Dentistry and the Law
Learning Outcomes
On completion of this chapter, the student will be able to achieve the following objectives:
• Pronounce, define, and spell the Key Terms.
• Explain the purpose of the state Dental Practice Act.
• Explain the purpose for licensing of dental health professionals.
• Describe the types of dental auxiliary supervision.
• Explain the circumstances required for patient abandonment.
• Explain the principle of contributory negligence.
• Describe the differences between civil and criminal law.
• Describe ways to prevent malpractice suits.
• Describe the difference between written and implied consent.
• Describe the procedure for obtaining consent for minor patients.
• Describe the procedure for documenting informed consent.
• Explain when it is necessary to obtain an informed refusal.
• Describe the exceptions for disclosure.
• Give an example of respondeat superior.
• Give an example of res gestae.
• Discuss the indications of spouse abuse and neglect.
• Discuss the indications of child abuse and neglect.
Electronic Resources
Additional information related to content in Chapter 5 can be found on the companion Evolve Web site.
Key Terms
Abandonment Withdrawing a patient from treatment without giving reasonable notice or providing a competent replacement.
Administrative law Category of law that involves regulations established by government agencies.
Board of dentistry State agency that adopts rules and regulations and implements the specific state’s Dental Practice Act.
Child abuse Any act that endangers or impairs a child’s physical or emotional health or development.
Civil law Category of law that deals with relations of individuals, corporations, or other organizations.
Contract law Category of law that involves an agreement for services in exchange for a payment (contract).
Criminal law Category of law that involves violations against the state or government.
Dental auxiliary (awg-ZIL-yuh-ree) Dental assistants, dental hygienists, and dental laboratory technicians.
Direct supervision Level of supervision in which the dentist is physically present when the dental auxiliary performs delegated functions.
Due care Just, proper, and sufficient care, or the absence of negligence.
Expanded functions Specific intraoral functions delegated to an auxiliary that require increased skill and training.
Expressed contract A contract that is established through verbal or written words.
General supervision Level of supervision in which the dental auxiliary performs delegated functions according to the instructions of the dentist, who is not necessarily physically present.
Implied consent Type of consent in which the patient’s action indicates consent for treatment.
Implied contract Contract that is established by actions, not words.
Informed consent Permission granted by a patient after he or she is informed about the details of a procedure.
Infraction Minor offense that usually results in only a fine.
Licensure License to practice in a specific state.
Malpractice Professional negligence.
Mandated reporters Designated professionals who are required by law to report known or suspected child abuse.
Misdemeanor Offense that may result in imprisonment of six months to one year.
Patient of record Individual who has been examined and diagnosed by the dentist and has had treatment planned.
Reciprocity (re-si-PROS-i-tee) System that allows individuals in one state to obtain a license in another state without retesting.
Res ipsa loquitur Latin phrase for “the thing speaks for itself.”
Respondeat superior Latin for “Let the master answer.” Legal doctrine that holds an employer liable for acts of the employee.
Spousal abuse Domestic violence intentionally inflicted by a family member or members.
Standard of care Level of knowledge, skill, and care comparable with that of other dentists who are treating similar patients under similar conditions.
State Dental Practice Act Document of law that specifies legal requirements for practicing dentistry in a particular state.
Statutory law Law enacted by legislation through U.S. Congress, state legislature, or local legislative bodies.
Tort law Involving an act that brings harm to a person or damage to property.
Written consent Consent that involves a written explanation of diagnostic findings, prescribed treatment, and reasonable expectations about treatment results.
Every state government has the responsibility to protect the health, welfare, and safety of its citizens. To do this, regulations are written and legislation is passed. When the U.S. Congress, a state legislature, or a local legislative body passes legislation, it becomes statutory law. As a dental assistant, you must understand the law to protect yourself, the dentist, and the patient.
Statutory Law
Statutory law consists of two types: criminal law and civil law. Criminal law involves crimes against society. In criminal law, a governmental agency such as law enforcement or the board of dentistry initiates legal action. Civil law involves crimes against an individual, with another individual initiating legal action (i.e., lawsuit).
Criminal Law
Criminal law seeks to punish the offender, but civil law seeks to compensate the victim. For example, a dental assistant who performs a procedure that is not legal is in violation of criminal law. Insurance fraud is another criminal act that may be committed in a dental office.
Criminal offenses are classified as follows:
Civil Law
Civil law is concerned with relations of individuals, corporations, or other organizations. Classifications of civil law that affect the practice of dentistry are as follows:
Contract Law
For a contract or agreement to be binding, it must be established between two competent people. This eliminates mentally incompetent persons, those under the influence of alcohol or drugs, and minors. The agreement must also include an exchange of a service for payment. When the dentist accepts the patient and the patient arrives for care, the dentist has the legal obligation under contract law to provide dental care. A contract can be either expressed or implied, as follows:
Tort Law
A tort is a civil wrong. A tort can be intentional or unintentional. For example, a breach of confidentiality is an intentional tort. If a dental assistant mounts radiographic films on the wrong side and the dentist notices and corrects the error, no harm is done to the patient and no tort would occur. However, a tort would occur if the dentist extracts a tooth on the wrong side of the mouth as a result of not noticing the error.
In addition, a tort can be an act of omission (i.e., not doing something that should have been done) or an act of commission (i.e., doing something that should not have been done). For example, failing to recognize periodontal disease or not taking radiographs would be an act of omission. Taking out the wrong tooth or causing nerve injury during an extraction would be an act of commission.
State Dental Practice Act
To protect the public from incompetent dental healthcare providers, each state has established a state Dental Practice Act. The Dental Practice Act specifies the legal requirements for the practice of dentistry within each state. It may be a single law or a compilation of laws that regulate the practice of dentistry. Regulations regarding dental assistants vary greatly from state to state. It is important to have a clear understanding of the law in your state as it relates to dental assisting and the practice of dentistry. Each state’s Dental Practice Act is now accessible on the Internet. You will find links to each state’s Dental Practice Act at www.ada.org.
Board of Dentistry
An administrative board, usually called the board of dentistry, interprets and implements state regulations.
The governor of the state usually appoints the members of the state board of dentistry, also referred to as the dental board in some states. In addition to licensed dentists, some states have dental hygienists, dental assistants, and consumers as members of the board.
The board adopts rules and regulations that define, interpret, and implement the intent of the Dental Practice Act. The board is also responsible for enforcement of regulations for the practice of dentistry within the state.
Licensure (having a license to practice in a specific state) is one method of supervising individuals who practice in the state. The purpose of licensure is to protect the public from unqualified or incompetent practitioners. Requirements for licensure vary from state to state, but dentists and dental hygienists must be licensed by the state in which they practice.
An increasing number of states are requiring either licensing or registration for dental assistants in their states. It is essential to understand the requirements for practice in your state. In every state, any person who practices dentistry without a license is guilty of an illegal act.
Some states have a reciprocity agreement with another state or a plan for licensure by credential. Reciprocity is an agreement between two or more states that allows a dentist or dental hygienist who is licensed in one state to receive, usually without further examination or requirements, a license to practice in any of the other states in the reciprocity agreement. Reciprocity agreements are usually made between states with adjoining borders and similar testing requirements. States without reciprocity agreements require dentists and dental hygienists licensed in another state to take their state board examination.
Licensure by credential allows an individual who is currently licensed in one state to become licensed in another state if certain requirements are met. Examples of such requirements could include never having had a license suspended or revoked, or having been in practice for a specified amount of time, or having been a faculty member in a dental school, or having completed a specific number of continuing education units. The requirements for licensure by credential vary according to the state.
The state board of dentistry has the authority not only to issue a license but also to revoke, suspend, or deny renewal of a license. Most states will take action if the licensed person has a felony conviction or a misdemeanor involving drug addiction, moral corruptness, or incompetence, or a mental/physical disability that may cause harm to patients.
Expanded Functions and Supervision
Expanded functions are specific intraoral tasks delegated to qualified dental auxiliaries who have advanced skill and training. When these functions are included in the Dental Practice Act, the dentist may delegate them to the dental assistant. Some states require additional education, certification, or registration to perform these functions.
As with all functions performed by the dental assistant, expanded fun/>
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