Legal aspects of local anaesthesia
The dentist should consider the possibility that, in certain cases, he/she may be asked to justify giving or permitting the application of local anaesthesia before a court. Verdicts, and the laws on which they are based, differ from country to country and often even differ within a country, e.g. within the United States, Canada and Australia. It is necessary to keep in mind that a dentist is only subject to the law of the country, province or state in which he/she is currently practising. Despite this variance, there are many similarities between the various jurisdictions. Therefore, comments on the legal aspects of the use of local anaesthetics in dentistry often have international value.
A dentist may be summoned before various judges, each of whom will consider the case according to his or her own criteria. For this reason, first the different courts that may judge a dentist’s case are described in this chapter. Subsequently, the competency of the dentist and co-workers with regard to the administration of local anaesthesia is discussed. Following this, several cases illustrate the kind of legal problems a dentist may be confronted with after applying local anaesthesia and the circumstances under which the dentist may be held to account. Finally, suggestions are given of how to reduce the risk of juridical problems after the administration of local anaesthesia.
12.1 Judges and courts
If a patient believes he or she has been treated unjustly by his/her dentist, the patient may file a formal complaint to various courts. The patient’s choice of the different courts will usually be influenced by two considerations:
- How simple and expensive is the legal procedure?
- What will I gain from the procedure?
Usually, the complainant hopes that the accused dentist will receive a form of punishment or caution, and that the damage suffered will be compensated. Depending on his/her aim, the patient may approach the following judges or courts:
Case: Punitive damage in dentistry
(NZCA 215, 1999, New Zealand)
During endodontic treatment, a part of an endodontic instrument remained in the patient’s root canal. The patient claimed she suffered from repeated inflammation and pain. Allegations relate to the original treatment and failure to notice that the instrument had fractured, with part remaining in the tooth, the failure to discover or disclose the presence of the fragment and to take steps to relieve the pain, and generally acting in a high-handed manner by never admitting the negligent conduct or offering assistance. It is alleged that these matters were aggravated by oppressive tactics adopted by the dentist after notice had been given of the intention to take proceedings. The claim was for exemplary damages of NZ $250,000.
The court stated about the exemplary damages: “The indications from the evidence presently available consist more with the dentist not having discovered the fragment. Mrs X confirmed that this is the allegation. It may be a case of negligence but not of a kind that would attract exemplary damages. Failure by a medical or dental caregiver to investigate a suspected cause of persistent pain or discomfort, though negligent, would be likely to attract an award of exemplary damages only where the dentist is shown to have had improper motive, reckless disregard for the patient’s health or safety, or some special flagrancy reflecting the type of conduct that amounts to an affront to the community. It is not enough to simply allege that the caregiver is high-handed. This case involves allegations of negligence that may be possible to prove but it is not sufficient to be one of those rare cases in which exemplary damages might be awarded.”
In a study by Cohen (2005) it appeared that the median amount for punitive damage was US $187,000, with a peak of $75 million. Punitive damage is usually awarded in cases relating to general medical practice; very rarely is it awarded in dentistry cases.
One difference between disciplinary and criminal law on the one hand and civil law on the other hand is especially significant for dental practices where many treatments are delegated to an employee. The disciplinary and criminal courts are only interested in whether the dentist him/herself is to blame. The reproach may be that the dentist him/herself has been insufficiently cautious in the application of local anaesthesia, but also that he/she has delegated the application incorrectly. One can, however, also approach a civil law court if the dentist is not personally to blame, but rather one of his/her staff.
12.2 Competency to give local anaesthesia
The competencies of medical professionals are generally described in a law that governs the medical professions. A special law for dentistry, a Dental Practice act, is not uncommon. Often these laws are relatively general and are implemented following the guidelines of the dental boards or of the national dental practitioners’ organisation.
12.2.1 General and local anaesthesia given by the dentist
In almost all countries, giving anaesthesia is considered a relatively hazardous procedure that may not be performed by just anyone. In some cases the law appears to regard anaesthesia as more dangerous than, for instance, an extraction. Article 139 A of the Dental Practitioners Registration Act (2001) in Queensland (Australia), for example, states that in an emergency an unqualified person may extract a tooth in the absence of a dentist but cannot give a local anaesthetic.
Usually a distinction is made between giving local anaesthesia and general anaesthesia. On the basis of the dentist’s education, or in many states on the basis of his/her licence, a dentist is generally qualified to administer a local anaesthetic. An additional licence is usually required for giving general anaesthesia and special conditions are required for the dental practice. For example, the guidelines for giving general anaesthesia in Ontario (Canada) demand that the dentist has followed a course on narcosis and sedation which shows that he/she is capable of giving general anaesthesia. In some countries, such as the Netherlands, there is no obligation to obtain a separate certificate, but the dentist must demonstrate with a course diploma that he/she is skilled in giving (local) anaesthesia. In practice, the two systems do not differ greatly.
12.2.2 Local anaesthesia given by paramedics
Worldwide there are various paramedics active in dental practice. Because their titles and corresponding qualifications differ from country to country, this section will explore the main professionals involved: the dental assistant, the dental hygienist and the dental therapist.
The dental assistant has a relatively low level of dental education and in most countries is not qualified to give local anaesthesia. In some countries an exception is made with regard to the application of topical anaesthesia. In the state of Montana (USA), for example, a dental assistant may apply topical anaesthesia under the direct supervision of a dentist (Montana, Board of Dentistry rule 24.138.406). The Netherlands provides an exception to this point, since in this country a dental assistant is permitted to give local anaesthesia provided that a dentist has given the order, the assistant is competent and there is a form of supervision (Article 38 BIG). A Dutch dentist must be able to demonstrate that all conditions have been met. If this is not the case, both the assistant and the dentist may face a jail sentence. With such measures, the Dutch authorities try to prevent unqualified dental assistants from giving local anaesthesia.
The conditions under which dental hygienists may administer local anaesthetics vary widely internationally. In the Netherlands, a dental hygienist is qualified to give local anaesthesia for dental treatments, even in the absence of the dentist. In most other countries, a dental hygienist is only permitted to give local anaesthesia under supervision. If this requirement is not met, disciplinary measures will follow.
Some jurisdictions, such as Canadian and Australian provinces, also recognise the dental therapist. This assistant has more extensive qualifications than the dental hygienist, including being qualified to administer local anaesthesia.
Case: Unqualified application of a mandibular block
(South Carolina State Board />