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
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?
...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.
