Dentistry and the Law
Dental auxiliary (awg-ZIL-yuh-ree) Dental assistants, dental hygienists, and dental laboratory technicians.
Expressed contract A contract that is established through verbal or written words.
Implied contract Contract that is established by actions, not words.
Licensure License to practice in a specific state.
Malpractice Professional negligence.
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.”
State Dental Practice Act Document of law that specifies legal requirements for practicing dentistry in a particular state.
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 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 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.
• Misdemeanor: A lesser offense that may result in a variety of penalties, including fines, loss or suspension of the license to practice dentistry, mandatory continuing education, counseling, or community service. An example of a misdemeanor is a dentist who violates a regulation of the Dental Practice Act by failing to follow infection control regulations.
• Infraction: Minor offense (e.g., traffic violation) that usually results in only a fine. For example, if a dentist does not pay his or her license renewal fee on time, a penalty fee is added to the original renewal fee.
• Tort law involves acts (intentional or unintentional) that bring harm to a person or damages to property. An example would be a malpractice suit in which a patient alleges that a dentist caused harm or damage to him or her.
• Administrative law involves regulations established by government agencies, for example, violations of the Occupational Safety and Health Administration (OSHA). Regulations of the Dental Practice Act are examples of administrative 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:
• Expressed contracts are established through the written word or by a verbal agreement. Expressed contracts are commonly used when the required treatment is extensive or will take a long time to complete (e.g., orthodontics, full mouth reconstruction).
• Implied contracts are established by actions, not by words. Most dental contracts are implied contracts. For example, if a patient comes to the dentist with a toothache and allows the dentist to examine him or her, it is implied that the patient wants treatment.
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/>