JURISPRUDENCE, ETHICS, AND MALPRACTICE
Every state board of dental examiners has developed a set of individualized laws that govern the practice of dental professionals operating within their respective states. These strictly enforced laws are not considered ethics; they are considered dental jurisprudence . Problems with recordkeeping and communication are frequently the basis for dental malpractice claims. Professional liability issues most frequently raised in lawsuits against dentists involve prosthodontics, endodontics, restorative dentistry, diagnosis, and oral surgery (Hapcook, 2006). Charges filed against dental healthcare workers can stem from events ranging from mundane acts or omissions to wrongful death. But not all charges result from breaching laws. Sometimes charges are filed as the result of ethically inappropriate actions. Understanding the difference between what is ethical and what is legal is sometimes difficult. Sometimes malpractice claims involve both ethical and legal violations. The ADA Code of Ethics is a document that reflects the unwritten contract between the dental profession and society. The ADA defines ethics as the principles of the moral code under which the dental profession operates. One example of an ethical violation involves a situation in which a patient is not informed of the available treatment options and therefore cannot make an informed decision. The California Dental Association’s “Code of Ethics” specifically states: Fully informed consent is essential to the ethical practice of dentistry and reflects the patient’s right of self-decision. Except as exempted by state law, a dentist has the obligation to obtain the fully informed consent of the patient or the patient’s legal guardian prior to treatment, or the use of any identifiable artifacts (such as photographs, X-rays, study models, etc.) for any purpose other than treatment. Informed consent is also required when using a human subject for research (California Dental Association, 2017). If the patient is not fluent in a language that the dentist speaks, however, it is not possible for the dentist to obtain fully informed consent. In their Legal Reference Guide, the California Dental Association offers some ideas on how to handle such a situation (Chapter 5, 121: https://www.cda.org/Home/Practice/Practice- Support/Resource-Library/legal-resources-legal-reference-guide- chapter-5-patient-considerations). The dentist is also required to provide a full explanation of treatment. The California Code goes on to state: A dentist has the obligation to fully explain proposed treatment, reasonable alternatives, and the risks of not performing treatment to the patient. The dentist shall explain treatment in a manner that is accurate, easily understood, and allows patients to be involved in decisions affecting their oral health or their participation in a research project (California Dental Association, 2017). The ethical principle of autonomy is also relevant in situations in which the dentist’s ability to comprehend the patient’s request is hindered by a language barrier. In these circumstances, the dentist may be inclined to make unilateral decisions regarding the delivery of care, being unable to completely understand the patient’s communication. Autonomy dictates that the patient has the right to determine what treatment he or she wants to receive. Respect for the patient’s autonomy affirms the doctor- patient relationship and forms the foundation for informed consent. The patient’s right to self-determination is not absolute, however, and it must be weighed against contemporary standards of oral health care (California Dental Association, 2017). Those who violate the California Dental Association Code of Ethics are subject to examination by their local and constituent Providing services on credit According to California Dental Code Section 654.3, a dentist must, before arranging or establishing a loan or credit for dental
societies, typically the peer-reviewed committee of their local society (California Dental Association, 2017). If a satisfactory decision cannot be reached, an appeal is made, and the violation is referred to a higher authority: the Council on Ethics, Bylaws, and Judicial Affairs of the ADA. This procedure was established to ensure that all dentists carry out their professional lives and practices in accordance with the highest standards to which dentistry is held. The internal workings, documentation, and decision of a peer review committee of the California Dental Association are not subject to discovery in civil litigation (Evidence Code 1157.5). This means that if a patient sues a dentist for malpractice after filing a claim with a peer-reviewed committee, the results of peer review are not admissible in that lawsuit. Privacy Electronic communication (email) to patients and other healthcare providers must be secure, and any breaches must be reported according to California Civil Code Section 1798.82 as well as federal law (the Health Insurance Portability and Accountability Act of 1996 [HIPAA] and the Health Information Technology for Economic and Clinical Health [HITECH] Act of 2009). The HITECH Act requires that emails between patients and healthcare providers (including dentists) be encrypted. Advertising With new developments in dentistry and the evolution of both dental and communications technology, dental practices are competing in ever-expanding arenas. Advertising the myriad services that dentists provide can become complex and may confuse the general population. Advertising is defined to include “any written or printed communication for the purpose of soliciting, describing, or promoting a dentist’s licensed activities” (Cal. Code Regs., 2000a). Advertising includes radio, television, and computer network or other electronic transmission, as well as printing on any dental-care or novelty item used to promote a dental practice. The fees for dental procedures may be included in advertising, but the fee schedule must be explicit. The cost for each service must be clearly explained, and any additional service that is not included in the cost must also be disclosed. When a discount is being offered, all terms must be covered, including the amount of time the discount will be available and all the criteria for obtaining it. Any advertisement must be capable of substantiation – in particular, the services offered must actually be delivered, and at the fees advertised. If a dentist chooses to include patients in the advertisement, the patients cannot make claims of the dentist’s professional superiority or discuss any dental condition or their recovery from it. A dental practice that includes the fabrication of dentures in its advertisement must disclose whether the dentures are preformed, custom-made, or immediate, and must include all costs, including the costs of any later-needed services such as relining. Prices may be included for various grades of dentures, provided they are not misleading. If a practitioner claims to be a specialist, his or her credentials must conform to the Board-certified specialties recognized by the ADA and the State of California. These specialties include those overseen by the American Boards of Pediatric Dentistry, Orthodontics, Prosthodontics, Oral Pathology, Periodontology, Endodontics, Oral and Maxillofacial Surgery, and Dental Public Health (Cal. Code Regs., 2016). It is unprofessional conduct and a violation of the Dental Practice Act for a licensee to advertise professional superiority or to advertise the performance of professional services in a superior manner (B&P 1680i). To guarantee a result or to promise that the dentistry will be completely painless is always considered to be deceptive advertising (B&P 1680l).
services, present to the patient for signature a document that contains specific, mandated wording. The document needs to
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