Protecting the Health of the Community

Legislation designed to protect the public from unqualified health practitioners began in the early part of the nineteenth century. Before that time the principle of free enterprise enabled anyone to “treat” the sick and charge a fee for the service they provided. Many state legislatures believed that some form of qualification should be required to permit persons to engage in the practice of medicine and dentistry. Encouragement in general came from members of professional societies. Many leaders of the dental profession in the early and mid-nineteenth century were located in Baltimore. One was Dr. Shearjashub Spooner, who in speaking before the dental society in 1838 stated, “The dental profession should be protected by legislative enactment: every person before he be permitted to practice it, should serve a term of pupilage and pass an examination before a competent board of dentists.”¹ Eleasar Parmly, another leader in the dental society, agreed. “If the legislature will do nothing more than merely to regulate the conditions by which members shall be admitted to practice…it would serve, at least, to draw a line of distinction, which the public would understand, between the regular members of the profession, and the quacks who disgrace it.”¹ Chapin Harris, at the opening of the Baltimore College of Dental Surgery, stated, “Filled as the ranks of the profession are, with individuals who have never learned the first rudiments…it will doubtless require some time to effect the wished reformation, and [it] will only be accomplished [by fixing] a line of distinction between the competent and the incompetent. It is necessary that there should be some test of qualification by bodies qualified and regularly appointed for the duty.” He later stated, “The community at large have experienced too much of the bad effects growing out of the ignorance of dental practitioners.”¹ It was clear that the leaders in the profession were bent on having some form of regulation designed to protect the public from the unskilled, untrained, and unqualified.

Laws regulating the practice of dentistry began in 1841 in Alabama. However, the law was rudimentary and only nominally regulated the practice of the profession. In 1868 Kentucky, New York, and Ohio specified, in detail, the requirements to practice the profession and gave power of enforcement to a government agency. Dr. J. Ben Robinson, in an article published in the Journal of the American Dental Association, reported the following:²

By 1913 all states and the District of Columbia, Puerto Rico, Hawaii, and Alaska had adopted dental regulatory legislation. However, challenges to these laws and those that regulated medical practice surfaced in many states, and in each the courts took the opportunity to point out that the purpose of the law was to protect the public’s health.

An early case challenging a law limiting health practice to those who were qualified by law was brought before the Supreme Judicial Court of Massachusetts in 1835.³ The court was to decide if a “bonesetter” fell within the law, and further, whether the law was constitutional. As to the first, the court found the following:

The court, in deciding the law to be constitutional, went on to state the following:

In 1889 a case that began in West Virginia was appealed to the U.S. Supreme Court.⁴ It was a case in which a physician was found guilty of violating the law regulating medical practice. He challenged the law as to whether he met the conditions of the law in obtaining a license to practice, which had been denied, and whether the law was constitutional. In deciding, the court stated the following:

As with physicians, challenges by dentists found their way into the courts. In 1889 the Supreme Court of Minnesota had the following to say about the state’s law regulating dental practice:⁵

In concluding, the court stated the following:

In 1914 the Court of Appeals of New York was asked to rule on the validity of the law regulating dental practice.⁶ In its ruling the court stated the following:

Cases in other states came to the same conclusion as the courts in Minnesota, New York, West Virginia, and Massachusetts. It is clear that all courts, when faced with ruling on whether state laws regulating medical and dental practice were constitutional, ruled in favor of their constitutionality based on the need of the state to protect the health and safety of the community from those who did not meet the rigid requirements to engage in practice.

Dental Law and Risk Management

Licensed health providers occupy a special place in society. The license granted them by the community enables them to pursue their profession in a virtual monopoly. Only those who are specially trained and who meet rigid qualifications and standards may hold themselves out to the community as providers of care and engage in practice defined by law. However, once having accepted the license, licensees are subjected to lifelong regulation by society as a whole and by individual patients whom they treat. The risks in practice are many. This section of the chapter examines the risks in dental practice and presents methods that enable practitioners to reduce and control them. This process is termed risk management.

After the crisis in medical and hospital malpractice in the early 1970s, risk management concepts borrowed from industry were adapted to the health field–particularly to hospitals. More recently, risk management principles have been applied to individual practice settings. These principles are designed primarily to protect the financial resources of an industry (e.g., hospital, private practitioner) from losses resulting from legal action. An effective risk management program includes the following:

The following three activities available to a practitioner are associated with risk management:

This section provides information related to the first two of these activities. The information presented is based on a thorough review of cases brought against dentists and opinions of courts deciding medical and dental malpractice suits. The text summarizes the areas of legal vulnerability associated with the practice of dentistry. The italicized risk management rules (i.e., recommendations, suggestions) represent corrective or preventive measures associated with the subject matter of the text. The amount of liability insurance purchased (the third listed activity) is a personal matter; practitioners must consider cost, scope of coverage, and amount of indemnification of losses that are desired on the basis of their ability to afford premium costs.

Risk management principles are applied to professional and general liability. General liability relates to negligence associated with injuries that result from the physical structures within the office. Employment practices liability insurance has become essential to any dentist employer. It is an outgrowth of the public concern for employee rights and the litigious society in which we now live. The insurance protects the employer from civil suits based on the employer’s discrimination against an employee, his or her unlawful termination, and sexual harassment. However, no insurance is available to cover suits brought by government agencies for any violation of an employee’s rights as protected by the law. Professional liability relates to injuries that result from the treatment of patients. For example, if a patient falls in the waiting room as a result of tripping over an electric cord, the incident comes under the general liability category. If the patient’s tongue is lacerated during a crown preparation, the incident becomes one of professional liability. This chapter deals solely with professional liability. An effective risk management program does much to control the cost of malpractice insurance and to protect the reputation and resources of the practitioner.

This section also provides dentists, hygienists, dental assistants, and other office personnel with information about the legal risks of practice and methods designed to eliminate or reduce them. The goal is to enable the health practitioner to practice in a worry-free and claims-free environment. Because so much of risk management relates to law and the legal system, it is necessary to describe how the system works in the regulation of the health professions to fully understand both the risks in practice and the methods recommended to reduce or eliminate them.