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.


What courts do is important to matters relating to the practice of dentistry, to public health, and to the lives of everyone in the United States. The foundation of U.S. law is English common law. The law in the United States springs from two distinct sources that in some cases overlap: case law and black letter law, described later in this section. Further, the organization of the courts plays an important role in establishing just what is the law.


Courts are classified in many ways: as to their organization, whether lower or upper; their geographic jurisdiction, based on where they sit; their subject matter jurisdiction, criminal or civil; trial or appellate; and so on. For purposes of this chapter, lower and upper, that is, trial and appellate, are of concern. The issue is how legal precedent is set and how it affects the health professions in general and dental practice in particular.

Lower courts, also known as trial courts, are the courts of original jurisdiction. These courts are the first to hear and decide a case. Suits in which one party alleges that he or she suffered an injury resulting from the simple negligence or malpractice of another are heard in a lower court assigned that jurisdiction by the state, either by its constitution or through its court rules. The default setup is a jury trial with a judge and jury, although each side may affirmatively waive having a jury and have the judge sit alone (bench trial). Decisions made in the lower courts may be appealed to a higher (appellate) court should either party believe that (1) the procedure in the lower court violated procedure as established by appellate courts or court rules or (2) the judge, in the instructions to the jury, applied the wrong law, precedent case, or black letter law to guide the jury in arriving at a decision in the case, based on the facts as found by the jury. Juries decide the facts; the judge applies the law.

A major confusion for laypersons is that each state names its courts as it chooses, as does the federal government. For example, in New York the lower court of original jurisdiction is the Supreme Court; it is the first to hear an action brought against a dentist by a patient alleging negligence, malpractice, or breach of contract. There is one Supreme Court in each county of the state. The state is further divided geographically into four appellate jurisdictions and in each is an Appellate Division of the Supreme Court. The Appellate Divisions hear and decide appeals brought to them from the lower courts within their geographic jurisdiction. The highest court in the state is the New York Court of Appeals; it is the court of last resort in the state, and its decisions are binding on all courts of the state.

The lack of uniformity is evident in the given names of the courts in New Jersey and Illinois. In New Jersey the court of original jurisdiction is the Superior Court, one for each county in the state. The intermediate appellate court is the Superior Court, Appellate Division. The court of last resort in New Jersey is the Supreme Court. In Illinois the court of original jurisdiction is the Circuit Court, the intermediate appellate court is the Appellate Court of Illinois (District and Division), and the court of last resort is the Supreme Court. And so on for each state.

In the federal system the country is divided into 88 federal districts, each having at least one district court. The federal intermediate court is the U.S. Court of Appeals; at least one for each of the judicial circuits, of which there are 11. The highest court of the land, the court of last resort, is the U.S. Supreme Court consisting of eight justices and a chief justice. Any seven judges can hear a case, but five affirmative votes are needed to act on a case before the court. Decisions of the U.S. Supreme Court are binding on all courts in the United States.

When an appellate court decides a case, precedent law is established. All lower courts within the geographic jurisdiction of the appellate court are required to follow the precedent established by the appellate court. If the lower court does not and the case is appealed, the decision of the lower court will be reversed. If the case is not appealed, the decision of the lower court is final, notwithstanding the fact that in arriving at the decision precedent law was ignored. It is important to remember that only appellate courts establish precedent and that no one, not even the most experienced attorney, can predict with any degree of certainty how a judge or jury will decide a case. Fifty percent of all lawyers representing clients end up on the losing side and are proved wrong by either a judge or jury or by an appellate court.


The United States has 51 jurisdictions: 50 states and the federal government. Each of the 50 states has exercised its right to regulate the health professions, including dentistry. In addition, Puerto Rico, the Virgin Islands, and the District of Columbia also regulate health practices. The federal government regulates some elements of health practice. Therefore 54 separate jurisdictions regulate the practice of dentistry. Except for federal regulations that apply to practitioners in all states, each jurisdiction has independent regulations. Except for some federal laws, there is no generic law in the United States. There are, however, legal principles that apply nationwide. For example, the legal principle of the statute of limitations is the same in all jurisdictions, but the statute may begin to run at different times and for different lengths of time in each individual jurisdiction.

The caveat is that for practitioners to know the specifics of the regulation of dental practice, they must be thoroughly familiar with local law. The same act may be legal in one state and illegal in another. As an example, in New York it is legal for a dental laboratory to select a shade for a crown. In Massachusetts it is illegal for a dentist to refer a patient to a laboratory for the purpose of selecting a shade. Therefore a dentist in New York who sends a patient to a dental laboratory for the selection of a shade is not in violation of the law, nor is the laboratory in violation of the state law. The same act performed by a dentist in Massachusetts would be in violation of the law.

Except for the purpose of presenting examples, this chapter describes generic legal principles and legal trends. It does not offer legal advice, although recommendations and suggestions are provided. Local attorneys, or government agencies, should be of assistance in determining the specific laws of the jurisdiction in which you conduct your practice.

Levels of Legal Risk

The artificial legal concept of “levels of legal risk” relates to the degree to which a dentist is willing to take a risk in the performance of a professional act. Refusing to treat a patient who does not follow the advice of a dentist presents the lowest level of legal risk to the dentist. However, if the dentist agrees to treat the patient although the patient did not comply with the dentist’s advice, the risk is great. A good example of the concept relates to a dentist’s advice that the patient have a thorough radiographic examination before treatment is begun. If the patient refuses and the dentist proceeds with the care, there is a risk that, because radiographs were not taken, an important pathologic condition was not discovered and as a result the patient suffered an injury. The dentist may lose a suit should the patient allege that the dentist was negligent in not discovering the condition. The dentist’s defense is that the patient refused to have radiographs taken. Given the uncertainty of the outcome of jury trials, the dentist may lose the case. Therefore the lowest level of legal risk is to refuse to treat the patient. The highest level of legal risk is to treat a patient who refuses to follow advice. Under some circumstances, the dentist may be willing to take the risk after assessing the benefits of continuing to treat the patient. Patients who refuse to follow the advice of the dentist to seek specialty care or consultation present the same legal risk as those who refuse to submit to radiographs.

While you review the risk management rules, you should keep the concept of levels of legal risk in mind. Prudent dentists make certain that they are aware of the risks attached to any professional decision before acting. That is what this section of the chapter is all about: describing the risks.

Loss Without Fault

Another artificial legal concept is “loss without fault.” It evolved from a study I conducted in the early 1980s during the crisis in dental malpractice litigation. Four hundred cases in which a dentist was accused of malpractice were tracked from the initial service of suit papers to the closing of the case. The results were that in 80% of 400 cases brought against dentists, the insurance company, on the advice of a panel of dental experts and an attorney experienced in dental malpractice litigation, sought settlement before trial because it was apparent that the case could not successfully be defended. In only 20% of the cases the panel believed that the dentist was guilty of malpractice. In 60% of the cases in which settlement was sought, the dental experts were of the opinion that no negligence was present. This 60% represents “loss without fault”–no malpractice, but little or no chance of successfully defending the suit. Looking at the data from another perspective, of 400 cases alleging malpractice brought against dentists, in 80% there was no evidence of malpractice, but according to the expert panel in only 20% could the suit be successfully defended. Loss without fault is the foundation of much of risk management.

No hard evidence exists that malpractice claims against dentists are on the decline. Some speculate that the number of cases going to trial has diminished. More cases may be settled or withdrawn to explain the decline in cases going to trial. What is known is that in the past decade jury awards of money have shown a major increase.


As stated previously, each of the jurisdictions has exercised its right to regulate dental practice. Except for federal regulation, the mechanism for regulation is similar. The elected body, the legislature, enacts legislation designed to regulate dental practice. Because the members of the electorate have neither the time nor the expertise to exercise control over the daily activities of the profession and the details of practice, they enact additional legislation (enabling legislation or statutory authority) establishing an administrative agency to further regulate the profession and grant to that agency the power to adopt administrative laws (rules and regulations) to carry out its mission.

Each state may vary the name of the administrative body and adopt any organizational structure to accomplish the goal of regulating the health profession, but the general regulatory structure is the same. In New York, for example, two administrative agencies regulate dentists and other health professionals: the state education department and the Board of Regents. The commissioner of education is empowered by legislative act to adopt regulations; the Board of Regents is empowered to adopt rules. In New York the State Board for Dentistry is not authorized to adopt rules or regulations for the purpose of regulating dental practice. It serves as an examining body, recommends licensure, and advises the Commissioner of Education, the Board of Regents, and the legislature on dental matters. It also serves as an administrative body to hear alleged violations of the rules and regulations and to recommend actions to be taken against the dentist to the State Education Department. By contrast, in Massachusetts one administrative agency regulates the practice of dentistry: the Massachusetts Board of Registration in Dentistry. It combines all the functions assigned to the three agencies in New York. Most other states, like Massachusetts, have only one administrative agency, although some of the regulatory functions may fall to other state agencies.

A combination of the statutes and the rules and regulations makes up the body of dental BLL, commonly referred to as the Dental Practice Act. However, in all jurisdictions, many other laws affect the practice of dentistry. These may be found in the public health law, the sanitary code, the education law, and others. The practitioner should be aware that the laws regulating dental practice are spread throughout the statutes and administrative laws of the state. In addition, a multitude of federal laws exercise control over dental practice. The old adage that ignorance of the law is no excuse should not be ignored.

The risk management principle is as follows: Learn the laws of the jurisdiction in which you practice and the federal laws that apply to the practice of dentistry, and remain current on changes in the laws. Although it is difficult, much can be learned by attending continuing education courses, reading journals and texts on the subject, and attending seminars. Also, annually request a copy of the current Dental Practice Act from the local licensing agency. If you are in doubt about a provision, consult the licensing agency or a local attorney.


Legal vulnerability in dental practice may be divided into two broad categories: criminal and civil. Each broad category has subcategories, as shown in Fig. 17-1. The intentional torts listed on the chart are those most frequently associated with dental practice. False imprisonment, abuse of process, trespass to real property, conversion, interference with performance of a contract, and others are recognized in law but have little relevance in dental practice.


Violations of statutory law are termed crimes. They constitute acts that are deemed by the government to be against the public interest. They may be defined as misdemeanors or felonies. Violations of that part of the Dental Practice Act that is statutory, enacted by the legislature, also are classified as crimes and may include penalties such as loss or suspension of license, mandatory psychiatric counseling, drug rehabilitation, mandatory continuing education, fines, or even jail. If the legislature declares the violation a misdemeanor, the jail sentence may be less than if it classifies the violation a felony. In New York, for instance, aiding or abetting an unlicensed person to perform a service that requires a license is a class E felony, punishable by up to 3 years in jail. In other jurisdictions it may classified as a misdemeanor.

Violations of administrative laws (rules or regulations of administrative agencies, e.g., the state board, the state education department, the board of regents) are termed quasi crimes. Penalties may include all actions that are possible under crimes, except loss of personal freedom (jail). Because members of administrative boards and agencies are appointed rather than elected, the framers of the constitution believed that appointed individuals should not be granted the power to deprive anyone of liberty.

One of the major differences between a violation of a statute and that of an administrative law is the degree of evidence necessary to convict. In allegations of criminal behavior the state must prove “beyond a reasonable doubt” that the law was violated. For violations of administrative law the proof necessary is considerably less. (In civil actions the burden on the plaintiff is to prove by a “fair preponderance of the evidence” [more than 50%] that the defendant is guilty.)

In all dental practice acts, authority is granted to an administrative agency to impose punitive sanctions against a dentist who is found guilty of a violation. Therefore a dentist who is found guilty of violating the law regulating the prescription or the administration of controlled substances may have an additional action taken by the dental board, or if the violation occurs in New York, by the Board of Regents, against the license of the offender.

Professional liability insurance does not provide protection against either criminal or quasi-criminal allegations as it does in civil actions (those brought by a patient). Some malpractice policies may cover the defense of a claim against a dentist alleging a violation of the Dental Practice Act, but the policy will never indemnify the dentist for the payment of a fine. To do so is against strong public policy. However, if an allegation of negligence is attached to a violation of the law, either criminal or quasi-criminal, the defense of a civil suit based on an injury resulting from the alleged illegal act becomes more difficult because of trial practice procedures.

The risk management admonition is as follows: Know the law, don’t break it!


When the Doctor-Patient Relationship Begins

The legal foundation of the doctor-patient relationship is contract law. At the moment a dentist expresses a professional opinion to an individual who has reason to rely on the opinion, the doctor-patient relationship begins, and the doctor is burdened with implied warranties (duties). The fact that no fee is involved does not affect the relationship that attaches to the contract or the duties.

The example best demonstrating the moment the relationship begins and the duties attach is a situation in which a dentist gives a fellow party-goer dental advice at a social gathering. If the advice results in an injury, the dentist may be held liable for negligence. It is not a valid defense that no fee was charged or expected. The dentist would be held to the standard that patients should not be given dental advice unless and until an examination and a history are completed.

The risk management principle is as follows: In social settings, never provide anyone, unless that person is a patient of record, with advice regarding the solution of dental problems.

Must you accept anyone who comes to you for care? The answer is a qualified no. You may not refuse to treat a patient if the refusal is based in any way on race, creed, color, or national origin. With the effective date of the federal Americans with Disabilities Act of 1990, refusal to accept a patient on the basis of a disability is a violation of the law and brings with it severe penalties. Patients with acquired immunodeficiency syndrome (AIDS), who test positive for human immunodeficiency virus (HIV), or who have any communicable infectious disease fall into the category of disabled persons and may not be refused care if the refusal is based solely on the disability. The law declares that all health providers’ offices are “places of public accommodation” and therefore subject to antidiscrimination laws. Local jurisdictions have followed the same course as Congress. Therefore in many jurisdictions a dentist’s office is subject to the jurisdiction of the local human rights commission and the antidiscrimination policies that it enforces. For more on the care of patients who have AIDS or are HIV positive, see the section on histories later in this chapter.

As long as the person is not a patient of record, you may even refuse to provide emergency care, subject to the limitations stated previously. It may be unethical and immoral, but it is not illegal and cannot form the basis of a criminal or civil suit. However, remember that as soon as you express a professional judgment or perform a professional act the doctor-patient relationship begins, and duties begin to attach.

When the Doctor-Patient Relationship Ends

The relationship ends when any of the following takes place:

The dentist’s unilaterally terminating the relationship may support a claim of abandonment by the patient unless the dentist follows a procedure acceptable to the courts. Abandoning a patient before the agreed treatment is completed is unethical, and in some jurisdictions it is a violation of BLL.7,8 In all jurisdictions abandonment may lead to a civil suit.

The major causes that contribute to a decision to terminate treatment before it is complete are as follows: (1) the patient has not fulfilled the payment agreement, (2) the patient has not cooperated in keeping appointments, (3) the patient has not complied with home care instructions, and (4) there has been a breakdown in interpersonal relationships. Any of these is ample justification for the dentist to terminate treatment.

A risk management rule is as follows: Discontinue treatment of patients who do not cooperate in care, who become antagonistic, or who exhibit a litigious attitude.

The recommended procedure to discontinue care without running the risk of a finding of abandonment by a court begins with a discussion of the problem with the patient as follows. (1) Advise the patient that it is in his or her best interest to seek care elsewhere. (2) Assure the patient that you will cooperate by making copies of the records available should the patient make the request in writing. (3) Let the patient know that you will be available to provide emergency care for a reasonable period of time. Note the conversation on the patient’s record. Follow up the conversation with a certified letter, signed receipt requested, stating the aforementioned facts.

A risk management caveat is as follows: Do not discontinue treatment at a time when the patient’s health may be compromised. (This decision is professional rather than legal.) It is best not to suggest any dentist the patient should see; instead, have the patient select the substitute practitioner.


Attached to the doctor-patient relationship are additional duties that are implied, unless the express terms serve to void or modify them. They are enforceable although not written or stated. Over the years the courts have identified many of these implied duties. Some of the more important ones are included in the list that follows.

In accepting a patient for care, the dentist warrants that he or she will do the following:

The list generates a host of risk management rules. They are all important as principles of good risk management.


Use of Barrier Techniques

With the passage of the Americans with Disabilities Act of 1990, Congress has imposed its will on the courts, and by its declaration of a health provider’s office as a “place of public accommodation” a dentist who refuses to treat a patient who has AIDS or is HIV positive is in violation of the law and subject to penalties. Not all patients are aware of their HIV status or know they have other blood-borne contagious diseases; therefore the use of barrier techniques in the treatment of all patients becomes increasingly important. In addition, many high-risk patients who are in need of dental care may decide not to disclose any information on their health history form relating to the presence of AIDS or HIV infection or their presence in groups that engage in high-risk behaviors for fear of being refused care. The result is that all patients must be treated as high-risk patients. It is clear that the provider of care is at greater risk of contracting AIDS from an infected patient than the healthy patient is of contracting AIDS from an infected health care worker.

The fact that the risk of contracting and transmitting AIDS in the dental office is low does not change the responsibility of the dentist to use appropriate barrier techniques. Hepatitis B represents a greater risk in dental practice, and, to ensure protection from transmission in the treatment of patients with hepatitis, barrier techniques must be employed.

As a further complication, it is virtually impossible for the dentist to identify, with any high degree of accuracy, patients who may engage in high-risk behaviors for either AIDS or HIV infection or patients with hepatitis. Therefore appropriate measures should be taken in the treatment of all patients to prevent the transmission of a blood-borne disease to other patients, to the staff in the office, or to the dentist and his or her family. As these measures relate to the use of barrier techniques, the legal issue is to what standard the dentist will be held. During the past several years the standard has seen dramatic changes.

Currently, dentists must use six basic infection control procedures to meet an acceptable standard of office practice:

In addition, some states have mandated the use of these and other barrier techniques in the treatment of all patients. Some have addressed the issue of hepatitis B carrier testing and regular monitoring of sterilization equipment.

Dentists should remain current with the latest Centers for Disease Control and Prevention (CDC) recommendations, Occupational Safety and Health Administration (OSHA) standards, American Dental Association (ADA) recommendations, and local law to determine what measures must be taken to prevent transmission of blood-borne diseases. Failure to meet the standards exposes the dentist to legal risk of action by a government agency for violation of the law and civil action by an individual (i.e., patient, staff) who contracted a blood-borne disease traced to the dentist’s office. (For more information about the treatment of patients with transmissible diseases, see Chapter 9.)

Following are contact agencies from which information and their rules may be obtained:

Jan 5, 2015 | Posted by in General Dentistry | Comments Off on 17: THE LAW AND DENTAL PRACTICE: PROTECTING THE HEALTH OF THE COMMUNITY
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