Peer Review: An Alternative Resolution Process to Dentistry Malpractice Claims

March 30, 2010 Published Work
New York State Bar Association Journal, March/April 2010, Vol. 82, No. 3

Reprinted with permission from the New York State Bar Association Journal, March/April 2010, Vol. 82, No. 3, published by the New York State Bar Association, One Elk Street, Albany, New York 12207.

Peer Review: An Alternative Dispute Resolution Process to Dentistry Malpractice Claims

Patients who are dissatisfied with their dental treatment will often contact an attorney to discuss their grievances and explore litigation. On many occasions, however, attorneys will decide not to accept a potential claim because either the alleged misconduct did not rise to the level of malpractice or the amount of recoverable damages would be too small compared to the potential costs of litigation. In such instances, an attorney may suggest that the client seek relief through the Peer Review process of the New York State Dental Association (NYSDA), which represents over 70% of the licensed dentists practicing in New York State.

Peer Review is available to patients treated by a dentist who is a member of the NYSDA. The association does not offer Peer Review to patients who received treatment in Article 28 clinics,1 in dental schools, or in situations where treatment was provided under the auspices of the state Medicaid program. Other alternatives exist for those patients to resolve their complaints. Accordingly, this article will focus on various aspects of Peer Review as an alternative dispute resolution process.

The NYSDA's Peer Review process results in the expeditious and conclusive resolution of a patient and dentist dispute. The process is administered by dentist-volunteers in each of the NYSDA's 13 geographic components, under the auspices of the NYSDA's Board of Governors and its Council on Peer Review and Quality Assurance. Of the many benefits to the Peer Review process, the service is free to the parties, and all cases are handled in a timely manner.

A group of impartial dentist-volunteers oversee and conduct the Peer Review process. These individuals conduct mediation in the initial stages to allow the dentist an opportunity to offer the patient a full or partial refund. If the parties cannot reach a settlement during the mediation, a hearing will then be conducted. At the hearing, three members of a Peer Review committee will review the patient's records and perform individual clinical examinations, which will serve as a basis for their findings. The hearing is more informal than, say, a trial. For example, the parties do not cross-examine a witness or introduce outside witnesses at a hearing. While each party may be represented by counsel, the parties' attorneys do not act in a formal representative role other than to advise their clients. In addition, the Peer Review process is kept confidential. Confidentiality is protected by the "Agreement to Submit to Peer Review" ("Agreement") -- the cornerstone of the process -- as well as a N.Y. Education Law §6527.

Finally, Peer Review provides an alternative to litigation for resolving patient complaints about dental treatment, placing the decision in the hands of impartial professionals rather than in the hands of laypeople. Findings are based on objective assessments of treatment as opposed to the biased opinions of "expert witnesses" selected to advocate for a side.

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