1. Dentistry and the Law Chapter 5 1
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2. Chapter 5
Lesson 5.1
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3. 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.
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4. 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.
Why do we have regulations in each state? (To protect the public from incompetent dental healthcare providers.)
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5. State Dental Practice Act
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.
Each state’s dental practice act is now accessible on the Internet at
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6. Included in the Dental Practice Act
Requirements for licensure
Grounds for revocation or suspension
Requirements for continuing education
Duties delegated to auxiliaries
Infection-control regulations
Requirements for persons exposing dental radiographs
What state was the first to enact laws to regulate dentistry? (In 1841, Alabama enacted the first dental practice act in the United States.)
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7. State Board of Dentistry
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.
How does the ADA relate to these state boards? (The ADA believes states should have the power to decide who is qualified to practice dentistry and who is not.)
Are there only dentists on the Boards? (Some states have dental hygienists, dental assistants, and consumers as members of the board.)
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8. Licensure
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.
The dentist and dental hygienist are usually licensed in their own state to practice their profession. Many states now have licensure for differing levels of dental-assisting skill sets.
The requirements for licensure vary from state to state.
What is meant by reciprocity?
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9. Expanded Functions
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.
Example of a state (California) that permits expanded functions for qualified dental auxiliaries:
Vocations requiring license: hygienists and Registered Dental Assistants
Examination frequency: two times per year
Experience requirement: must be a licensed dental hygienist or registered dental assistant and have successfully completed the board-approved program in expanded functions
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10. Chapter 5
Lesson 5.2
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11. Learning Objectives 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.
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12. Doctrine of Respondeat Superior
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.
Why would dental professionals need malpractice insurance for themselves?
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13. Doctrine of Res Ipsa Loquitur
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 proof—the instrument itself—is clear.
If the evidence is clear in a malpractice suit, sometimes an expert witness is not necessary.
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14. Patient of Record
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.
Are you a patient of record for a dentist whom you regularly visit?
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15. Types of Supervision: Direct
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.
What type of supervision is performed by the dentist in regard to his staff and their functions?
How does direct supervision compare with general supervision?
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16. Types of Supervision: General
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.
In what situations can a dental office be open if the dentist is not physically present?
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17. Unlicensed Practice of Dentistry
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.
What should you do if a dentist asks you to perform any duties that an assistant is not legally allowed to perform by the state?
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18. The Dentist’s Responsibility to the Patient
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 patient’s race, color, or creed.
What are dentists responsible for in regard to their patients?
Can a dentist refuse to treat a patient because he or she is infected with human immunodeficiency virus?
Abandonment refers to discontinuation of care after treatment has begun but before it has been completed. The dentist may be liable for abandonment if he or she ends the dentist-patient relationship without giving the patient reasonable notice.
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19. 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.
Sometimes dental professionals forget that patients have some responsibility for their oral health, and we need to gently remind them of this fact.
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20. Fig. 5-1 Maintaining good communication with the patient is an important role of the dental assistant. (Courtesy of Pamela Landry, RDA.)
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
Treatment results that may reasonably be expected.
Potential treatment complications
The patient’s financial obligations
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21. Categories of Law Criminal law Civil law Felony Misdemeanor Infraction
Contract law
Administrative law
What is a felony? (A major crime, such as fraud or drug abuse; conviction may result in imprisonment of one year or more.)
What is a misdemeanor? (A lesser offense that may result in a variety of penalties, including fines, loss or suspension of the license to practice dentistry, mandatory continuing education, counseling, and community service.)
What is an infraction? (A minor offense that usually results in only a fine.)
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22. Contract Law 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.
What is the difference between an expressed contract and an implied contract?
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23. Torts
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 wrong 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.
What is a tort, and how does it occur?
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24. The “Four D’s”
The “four D’s” 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.
Malpractice is professional negligence, or the failure to use due care or the lack of due care. In dentistry, the two types of malpractice are acts of omission and acts of commission.
What is the typical insurance policy carried by a general dentist? ($1 million per occurrence to a maximum of $3 million.)
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25. Types of Malpractice Act of omission Act of commission
Example: A dentist fails to diagnose periodontal disease because he does not take x-rays or perform periodontal probing.
Act of commission
Example: A dentist administers 15 cartridges of local anesthetic to a very small child, resulting in serious overdose and the death of the child.
What is the difference between an act of omission and an act of commission?
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26. Risk Management
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.
How great are malpractice claims in dentistry today? (Dental malpractice claims are inherently smaller than those in other medical fields. The average claim is $12,000 to $15,000. The frequency and severity of claims have remained fairly steady over the last 10 years.)
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27. Avoiding Malpractice Suits
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 patient’s financial obligations
The number of lawsuits in dentistry increases each year. Remember that a dental assistant may still be involved in a malpractice suit or may be called to testify even if no longer employed in the practice.
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28. Chapter 5
Lesson 5.3
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29. Learning Objectives 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.
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30. Res Gestae: “Part of the Action”
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.
Comments such as “Whoops!” or “Uh-oh!” may unnecessarily frighten the patient and should be avoided.
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31. Types of Patient Consent
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.
Written consent
This is the preferred means of obtaining and documenting the patient’s consent and understanding of the procedure.
How do these two types of consent compare?
What is the more reliable of the two in a legal situation?
Have you been asked for written consent in a dentist’s office?
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32. Guidelines for Informed Consent
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
What does “informed consent” mean? (The patient must be given enough information about his or her condition and the available treatment options to make a decision.)
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33. 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.
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.
What must be included in the patient’s chart with regard to informed refusal?
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34. Chapter 5
Lesson 5.4
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35. Learning Objectives
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 patient’s record.
Discuss the indications of child abuse and neglect.
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36. Informed Consent for Minors
For minor children, the parent, custodial parent, or legal guardian must give consent.
When parents live separately, the child’s personal-information form should indicate which of them is the custodial parent.
When separated parents share custody, the child’s record should contain letters from each providing consent and authorization to treat.
What is a minor? (A person under age 18, the age of legal majority.)
What is legal custody? (The relationship with a child, created by court order, giving a person legal responsibility for the physical possession of a minor and the duty to protect, care for, and discipline the child.)
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37. When Written Consent Is Required
If a new drug is to be used
If experimentation or clinical testing is involved
If a patient’s identifiable photograph is used
If a minor child is treated in a public program
If the treatment takes more than 1 year to complete
Someone participating in a clinical trial will have to sign many forms concerning written consent.
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38. Referral
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.
Have you ever been referred by your family dentist? What types of referrals has he or she made?
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39. When a Patient Refuses Treatment
All broken or canceled appointments must be noted in the patient’s 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.
What happens if a patient disagrees with a clinic record? (The dental assistant should not try to make a decision; instead, he or she should refer the matter to the dentist immediately.)
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40. Patient Clinic Records
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 patient’s record.
Financial information is not included in the patient’s chart.
The patient record is also called a dental chart.
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41. 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.
Are patient records acceptable in court? (Yes; the date and the details of services rendered for each patient should be clear. Nothing should be left to memory. Incomplete or unclear records are damaging evidence in a malpractice case. Every entry in a chart should be made as if the chart will be seen in a court of law.)
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42. 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 in their pediatric patients.
Reported cases of child abuse and neglect are rising at an alarming rate all over the country.
Why are dental professionals involved in child-abuse cases? (Dental personnel are in a good position to identify signs of abuse in their pediatric patients.)
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43. 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:
Physical abuse and corporal punishment resulting in injury
Emotional abuse
Emotional deprivation
Physical neglect or inadequate supervision
Sexual abuse and exploitation
What are the behaviors associated with child abuse?
The child is frightened of his or her parents or wary of adult contact.
The child is apprehensive when other children cry.
The child is afraid to go home.
The child exhibits overly compliant, passive, and undemanding behaviors to avoid confrontation with his or her abuser.
The child lags in development of motor skills, toilet training, socialization, or language.
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44. Fig. 5-3 This boy was a victim of child abuse.
What are the signs of neglect or abuse noted in dentistry?
Untreated rampant caries that are easily detectable by a layperson
Untreated pain, infection, bleeding, or trauma affecting the orofacial region (as shown)
Injuries or tears to the labial frenum, indicating forced feedings
Cuts, bleeding, cigarette burns, bite or finger marks on ears, and “cauliflower ear”
Bald or sparse spots on the scalp, indicating malnutrition or hair-pulling
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45. Immunity
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.
What is legal immunity? (Immunity is an exemption, conferred on a person or body, from criminal prosecution or civil liability.)
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