The state laws where the dental hygienist practices allow the administration of nitrous oxide analgesia and the dental hygienist is certified to do so. This can only be practiced under the direct supervision of a dentist. The dental hygienist fears the patient will not return if not helped to relieve her anxiety as soon as possible. Even though it is taught that nitrous oxide analgesia is contraindicated for patients with severe personality disorders, the patient is a neighbor, and the dental hygienist wants to help her (Wilkins 2009). This consideration is a standard of practice by which dental hygienists are expected to practice. It would be illegal to administer nitrous oxide analgesia without the dentist present in that state yet administering it to someone with a personality disorder may be considered below the standards. The Standards for Clinical Dental Hygiene Practice are elements of a document that describe a competent level of dental hygiene care (ADHA 2016). It is provided as a guide for all practitioners to be aware of what dental hygienists are expected to perform and at what level. It is not a law. Yet, if the situation ever became a complaint with a subsequent law suit as a result of the patient experiencing unforeseen reactions, it is likely the dental hygienist would be cited for practicing below the standards of care in addition to administering nitrous oxide before the supervising dentist was on site. That is a legal issue which is practicing outside the scope of practice of the dental hygienist in the state and a violation of law. These violations can be considered civil, criminal, and in some case breaches or violations of both categories of violations (Figure 11.2.1).

Laws come under different categories. One is Civil Law and a breach is against an individual wherein the individual initiates the action. Under Civil Law there is tort and contract. Another category is Criminal Law and this is an act against society or the public and its interest. The government initiates this action. This may include: practicing without a license, and insurance fraud. It can result in being both civil and criminal. Consequences of these actions range from fines to loss of liberty.

Under civil law, contract law deals with a legally binding agreement as in services for payment. These agreements are expressed in signatures as obtained for treatment plans. For a breach to occur under contract law a patient’s financial or privacy rights have to be violated, or services agreed to were not performed, or the services were delayed for an extended period of time. Under Contract Law a dental hygienist has the duty to be licensed, provide the services by the Standards of Care, obtain informed consent, keep skills current, treat within a reasonable time, refer when necessary, charge reasonable fees, treat within the scope of practice, and keep accurate records. Additional duties include achieving reasonable results, providing patient instruction, informing the patient of unexpected problems, maintaining confidentiality, not abandoning the patient, observing a fiduciary relationship that respects the confidence patients have in one who has superior knowledge and training, and exercise reasonable skill and judgment using evidence‐based practice.

Also under Civil Law in addition to Contract Law there is Tort law. Breaches in Tort Law can be intentional or unintentional. They can be breaches in omission or commission. These include negligence (a form of malpractice), assault, battery, defamation (libel and slander) misrepresentation, and breach of privacy.

In the case of negligence, a person is harmed by a professional and it is considered malpractice. Malpractice can be defined as the failure to perform as a reasonably prudent professional would under the same circumstances and the patient is harmed as a result. A dental hygienist may be accused of negligence if harm comes to a patient by not maintaining skills necessary to perform treatment, by neglecting to apply the standards of care, by failure to refer, and other actions that may be considered misconduct. The dental hygienist should practice good risk management by accurate record keeping, documentation, and consents.

Assault is the part of Tort Law wherein a threat is made. Battery is the part of Tort Law wherein there is nonconsensual contact with intent to harm. And lastly, defamation is the part of Tort Law that is a false statement, made to a third person, which harms a person’s reputation. It is libel when the statement is conveyed in writing. It is slander when the statement is conveyed orally. The dental hygienist should remember that criticizing another professional’s care can be considered defamation.

There have been occasions that dental hygienists have been sued. Table 11.2.1 shows the most common reasons.

Laws and regulations exist that in essence define a profession’s scope of practice. Every practitioner is responsible for not only knowing these and their limitations but strictly adhering to the parameters they define. There are strict penalties for infractions of scope of practice laws. One can be sued by a patient and/or have charges brought against him/her for practicing another profession without a license. Practicing without competence is also included. These can be considered both civil and criminal acts. A civil offense occurs if a dental hygienist injures a patient by violating the standards, the statutes, and the regulations. This is considered malpractice. When one fails to exercise the degree of care, skill, and learning expected by others acting in the same or similar circumstances, it further defines malpractice (Beemsterboer 2010).

Laws or statutes for health‐care practitioners are enacted by both the federal government and the individual states. The regulations accompanying the laws of the state practice acts are defined by boards that oversee each licensed profession. In most states, the dental hygiene profession is under the auspices of a State Board for Dentistry. The members of these boards work to protect the consumer of dental care. The state boards of dentistry’s responsibilities include assisting in the licensing rules for practice and for investigating any breaches of these rules. Many have the ability to determine consequences for a licensed dental practitioner from license suspension, revocation, monetary fines, to mandatory remediation or rehabilitation. The regulatory bodies can receive reports from practitioners and the public. It is imperative that a dental hygienist becomes familiar with the laws governing practice. It is imperative to know how the system for reporting and investigations proceed and what consequences can be imposed for failure to comply (Figure 11.2.2).

The top four areas of potential liability and documented cases of dental hygienists being sued include: Failure to update medical history (Glasscoe Waterson 2013). The patient medical history should be updated every time the patient is seen. The dental hygienist should ask if there have been any changes since the last visit. If there are no changes, a note should be made that the patient stated that. On average a complete new medical history should be taken every three years.

Another area for legal action has been failure to detect oral pathology. It is the dental hygienist’s responsibility to perform a thorough intraoral/extraoral assessment on every patient. This should not be omitted even in the interest of time.

Dental hygienists are not expected to be able to identify every oral pathology that exists, but hygienists are expected to know when something in the oral cavity is abnormal. If a lesion is detected in the course of an assessment, the hygienist has a responsibility to thoroughly describe the lesion in the patient narrative – color, size, texture, shape – and then to call any pathology to the attention of the dentist. If a persistent oral lesion is identified a referral for a biopsy should be made. Early detection may be key for the patient to get treatment to prevent any cancer from advancing. A patient with a lesion thought to be benign, who much later develops a malignancy and who is not adequately followed, will invariably claim failure to diagnose or delayed diagnosis.

A third reason dental hygienists are sued for is failure to detect periodontal disease. Generally speaking, one way dental hygienists detect periodontal disease is through periodontal probing. In many practice settings hygienists have this as a primary responsibility. The standard of care for periodontal charting is one full‐mouth probing at least once per year for every adult patient.

The fourth but not last reason dental hygienists are sued is injury to a patient. Any time during patient care an injury may occur. Instruments have broken and have been aspirated, chemicals have been spilled on patients, and lacerations of soft tissue have occurred. If an accident occurs the patient should be made aware of it and it should be thoroughly documented.

These are some additional reasons that hygienists have been sued:

• Not protecting patient privacy/divulging protected patient information;
• Practicing outside the scope of legal duties;
• Not adhering to standards of care;
• Breaching infection control standards;
• Failure to ask if the patient has premedicated;
• Failure to record thorough documentation;
• Failure to identify or take precautions with a medically compromised patient;
• Upcoding or incorrectly coding procedures; and
• Soliciting patients upon change of employment venue