Legal issues in dental hygiene.

The health and well-being of residents are protected under the

authority and responsibility of each individual state government. The

practice of dental hygiene is regulated through the legislative,

executive and judiciary branches of government. The legislative branch

governs the enactment of laws, as well as the statutes that recommend or

prohibit the activities within that state, including the state dental

practice act. The executive branch is responsible for implementing and

enforcing the recommendations or prohibitions passed into law. The

judicial branch is accountable for the rights and responsibilities of

each dental hygienist subjected to the laws of each individual state.(1)

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)

Malpractice

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

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

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

Fluoride Overdose

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)

Nitrous Oxide

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 http://www.smileusa.com/new-jersey-dental-implants/ 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

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

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.

Conclusion

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)

References

(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.

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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