The Value of Learning from One’s Mistakes

We often advise health professionals facing a complaint investigation to acknowledge if their conduct fell below the applicable standards and, in these circumstances, to express to their College’s Inquiries, Complaints and Reports Committee (the “ICRC”) the steps they propose to take to address these shortcomings. This will demonstrate to the ICRC that the health professional has insight into the mistake made, in the hopes that the ICRC will be more inclined to conclude that no further action is necessary to address the health professional’s shortcomings. On the other hand, minimizing or denying mistakes, or worse, ignoring recommendations from the ICRC, are likely to result in harsher consequences.

A case before the ICRC of the Royal College of Dental Surgeons of Ontario (“RCDSO”) illustrates the difference that owning one’s mistakes and learning from them can make.

In this case, the Health Professions Appeal and Review Board (“HPARB”) considered a decision by the ICRC of the RCDSO in relation to 3 complaints filed by the same complainant, a former patient, against a dentist. The complainant raised a number of concerns including that:

  • The dentist’s current practice website stated that his office was staffed with “an extremely talented and dedicated team.”
  • Several of the dentist’s online advertisements stated that he could offer “sleep dentistry” services, however, the dentist was only authorized to provide conscious sedation, which is not “sleep dentistry.”
  • His social media contained testimonials and statements that could only be verified by a person’s personal feelings or views.

The dentist provided the following information in his responses to the ICRC:

  • The complainant had previously filed a complaint regarding the dentist’s advertising practices which was resolved through the RCDSO’s Alternative Dispute Resolution (“ADR”) process.
  • As part of the agreed upon resolution in ADR, the dentist agreed to obtain guidance and approval for his marketing materials from the College. He provided correspondence between himself and the College staff showing that he had done this.
  • The dentist acknowledged that the phrase “extremely talented and dedicated team” should not have been on his website, and advised that upon becoming aware of this issue he removed it immediately
  • The dentist advised that he did not notice that he had written “sleep dentistry”, and he corrected this error as soon as he became aware of this. He also noted that the same advertisement stated that he provides “laughing gas sedation.”
  • Regarding testimonials, the dentist advised that he could not control what his patients posted on social media websites, or similar websites such as YellowPages, whether good or bad.

The ICRC decided to take no further action with respect to these complaints, because the ICRC concluded that the dentist’s conduct did not pose a significant risk to patient safety or to the public interest.

The ICRC found that the phrase “an extremely talented and dedicated team” was not in strict compliance with the advertising requirements, however the ICRC noted that members of the public are discerning and understand that businesses speak positively about their staff members. The ICRC concluded that as the dentist had already removed this phrase from his website, no further action was required.

Likewise, regarding the statement about “sleep dentistry,” the ICRC found that no further action was required because this error had already been corrected and the Respondent appeared to have always provided accurate information on the same page, that he had provided treatment with “laughing gas.”

Regarding testimonials, the ICRC noted that the dentist’s website did not contain any testimonials, in accordance with the advertising requirements. Regarding posts made by patients or others on social media or similar websites (such as WebMD or Yelllowpages), the ICRC noted that dentists have limited control over what members of the public post on such websites. Moreover, it appeared that there were both positive and negative comments, including some negative posts from the complainant. Accordingly, there was no suggestion that the dentist was filtering out negative results in order to provide a misleading image of his practice. The ICRC found that no further action was required with respect to this concern.

It is clear from the ICRC’s decision that they gave weight to the dentist’s proactive steps to remove problematic statements from his website, and also his remedial efforts of seeking guidance from the College with respect to his advertising.

 

Rosen Sunshine is pleased to present this special update with a focus on advertising.

The College of Physicians and Surgeons of Ontario (CPSO) just enacted a new policy on advertising by physicians. As other health Colleges often look to the CPSO for guidance, this new policy will likely be influential throughout the health professions. In this update, we will provide an outline of the CPSO’s new policy, and our thoughts on what it could mean for other health professionals in Ontario and Canada. We have also included a brief history of the regulation of advertising by health professionals, summarized a few recent cases that provide valuable lessons with respect to advertising, and provided our thoughts and tips on advertising during COVID-19.

Other Updates in this Series Include:

Top 10 Things to Know about the CPSO’s new Advertising Policy
New CPSO Advertising Policy
History of Advertising by Health Professionals
The Meaning of “Misleading Advertising”
Advertising in the Times of COVID-19

 

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