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. Each member of an office or dental business entity 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 principles and guidelines of these organizations are also considered voluntary. However, these standards may be used as guidelines for peer review or other quality assurance activities. Professional organizations continually assess their standards and the qualifications of their members. The standards of professional health entities are a reflection of a combination of factors, including current oral healthcare needs and the public’s expectations for dentists and the dental team to appropriately meet those needs. Examples of voluntary standards are illustrated in the profession’s code of ethics, professional standards for the 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. In addition, federal and state legislation may create other legal obligations, such as the confidentiality of patient information. Legislative action, which is reflected in a state’s dental practice act, establishes the legal requirements and the scope of practice for dental providers 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 their official websites. Copies of dental practice acts may be available from the state’s board of dentistry or online. In addition, there may be other resources pertinent to dental professionals that are available online, such as guidelines for requesting medical or dental records and public health codes or obligations. A State Fact Booklet may also be purchased from the Dental Assisting National Board website at www.danb.org.
Definition of Law
Law consists of enforceable rules that govern relationships among individuals and between individuals and their society. A broad definition of the law implies that there must be established rules, such as a state constitution, 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: civil and 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—such as the protection of his or her person (bodily harm), privacy, or property—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 the failure to comply with that duty. In criminal law, the interests of society are at stake; the government may seek to impose a penalty, such as a fine or imprisonment, on the guilty person.
Litigation
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 the person who is being sued is the defendant. It is likely that other individuals in the dental office (e.g., dentist associate, dental assistant, dental hygienist) may be named as defendants or as fact witnesses in the legal proceedings. A fact witness, when placed under oath, must provide only firsthand knowledge and not hearsay. Fact witness testimony consists of the recitation of facts or events. This is different from the role of an expert witness in a trial. For example, if the fact witness is being questioned about the administration of a local anesthetic to a patient, the witness may be asked if he or she was told what type of anesthetic to prepare, whether 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. Such 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 clinical expertise. A strong knowledge of the laws and rules that guide dental care and dental standards as well as an understanding of malpractice liability is beneficial in such cases.
Crimes and Torts
Overview and Definitions
A crime is a wrongdoing against the public at large, and it is prosecuted by a public official. In most cases in which a crime is committed, there is intent to do wrong. However, a person or entity that violates 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; an example of this would be the 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 it is punishable by a fine or imprisonment of up to 1 year. A felony is a more serious crime, and generally it is punishable by imprisonment for a 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 and results in a monetary settlement for damages. There are two types of torts: intentional and unintentional.
If the wrongdoing is classified as an intentional tort, this indicates 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, misrepresentation, inflection of mental distress, and false imprisonment. An unintentional tort includes negligence, which is sometimes referred to as malpractice.
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: someone suffered injury because another person failed to live up to a particular standard of care. Questions related to the failure to exercise a standard of care must be answered. If an individual is accused of a negligent act, the plaintiff’s attorney must prove that the defendant failed to satisfy the following four elements:
Practice Note
Failure to exercise a standard of care can occur during patient assessment, treatment planning, treatment, and patient referral. The standard of care may be influenced by the dental practice act, which defines the scope of practice for dental professionals. In addition, the standard is influenced by individuals who have the same training and experience.
Strict liability is an unintentional tort. It relates to a person having the legal responsibility for damages or injury, even if the person found strictly liable was not at fault or negligent, regardless of the care exercised. 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.
Practice NoteDental 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 identified in the state dental practice act. This act defines the minimum educational standards; the requirements for credentialing; and the criteria for license revocation or suspension for a dentist, a dental hygienist, and, in several states, a dental assistant. The act may describe supervision requirements, required content of a dental record, and specific guidelines concerning the continuing education required to maintain a license. Other legal requirements are enacted by the government in the form of rules and regulations; like the dental practice act, these 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’s dental practice act is periodically reviewed and updated. However, as changes take place in technology and as standards of dental care are modified, dental practice acts may be modified to reflect those changes. An administrative assistant should regularly obtain a copy of the state’s dental practice act to determine if there are modifications to the rules and regulations that guide oral health providers and that govern the scope of dental practice. For example, a dental practice act may be modified when the scope of practice for a dental assistant is expanded. Dental practice acts are available online for easy access and review.
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. In some jurisdictions, for certain procedures, the dentist does not need to be physically present in the office or in the treatment room at the time that 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; this 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 after the completion of the procedure. According to the definition of direct supervision, the dentist generally must be physically present in the office at the time that the procedures are being performed.
It is important to remember that the legal standards within dental law are for the protection of the public, and requirements for the protection of the public may differ in each state. Terminology and the interpretation of a term used in a dental practice act 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 description that is similar or identical to that of assignment. It is important to carefully read all definitions and descriptions found in a dental practice act to completely understand the dental professional’s scope of practice and supervisory requirements.
Professional Standards
Over the last half century, the dental assisting profession has taken several steps to ensure the competence of its practitioners through such means 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 professional and educational organizations as well as by peer groups. In dentistry, the Commission on Dental Accreditation of the American Dental Association (ADA) is responsible for accrediting educational programs in dentistry, dental assisting, dental hygiene, and dental laboratory technology. When a program is accredited by the ADA’s 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. Information about accreditation standards for educational programs can be found at www.ada.org/117.aspx. In many instances, a criterion for obtaining a credential such as certification or licensure is contingent on the individual seeking the certification to provide evidence that the person successfully completed an ADA-accredited educational program.
National certification in dental assisting is a voluntary procedure, and it may be achieved through the Dental Assisting National Board. 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 satisfying prerequisites that include educational and clinical experiences, and it 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 individual provides appropriate documentation to prove he or she has met the state’s designated requirements to practice in the profession. Generally this license is granted after the person has satisfied specific educational requirements and successfully completed some form of designated state testing, such as a clinical or written examination.
Code of Ethics
Ethics is the branch of philosophy that involves a systematic and 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 to acceptable behaviors. Every health professional must realize that there are both right and wrong actions that can be taken 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, the American Dental Assistants Association (ADAA), and the American Dental Hygienists’ Association (ADHA), has developed a code of ethics for its members. These codes are based on ethical principles that reflect a concern for the patient’s protection during all aspects of care. The codes may also address professional practice, record keeping, service to the community, research, and other practice-related topics.
Practice NoteDentistry as a profession enjoys a certain level of independence with regard to 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 to be responsible to one’s patients and peers. This right does not allow a member of the profession to disregard professional standards or the laws that govern 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 on the ADA website at www.ada.org/sections/about/pdfs/code_of_ethics_2012.pdf
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.
Stay updated, free dental videos. Join our Telegram channel
VIDEdental - Online dental courses
