In the recent case of Ong v Zielinski, 2023 CanLII 42236 (ON HPARB), a patient complained against a hygienist who refused to change dates so that the patient could take advantage of their dental benefits before the end of 2019.
The patient complained to the Inquiries, Complaints and Reports Committee (the “Committee“) of the College of Dental Hygienists of Ontario. And the patient lost! The Committee decided to take no action against the hygienist.
So the patient appealed to the Health Professionals Appeal and Review Board. And the patient lost again! This one’s a bit of a no-brainer, but let’s review shall we?
Background Facts
On Saturday, December 28, 2019, the patient booked a routine dental appointment at the clinic for December 30, 2019 at 5:00 p.m. This was to be the patient’s first appointment at the clinic. On December 30, 2019, the patient arrived at 4:45 p.m. in the hopes of being seen sooner. At 5:05 p.m., the hygienist called the patient in for their cleaning. The hygienist told the patient that she would do the teeth cleaning and polishing but that the patient would have to book a later appointment for the dental examination by the dentist.
The patient, believing the cleaning and exam would be done on the same day, was surprised and disappointed. They wanted to use all of their allotted dental benefits for 2019. But because the clinic was closed on December 31, 2019, the next available appointment wasn’t until January 2020.
Some contentious back and forth discussions occurred between the patient and the hygienist. There was a lot of he said (patient) / she said (hygienist). And there were allegations that the patient had requested that that clinic change the date of the dental exam to December 30, 2019 (the hygienist says ‘yes’ he did; the patient says ‘no’ he did not).
The patient alleged that he never suggested this (as it would amount to fraud) and it was would harm his reputation.
And then the patient got offended by alleged statements made by the hygienist – something to the effect that it wouldn’t cost much to see the dentist in 2020.
So lots of back and forth. And the patient then decided NOT to receive partial treatments and left the clinic without having a cleaning or polishing. Instead they complained to the hygienist’s college.
Decision
The Committee investigated the complaint and decided to take no further action.
The challenge for the Committee is that there was no records created that supported or went against what was said by the hygienist and the patient. The patient received no treatment. No dental health record was created. The Committee noted that it did NOT have the authority to assess credibility or prefer one account over another without supporting evidence. The Committee noted that that it is NOT an adjudicative body (like a court) and is thus limited in its ability to make credibility determinations. There’s no hearing that involves sworn testimony or cross-examination. The Committee’s role is to review the parties’ accounts, along with the records, to determine whether the patient’s allegations were supported by the information it obtained in the investigation.
Although it was unable to determine what precisely was said between the hygienist and the patient, the Committee still noted that it WOULD BE appropriate for a dental hygienist to explain to a patient that it was not permissible to back-date any claims made to an insurance provider and that to do so could be considered a form of insurance fraud.
And given the lack of records to corroborate the conflicting version of events, the Committee decided to take no further action. In other words: the hygienist was found to have done nothing inappropriate.
On appeal, the Health Professionals Appeal and Review Board reviewed the matter and found the Committee’s decision reasonable and took no further action. The Board concluded:
“In conclusion, the Board finds that the Committee conducted an adequate investigation and reached a reasonable decision. The Committee considered the Applicant’s concerns and its decision is supported by the information in the Record as set out above. The Board finds that the Committee’s decision demonstrates a coherent and rational connection between the relevant facts, the outcome of the decision and the reasoning process that led it to that outcome, and that its decision as a whole is transparent, intelligible, and justified.”
Conclusion
Make sure to have good dental notes and records, even when a patient is disgruntled and leaves without receiving treatment. Mentioning things in those records like what was said, body language and tone, etc. would go a long way here. It worked out well for the hygienist in the end – albeit they likely suffered a lot of undue stress, anxiety, time and possibly money to defend themselves. And thankfully both the Commission and the Board didn’t find that the hygienist had done anything wrong – but that’s because there was no supporting evidence one way or another. If there were notes in the patient’s chart outlining the patient’s request or discussions between hygienist and patient, these notes could have been entered in support of the hygienist and the Commission and Board (if it went that far) would have had an even easier time coming to the same conclusion of taking no action.
