Legal and Ethical Issues in the Dental Business Office
Each day dental professionals are faced with issues involving the legal requirements and standards of care, voluntary and involuntary, in the delivery of dental treatment. The dental practice act of each state defines the requirements necessary to practice dentistry and the scope of dental practice for that particular state. Standards for dental care may arise from both common law (judicial decisions) and statutory law (enacted by a legislative body), such as the state dental practice act. The dental professional is governed also by voluntary standards, such as the principles of ethics, developed and implemented by the dental profession itself. Both legal and voluntary requirements and standards are implemented for the protection of society and, ultimately, the patient. This process of regulation is illustrated in Figure 4-1.
An administrative assistant practicing in a dental office today needs to have an understanding of the effect of law on the dental practice and an awareness of its importance on his or her performance of daily duties. Further, each member of a professional organization should be familiar with the code of ethics for its professional group and its colleagues.
Membership in a professional organization is voluntary, and thus the standards of these organizations are considered voluntary. However, these standards are used as guidelines in peer review. Professional organizations continually reassess the functions of their standards and the qualifications of their members. The standards of professional health organizations reflect the assessment of the need for dental care and the public’s expectations for dentistry and its professional staff to appropriately meet those needs. Examples of voluntary standards are illustrated in the profession’s code of ethics, professional standards for accreditation of educational programs, standards for credentialing, and standards of various service organizations. Legal standards for dental care are determined through common law and result in standards such as the Informed Consent Doctrine, which is discussed later in this chapter. Legislative action through the Dental Practice Act establishes the legal requirements and scope of the practice within the state. This action establishes education, credentialing, and licensure requirements for the dentist and any dental auxiliaries recognized in the state dental practice act.
Copies of the principles of ethics for any of the dental professional organizations may be obtained from their national offices or official web sites. To obtain a copy of the state dental practice act, contact an individual state’s board of dentistry. Some states have the dental practice act online for easy access or downloading. A State Fact Booklet may also be purchased from the Dental Assisting National Board (DANB) web site, available at www.DANB.org.
DEFINITION OF LAW
Law consists of enforceable rules governing relationships among individuals and between individuals and their society. A broad definition of the law implies that there must be established rules, such as constitutions, statutes, administrative agency rules, and judicial decisions. Rules of law must be enforceable and establish limits of conduct for governments and individuals in society.
Law Relative to Dentistry
In many states the board of dentistry is an administrative agency at the state level. The executive officers of an administrative agency perform specific functions, including enforcing laws within their agency. The state boards have the power to make rules and regulations that conform to enacted laws, such as the dental practice act. Rules and regulations adopted by the board are components of the body of law referred to as administrative laws. State statutes must conform to the state’s constitution and the federal constitution. The dental practice act is an example of state statutory law.
Classifications of Law
Law can be divided into two classifications: (1) civil and (2) criminal. Civil law relates to duties between persons or between citizens and their government. Criminal law deals with wrongs committed against the public as a whole.
In a civil case, one party (the plaintiff) tries to correct an interference with his or her interest by another party (the defendant). The defendant may have failed to comply with a duty or otherwise breached an acceptable standard of conduct. The defendant may be required to pay for the damages caused by failure to comply with that duty. In criminal law, the interests of society are at stake and the government may seek to impose a penalty, such as a fine or imprisonment, on the guilty person.
CRIMES AND TORTS
Overview and Definitions
A crime is a wrongdoing against the public at large, and is prosecuted by a public official. In most cases when a crime is committed, there is intent to do wrong. However, a person or entity that breaks certain laws may be guilty of a crime whether there was intent or not. Criminal liability typically involves both the performance of a prohibited act and a specified state of mind or intent on the part of the actor. In some cases, the omission of an act can be a crime if the person or entity has a legal duty to perform the act, such as failure to file a federal income tax return.
A crime can be classified as a misdemeanor or a felony. A misdemeanor is less serious than a felony and is punishable by a fine or imprisonment up to one year. A felony is a more serious crime and generally is punishable by imprisonment for longer period of time.
A tort is a civil wrongdoing. It is an interference with a recognized interest or a breach of a legal duty owed by a defendant to a plaintiff. The plaintiff in most instances must show that the defendant’s action or omission was a cause of loss or harm to the plaintiff. A tort is generally resolved through a civil trial with a monetary settlement for damages. Included in torts are the areas of negligence, assault and battery, infliction of mental distress, defamation, and fraud.
Torts may be intentional or unintentional acts of wrongdoing. If intentional, this means that the person committing the tort intended to commit the wrongful act. Intentional torts for which a dental assistant could be held liable include assault and battery, defamation of character, invasion of privacy, immoral conduct, and fraud.
Unintentional torts do not require a particular mental state. Failure to exercise a standard of care, such as performing a treatment that a reasonably prudent professional would perform in similar circumstances, is an example of an unintentional tort. Thus, even if a dental professional neither wishes to bring about the consequences of the act, nor believes that they will occur, negligence may be alleged whereby someone suffers injury because another failed to live up to a particular standard of care. Questions relating to the failure to exercise a standard of care must be answered. The following four elements make up the unintentional tort of negligence:
Strict liability is an unintentional tort. It relates to a person being liable for actions regardless of the care exercised and for damages or injuries caused by the act. Negligence is the performance of an act that a reasonably careful person under similar circumstances would not do, or the failure to perform an act that a reasonably careful person would do under similar circumstances. Professionals usually consider malpractice a form of negligence, but it can mean, in a broader sense, any wrongdoing by a professional. Malpractice can refer to any professional misconduct, evil practice, or illegal or immoral conduct, not just negligence. Malpractice can be either unintentional or intentional. Box 4-1 contains a list of negligent acts that might occur in a dental office.
Litigation is the process of a lawsuit. A lawsuit is a legal action in a court. The person or party that institutes the suit in court is the plaintiff. The person being accused of the wrongdoing is the defendant.
During malpractice litigation, the patient may be the plaintiff. The dentist or person who is being sued is the defendant. It is likely that other individuals in the dental office, such as a dentist associate, dental assistant, or dental hygienist, might be named as a defendant, fact witness, or an expert witness in the legal proceedings. A fact witness, when placed under oath, must provide only firsthand knowledge, not hearsay. In such testimony, the fact witness describes what he or she saw or did during a specific act. For instance, if the fact witness is being questioned about the administration of a local anesthetic for a patient, the witness may be asked if he or she was told what type of anesthetic to prepare, if he or she prepared the anesthetic and passed it to the dentist, how much anesthetic was administered to the patient, and what the patient’s reaction was after the anesthetic was administered. If the fact witness only received the directions and prepared the anesthetic for the setup, but did not participate in its administration, only the initial questions can be answered. To describe any further action not observed would be inappropriate and may be considered speculation or hearsay.
An expert witness is called to testify and explain to the judge and jury what happened based on the patient’s record and to offer an opinion as to whether or not the dental care, as administered, met acceptable standards. Standards may vary by state. Often a dentist may be called as an expert witness to testify in malpractice litigation because of his or her educational background and strong clinical expertise. A strong knowledge of dental law and dental standards, as well as an understanding of malpractice liability, is beneficial in such cases.
DENTAL PRACTICE ACT
The legal requirements necessary to practice dentistry as well as the scope of what can be practiced are developed through legislative action within the state and are identified in the state dental practice act. This act defines the minimum educational standards, requirements for credentialing, and criteria for license revocation or suspension for a dentist, dental hygienist, and in several states the dental assistant. Other legal requirements are enacted by the government in the form of rules and regulations and, like the dental practice act, also regulate the practice of dentistry. An example of a government agency that creates requirements that affect the practice of dentistry is the state Department of Labor.
A state dental practice act is not frequently changed. However, as changes take place in technology and standards of dental care are modified, it may be necessary to apply new rules and regulations to the state dental practice act. An administrative assistant should regularly obtain a copy of any changes in the dental practice act or new rules and regulations and retain it on file.
Many state dental practice acts define conditions under which a dental assistant or dental hygienist may perform specific duties. Each state provides a list of definitions within the law, and the descriptive language may vary significantly from state to state. Examples of such terminology include patient of record, assignment, and supervision. Patient of record refers to a patient who has been examined and diagnosed by a licensed dentist and whose treatment has been planned by that dentist. Assignment commonly refers to the dentist assigning a specific procedure to a dental assistant or dental hygienist that is to be performed on a designated patient of record. For certain procedures, the dentist does not need to be physically present in the office or in the treatment room at the time the procedure is being performed. Supervision refers to the conditions under which a patient of record may be treated by an assistant or hygienist and the protocol to be followed after the treatment is rendered. One type of supervision is referred to as direct supervision and generally means that the dentist has designated a patient of record on whom services are to be performed and has described the procedure to be performed. The dentist examines the patient before prescribing the procedures to be performed and again on completion of the procedure. Under the definition of direct supervision, the dentist generally must be physically present in the office at the time the procedures are being performed.
It is important to remember that the legal standards within a dental law are for the protection of the general public, and interpretations of requirements for the protection of the general public may differ in each state. Terminology used in various dental practice acts may vary from state to state. The term assignment may be used in one dental practice act; however, in another state the term general supervision may have a similar or identical description to assignment. It is important to carefully read all definitions and descriptions found in a dental practice act to completely understand scope of practice and supervisory requirements.
Over the last half century, the dental assisting profession has taken several steps to ensure the competence of its practitioners in such areas as the credentialing process. Credentialing is a generic term that refers to the ways in which professionals can measure and maintain their competence.
The processes used in credentialing include accreditation, certification, and licensure. Accreditation generally is the process by which an entity or educational program is evaluated and recognized by an outside agency for having attained a predetermined set of standards. These standards are identified by the professional and educational organization, including peer groups. In dentistry, the Commission on Dental Accreditation of the American Dental Association is responsible for accrediting educational programs in dentistry, dental assisting, dental hygiene, and dental laboratory technology. When a program is accredited by the American Dental Association’s (ADA) Commission on Dental Accreditation (CODA), the program makes public its accreditation status. Such accreditation validates that a specific educational program has met a set of standards to address the needs of the profession and the public. In many instances a criterion for obtaining a credential such as certification or licensure is contingent on successful completion of an ADA-accredited educational program.
National certification in dental assisting is a voluntary procedure and may be achieved through the DANB. This organization provides credentialing for the clinical dental assistant, the orthodontic assistant, and the administrative assistant as described in Chapter 2. The process of credentialing requires prerequisites involving education and clinical experiences and measures whether the person has met certain criteria established by the nongovernmental organization for the dental assisting profession.
Licensure is the credential granted to a candidate by the state after the candidate has provided appropriate documentation indicating the candidate has met the state’s designated requirements to practice in the profession. Generally this license is granted after the person has met certain educational requirements and has successfully completed some form of designated state testing, such as a clinical or written examination. Licensure is intended to protect the consumer and is designed for the clinical dental assistant who has direct patient care responsibilities.
CODE OF ETHICS
Ethics is a branch of philosophy and is a systematic, intellectual approach to the standards of behavior. The purpose of a professional code of ethics is to help members of the profession achieve high levels of behavior through moral consciousness, decision making, and practice by members of the profession. Ethics in daily professional practice challenges a practitioner to differentiate between right and wrong. Morals are considered voluntary personal commitments to a set of values. Values are the standards used for decision making that endure over a significant period of time. The expected behaviors of the dental professional are based on a set of standards derived from aspired acceptable behaviors. Every health professional must realize that there is right and wrong and that there is no right way to do a wrong thing.
American Dental Association Principles of Ethics and Code of Professional Conduct
Each organized group within the profession of dentistry, including the ADA, ADAA (American Dental Assistants Association), and ADHA (American Dental Hygienists’ Association), has developed a code of ethics for its members. The codes are based on ethical principles that reflect a concern for the patient’s protection during all aspects of care.
Dentistry as a profession enjoys a certain right of independence, in decision making and self-governance, as a result of the training and education of its members. However this right carries with it an obligation to maintain quality standards and be responsible to one’s patients and peers. This right does not allow a member of the profession to disregard professional standards or laws governing the practice of dentistry. The profession’s primary goal is to provide quality care to patients in a competent and timely manner. To maintain high standards of care, the dental professional can continue to improve the quality of care through education, training, research, and adherence to a stringent code of ethics and professional conduct. The ADA Principles of Ethics and Code of Professional Conduct can be found at the ADA web site, www.ada.org/prof/prac/law/code/index.asp. This document identifies five basic categories of ethics and professional conduct for a dentist. An overview of these principles is included in Box 4-2.