Smoking Guns and Targets

Smoking Guns and Targets

Imagine that you are on trial, having been accused of being ethical. This is a bit surrealistic, but the question arises: is there enough evidence to get a conviction? You explain to your attorney that you have passed the state board ethics test. She shakes her head. “We need to find a smoking gun, or perhaps a pattern of consistent behavior.”

A smoking gun would be a single dramatic act. To make it bullet-proof, it should have no mixed motives and look 100% volitional. Was that pro bono work for the patient’s sake or bad debt repackaged as good public relations? In your heart, your intentions are pure. But the world is so likely to misunderstand.

Perhaps it would be better to go for a pattern of outcomes. Open your charts, gather testimonials, point to your clean record. There is power in trends, but not so much when they come after the fact. A few targets with bullet holes where they should be might be impressive. But any lawyer worth his or her fee would show that (a) a pattern of outcomes does not prove that a particular act caused it, (b) chance could produce almost any pattern if we looked hard enough, and (c) selective evidence is suspect.

This way of looking at matters is annoying. If we begin with the assumption that the profession is perfectly ethical, this all seems like mean-spirited trouble making. But perhaps others do not start from that position. Can we really use profession of an intended outcome to demonstrate that we have behaved as intended?

Now let’s change the situation in just one small way. Imagine you are on trial, but this time accused of being unethical. There is the smoking gun. An undisclosed broken file in the sinus, an insurance claim for extracting a tooth that is still in the arch. “It was an atypical accident, a reporting error, a misunderstanding” you say. You can explain it away. Some dentists believe the ADA Code of Ethics says do not criticize other dentist’s work because you do not know the circumstances under which it was performed. Not quite true. It says, you should take steps to find out what those circumstances were.

But perhaps there is an ugly pattern. Insurance companies tell me they can name the dozen most unethical practitioners based on distinctive claims patterns. Usually these problems are made to go away privately since there is no smoking gun and state enforcement agencies are underfunded out of mistrust of effective government. The best defense against pattern detection of immoral behavior is to break the chain of evidence. Until we curb policies of nondisclosure and settlements that self-dissolve to prevent discovery of past wrong-doing, smoking guns and patterns will be weak stuff.

The Nubs:

  1. All evidence is only partially valid.
  2. Whether we use evidence of ethical conduct cannot be determined by which outcome we want to appear.
  3. Confronting immoral behavior is an act of courage that involves morality.

 

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