18: Ethics and Jurisprudence

CHAPTER 18 Ethics and Jurisprudence

ETHICS IN DENTISTRY AND RELATIVISM

The study of ethics in dental hygiene involves the understanding of concepts of ethics, morals, mores. Relativism in ethics involves issues of behavior and belief. What is judged right varies among individuals, situations, cultures. Ethical theories form the basis of principles and rules.

image • See CD-ROM for Chapter Terms and WebLinks.
A. Relativism:

1. Cultural relativism: defines moral rightness and wrongness based on cultural beliefs (common or social morality).
2. Descriptive relativism: people from different cultures have different views regarding morals.
3. Normative relativism: ultimately, ALL ethical judgments are arbitrary and not justifiable.
4. Personal relativism: individual determines what is right or wrong according to personal standards of goodness and NOT according to cultural influences.

B. Ethical theories:

1. Utilitarian theory: encompasses “the greatest good for the greatest number” or universality; addresses consequences:

a. Also known as Mills’ “greatest happiness” theory.

(1) Act: doing the right act will result in the best consequences.
(2) Rule: actions are right or wrong based on their consequences.

b. Value: depends on whether something is determined to be good or harmful.

2. Deontological theory: focuses on the action, rule, or practice of an act rather than on the consequences; involves performing the right action regardless of the consequences (Kantian theory).
3. Virtue theory: focuses on judging traits of character as good or bad; promotes good choices.

Ethical Principles

Ethical principles are the laws or doctrines of ethics (see CD-ROM for ADHA Code of Ethics). image

A. Autonomy: everyone has the right to hold and act on personal values and beliefs such as the right to privacy, freedom of choice, and accepting responsibility for one’s actions as long as harm is NOT inflicted on others.
B. Nonmaleficence: action is wrong if harm is inflicted on others (e.g., staying current with advances in dental hygiene and dentistry and taking CE courses).
C. Beneficence: action is moral if it is good and helps a person or enhances the welfare of person.

1. Rules:

a. Avoid inflicting harm (principle of nonmaleficence).
b. Prevent or remove harm.
c. Promote good and do well.

2. Problems in dentistry related to beneficence:

a. Balancing good against harm for the patient.
b. Conflicts between patients and healthcare providers as to what is a good treatment record result.
c. Influence of a third party (e.g., caretaker, insurance carrier) on what treatment can be done.
d. Conflicts that occur when patients refuse or disagree with treatment.

3. Paternalism: acting as a parent would on behalf of a child, including overriding an autonomous decision for the good of a patient.

D. Justice: treating individuals fairly; involves giving patients their due or what is owed to them (“golden rule”). Example: production goals should not affect the treatment we offer a patient.

1. Distributive justice applies to the proper and fair allocation of many aspects of society (e.g., political rights such as voting privileges, rights of women and minorities).
2. Formal principle of justice or equality means that “equals must be treated equally, unequals treated unequally.”
3. Theories of distribution:

a. Utilitarian theory: combines the principles of beneficence and nonmaleficence; aims to maximize good and minimize bad.
b. Libertarian theory: offers healthcare based on respecting autonomy; need is NOT a factor; giving healthcare charitably based on patient’s wishes.
c. Egalitarian theory: emphasizes equality; based on the idea that everything is for everyone.

4. Example of violation of justice: dentist uses a specific lab for HMO patients and another for private pay patients to save overall costs.

E. Veracity: obligation to speak the truth and disclose information that is necessary for the patient to make sound treatment decisions.
F. Fidelity:

1. Moral obligation to keep promises and other commitments.
2. Duty on confidentiality: MUST keep confidential the information provided by the patient.

Ethical Dilemma and Decision Making

An ethical dilemma occurs when two or more ethical principles are morally justifiable but only one is acted on. The outcome of such a situation varies according to the principle that is chosen. Ethical decision making involves several steps of analysis. Person responsible for the decision may need to make a moral evaluation of those involved, based on altruism. Patient is the autonomous person, and practitioner’s value system should NOT come into play; patient’s values are what is important.

With moral evaluation of publicity, the person publicly states his or her evaluation and on what it is based, while ultimacy is a judgment based on a moral evaluation that has no higher standard, based on societal trust. Example of societal trust is maintaining patient confidentiality and being concerned for the patient instead of one’s self-interest.

A. Identify the problem.
B. Relevant facts must be gathered; decision making before receiving information should be avoided.
C. Values must be identified, and for the dental professional these involve core values; we must put the patient first without discrimination, which will help to ensure optimal care for the patient and to maintain competency:

1. Acknowledging the rights of the patient.
2. Granting patient autonomy; allowing patient to participate in decision making regarding treatment; allowing patient right to consent to or refuse treatment.
3. Avoiding harm to others according to principle of nonmaleficence.
4. Having respect for the dental profession.
5. Being true to oneself; following one’s conscience.
6. Following the law.
7. Generating options and reviewing available options.
8. Choosing an option and justifying it.

D. Things that SHOULD be taken into consideration:

1. Rights of the individuals involved.
2. Duties of the professional involved.
3. Core values that apply.
4. Benefits of the care provided or offered.
5. Realistic alternatives.
6. Patient knowledge.
7. Financial or legal factors.
8. Need for outside consultation.

DENTAL LIABILITY, JURISPRUDENCE, AND TYPES OF LAW

Understanding types of law and methods of avoiding lawsuits or dental liability is vitally important in the practice of dental hygiene. Jurisprudence is the philosophy of law. Civil law, which includes contract law and tort law, and criminal law are the two major types of law.

• See CD-ROM for Chapter Terms and WebLinks. image
A. Civil law:

1. Involves crime against a person; concerned with actions that cause harm to an individual.
2. Individual files suit with a private attorney; response to damages is typically measured in terms of money.

B. Contract law (form of civil law):

1. Involves a breach of contract; involves the breaking of a contract by either party (healthcare provider or patient) or failing to keep one’s part of the contract.
2. Examples: provider does not provide care that was discussed and agreed to, patient does not pay, or services take too long to complete.

C. Tort law (form of civil law): involves a civil wrong or injury to another person.

1. Technical assault or battery is a wrongful act that is NOT consented to; includes performing a procedure that patient has NOT been agreed to have done. Examples: placing sealants or performing fluoride treatment on a minor without consent of parent or guardian.
2. Maligning a patient involves saying or writing something that may damage the patient’s reputation; includes slander (verbal) and libel (written).
3. Negligence (often considered synonymous with malpractice) is carelessness, without the intent to harm a patient; it occurs when the appropriate standard of care is NOT met and some damage results. Example: dentist knowingly permits a hazard to exist in the office, and consequently patient is injured.

a. Liability for negligence requires the existence of:

(1) Healthcare provider undertaking care of the patient; a duty to the patient results.
(2) Healthcare provider breaching a duty owed to the patient.
(3) Evidence of damage or harm to the patient.
(4) Harm or damage to the patient being related to the breach of duty.

4. Grounds for malpractice: MOST lawsuits involve failure to diagnose and treat periodontal disease.

a. Failure to sterilize: sterilization practices should be in accordance with recommendations of the Centers for Disease Control and Prevention (CDC) and the American Dental Association (ADA).
b. Failure to obtain or produce adequate radiographs; this may involve:

(1) Failure to obtain radiograph when radiograph is indicated.
(2) Unskillful use or improper processing of radiograph, which jeopardizes diagnosis.
(3) Refusal by the patient; if a patient refuses to have a radiograph, a written release form should be signed by the patient; a refusal MUST be noted in the patient’s chart; radiographs are used for diagnosis and therefore must remain a part of a patient’s record.

c. Failure to refer: patient should be referred to a specialist when “average” dentist knows that procedure is complex.
d. Causing trauma: slipping of an instrument alone does NOT constitute negligence; however, making a statement that may indicate that an error was made by the healthcare provider (e.g., “I should have had a fulcrum”) is known as admission against interest: a statement, spoken or written, that may prove the opposite of what the person contends in court.
e. Failure to inform: patient must be informed before he or she can give consent.

D. Criminal law: pertains to actions that constitute a wrong against society.
E. State officials respond to such actions, which on conviction are punishable by death, imprisonment, fine, or removal from office.
F. Examples: practicing profession of dental hygiene or dentistry without a license.

PROFESSIONAL PRACTICE STUDY

Scenario: The dental hygienist is completing an oral prophylaxis on a new patient. While she is retrieving a posterior scaler from her tray, the instrument slips from her hand and lands on her patient’s head. The instrument tip embeds in the scalp tissues. The hygienist carefully removes the instrument, cleanses the wound with antibacterial soap, applies pressure to stop the bleeding, and apologizes for the injury. The patient remains calm and says, “Don’t worry about it.” The hygienist documents the incident in the patient’s record.

1. Is this an incidence of negligence? Why or why not?
2. Did the dental hygienist handle the situation appropriately?
3. What types of information regarding the incident should the dental hygienist include in the patient’s record?

1. Not incidence of negligence because there is no indication that accident was caused by particular action, such as not using a fulcrum. If the hygienist had indicated to patient that there was a particular cause for incident (admission against interest), a case could be made for negligence, which is grounds for malpractice.
2. No one wishes to injure a patient; however, accidents do occur. The hygienist showed concern for her patient by taking immediate care of the wound. She handled the situation well. There is evidence that concern and care on part of clinician can greatly reduce incidences of litigation by patients.
3. Patient’s record should include date and time of incident, detailed description of what occurred, hygienist’s actions, patient’s actions and reactions. The clinician should obtain the patient’s signature that patient was informed and note on the record that patient agreed that everything was all right.

Prudent Dental Care

Measures that are used to help avoid legal action include reasonably prudent or sensible practitioner, admissions against interest, res ipsa loquitur, proper documentation. Informed consent is discussed next.

A. Be aware that the reasonably prudent practitioner measure is used by law to determine whether provider has exercised reasonable care.
B. Avoid admissions against interest, or making a statement that serves to defeat your own interest; such admissions are legally admissible in court.

1. Admission of negligence by employee occurs when the healthcare provider admits to improper conduct.
2. Res gestae means “part of the action” and refers to a statement made during the time of the negligent act.

C. Avoid res ipsa loquitur or “a matter that speaks for itself,” referring to an injury that is directly related to an instance of negligence (e.g., healthcare provider fails to take a medical history or renders services while intoxicated).
D. Prove contributory negligence: that patient has contributed to harmful result.
E. Identify another proximate cause; reveal that harm to patient may have resulted from another incident.
F. Keep accurate and complete patient records, single MOST important factor in the defense of MOST malpractice cases; record information in indelible ink; if an error is made in a patient’s chart, mark one line through the statement and place your initials next to the area (do NOT erase, black-out, or use correction fluid).

1. Medical history should be current, include patient’s signature, and be reviewed at each visit.
2. Diagnosis should be recorded (including dental hygiene diagnosis).
3. Treatment plan(s) should include ALL options given to patient. Note that all benefits, risks, and alternatives (RB&A) were explained to patient verbally and in writing, and have the patient sign the chart stating that he or she understands the treatment and risks.
4. Record of treatment should include date(s) of treatment, procedure(s) performed, drugs used and/or administered; record should also indicate canceled and broken appointments.
5. Copies of all correspondence regarding patients should be kept, together with receipts of registered mail.

a. Radiographs should be:

(1) Processed properly to avoid deterioration with age.
(2) Carefully labeled with patient’s name, date taken, and dentist’s name.
(3) Taken properly so that they are diagnostically acceptable.
(4) Retained for minimum length of time required by statute of limitations in a state.

6. Letters to patients (correspondence) should be carefully worded to ensure understanding and minimize chance for libel.

G. Transfer of records:

1. For inactive patient, records are typically kept for length of time required by the statute of limitations and/or state dental practice act.
2. For active patients, records are kept by dentist unless requested by another dentist.
3. Steps for requesting transfer of records:

a. Always keep on record the letter(s) requesting records.
b. Send copies of records by way of registered mail; request a receipt.
c. Request that records be returned to the office after their use.

H. Insurance claims include records only of performed procedures; falsifying information is fraudulent and may result in a legal action.
I. Statute of limitations is the legal time span in which a lawsuit (civil) for a wrong must be filed.

1. Malpractice suit, in most states, must be initiated within 2 years of time that the wrongful act was committed.
2. Limitation for filing a breach of contract suit typically is 6 years; recommended that records be retained for minimum of 10 years.

J. Liability insurance should be carried by each licensed professional.

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Jan 1, 2015 | Posted by in Dental Hygiene | Comments Off on 18: Ethics and Jurisprudence

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