association

Gentlemen:

I received your letter on response to my request for a decision from the IDA Judicial Committee. As stated in the complaint, Dr. Batton is not requesting an appeal of the peer review committee's decision. Instead I would like the Judicial Committee to more closely examine the procedures that are being used by the peer review committee to ensure that this process is being undertaken in an ethical manner that is in the best interests of its member dentists and the general public. Pursuant to Indiana Judicial Procedure Guidelines, this complaint should have been forwarded to the appropriate committee for review. The letter received from you indicates that it was sent in your capacity as Executive Director and does not cite any effort to appropriately forward it to the Judicial Committee as required by the IDA Judicial Procedure Guidelines. This seems to be a blatant disregard of our own Judicial Procedures...These reports and recommendations are issued to the patient in the form of a letter including Findings without any consideration or efforts to protect information under the peer review privileged protections that should be applied under Indiana Law.

...I respectfully request that you reexamine the complaint submitted with these thoughts in mind.

Phil Batton DDS

A response from Baker and Daniels, the legal firm representing the IDA:

March 24,2010

...the only proper committee to consider Dr. Batton's complaint would be his component society peer review committee, and his right to appeal its decision expired long ago.

It is my opinion that the IDA's Executive Director is not authorized to determine the validity of an ethics complaint and not following the IDA Judical Procedures also constitutes an ethical violation.

If you are a concerned Indiana Dental Association member, I urge you to contact our Association Officers & fellow members to apprise them of this case and ask that I be granted an Ethics Hearing. I am not suggesting that peer review be discontinued but rather that it be performed in compliance with the ADA Code of Ethics and Professional Conduct.

2010-2011 IDA Officers

Dr. Martin R. Szakaly, President
Dr. Terry G. Schechner, President Elect
Dr. John R. Roberts, Vice President
Dr. Steven Holm, Speaker of the House
Dr. Jeffrey Platt, Vice Speaker of the House
Dr. Daniel Fridh, Treasurer
Dr. Jack Drone, Editor
Dr. Brian T. Henry, West Central Trustee
Dr. Jay Asdell, North Central Trustee
Dr. Desiree Dimond, Indianapolis District Trustee
Dr. Brent Ellis, Greene District Trustee
Dr. Mark Haring, Western Indiana Trustee
Dr. Steve P. Ellinwood, Isaac Knapp Trustee
Dr. Chad Leighty, Wabash Valley Trustee
Dr. Thomas Murray, First District Trustee
Dr. Paul Nahmias, Southeastern Indiana Trustee
Dr. Gregory Phillips, South Central Trustee
Ms. Allison Frounfelter, Indiana Student Trustee
Dr. Jeffrey Rector, East Central Trustee
Dr. David R. Holwager, Eastern Indiana Trustee
Dr. Louis R. Sertich, Northwest Indiana Trustee
Dr. Terri Winn, Ben Hur Trustee

Why don't you let the American Dental Association sort this out? The ADA runs a regular feature in the ADA Journal called Ethical Moment and the Council on Ethics, Bylaws and Judicial Affairs has the authority to rule on issues like this, don't they?

On March 2, 2009 communication from the ADA/CEBJA regarding this matter was received and their letter states:

Because the matter discussed in your letter appears to be solely between the Indiana Dental Association and Dr. Batton, no response from the ADA appears warranted at this time.

Sincerely,

Thomas C. Elliott, Jr.

Associate General Counsel and 

Director , Council on Ehtics, Bylaws and Judicial Affairs

If the ADA, IDA and the IDDS decline to abide by the Association Bylaws, of what value are Bylaws? When a question of ethics is involved, I would expect every level of organized dentistry to welcome the opportunity to review the challenge. Instead, every level of organized dentistry has denied  accountability; including the Component Society officers who ultimately are the voice of our membership and have the charge of holding the organization responsible to the covenents of our Association Bylaws. Again, I ask every member to cantact their Association Officers and Trustees and demand my Complaint be assigned an Ethics Hearing before the Indianapolis District Dental Society.

Who is reviewing Peer Review?

My next Post looks at the Indiana Dental Association and surprising statistics of a few other State's Peer Review reports. The significance of the reports lends itself to the issue of bias in the Peer Review System. Don't forget to vote in the Poll.