Chapter 5
Dentistry and the Law
Copyright 2003, Elsevier Science (USA)
All rights reserved. No part of this product may be reproduced or transmitted in any
form or by any means, electronic or mechanical, including input into or storage in any
information system, without permission in writing from the publisher.
PowerPoint® presentation slides may be displayed and may be reproduced in print
form for instructional purposes only, provided a proper copyright notice appears on
the last page of each print-out.
Produced in the United States of America
ISBN 0-7216-9770-4
Introduction
Every profession has interaction with the law. It is
important for the dental assistant to understand the
law as it relates to dental assisting and the practice
of dentistry.
Regulations regarding dental assistants vary greatly
from state to state, and the roles and the
responsibilities of the dental assistant also vary
from state to state.
Copyright 2003, Elsevier Science (USA). All rights reserved.
State Dental Practice Act

The primary purpose 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.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Included in the Dental Practice Act

Requirements for licensure

Grounds for revocation and/or suspension

Requirements for continuing education

Duties delegated to auxiliaries

Infection control regulations

Requirements for persons exposing dental
radiographs
Copyright 2003, Elsevier Science (USA). All rights reserved.
State Board of Dentistry




The members of the state Board of Dentistry (also
referred to in some states as the Dental Board) are
usually appointed by the governor of the state.
Some states require representation from dental
hygienists, dental assistants, and consumers.
The Board adopts rules and regulations that define,
interpret, and implement the intent of the Dental
Practice Act.
The Board also regulates and enforces the laws of
practice for dentistry within the state.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Licensure


The purpose of licensure is to protect the public
from unqualified or incompetent practitioners. The
requirements for licensure vary from state to state,
but dentists and dental hygienists must be
licensed by the state in which they practice.
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.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Expanded Functions



Expanded functions are specific intraoral
functions that are delegated to qualified dental
auxiliaries who have increased skill and training.
When these functions are included in the Dental
Practice Act, the dentist may delegate them to the
dental assistant.
Some states require additional education,
certification, or registration to perform these
functions.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Doctrine of Respondeat Superior

Respondeat Superior means that the employer
is responsible for any harm caused by the actions
of the 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.
However, the employee is also responsible for his
or her own actions, and the injured patient may
also file suit against the dental assistant.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Patient of Record

A patient of record is an individual who has
been examined and diagnosed by a licensed
dentist and has had the treatment planned by
the dentist.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Types of Supervision: Direct


Direct supervision generally means that the
dentist has delegated a specific procedure to be
performed for 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 at the time the procedures are being
performed.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Types of Supervision: General

General supervision (indirect supervision)
generally means that the dentist has authorized and
delegated specific procedures that may be performed
by a legally qualified dental auxiliary for a patient of
record.


Exposing radiographs and recementing a temporary
crown that has become dislodged are examples of
functions that are often delegated under general
supervision.
The dentist need not be physically present in
the office at the time the procedures are being
performed.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Unlicensed Practice of Dentistry



A dental assistant may legally perform only those
functions that have been delegated under the dental
practice act of the state.
Performing procedures that are not legal is practicing
dentistry without a license and this is a criminal act.
Ignorance of the dental practice act is no excuse for
illegally practicing dentistry.
This means that 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.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Dentist’s Responsibility to the Patient

Duty of care
• Licensed.
• Use reasonable skill, care, and judgment.
• Use standard drugs, materials, and techniques.


Abandonment
The dentist may refuse to treat a patient; however,
this action must not be based on the patient’s
race, color, or creed.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Patient’s Responsibilities


The patient is legally required to pay a reasonable
and agreed-upon fee for services.
The patient is expected to cooperate and to follow
instructions regarding treatment and home care.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Categories of Law

Criminal Law
• Felony
• Misdemeanor
• Infraction

Civil Law
• Contract law
• Administrative law
Copyright 2003, Elsevier Science (USA). All rights reserved.
Contract Law


Expressed contracts
Implied contracts: 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.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Torts
A tort is a wrongful act that results in injury to one
person by another. It may be done accidentally
(negligence) or intentionally.
Example: A dental assistant mounted x-rays on the
wrong side of the mount. The dentist noticed the
error and turned the films over, and no harm was
done to the patient. No tort occurred. However, if
the dentist did not notice the error and extracted
the tooth on the wrong side of the mouth because
of the error in film mounting, a tort did occur.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Malpractice: the Four Ds

There are four conditions, sometimes called the “Four Ds”
that must all be present for a malpractice lawsuit to be
successful.
• Duty: There must be a dentist/patient relationship to
establish the duty.
• Derelict: Negligence occurred as a result of not
meeting the standard of care.
• Direct Cause: The negligent act was the direct cause
of the injury.
• Damages: May include pain and suffering, loss of
income, medical bills, and so on.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Types of Malpractice
 Act of omission (Example: A dentist failed to
diagnose periodontal disease because he did not
take x-rays or do a periodontal probing.)
 Act of commission (Example: A dentist
administered 15 cartridges of a local anesthetic to
a very small child, and a serious overdose resulted
in the death of the child.)
Copyright 2003, Elsevier Science (USA). All rights reserved.
Risk Management
 The major areas of risk management (prevention
of lawsuits) involve maintaining accurate and
complete records, gaining informed consent, and
doing everything possible to maintain the highest
standards of clinical excellence.
 Legal authorities have noted that the primary
factor in avoiding legal problems with patients is
maintaining a climate of good rapport and open
communication with all patients.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Avoiding Malpractice Suits

Prevention and good communication with the
patient are the best defenses against malpractice.
Patients are less likely to initiate a lawsuit when
they have a clear understanding of:
• What is the planned treatment?
• What are the reasonable results?
• What are the potential complications?
• What are the patients’ financial obligations?
Copyright 2003, Elsevier Science (USA). All rights reserved.
Res Gestae: “Part of the Action”
 The dental assistant 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.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Types of Patient Consent

Implied consent
• Provided the patient has the ability to give it, implied
consent is given when the patient agrees to treatment,
or at least does not object. Implied consent is a less
reliable form of consent in a court of law should there
be a malpractice suit.

Written consent
• Written consent is a preferred means of obtaining and
documenting the patient’s consent and understanding of
the procedure.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Guidelines for Informed Consent

To assist the patient in making an informed decision about
having the proposed treatment, the dentist should explain:
• The nature of the proposed treatment.
• The benefits of the proposed treatment, and the
consequences of not having 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.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Informed Refusal
 If a patient refuses the proposed treatment, the
dentist must inform the patient about the likely
consequences and obtain the patient’s informed
refusal.
 An 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.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Informed Consent for Minors
 For minor children, the parent, custodial parent, or
legal guardian must give consent.
 Where parents live separately, the child’s personal
information form should indicate which parent is
the custodial parent.
 Where separated parents share custody, the child’s
record should contain letters from each providing
consent and authorization to treat.
Copyright 2003, Elsevier Science (USA). All rights reserved.
When Written Consent Is Required

If new drugs are to be used.

If experimentation or clinical testing is involved.

If a patient’s identifiable photograph is used.

If minor children are treated in a public program.

If the treatment takes more than 1 year to
complete.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Referral
 The dentist will usually refer a patient who has an
unusual case, or those beyond his or her scope of
training, to a specialist.
 The dentist must inform the patient that the
services needed cannot be properly performed in
the office.
 Whenever possible, the dentist should assist the
patient in finding an appropriate specialist.
Copyright 2003, Elsevier Science (USA). All rights reserved.
When a Patient Refuses Treatment




A record of all broken and/or cancelled appointments must
also be noted in the patient’s chart.
If the patient discontinues treatment, the records should
indicate this decision and the reason given for it.
This information can be useful in documenting contributory
negligence.
Such documentation helps protect the practice from legal
recourse should a patient claim negligence against the
dentist.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Patient Clinic Records



These 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 patient’s folder.
Financial information is not included in the
patient’s chart.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Ownership of Dental Records




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 dentist’s permission.
In most situations, duplicate radiographs and a photocopy
of the record will satisfy the patient’s needs.
Copyright 2003, Elsevier Science (USA). All rights reserved.
Reporting Abuse and Neglect




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 of their child patients.
Reported cases of child abuse and neglect are rising at an
alarming rate all over the country.
Copyright 2003, Elsevier Science (USA). All rights reserved.
What Is Child Abuse?

Child abuse is legally defined as any act of omission
or commission that endangers or impairs a child’s
physical or emotional health and development. These
acts include the following:
• Physical abuse and corporal punishment resulting in
an injury
• Emotional abuse
• Emotional deprivation
• Physical neglect and/or inadequate supervision
• Sexual abuse and exploitation
Copyright 2003, Elsevier Science (USA). All rights reserved.
Immunity


In those states that legally require reporting
suspected child abuse, immunity is granted from
criminal or civil liability for reporting as required.
This means that you cannot be sued for reporting
your suspicions in order to protect a child.
Copyright 2003, Elsevier Science (USA). All rights reserved.