Chapter 05

Dentistry and the Law Chapter 5
Copyright 2009, 2006 by Saunders, an imprint of Elsevier Inc. All rights reserved.
Chapter 5 Lesson 5.1
Learning Objectives
Pronounce, define, and spell the Key Terms. Describe the differences between civil and criminal law. Explain the purpose of the state dental practice act. Explain the purpose for licensing dental health professionals.
Introduction
Regulations regarding dental auxiliaries vary greatly from state to state, and the roles and the responsibilities of dental auxiliaries also vary from state to state.
State Dental Practice Act

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The primary purpose of a dental practice act is to protect the public from incompetent practitioners. The dental practice act specifies the legal requirements for the practice of dentistry within each state. An administrative board, usually called the Board of Dentistry, interprets and implements state regulations.
Included in the Dental Practice Act

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Requirements for licensure Grounds for revocation or suspension Requirements for continuing education Duties delegated to auxiliaries InfectionInfection-control regulations Requirements for persons exposing dental radiographs
State Board of Dentistry

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The members of the state board of dentistry (also referred to in some states as the dental board) are appointed by the governor of the state. The board adopts rules and regulations that define, interpret, and implement the intent of the dental practice act. The board regulates and enforces the laws of practice for dentistry within the state.
Licensure
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The purpose of licensure is to protect the public from unqualified or incompetent practitioners. It is very important to understand the requirements for practice in your state. In every state, anyone who practices dentistry without a license is guilty of an illegal act.
Expanded Functions
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Expanded functions are specific intraoral functions delegated to qualified dental auxiliaries with additional skill and training. When these functions are included in the dental practice act, the dentist may delegate them to the dental auxiliary.
Learning Objectives
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Give an example of respondeat superior. Describe the types of dental auxiliary supervision. Explain the circumstances required for patient abandonment. Describe ways to prevent malpractice suits.
Doctrine of Respondeat Superior

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Respondeat superior means that the employer is responsible for any harm caused by the actions of an employee while the employee is carrying out the business of the employer. In a dental practice, this means that the patient may sue the dentist for an error committed by the dental assistant or dental hygienist. The employee is also responsible for his or her own actions, and the injured patient may also file suit against the dental assistant.
Doctrine of Res Ipsa Loquitur

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Meaning the thing speaks for itself. For example, a dentist extracts the wrong tooth or breaks an instrument in the tooth and leaves it there. The proofthe instrument proof itself itselfis clear.
Patient of Record
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A patient of record is an individual who has been examined and in whom a diagnosis has been made by a licensed dentist and for whom treatment has been planned by the dentist.
Types of Supervision: Direct

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Direct supervision means that the dentist has delegated a specific procedure to be performed in a patient of record by a legally qualified dental auxiliary. The dentist must examine the patient before delegating the procedure and again when the procedure is complete. The dentist must be physically present in the office while the procedures are being performed.
Types of Supervision: General

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General supervision (indirect supervision) means that the dentist has authorized and delegated specific procedures that may be performed by a legally qualified dental auxiliary in a patient of record. Exposing radiographs and recementing a temporary crown that has been dislodged are examples of functions that are often delegated under general supervision. The dentist need not be physically present in the office while such procedures are being performed.
Unlicensed Practice of Dentistry

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A dental assistant or dental hygienist may legally perform only those functions delegated under the dental practice act of the state in which he or she works. Performing procedures that are not legal is practicing dentistry without a license, a criminal act. Ignorance of the dental practice act is no excuse for illegally practicing dentistry. If the dentist asks you to perform an expanded function that is not legal in your state and you choose to do so, you are committing a criminal act.
The Dentists Responsibility to the Patient

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Duty of care
Licensure Use of reasonable skill, care, and judgment Use of standard drugs, materials, and techniques

Abandonment

The dentist may refuse to treat a patient; however, this action must not be based on the patients race, color, or creed.
Patients Responsibilities
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The patient is legally required to pay a reasonable and agreed-upon fee for services. agreedThe patient is expected to cooperate and to follow instructions regarding treatment and home care.
Fig. 5-1 Maintaining good communication with the patient is an important 5role of the dental assistant.
(Courtesy of Pamela Landry, RDA.)
Categories of Law
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Criminal law
Felony Misdemeanor Infraction

Civil law
Contract law Administrative law

Contract Law
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Expressed contract Most dental contracts are implied contracts. For example, if a patient comes to the dentist with a toothache and allows the dentist to examine him, it is implied that he wants treatment.
Torts
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A tort is a wrongful act by one person that results in injury to another. It may happen accidentally (negligence) or be done intentionally. For example, a dental auxiliary places x-rays on the xwrong side of the mount. The dentist notices the error and turns the films over, and no harm is done to the patient. No tort has occurred. However, if the dentist does not notice the error and extracts the tooth on the wrong side of the mouth because of the error in film mounting, a tort has occurred.
The Four Ds
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The four Ds must all be present for a malpractice lawsuit to be successful:

Duty: A dentist/patient relationship must exist for duty to be established. Derelict: Negligence occurred because the standard of care was not met. Direct cause: The negligent act was the direct cause of the injury. Damages: May include pain and suffering, loss of income, and medical bills, among other things.

Types of Malpractice
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Act of omission

Example: A dentist fails to diagnose periodontal disease because he does not take x-rays or xperform periodontal probing. Example: A dentist administers 15 cartridges of local anesthetic to a very small child, resulting in serious overdose and the death of the child.
Act of commission

Risk Management
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The major areas of risk management (prevention of lawsuits) involve:

Maintaining accurate and complete records Gaining informed consent

Legal authorities have noted that the primary factor in avoiding legal problems with patients is maintaining a good rapport and open communication with all patients.
Avoiding Malpractice Suits

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Prevention and good communication with the patient are the best defenses against malpractice claims. Patients are less likely to initiate a lawsuit when they have a clear understanding of:
The planned treatment The results that can reasonably be expected The potential complications The patients financial obligations

Learning Objectives
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Give an example of res gestae. Describe the difference between written and complied consent. Explain why it is necessary to obtain informed consent. Describe the exceptions for disclosure.
Res Gestae: Part of the Action

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The dental assistant or dental hygienist must never make critical remarks about dental treatment rendered by his or her employer or any other dentist. Statements made spontaneously by anyone (including the dental assistant) at the time of an alleged negligent act are admissible as evidence and may be damaging to the dentist and dental assistant in a court of law.
Types of Patient Consent

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Implied consent

Implied consent is given when the patient agrees to treatment or at least does not object. Implied consent is less reliable form of consent in a court of law should there be a malpractice suit. This is the preferred means of obtaining and documenting the patients consent and understanding of the procedure.
Written consent

Guidelines for Informed Consent

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To assist the patient in making an informed decision about whether to undergo the proposed treatment, the dentist should explain:
The nature of the proposed treatment The benefits of the proposed treatment and the consequences of not undergoing the proposed treatment The most common and severe risks associated with the proposed treatment Reasonable alternatives to the proposed treatment, including the risks and benefits of each

Informed Refusal
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If a patient refuses the proposed treatment, the dentist must inform the patient about the likely consequences and obtain the patients informed refusal. Informed refusal does not release the dentist from the responsibility of providing the standard of care. A patient may not consent to substandard care, nor may the dentist ethically or legally agree to provide it.
Learning Objectives
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Describe the procedure for obtaining consent for the treatment of minor patients. Describe the procedure for documenting informed consent. Explain the principle of contributory negligence. Demonstrate how to make corrections on a patients record. Discuss the indications of child abuse and neglect.
Informed Consent for Minors

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For minor children, the parent, custodial parent, or legal guardian must give consent. When parents live separately, the childs personalpersonal-information form should indicate which of them is the custodial parent. When separated parents share custody, the childs record should contain letters from each providing consent and authorization to treat.
When Written Consent Is Required

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If a new drug is to be used If experimentation or clinical testing is involved If a patients identifiable photograph is used If a minor child is treated in a public program If the treatment takes more than 1 year to complete
Referral
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The dentist will commonly refer unusual cases, or those beyond his or her scope of training, to a specialist. The dentist must inform the patient being referred that the needed services cannot be properly performed in his or her office. Whenever possible, the dentist should help the patient find the appropriate specialist.
When a Patient Refuses Treatment

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All broken or canceled appointments must be noted in the patients record. If the patient discontinues treatment, the records should indicate this decision and the reason given. This information can be useful in documenting contributory negligence. Such documentation helps protect the practice from legal action should a patient claim negligence against the dentist.
Patient Clinic Records

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Patient records are important legal documents that must be protected and handled with care. All examination records, diagnoses, radiographs, consent forms, updated medical histories, copies of medical and laboratory prescriptions, and correspondence to or about a patient are filed together in the patients record. Financial information is not included in the patients chart.
Ownership of Dental Records

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The dentist technically owns all patient records and radiographs. Patients have the right to access (review) and retrieve (remove) their records and radiographs. Original records and radiographs are never allowed to leave the practice without the dentists permission. In most situations, duplicate radiographs and a photocopy of the record will satisfy the patients needs.
Reporting Abuse and Neglect

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In many states, dental personnel are required by law to report known or suspected cases of child abuse. The primary intent of reporting is to protect the child. It is equally important to provide help for the parents. Dental personnel are in a good position to identify signs of abuse in their pediatric patients. Reported cases of child abuse and neglect are rising at an alarming rate all over the country.
What Is Child Abuse?

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Child abuse is legally defined as any act of omission or commission that endangers or impairs a childs physical or emotional health and development. These acts include:
Physical abuse and corporal punishment resulting in injury Emotional abuse Emotional deprivation Physical neglect or inadequate supervision Sexual abuse and exploitation

Fig. 5-3 This boy was a victim of child abuse. 5-
Immunity
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Many states legally require the reporting of suspected child abuse. Immunity from criminal or civil liability for reporting is granted as required. This means that you cannot be sued for reporting your suspicions to protect a child.

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Chapter 05

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Dentistry and the Law Chapter 5

Chapter 5 Lesson 5.1

State Dental Practice Act

Included in the Dental Practice Act

State Board of Dentistry

Chapter 5 Lesson 5.2

Doctrine of Respondeat Superior

Doctrine of Res Ipsa Loquitur

Types of Supervision: Direct

Types of Supervision: General

Unlicensed Practice of Dentistry

The Dentists Responsibility to the Patient

The four Ds must all be present for a malpractice lawsuit to be successful:

The major areas of risk management (prevention of lawsuits) involve:

Avoiding Malpractice Suits

Chapter 5 Lesson 5.3

Res Gestae: Part of the Action

Types of Patient Consent

Guidelines for Informed Consent

Chapter 5 Lesson 5.4

Informed Consent for Minors

When Written Consent Is Required

When a Patient Refuses Treatment

Patient Clinic Records

Ownership of Dental Records

Reporting Abuse and Neglect

What Is Child Abuse?

Fig. 5-3 This boy was a victim of child abuse. 5-

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