chapter 40 Medicolegal Considerations

THE UNIQUE STATUS OF SEDATION IN DENTISTRY

Sedation, particularly intravenous, is generally regulated in states by statute or via dental practice acts.

The reasons for these regulations are multiple, but essentially they are in place first because dentists are not routinely trained to be proficient in advanced forms of sedation. Sedation proficiency generally requires postgraduate training consisting of relatively short oral sedation courses to accredited residency training in general anesthesia lasting 2 or more years. Intravenous sedation courses fall somewhere in the middle temporally. Dr. Malamed’s well-recognized intravenous sedation course at The University of Southern California School of Dentistry has been in place since the 1970s.

A second reason that sedation is specifically regulated is that the vast majority of dentists use local anesthesia alone for invasive procedures. It is somewhat ironic that although dentists introduced safe, predictable, and reproducible anesthesia to the world,^1,² the profession has largely lost that heritage in its gravitation toward local anesthesia. Advanced pain control techniques are not readily available to our patients today despite the overwhelming patient perceived need and demand. Dentist anesthesiologists and dentists who limit their practices to sedation-only procedures are literally as busy as they desire. It is not uncommon for oral and maxillofacial surgery patients to ask if “all my dental work” can somehow be done with sedation or general anesthesia as the surgeon has provided.

Anesthesiology is a specialty in medicine, veterinary medicine, and for dentists in Japan and Canada. Most of the world recognizes the necessity of formal training to provide anesthesia services; states appropriately are stimulated to ensure that patients are treated by dentists who are competent to provide these services.

For many people, avoiding dental care can be attributed to a deeply ingrained fear.³ In 2000 the U.S. Surgeon General reported that 4.3% of the population did not avail themselves of dental appointments secondary to fear.⁴ Well more than 10% of the population has not seen a dentist professionally for a minimum of 5 years to a maximum time frame of never.⁵

There is no question that dentists who become proficient in the provision of pain control modalities other than local anesthesia will have the opportunity to serve a much larger patient base than colleagues not similarly trained. However, with the additional opportunity to treat patients also comes the additional responsibility to be able to safely administer supplemental agents.

LEGAL HISTORY

Health professionals are faced with onerous requirements based on legal issues as we practice in the twenty-first century.

The history of liability for alleged medical errors is long, no doubt dating to times before medical records were even written. It is difficult to find “the good old days” when one considers that health professionals have been under constraint to perform successfully for millennia. Consider Babylon’s Code of Hammurabi (1700 BC) that codified the laws of the period and contains the first known written record regulating medical practice.⁶

The code provides, for instance, that “If a doctor treats a man with a metal knife for a severe wound, and has caused the man to die, or has opened the man’s tumor with a metal knife and destroyed the man’s eye, his hands shall be cut off.”⁷

MODERN LIABILITY INSURANCE CRISES

Experienced practitioners today know that we are in the midst of our third modern “liability crisis.” Perhaps a more appropriate term would be “liability insurance crisis.” As taxing as liability issues are, it appears that most of today’s world has accepted the principle of accepting remuneration rather than a literal pound of flesh for medical errors.

Those who were practicing in the 1970s will recall the first modern liability insurance crisis. Physicians in California went on strike for services other than true emergencies. The result of the strike and other types of health professional activism was MICRA, or California’s Medical Insurance Compensation Reform Act of 1975.

MICRA provided a multipronged solution to the crisis at that time and included:

1. Limits on noneconomic damages

2. Evidence of collateral sources of payment

3. Limits on attorney’s fees

4. Advance notice of a claim

5. Statute of limitations reform

6. Periodic payments for future needs

7. Binding arbitration of disputes

The results of MICRA have been impressive and include findings such as:

1. The time to settlement in California is 3 years, whereas the national average is 4 years.

2. The cost of settlement in California is half of that averaged nationally. Although insurers pay out less, the plaintiffs receive larger average awards during settlement.

3. The cost of liability insurance premiums in California from 1975 to 2000 rose 168%, but nationally, premiums rose 505%.

The second modern liability crisis occurred in the 1980s and resulted in many dentists economically forced to find alternative liability insurance options. One successful experiment involved forming private offshore insurance companies. Despite the significant legal, temporal, and financial logistics involved, this type of planning was successful as evidenced by the fact that major carrier insurance rates uniformly decreased nationally as the dentist-owned and -operated companies thrived. Rates decreased in part because when the dentists themselves were managers and shareholders, companies quickly settled meritorious claims and aggressively defended frivolous suits. In addition, many health professionals involved in such planning actually profited financially from well-managed concerns. The profits were significant enough that the traditional insurers reentered the marketplace and purchased most of the dentist-owned companies.

Unfortunately, the overall national economic boom of the 1980s did not continue into the 1990s. This coupled with the loss of personally involved dentist managers and shareholders resulted in the third crisis, which continues to this day.

Currently, MICRA is still in place in California and appears to be beneficial. Interestingly, there are more than 200,000 ⁸ attorneys in California and approximately 20,000 dentists. Nationally, 1,100,000 attorneys practice, whereas the American Dental Association (ADA) has 170,000 members.

At the time of this writing, tort reform is a major state and national issue. Tort reform involves not only health professionals, but all aspects of society where individuals are accused of breaching a duty to another’s disadvantage. The trend at this time is logically to revisit California MICRA-based tort reform. MICRA has stood the test of time and has been shown to be of economic benefit to all interested groups except that of the trial lawyers (both plaintiff and defense).

The nation has seen a dramatic rise in not only tort-based malpractice lawsuits over the past several years, but also the predictable sequelae of such legal action. Trauma centers have closed, dentists are actively and passively (i.e., by limiting their practice or opting for early retirement) leaving lawsuit-friendly communities or states, and patient consumers are now starting to feel directly the loss of health professional availability and other consequences of a litigation system that has never been busier.

As states enact MICRA-based reform, constitutional challenges are predictably foisted in the courts. Recently the Wisconsin Supreme Court invoked the relatively rare rational basis legal theory in a four to three decision that eliminated the $350,000 cap on some medical malpractice damages.⁹ Time will only tell where the states’ machinations lead us, but to many legal commentators, it appears that ultimately a federal resolution is necessary.

LIABILITY INSURANCE COVERAGE

Occasionally, insurance companies will deny coverage for a defendant’s claim. For instance, in Woo v. Fireman’s Fund Insurance Co.,¹⁰ an oral and maxillofacial surgeon was denied coverage for a claim arising from an extraction case done via general anesthesia. Dr. Woo had foisted a “practical joke” on his future former assistant patient. During the procedure, Dr. Woo inserted boar tusk–shaped objects into the plaintiff’s mouth and took photographs of the same while the patient was under anesthesia. The patient sued under several theories in part including: outrage, battery, invasion of privacy, false light, public disclosure of private acts, medical negligence, lack of informed consent, and negligent infliction of emotional distress. Fireman’s Fund refused to defend Dr. Woo, stating his conduct was outside the scope of his policy.

Dr. Woo sued Fireman’s Fund after settling personally with the patient.

The Washington Supreme Court found that Dr. Woo’s conduct did fall within the practice of dentistry because the prank occurred within the employer-employee relationship. The court also held that since the practical joke occurred during surgery, the Fireman’s professional liability policy applied to the situation. Next the court stated that Fireman’s could only be relieved of responsibility if the policy clearly stated that certain conduct was excluded from coverage (similar to the option health insurance policies have of specifically excluding certain conditions or procedures, such as TMJ pathologic conditions or dental implants). Finally the court warned that the carrier must defer to the insured’s interests in ambiguous situations, not the other way around.

THEORIES OF LIABILITY

There are several legal theories by which plaintiffs can seek redress against health professionals.

Statute Violation

Violation of a state or federal statute leads to an assumption of negligence if damage to a patient occurs. In other words, the burden of proof, a significant obligation usually born by the plaintiff, now shifts to the defendant who must prove that the statute violation was not such that it caused any damage claimed.

Two basic types of statutes exist, malum in se and malum prohibitum. Malum in se (bad in fact) statutes restrict behavior that in and of itself is recognized as harmful, such as driving while inebriated. Malum prohibitum (defined as bad) conduct in and of itself may not be criminal, reckless, wanton, etc., but is regulated simply to, for instance, promote social order. Driving at certain speeds is an example of a malum prohibitum statute. The difference between legally driving at 15 mph in a school zone and criminally driving at 16 mph in a school zone is not the result of a criminal mind, but a social regulatory decision.

For instance, if one is speeding while driving, several sequelae may result when that statute violation is recognized. The speeder may simply be warned to stop speeding. Secondly the speeder may be issued a citation and have to appear in court, argue innocence, pay a fine if found guilty, attend traffic school, etc. Third, if the speeder’s conduct causes damage to others, additional civil or criminal sanctions may apply. Fourth, the situation may be compounded civilly or criminally if multiple statute violations are present, such as speeding and driving recklessly or driving while intoxicated.

Occasionally, statute violation is commendable. For instance, a driver may swerve to the “wrong” side of the centerline to avoid a child who suddenly runs into the street from between parked cars. At times, speeding may be considered a heroic act, such as when a driver is transporting a patient to a hospital during an emergency. However, even if the speeder believes that he is somehow contributing to the public welfare, the statute violation is still subject to review.

For health professionals, the administration of drugs without a current state license or Drug Enforcement Administration (DEA) certification is likely a violation of statute. If the type of harm sustained by the patient is the type that would have been prevented by obeying the statute, additional liability may attach to the defendant. As an example, someone without a license may be liable for permanent lingual nerve paresthesia ^11,¹² after the administration of a local block, but likely would not be liable for temporally related appendicitis.

Occasionally, professional groups, political societies, etc., may publicize opinions that can adversely affect other groups. An example of this is the American Society of Anesthesiologists’ (ASA) 1982 policy statement that “anesthesia care is the practice of medicine.”¹³ Such a policy, if adopted by state boards or other regulatory agencies, could have negative effects on the anesthesia practices within dentistry. Recognizing such, the American Association of Oral and Maxillofacial Surgeons (AAOMS), ADA, and other interested dental professionals entered into negotiations with the ASA soon after the 1982 policy publication. These negotiations resulted in a modified 1987 statement that: “The ASA recognizes the right of qualified dentists as defined by the ADA to administer conscious sedation, deep sedation, and general anesthesia to patients having dental procedures only.”¹⁴

Conversely an example of a beneficial regulatory violation and a subsequent positive educational experience for a regulatory agency occurred when a licensee did not fulfill mandatory basic cardiopulmonary resuscitation (CPR) certification, but chose to complete advanced cardiovascular life support (ACLS) certification instead. When admonished by the state board that a violation had occurred, potentially putting the public at greater risk, the licensee pointed out to the regulatory board that ACLS certification is actually more beneficial to the public than CPR. The licensing board then changed the regulation to allow CPR or ACLS certification as a requirement to maintain a license.

Generally, employers are not responsible for statute violations of employees. An exception to this guideline can occur in the health professions. When employees engage in the practice of dentistry or medicine, even without the knowledge or approval of the employer, that employee and the employer may both be held liable for damage. Employer sanctions may be magnified, such as loss of one’s professional license, if an employee practices dentistry or medicine with employer knowledge.

Finally, at times, some types of specific conduct are defined statutorily as malpractice per se. For instance, unintentionally leaving a foreign body in a patient after a procedure may be deemed malpractice per se. In these types of cases, theoretically, simply the plaintiff’s demonstration of the foreign body, via radiograph, a secondary procedure to remove the foreign body, etc., may be all that is required to establish malpractice.

Contract Law

The relationship between a health professional and a patient is first contractual in that services are provided and payment is received. Any remedies the dentist or patient may have against one another in contract are separate and distinct from tort, or malpractice, claims.

Several contractual relationships are possible. The most common interaction is likely the implied contract. In this instance, a patient comes in for treatment, and fees are not discussed in detail. If a controversy arises, the courts will look to see that the fees charged for the procedures provided were reasonable.

Another type of relationship is the express contract, in which the procedures and fees are discussed specifically.

Lastly is a formal written contract regarding services and fees.

A contract is binding whether it is a written agreement, verbal agreement, or implied.

Occasionally, one will read about a case in which a dentist is sued because a contract principle has allegedly been violated. For instance, “guaranteed results” are a particularly worrisome concept and should be avoided.¹⁵

Criminal Law

Recent history has seen a dramatic increase in the number of suits filed under criminal law theories by government prosecutors. Criminally based suits against health professionals most often fall under three general categories.

The first type of criminal suit is secondary to alleged fraud, particularly involving Medicare or Medicaid.¹⁶

Secondly, prosecution for misuse of narcotics is becoming more common. In 2004, John Walters, Chief of the Office of National Drug Control Policy, promised “an unprecedented and comprehensive effort, including increased investigative work by the DEA, to combat the diversion of prescription drugs to the black market.”¹⁷

Third, health professionals are undergoing increased prosecution for plaintiff morbidity or mortality that previously was considered under tort theory only. “A social intolerance of medical mistakes has caused them to be criminalised.”¹⁸ Government criminal prosecutors litigating against health providers must in theory be able to prove that a criminal or guilty mind (mens rea)¹⁹ exists in addition to statute violation. In other words, for an act to be criminal, the act must itself be illegal and accompanied by mens rea. Once a criminal act has been shown, mens rea can be documented by proving intentional or knowing commission of a crime. Additionally the government may prove its case by convincing a jury that reckless, wanton, or grossly negligent conduct existed even if specific intent to commit a crime is not seen. If the government does not meet these burdens, acquittal should result.²⁰

Finally, occasional criminal conduct is reported in the dental arena that may realistically have only a remote relationship to dentistry. For example, consider the arrest of a correctional center dental auxiliary who allegedly conspired to help a convict escape from prison in Nevada by providing a cellular phone to the inmate.²¹