Case Studies in Dental Practice Act

Patient Abandonment

When does abandonment occur?

What is abandonment and what damages will the dentist be responsible for?

The surgeon’s duty extends beyond the time when the scalpel is laid to rest and the wound is sutured. It extends through at least some period of postoperative supervision.

Abraham Lincoln participated as counsel in an early medical malpractice case decided by the Illinois courts and referred to by the defendant. That court stated, “When a person assumes the profession of physician and surgeon, he must, in its exercise, be held to employ a reasonable amount of care and skill.” That amount of reasonable care which the physician and surgeon must employ is not the highest order to which some men attain, but rather that which is ordinarily possessed by members of the profession.

When the physician discharges his patients as cured when in fact they need further treatment, a duty is breached giving rise to a cause of action in malpractice. The surgeon’s duty to continue treating his patient is not established within the absolute discretion of the surgeon himself, but rather is subject to the standards of the profession.

When the oral surgeon refused treatment and recommended the patient to see her medical doctor, he should have anticipated the lack of knowledge of the medical doctor in this area. In fact, the defendant facilitated this improper treatment.

A dentist has a duty to see his patient through the procedure and the resulting complications. If he abandons the patient in her time of need, he is liable for damages. The standard used in determining whether the patient was abandoned is a professional standard, based on the dental profession.

– Longman v. Jasiek (414 N.E.2d 520) Dec. 19, 1980.

Scope and Practice of Dentistry

Owning and operating a dental hygiene service without the supervision of a dentist runs afoul of the dental law.

A dental hygienist may practice only under the supervision of a licensed dentist,” which means that a licensed dentist must be physically present during the performance of such acts and such acts are being performed pursuant to the dentist’s order, control and approval.

– Matter of DeLancy (313 S.E.2d 880) April 17, 1984.

Advertising

Statute and regulation governing licensing of dentists as specialists was not unconstitutionally vague as applied to a dentist who wished to make unqualified announcement that he was limiting his practice to specializing in pedodontics when that announcement was clearly prohibited both under the statute and regulation. Such statutes directly advance important state and public interests in health, safety and welfare.

The state has a substantial and long-recognized interest in maintaining quality medical care for residents; this of necessity calls for some mechanism by which to police the ranks of health professionals to sustain a chosen level of competence among them.

To protect the public from those unqualified to practice in a specialty field, the state must apply some apparatus to screen those who would promote their services as such despite their inabilities. The state’s choice here was reasonable: it ensures that only qualified persons will promote themselves, and that the public will be apprised when a limited though unqualified practitioner who has no specialty license purports to bear such qualifications.

The general public requires some uniform standard of minimal competence, and the ability to rely on each and every representation that a particular dentist in fact qualifies as a specialist in pedodontics.

The requirements of the dental practice act, then, directly advance important state and public interests in a manner which does not trench significantly on appellant’s first amendment rights, especially when these are balanced directly against the state and public interests cited.

– Parmley v. Missouri Dental Board (719 S.W.2d 745) Nov. 18, 1986.

Some of the phrases considered to be deceptive and misleading to the public and being used in violation of the laws and rules are: Specialist in Dental Surgery; Specialist in Family Dental Care and Gold Work; No need to go to see an Oral Surgeon; They’re approved by the American Dental Association; Full Orthodontic Service; and, Family Dental Center.

States may regulate advertising by professionals that is false, deceptive or misleading and there may be reasonable restrictions on time, place, and manner of such advertising.

– Haley v. Ohio State Dental Board (7 Ohio App.3d 1, 453 N.E.2d 1262) March 24, 1982.

First Amendment does not protect advertising that is false, misleading, or deceptive or that proposes illegal transaction.

State attempting to regulate commercial speech that is not misleading or that is only potentially misleading must articulate substantial interest, and regulation must be narrowly tailored to meet that interest.

General practicing dentist’s use of terms, “orthodontics,” “brackets,” and “braces,” in advertisement was not inherently misleading and was protected by First Amendment, even though the dentist was not a licensed specialist in orthodontics, where Kentucky permitted general practicing dentists to perform orthodontics.

– Parker v. Commonwealth of Kentucky, Board of Dentistry (818 F.2d 504) May 5, 1987.

Discrimination

When can a dentist not treat a patient with HIV?

It is settled that asymptomatic HIV constitutes a disability under the ADA, and thus the sole remaining question is whether performance of the cavity-filling procedure posed a “direct threat” to others and thereby came within an exception to the ADA’s broad prohibition against discrimination. A direct threat is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.”

Dentist’s performance of cavity-filling procedure on a patient with HIV did not pose “direct threat” to others as defined by the CDC. Thus, a dentist is required to take the accepted “universal precautions” prescribed in Dentistry Guidelines formulated by CDC, and Policy on Acquired Immune Deficiency Syndrome (AIDS), HIV Infection and Practice of Dentistry propounded by American Dental Association. A dentist cannot refuse treatment, regardless of his opinion of the risk, nor can he require precautions in addition to the CDC guidelines.

– Abbott v. Bragdon (163 F.3d 87) Dec. 29, 1998.

Fraudulent Billing

Filing a claim for services not actually performed is a ground for disciplinary action against the dentist.

The determination of the Commissioner of Education suspending the dentist’s license to practice dentistry for having engaged in fraudulent practice of dentistry and unprofessional conduct by requesting and receiving payment from group health insurer for services not actually performed was supported by substantial evidence on record showing that, despite having submitted claim form stating that the services had been completed, dentist in fact had not inserted dentures in patient’s mouth, and thus determination would not be disturbed.

Suspension of the dentist’s license for his having engaged in fraudulent practice of dentistry and unprofessional conduct by requesting and receiving payment from the group health insurer for services not actually performed could not be characterized as shocking to one’s sense of fairness.

– Shmelzer v. Ambach, as Commissioner of Education of the State of New York, (Cite as: 86 A.D.2d 901, 448 N.Y.S.2d 270) Feb. 11, 1982.

 

Unprofessional Conduct

Disciplinary action in one state can affect a dentist’s license to practice dentistry in another state. A rogue dentist could otherwise roam from one state to another requiring each state to prove the allegations all over.

A dentist disqualified by his misconduct from the practice of dentistry in one state (and found to be so disqualified after the opportunity for a fair hearing) is equally as disqualified across a state line, and he should not be permitted to impose upon the “foreign” state the onus of proving the underlying facts of his misconduct.

– Holmes v. Missouri Dental Board (703 S.W.2d 11) Nov. 5, 1985.

A dentist took up orthodontic work after being out of the field for seven or eight years. When a patient’s teeth were in worse shape after two years of treatment the patient complained to the dental board for unprofessional conduct that “would constitute danger to the health, welfare or safety of the patient or the public.”

– Croft v. Arizona State Board of Dental Examiners (157 Ariz. 203, 755 P.2d 1191) May 3, 1988.

Conduct resulting in suspension of license

The board may suspend a license upon any of the following grounds:

 

1. Fraud or deception in connection with the practice of dentistry;

2. Conduct unbecoming a person licensed to practice dentistry or conduct contrary to the best interest of the public, as such conduct is defined by the rules of the board;

3. Any physical, mental, emotional, or other disability which adversely affects a dentist’s ability to perform;

4. Employing, assisting, or enabling in any manner an unlicensed person to practice dentistry.

– Matter of Schultz (375 N.W. 2d 509) Oct. 15, 1985

A finding by the dental board that the dentist had obtained or attempted to obtain a fee by deception or misrepresentation, had shown incompetency, misconduct and dishonesty in the practice of dentistry, violated provisions relating to the practice of dentistry and violated professional trust imposed upon him by members of his profession was supported by the testimony of the patient that the dentist told the patient that he had 11 teeth with cavities and by the testimony of two other dentists that the patient did not have any cavities, even though the testimony of the dentist and that of his receptionist supported contrary conclusion.

– Hill v. Missouri Dental Board (726 S.W.2d 370) Jan. 20, 1987.

The statute, along with “unprofessional conduct,” lists “gross ignorance, incompetence or inefficiency” as grounds for disciplinary action.

In determining what constitutes `gross ignorance, incompetence or inefficiency in his profession,’ the board may take into account all relevant factors and practices, including but not limited to the practices generally and currently followed and accepted by persons licensed to practice dentistry in this state, the current teachings at accredited dental schools, relevant technical reports published in recognized dental journals and the desirability of reasonable experimentation in the furtherance of the dental arts.

However, the law makes no such reference for determining what constitutes “unprofessional

conduct.” While current standards of scientific knowledge and of safe and effective technique in a profession or craft may be determinable from such sources, disputed ethical standards often are more an issue of policy and values than of the state of the art.

– Megdal v. Oregon State Board of Dental Examiners (288 Or. 293, 605 P.2d 273) Jan. 8, 1980.

Substance Abuse

Dentist’s constructive possession of marijuana plants was a violation of statute relating to procurement of a contraband drug; by definition, this is a violation of the regulations governing dental practice.

– In re Sturrup (456 So.2d 927) Sept. 5, 1984.

Fraud in the practice of health care profession is not limited to conduct which directly affects care of patients but encompasses all aspects of professional conduct.

The State Dental Council and Examining Board acted within its authority in revoking the license of a dentist who wrote quaalude prescriptions for fictitious patients to finance his cocaine habit.

– Giacco v. Commonwealth of Pennsylvania, State Dental Council and Examining Board (60 Pa.Cmwlth. 408, 431 A.2d 1147) July 8, 1981.

Unlicensed Practice of Dentistry

The dental code allows the board to suspend a dentist’s license if the dentist permirts his employee to perform an unauthorized operation. The permission does not have to be given only by an express order of the denitst; it may be implied or tacit.

– Bach v. Florida State Board of Dentistry (378 So.2d 34) Nov. 30, 1979.

Evidence supported the determination by the dental Board that Dr. Allen improperly permitted a nonlicensed person to place wax try-in in a patient’s mouth. This is in violation of the state Dental Practice Act; the patient testified that the dentist placed a partial in his mouth, but thereafter, an assistant “filed them” and then placed the denture back into the patient’s mouth, after which the dentist did not return to examine the patient.

A dentist’s signature is required for lab work orders performed, regardless of whether the work is performed by an in-house laboratory or by an independent laboratory. A dentist alone is responsible for the design of a dental appliance, his signature certifies work as his and certifies that the dentist takes responsibility for the work performed.

– Allen v. Louisiana State Board of Dentistry (531 So.2d 787) Sept. 16, 1988

 

Improper Sexual Conduct

What constitutes improper sexual conduct?

The board’s rules define such conduct to include “making suggestive, lewd, lascivious, or improper advances to a patient.”

– Matter of Wang (417 N.W.2d 268 ) Dec. 29, 1987.

General Anesthesia

 

The state’s expert witness testified that the defendant failed to conduct an adequate preliminary medical examination, testing and history of the patient; that he failed to provide adequate monitoring equipment to support anesthesia and failed to monitor the patient by leaving the room; that he failed to properly intubate an air passageway; that he failed to exercise proper CPR procedures; and that these particulars were violative of the statutes requiring diligence and lack of negligence in the practicing of dentistry and below the standard of practice in the community.

– Texas State Board of Dental Examiners v. Silagi (766 S.W.2d 280) Jan. 5, 1989.

 

License to Practice Dentistry

Conditional Reinstatement: For reinstatement of license, board may require dental board exam, continuing education, plan for practice

Can the board require the dentist to perform community service as a condition of reinstatement?

An applicant for reinstatement of a revoked license is in the same position as a person seeking license in the first place.

A dentist’s activities after revocation of a license and his present qualifications, ability, and learning could be considered by the Board of Dental Examiners in deciding whether to reinstate the license; the board was not restricted to matters involved in the original license revocation.

– Flanzer v. Board of Dental Examiners of California (220 Cal.App.3d 1392, 271 Cal.Rptr. 583) May 30, 1990.

Negligence and Incompetence

 

Proof of intentional misrepresentation or concealment of known fact is required to sustain charge of fraudulent practice of dentistry; however, that intent or knowledge may be inferred from surrounding circumstances.

The finding that the dentist had practiced his profession with negligence and incompetence on more than one occasion was supported by evidence that the dentist, without prior medical approval and after conducting a test which he should have known was unreliable, replaced the patient’s 14 amalgam fillings during separate appointments on separate days over period of time, and that, after the patient complained of burning sensation in her mouth after removal and replacement of her fillings, the dentist directed her to drink detoxifying agent to cleanse her system of mercury.

– Berger v. Board of Regents of the State of New York (178 A.D.2d 748, 577 N.Y.S.2d 500) Dec. 12, 1991.