Sticky predicaments

June 1, 1997
Everyone knows that employers who cross ethical boundaries should be reported, but what costs do such formal complaints exact from you?

Everyone knows that employers who cross ethical boundaries should be reported, but what costs do such formal complaints exact from you?

Cathleen Terhune Alty

You have a new job. Your employer seems like a reasonable fellow, very concerned about the health of his patients. But then, one day, you hear him talking to a patient about his chronic, medical problems. You hear your dentist tell the patient that maybe the amalgam fillings in his mouth are causing the arthritis or other chronic illnesses. He recommends removing the harmful filling material, to get the poison out of the patient`s body, so these conditions will improve.

Or, as another example, you might have noticed some extremely poor dentistry in a patient`s mouth, such as gross overhangs, no anatomy carved in amalgams, crowns without contacts, etc. Checking the chart, you notice that it is your employer who has performed all this dental work on the patient.

What if the dentist has a substance abuse problem? What if your employer is selling nontherapeutic products from his latest multi-level marketing scheme and is insisting you push these products, which you believe are of questionable value to the patients? What if your dentist refuses to treat HIV-positive patients, avoiding them by always referring them to specialists or the hospital.

What if your dentist is legally required to check patients after a prophy, but often is unavailable or too busy to do so? What if your employer ignores the bloodborne-pathogen standard by making you and other employees do their own laundry? Or what if his latest "significant other" is keeping him busy in the back room while your patients are in a line in the hall, waiting for their exams.

Sound far-fetched? Unfortunately, these situations actually have happened to hygienists when practicing. I`m also equally sure for every story I have heard, you have heard a hundred more, maybe even worse than these.

So what do you do about these sticky situations, if anything? Are they a breach of ethics, morals, the law? Could you lose your job if you confront your employer about it or report him to the proper authorities? Who are the proper authorities to contact for these situations? And if he gets into legal difficulty for any of these situations, are you somehow liable because you knew about it and kept quiet?

Legal vs. ethical issues

To further examine these situations, it may be easier to classify them into two basic categories: breaches of the law and breaches of ethics. Law is defined as a rule of conduct or action enforced by a controlling authority. Ethics are defined as a set of moral principles or values. Law is defined and upheld by federal or state authorities. Ethics, for the dentist, are defined by the ADA and the conscious of the practitioner.

For an example, let`s say a dentist is not complying with the federal OSHA Bloodborne Pathogen Standard in a couple of areas. Contaminated laundry is being done at home, and the dentist is not offering hepatitis B vaccinations. OSHA has been given the task of investigation and enforcement.

The first step is not to report your employer to OSHA.

"The first step is for the dental hygienist to inform her employer with evidence that proper procedures are not being followed," says Dr. Chris Miller, professor of oral biology at Indiana University. "Try to change the situation upfront." Miller suggests giving the dentist a copy of the standard with the questionable items circled in red.

If you decide to call OSHA, looking for a little advice on what to do about this situation, what would they tell you? Rex McKinney, industrial hygienist for OSHA, Region VI in Dallas, says that while he is unable to give advice to a hygienist calling in a complaint, he would tell her what she is supposed to do. "Any portion that is not being complied with - hepatitis B vaccine, autoclave issues, laundry issues, etc. - should be brought up with the employer first. If there is no action, then file a complaint."

OK, so you told your employer about the problem with the laundry and the hepatitis vaccine, but he ignores you. What now? "Quit and get another job!" says Miller. "In most areas of the country, it`s a hygienist`s market - there are plenty of jobs."

Filing a complaint with OSHA

But maybe you really don`t want to quit, and you decide to take OSHA`s suggestion and file a report with them. How do you do it?

An industrial hygienist at the OSHA Region I office in Boston, who asked that her name not be used, explained the process once a complaint has been received: "If it`s a phone call, we take the complaint over the phone; then we call the employer. We fax the employer a copy of the complaint report and he has five business days to respond. Then he sends back his response, and we forward a copy of the response to the complainant, if the complaint was not filed anonymously.

"On the other hand, if it is a written, signed complaint from an employee or employee`s representative, we send an OSHA representative to the site. Anonymous complaints do not generate on-site inspections. We do get frivolous complaints that stretch our resources. We try to weed out the retaliation complaints."

What about confidentiality? Specifically, what if the dentist asks OSHA who reported him? OSHA says it will not reveal the name of the person filing the complaint, unless the employee wants her name released. However, most employers are pretty good at putting two and two together.

"If you mentioned the problem to your employer and then an investigator shows up, the employer probably can guess who did it," says OSHA`s McKinney.

What if I get fired?

If your dentist figures out you reported him and fires you, what recourse do you have? "An employee is protected by part 11C of the Standard, from being fired or discriminated against by an employer because they reported him to us," said OSHA`s McKinney. "We have 11C investigators who will follow up on discrimination claims."

But discrimination cases can be difficult to prove. "You have 30 days to file an 11C complaint with us if you have been fired or discriminated against for filing a complaint against your employer. But it takes lots of documentation and witnesses to prove that was the reason for the firing or discrimination," says the Region 1 OSHA representative.

However, it is not impossible to prove discrimination. A reliable authority at the ADA said that the bloodborne-pathogen standard leaves a paper trail that is very hard to forge. For example, if the complaint against the employer is that employees are taking home their own contaminated laundry to wash, OSHA will want to see documentation.

"Where are the receipts for the laundry? Let`s see the schedule for the employee who takes the laundry to have it cleaned." Or, "Where are the washer and dryer and where are the receipts for their purchase?" For hepatitis B vaccinations, there will be a receipt for the cost of the injections or a signed declination form on file within 10 days of employment. If the dentist is using an autoclave, there will be weekly spore-testing records.

"It`s nearly impossible for a dentist to cover the trail." And what if he forges the documents? "That`s considered forging federal documents, and then he`s in big trouble. It could wreck his practice!"

Litigation chances

Is there a possibility of litigation because an RDH knew what was going on, but kept her mouth shut? "I have never heard of such a case," said Miller. OSHA representatives said they can cite only employers, not employees, for noncompliance. "We are here to protect employees, not prosecute them," said an OSHA representative.

Are there any other options? Maybe the best idea is to request a complimentary, on-site consultation from the state OSHA office. This is an on-site visit that is not reported to federal OSHA as a sort of "goodwill gesture" for employers who want to cooperate with the standard, but aren`t sure if they are in compliance.

A state employee, paid by the federal government, will evaluate an office for no charge and give the dentist a confidential report recommending areas of improvement. They do this because they are more concerned with compliance than punishment. The only catch is that the employer must request this inspection himself. But it could solve the problem, if the two of you are at odds regarding compliance and the dentist is willing to take the recommendations of a third party.

Dentist practicing medicine

Let`s go back to the office where the dentist was practicing medicine by suggesting that amalgam fillings were causing the patient`s chronic diseases, as well as the office where the dentist was performing substandard care.

Where do these situations fit into our evaluation? These types of activities usually are defined as practicing outside of the scope of dental practice and come under the authority of the state. This state authority is administered by either the dental board or other professional or licensing-regulation bodies.

Suzanne Curry, secretary at the Ohio State Dental Board, encourages dental hygienists to come forward with reports of licensed dental professionals practicing outside of the state practice act or performing substandard dental care, although she is aware of the concern about retaliation if discovered.

In Oregon, an employee at the Oregon Board of Dentistry said the state dental practice act requires that a licensed dental professional found outside of the act must be reported in writing to the state board. "This is to protect the patients, the residents of the state of Oregon."

Helen Spetly, supervisor of the dental investigative unit, Illinois Department of Professional Regulation in Chicago, has the job of following up complaints about dentists.

"Once an allegation has been given, either by phone or in writing, it is our function to find out if there has been a violation and to prove it," Spetly says. "If it`s a patient with a money issue that wants a refund or a redo of dental work, we refer them to the Illinois State Dental Society arbitrator. But all others are handled here."

It is the investigators` job to locate evidence; but, at times, they rely on office staff for assistance. "In some instances, we need the names of people to verify the information. We often need to find patients and locate documents. We never go on one person`s word; we look for it to be substantiated somewhere else."

Confidentiality issues

What about the confidentiality issues? "Most of our complaints are anonymous, and we won`t divulge them unless you`re a patient and we need to get copies of your records," Spetly explained. "But if it`s a hygienist or assistant [making the complaint], we will not tell the dentist where the information came from at the investigative stage. He may guess, however."

What happens next? "If we are able to prove the allegation and substantiate it, it goes to the prosecution department, where there are many layers of disciplinary action: letters of reprimand, fines, suspension over time, indefinite suspension, probation or, in the worst-case scenario, revocation of license."

Although the name of anyone giving information during the investigation is kept totally confidential - and many complaints are resolved without any kind of hearing - if there is a hearing, some new rules apply.

"If a dentist has to be tried, the rules of discovery apply. This means that the accusers will be revealed. In addition, everyone who gave information may be called to testify," added Spetly.

Dentist not checking patients

Now, we`ll look at the scenario where the dentist isn`t checking patients, as well as the situation where the dentist is busy with his "significant other." If you practice dental hygiene under direct supervision, and your employer is not checking your patients, is this a problem?

"If a hygienist is under direct supervision," says an employee at the Oregon Board of Dentistry, "the dentist must check patients. If he doesn`t, the dentist and the dental hygienist could find themselves in trouble, because the hygienist is also responsible."

What about ethical issues concerning discrimination, chemical dependency, billing and fees, etc.? According to the ADA Principles of Ethics and Professional Code of Conduct, revised in January 1995, dentists Oshall not refuse to accept patients into their practice or deny dental service to patients because of the patient?s race, creed, color, sex, or national origin. A decision not to provide treatment to an individual because the individual has AIDS or is HIV seropositive, based solely on that fact, is unethical.O

It also states that it is unethical for a dentist Oto increase a fee to a patient, solely because the patient has insurance.O

Selling products to patients

What about the multi-level marketing program products that the dentist wants you to recommend and his patients to buy? First, ask your employer for any scientific evidence that the product really works. If it?s cosmetic, it works only for a short period of time. An example would be mouthwash: it neither relieves pain nor restores function, and it is not in the same category as a mouthwash that reduces bacteria.

OIf you are not a qualified salesperson and this is not a professional product, the ADA ethics policy states Oprotect the health of their patient by only assigning to qualified auxiliaries those duties which can be legally delegated.?O

Dispensing vitamins in the practice also can be interpreted as practicing medicine without a license. OThere are no studies which support the use of any vitamin for treatment of dental caries or periodontal disease. Not one study! Proper diet for good health is more important than a set of vitamins,O said the ADA authority.

As you can see, deciding to confront the Osticky situationsO you find in a dental practice can be a rocky road to travel. However, the chances of the situation changing, without intervention, is what really needs to be considered. As you ponder your own response to these situations, keep in mind the old saying that Osometimes silence is not golden, just yellow.O