1. Legal and Ethical Issues in the Dental Business Office
Chapter 4
Legal and Ethical Issues
in the Dental Business Office
Copyright © 2011, 2006 Mosby, Inc., an affiliate of Elsevier. All rights reserved.

2. Objectives
Explain the impact of ethics and law on the dental business office.
Differentiate between the various types of law that affect the practice of dentistry.
Describe situations in the dental business office that would lead to potential litigation.
Describe the code of ethics of professional dental organizations.
Identify 12 steps in making ethical decisions.

3. Legal Regulations
The Dental practice act of each state defines the requirements necessary to practice dentistry and the scope of dental practice for that particular state.
Standards for dental care may arise from both common law (judicial decisions) and statutory law (enacted by a legislative body) such as the state dental practice act.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

4. Professional Standards
The dental professional is also governed by voluntary standards, such as the principles of ethics, developed and implemented by the dental profession itself.
Both legal and voluntary requirements and standards are implemented for the protection of society and, ultimately, the patient.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

5. Professional Organizations
Membership in a professional organization is voluntary, and thus the standards of these organizations are considered voluntary.
However, these standards are used as guidelines in peer review.
The standards of professional health organizations reflect the assessment of the need for dental care and the public’s expectations for dentistry and its professional staff to appropriately meet those needs.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

6. Definition of Law
Law consists of enforceable rules governing relationships among individuals and between individuals and their society.
Law implies that there must be established rules: constitutions, statutes, administrative agency rules and judicial decisions.
Rules of law must be enforceable and establish limits of conduct for government and individuals in society.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

7. Law Relative to Dentistry
Each state’s board of dentistry has the responsibility of enforcing laws within the agency and making rules and regulations that conform to enacted laws.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

8. Classifications of Law
Civil law
Relates to duties between persons or between citizens and their government
Criminal law
Wrongs committed against the public as a whole

9. Crimes
Wrongdoing against society as a whole is considered a crime and is prosecuted by a public official.
A person or entity that breaks certain laws may be guilty of a crime whether or not there was intent.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

10. Classification of Crimes
Classification of a crime includes a
Misdemeanor
Less serious than a felony
Punishable by fine or imprisonment of up to 1 year
Felony
A more serious crime
Punishable by imprisonment of more than 1 year
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

11. Torts A tort is a civil wrongdoing.
A breach of a legal duty
Usually resolved with monetary compensation
Torts: negligence, assault, battery, infliction of mental distress, defamation, fraud.
Torts may be intentional or unintentional acts of wrongdoing.
If intentional, this means that the person committing the tort intended to commit the wrongful act.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

12. Intentional Torts
Intentional torts for which a dental assistant/hygienist/DDS could be held liable include
Assault and battery
Defamation of character
Invasion of privacy
Immoral conduct
Fraud
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

13. Unintentional Torts
Unintentional torts do not require a particular mental state.
Failure to exercise a standard of care is an example of an unintentional tort.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

14. Four Elements of Negligence
Negligence is an unintentional tort that includes the following four elements:
Was there a duty to follow a standard of care?
Was this duty breached?
Did the plaintiff suffer injury?
Was the injury a direct result of that breach of duty?
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

15. Negligence
Negligence is the performance of an act that a reasonably careful person under similar circumstances would not do or the failure to perform an act that a reasonably careful person would do under similar circumstances.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

16. Negligence in the Dental Office
Potential negligent acts in the dental office
Abandonment
Burns
Mistaken identity
Materials left in patients after surgical procedures
Defects in equipment
Failure to observe patient reactions and take appropriate action
Extracting the wrong tooth
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

17. Negligence in the Dental Office
Potential negligent acts
Medication errors
Failure to exercise good judgment
Failure to communicate
Loss of or damage to a patient’s personal property
Disease transmission
Failure to inform patients of conditions in the mouth
Failure to expose radiographs before surgical procedures
Improper assignment of duties
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

18. Malpractice
Professionals usually consider malpractice a form of negligence, but it can mean, in a broader sense, any wrongdoing by a professional.
Malpractice can refer to any professional misconduct, evil practice, or illegal or immoral conduct, not just negligence.
Malpractice can be either unintentional or intentional.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

19. Litigation
Litigation is the process of a lawsuit (a legal action in a court) brought about by a plaintiff against a defendant.
The person or party that institutes the suit in court is the plaintiff.
The person being accused of the wrongdoing is the defendant.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

20. Fact Witness
During litigation proceedings, a fact witness provides only firsthand knowledge about what he or she saw or did during a specific act.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

21. Expert Witness
A person called to testify and give an opinion regarding whether standard of care was breached based on his or her educational background and strong expertise is known as an expert witness.
A strong knowledge of dental law and dental standards, as well as an understanding of malpractice liability, is beneficial in such cases.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

22. Dental Practice Act
The legal requirements necessary to practice dentistry as well as the scope of what can be practiced are developed through legislative action within the state and are identified in the state dental practice act.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

23. Scope of the Dental Practice Act
This act defines the minimum educational standards, requirements for credentialing, and the criteria for license revocation or suspension for a dentist, dental hygienist, and, in several states, the dental assistant.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

24. Scope of the Dental Practice Act
Many state dental practice acts define conditions under which a dental assistant or dental hygienist may perform specific duties.
Each state provides a list of definitions within the law, and the descriptive language may vary significantly from state to state.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

25. Terminology Examples of terminology Patient of record
One who has been examined and diagnosed by a licensed dentist and whose treatment has been planned by the dentist
Assignment*
A specific procedure is assigned the auxiliary to be performed on a designated patient of record.
For certain procedures, the dentist does not need to be in the office or treatment room.
*May vary from state to state.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

26. Terminology Direct supervision*
Dentist is physically in the office at the time the procedures are performed and examines the patient before and after the procedure.
General supervision*
Dentist has designated a patient of record upon whom services are to be performed. The dentist shall be physically present in the office during the performance of the procedures.
*May vary from state to state.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

27. Professional Standards
Credentialing is a generic term that refers to the ways in which professionals can measure and maintain their competence.
The processes used in credentialing include accreditation, certification, and licensure.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

28. Accreditation
Accreditation is the process by which an educational program is evaluated and recognized by an outside agency for having attained a predetermined set of standards.
In dentistry, the Commission on Dental Accreditation of the American Dental Association is responsible for accrediting educational programs in dentistry, dental assisting, dental hygiene, and dental laboratory technology.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier .

29. Certification
Certification requires prerequisites involving education and clinical experiences.
It measures whether the person has met certain criteria established by a nongovernment organization.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

30. Licensure
Licensure is the credential granted an individual by the state after meeting necessary requirements.
Licensure is intended to protect the consumer.
Requirements may include a
Written examination
Clinical examination
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

31. Code of Ethics
Ethics is a branch of philosophy and is a systematic, intellectual approach to the standards of behavior.
A professional code of ethics helps members of the profession achieve high levels of behavior through moral consciousness, decision making, and practice by members of the profession.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

32. ADA Principles of Ethics and Code of Professional Conduct
Each organized group within the profession of dentistry, including the ADA, ADAA (American Dental Assistants Association), and ADHA (American Dental Hygienists’ Association), has developed a code of ethics for its members.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

33. Ethical and Legal Considerations for the Administrative Assistant
Ethical and legal decisions may change as laws and societal influences affect the delivery of dental care.
The administrative assistant must constantly be vigilant of the changes taking place in laws affecting dentistry.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

34. Ethical and Legal Considerations in the Dental Office
Common business activities that lead to potential litigation
Making false accusations about another person in verbal or written communication
Providing another party or agency with confidential information without consent
Entering inaccurate data on patient records
Duplicating copyrighted material without permission
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

35. Ethical and Legal Considerations in the Dental Office
Using unauthorized software
Gaining access to computer data illegally
Malicious or deliberate damage to data in a computer
Falsely entering data on insurance claims
Failure to follow federal or state disease transmission or waste management regulations
Failure to maintain accurate local, state, or federal government records
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

36. Assignment of Duties
It is the responsibility of the licensed dentist to assign specific procedures to dental auxiliaries.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

37. Legal Assignment of Duties
If a duty that is illegal within the state is assigned to the dental assistant, the dentist is liable for this illegal action.
Further, if a dental assistant performs a procedure that is not legally delegable to be performed by the assistant, the assistant is liable for such action.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

38. Factors to Consider in the Assignment of Duties
Before assigning duties to staff members
Review appropriate credentials.
Retain credentials on file.
Avoid employer-employee conflict in assignment.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

39. Consent
Consent is the voluntary acceptance or agreement of what is planned or done by another person.
Two forms of consent exist in the delivery of dental care: informed and implied.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

40. Informed Consent
The basis for the concept of informed consent is that every adult of sound mind has the right to determine what can and cannot be done with his or her body.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

41. Conditions of Informed Consent
Conditions surrounding informed consent include the following:
Must be freely given
Information about the procedure, treatment, and diagnosis must be in understandable language.
Risks and benefits, estimate of success, alternatives, and choice and prognosis of no treatment
The patient has the right to ask questions.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

42. Consent and State of Mind
For consent to be legally valid, the patient must be an adult of sound mind.
Persons under the influence of alcohol, drugs, or severe stress may not have sufficient capacity to give consent for treatment.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

43. Consent for Minors
When treating a minor, only the parent or guardian may grant consent; this excludes grandparents, babysitters, and siblings.
Parents may authorize another party to grant consent for treatment during their absence, but this must be done prior to treatment.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

44. Implied Consent
Agreements that flow automatically from the relationship between the patient and the dental professional fall under the category of implied consent.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

45. Implied Consent Responsibilities
Implied consent responsibilities work in two ways―those that the dentist owes to the patient and those that the patient owes to the dentist.
Accepting a patient for treatment implies that the dentist agrees to accept certain responsibilities for that patient’s dental care.
Likewise, if a patient agrees to accept treatment by the dentist, it is considered that the patient assumes certain responsibilities.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

46. Implied Duties Owed by the DDS to the Patient
Use reasonable care in the provision of services. Be properly licensed and registered. Obtain an accurate medical history prior to patient treatment. Obtain informed consent. Refrain from abandoning the patient. Charge reasonable fees. Do not do procedures that one is not qualified for

47. Implied Duties Owed by the Patient to the DDS
Cooperate in your care by following home care or other reasonable instructions, take medications as prescribed, show up for recalls.
Keep appointments.
Provide honest answers on the health history form.
Remit the fee for services within a reasonable amount of time.

48. Informed Refusal
A patient may decline a recommended procedure or referral from a dentist.
An office should document this refusal for recommended care in writing.
Not all courts recognize informed refusal.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

49. Managed Care
Managed care refers to a cost-containment system of healthcare insurance.
Limitations imposed by managed care companies generally are directed at payment for services, but the policies may also limit the actual services received by a patient.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

50. Managed Care
Managed care systems raise several legal and ethical issues for the dentist and healthcare professional.
For the patient’s interest to be protected, the dentist must be relied on to adhere to both legal and ethical principles.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

51. Risk Management Programs
Risk-management programs aid the dental professional in identifying, analyzing, and dealing with risks in the dental office.
Topics include information on operating safety, product safety, quality assurance, and waste disposal.
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.

52. Risk Management Topics
Topics covered during a risk management program may include
Abandonment
Fraud
Records management
Defamation of character
Negligence
Invasion of privacy

53. Abandonment
Abandonment is defined as the severance of a professional relationship with a patient who is still in need of dental care and proper transfers or referrals.

54. Fraud
Fraud is a deception that is deliberately practiced in order to secure unfair or unlawful gain.

55. Records Management
Nothing can be more valuable in defending against potential litigation than adequate records.
Thorough, accurate, and objective documentation is your best defense in litigation.

56. Defamation Of Character
Defamation of character is the communication of false information to a third party about a person that results in injury to that person’s reputation.
Such communication can be verbal (slander) or written (libel).

57. Proving Negligence
To prove negligence, the plaintiff must show that there was an obligation to provide care according to a specified standard; that there was failure to meet that standard, that the failure to meet the standard led to injury, and that there was in fact an actual injury to the patient.

58. National Practitioner Data Bank
The National Practitioner Data Bank is a central repository to collect and release information on professional competence and conduct.
The repository includes information on paid malpractice claims and adverse reports of healthcare licensees.

59. Invasion of Privacy
Invasion of privacy is a tort that refers to a number of wrongs involving the use of otherwise private information.

60. Invasion of Privacy Invasion of privacy may involve
Publishing, making known or using information relating to the private life or affairs of a person without that person’s approval or permission
Prying into private affairs
Appropriating the plaintiff’s identity for commercial use

61. Good Samaritan Law
The Good Samaritan law is legislation that grants immunity for acts performed by a person who renders care in an emergency situation.
This law does not provide protection for a negligent healthcare provider who is being compensated for services.

62. Americans with Disabilities Act
The Americans with Disabilities Act identifies five categories of persons who are protected from discrimination.
Persons whose physical or mental impairment substantially limits one or more major life activities
Persons who have a record of impairment

63. Americans with Disabilities Act
Persons who, while fully functional and not actually disabled, are regarded as having such an impairment due to severe disfigurement
Persons who are discriminated against because they have a known association or relationship with a disabled individual
Persons who currently participate in or who have completed a drug or alcohol rehabilitation program

64. Computer Security
Computer security refers to safeguards that are implemented to prevent and detect unauthorized access or deliberate damage to a computer system and data.

65. Computer Crime
A computer crime is the use of a computer to commit an illegal act.
In a dental office, the most common activity that would violate computer integrity is software theft, or piracy.

66. Twelve Steps to Making Ethical Decisions
Perform only duties that are legally delegated.
Obtain necessary credentials.
Perform requested tasks competently.
Practice safely.
Inform the patient about treatment.
Respect the patient's rights.

67. Twelve Steps to Making Ethical Decisions
Maintain complete and accurate records.
Maintain professional liability insurance.
Participate in risk-management programs.
Maintain ethical and legal standards.
Maintain current knowledge of your state’s Dental Practice Act.
Participate in your professional organization.