Legal issues in dental hygiene.
What Are Laws?
Laws are general rules of conduct that are enforced by the government, impose penalties when they are violated and regulate the behaviors and activities of individuals. Dental hygienists are affected by two types of private law: tort and contract. Tort action involves wrongful conduct by one person to another person, has caused harm, and involves the injured person seeking compensation. Contract action involves a claim by a person that another person has breached an agreement by failing to fulfill an obligation.(2)
Lawsuits filed against health care providers can be either civil or criminal in nature. Dental hygienists and other health care providers are mainly concerned with civil lawsuits, as this includes malpractice, negligence and intentional torts, as well as contract and privacy issues. However, most lawsuits filed against health care providers are a result of a malpractice or an act of negligence.(3)
The careless conduct of an oral health care provider may result in malpractice. Dental malpractice is defined as the "failure of an oral health care provider to exercise the degree of care, skill and learning expected of a reasonably prudent oral health care provider in the class to which they belong within the state, acting in the same or similar circumstances." (1) Malpractice is evident when the standard of care is altered or violated by the oral health care provider.
There are a myriad of reasons for the increased number of malpractice lawsuits. More people are becoming increasingly responsible for their own health care by investigating signs, symptoms and treatment of illnesses and conditions via the Internet or journals, and this contributes to erosion of the relationship between the health care provider and the patient. Another rationale for a malpractice lawsuit is delayed or misdiagnosis.
Negligence lies under a tort action where a social or personal wrong is apparent. It is the unintentional commission or omission of an act that a reasonably practical person would not or would do, respectively, under given circumstances. (2) Negligence constitutes a departure from the recognized standard of care, which is then imposed on society. In order for a person to be rewarded damages as a result of negligence, the subsequent four elements of negligence must be present:
* "Duty to care: This is an obligation to conform to an accepted standard of care."
* "Breach of duty: A deviation from the accepted standard of care must be present, as well as a failure to adhere to an obligation."
* "Injury: Actual harm must be established."
* "Causation: The act or conduct or deviating from the accepted standard of care must be the cause of the person's injury." (2)
If all four elements of negligence are proven, the injured party may be rewarded compensatory damages, which will put the injured party in the same financial position prior to the negligent act; or punitive damages, which awards additional compensation for the negligent act.
Vicarious liability is an important aspect of legal issues concerning dental hygienists. This type of liability holds employers accountable for the actions and torts of employees. In the dental office, the dentist is liable for the actions of the dental hygienist and assistant, as well as office staff. In order for liability to be attributed to the dentist, the wrongful or negligent act of the dental hygienist must have occurred with in the scope of the profession.
If the dental hygienist commits a negligent act, the injured party may file suit against both the dentist and the dental hygienist. Since the dentist is held liable for the negligent act of employees under vicarious liability, the dentist may then file suit against the dental hygienist for compensations of the financial loss that was a result of the negligent act. (2)
Legal Cases Involving Dental Hygienists
A 3-year-old boy had his first visit to the dentist. The child was examined by the dentist and was treated by the dental hygienist after no decay was diagnosed. The dental hygienist performed a routine prophylaxis and fluoride treatment. As the dental hygienist was engaged in a conversation, the child drank a cup of water and swallowed the fluoride in his mouth. (4)
The child was rushed to the hospital where he lapsed into a coma and died. A toxicologist reported that the child ingested 45 cubic centimeters of (2) percent stannous fluoride, which was three times the amount to be fatal. The autopsy indicated that the child died from an overdose of fluoride. A doctor testified that the child's life could have been saved by giving him a glass of salt water. (4)
A dental hygienist notified the New York State Education Department that her employer allegedly permitted dental hygienists to administer nitrous oxide, even though they were not properly certified. The Department of Education's Office of Professional Discipline investigated the complaint through an undercover investigator. The investigator contacted the office and arrived for an appointment, then requested the dental hygienist administer nitrous oxide. The dental hygienist administered nitrous oxide but did not indicate on the treatment rendered form that nitrous oxide was administered for this appointment.
A hearing panel found the dental hygienist guilty of administering nitrous oxide without the proper certification and training, as well as failing to accurately record treatment in the patient chart. The New York Supreme Court Appellate Division concluded that the investigator's report provided sufficient evidence to support the hearing panel's determination. However, there was insufficient evidence to hold the dentist liable for allowing the dental hygienist to administer treatment she was not licensed to perform. (2)
Child Abuse Training
Numerous states require dental hygienists to complete a course in identifying and reporting child abuse and maltreatment prior to licensure. Any oral health care provider or institution that is mandated to report a case of alleged child abuse or maltreatment and deliberately and/or intentionally fails to do so will be civilly liable for the damages caused by failure to report. In addition, any person or institution that fails to report a case of child abuse or maltreatment will be guilty of a Class A misdemeanor. (2)
Legal Issues and Dental Records
The essential purpose of dental records is to provide a system for members of the dental office to communicate with one another while ensuring continuity of patient care. Oral health care providers are required to maintain complete, accurate and timely records. These patient dental records are considered a legal document and many times aid in investigations, workers compensation and personal injury cases. (2) More importantly, the patient's dental record is used to establish if the health care provider carried out his or her obligations to the patient.
Medical histories should be updated and accurate at all times. The dental hygienist should ask questions when reviewing the medical history with the patient. The actual medical history and treatment rendered forms belong to the office that provided care for the patient, while the patient owns the information on the treatment rendered forms. (3) In addition, dental records must be confidential and protected against disclosure to unauthorized people. "Good record keeping has been cited a crucial element in winning lawsuits. In the event of a patient complaint or a malpractice suit, dental records are the most important evidence of proper diagnosis and patient care--they are as important as malpractice insurance." (5)
Computerized records are a way of revolutionizing many dental offices to "paperless." According to Pozgar (2004), there are many advantages and disadvantages of computerized dental records. Some advantages include
* Consistently legible entries on the treatment rendered form, regardless of the author.
* Immediate access to patient information.
* Assistance in the identification of drug interactions.
* Increase in productivity due to decreasing paperwork and charting.
Although computers are becoming essential in the dental office, there are disadvantages that need to be addressed:
* Potential loss of confidentiality and unauthorized disclosure of patient information.
* Potential modification or destruction of patient records.
* Ability to enter inaccurate patient information.
* Effectiveness of computer software limited by the ability of the staff to use it.
As computerized records become more accepted and utilized within the dental office, the potential for computer-related liability will continue to increase. Computer-generated output is often entered as evidence in malpractice suits. (2)
Radiographs are a crucial component of patient treatment. Radiographs of poor diagnostic quality can have serious consequences. Radiographs that fail to disclose existing diseases or pathology are a disservice to the patient and can compromise treatment. In addition, should a patient bring legal action against an oral health care provider that possesses poor quality radiographs, the dentist and/or dental hygienist may face legal consequences. (6)
The proper standard of care must be followed when exposing radiographs. Most dental offices deem a full-mouth series to consist of 18 to 20 radiographs. This may not be sufficient depending on the number of teeth present in the oral cavity and if the radiographs taken permit a complete diagnosis of all areas being viewed.
It is not acceptable to expose an incomplete radiographic series on a new patient with edentulous areas present. Even if teeth are missing in a particular portion on either the maxilla or mandible, the patient may have a pathological condition or retained roots. If these areas are not exposed, the diagnosis and treatment plan will be incomplete, and the dentist and/or dental hygienist may be subjected to legal ramifications.
Edentulous or partially edentulous patients can be exposed utilizing a panoramic or periapical radiograph of the remaining teeth or the edentulous areas in order to complete the radiographic examination. If a panoramic radiograph machine is not available, periapical radiographs of all areas of both the maxilla and mandible should be taken to meet legal standards of care. (6) Exposing the "correct" number of radiographs does not fulfill the legal obligation of the oral health care provider. The standard of care requires the patient dental chart to be completed with the correct number of adequate quality radiographs.
Dental hygiene is a state-regulated profession. It is the obligation and responsibility of dental hygienists to become familiar with the practice act in the state(s) in which they practice. Dental hygienists can avoid legal liability if they are professional and ethical, treat patients within their scope of practice and provide care with consistent, thorough treatment plans, assessments and infection control. The greatest gift dental hygienists can give their patients is knowledge; therefore, educate patients on every level.
RELATED ARTICLE: * Legal Ramifications and Oral Cancer
The standard of care for dental professionals includes a thorough head-and-neck examination on each patient. This involves reviewing the patient's medical history, as well as social and physical examination, A comprehensive head-and-neck exam includes the palpation of the floor of the mouth and lateral borders of the tongue.
Dental malpractice claims alleging failure to diagnose oral cancer are the second most common types of claims and often result in the highest amounts paid. (7) With these claims on the rise, they can be divided into four categories: (8)
(1.) Errors in clinical judgment: failure to recognize or biopsy a lesion of clinical suspicion.
(2.) Failure to follow up: relying solely on a negative biopsy report instead of repeating a biopsy if clinical abnormalities persist.
(3.) Failure to screen patients appropriately: failure to provide screening examinations on patients in high-risk groups.
(4.) Evaluation delays: most frequent cause of litigation for delayed diagnosis of oral cancer. This involves repeated patient visits with progressive clinical abnormalities without proper testing or referrals. (8)
Accurate record keeping, documentation and quality radiographs are crucial regarding malpractice litigation. It is the responsibility of the oral health care provider to examine each patient for oral cancer lesions and precancerous lesions at every dental visit. As a result, "we protect our patients and reduce our own liability exposure." (7)
(1.) Beemsterboer P. Ethics and law in dental hygiene. Kuhn S, ed. Philadelphia: W.B. Saunders Company; 2002: 96-9, 133-6.
(2.) Pozgar G. Legal aspects of health care administration. Moore C, ed. 9th ed. Sudbury, Mass.: Jones and Bartlett Publishers; 2004: 33-40, 147, 226-7, 301-3.
(3.) Aiken T. Legal and ethical issues in health occupations. Allen J, ed. 2nd ed. St. Louis: Saunders; 2009: 8-10.
(4.) New York Times. Health effects. 1979. Available at: www.fluoridealert.org/health/accidents/kennerly.html.
(5.) Dental Record Management. 1996. Available at: www.cdsbc.org/pdf/Dental-Records-Mgt.pdf.
(6.) Bell M. Taking diagnostic quality X-rays. Woman Dentist Journal 2004: June. Available at: http://dev.rdhmag.com/display_article/206835/56/none/none/Feat/Taking-Diagnostic-Quality-X-Rays?host=www.wdjournal.com. Accessed Jan. 2009.
(7.) Kaner M. Failure to diagnose oral cancer. Available at: www.pagd.org/Kaner.pdf.
(8.) Mack D. Oral cancer claims. Fortress Guardian 2009; 11(3): 1-2.
(9.) Davison J. Legal and ethical considerations for dental hygienists and assistants. Hetager S, ed. St. Louis: Mosby Inc.; 2000: 45-56.
(10.) The New York State Education Department: State Board of Dentistry, Office of the Professions. Available at: www.op.nysed.gov/dent.htm.
Lynn Marsh, RDH, MS, is assistant professor in the department of dental hygiene at Farmingdale State College, New York. A Sigma Phi Alpha member, she teaches radiology, current issues in dental hygiene, pain management and in clinic. A practitioner for 17 years, she is currently pursuing a doctorate in Educational Administration, Leadership and Technology at Dowling College.
By Lynn Marsh RDH, MS