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Chapter 4
Legal and Ethical Issues
in the Dental Business Office
Copyright © 2011, 2006 Mosby, Inc., an affiliate of Elsevier. All rights reserved.
Objectives
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Explain the impact of ethics and law on the
dental business office.
Differentiate between the various types of
law that affect the practice of dentistry.
Describe situations in the dental business
office that would lead to potential litigation.
Describe the code of ethics of professional
dental organizations.
Identify 12 steps in making ethical decisions.
Copyright © 2011, 2006 Mosby, Inc., an affiliate of Elsevier. All rights reserved.
Legal Regulations

The Dental practice act of each state
defines the requirements necessary to
practice dentistry and the scope of dental
practice for that particular state.

Standards for dental care may arise from
both common law (judicial decisions) and
statutory law (enacted by a legislative body)
such as the state dental practice act.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Professional Standards

The dental professional is also governed by
voluntary standards, such as the principles
of ethics, developed and implemented by
the dental profession itself.

Both legal and voluntary requirements and
standards are implemented for the
protection of society and, ultimately, the
patient.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Professional Organizations
Membership in a professional organization is
voluntary, and thus the standards of these
organizations are considered voluntary.
 However, these standards are used as
guidelines in peer review.
 The standards of professional health
organizations reflect the assessment of the
need for dental care and the public’s
expectations for dentistry and its professional
staff to appropriately meet those needs.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Definition of Law
Law consists of enforceable rules governing
relationships among individuals and
between individuals and their society.
 Law implies that there must be established
rules: constitutions, statutes, administrative
agency rules and judicial decisions.
 Rules of law must be enforceable and
establish limits of conduct for government
and individuals in society.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Law Relative to Dentistry

Each state’s board of dentistry has the
responsibility of enforcing laws within the
agency and making rules and regulations
that conform to enacted laws.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Classifications of Law

Civil law
◦ Relates to duties between persons or
between citizens and their government

Criminal law
◦ Wrongs committed against the public as a
whole
Crimes
Wrongdoing against society as a whole is
considered a crime and is prosecuted by a
public official.
 A person or entity that breaks certain laws
may be guilty of a crime whether or not
there was intent.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Classification of Crimes

Classification of a crime includes a
◦ Misdemeanor
 Less serious than a felony
 Punishable by fine or imprisonment of up
to 1 year
◦ Felony
 A more serious crime
 Punishable by imprisonment of more than
1 year
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Torts

A tort is a civil wrongdoing.
◦ A breach of a legal duty
◦ Usually resolved with monetary compensation
◦ Torts: negligence, assault, battery, infliction of mental
distress, defamation, fraud.
Torts may be intentional or unintentional
acts of wrongdoing.
 If intentional, this means that the person
committing the tort intended to commit
the wrongful act.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Intentional Torts

Intentional torts for which a dental
assistant/hygienist/DDS could be held liable
include
◦ Assault and battery
◦ Defamation of character
◦ Invasion of privacy
◦ Immoral conduct
◦ Fraud
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Unintentional Torts

Unintentional torts do not require a
particular mental state.

Failure to exercise a standard of care is an
example of an unintentional tort.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Four Elements of Negligence

Negligence is an unintentional tort that
includes the following four elements:
1.Was there a duty to follow a standard of
care?
2.Was this duty breached?
3.Did the plaintiff suffer injury?
4.Was the injury a direct result of that
breach of duty?
5. Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Negligence

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.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Negligence in the Dental Office

Potential negligent acts in the dental office
◦ Abandonment
◦ Burns
◦ Mistaken identity
◦ Materials left in patients after surgical
procedures
◦ Defects in equipment
◦ Failure to observe patient reactions and take
appropriate action
◦ Extracting the wrong tooth
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Negligence in the Dental Office

Potential negligent acts
◦ Medication errors
◦ Failure to exercise good judgment
◦ Failure to communicate
◦ Loss of or damage to a patient’s personal property
◦ Disease transmission
◦ Failure to inform patients of conditions in the mouth
◦ Failure to expose radiographs before surgical
procedures
◦ Improper assignment of duties
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Malpractice
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.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Litigation

Litigation is the process of a lawsuit (a legal
action in a court) brought about by a
plaintiff against a defendant.
◦ The person or party that institutes the
suit in court is the plaintiff.
◦ The person being accused of the
wrongdoing is the defendant.
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Fact Witness

During litigation proceedings, a fact witness
provides only firsthand knowledge about
what he or she saw or did during a specific
act.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Expert Witness

A person called to testify and give an
opinion regarding whether standard of care
was breached based on his or her
educational background and strong
expertise is known as an expert witness.

A strong knowledge of dental law and
dental standards, as well as an
understanding of malpractice liability, is
beneficial in such cases.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Dental 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 are identified in the state dental
practice act.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Scope of the Dental Practice Act

This act defines the minimum educational
standards, requirements for credentialing,
and the criteria for license revocation or
suspension for a dentist, dental hygienist,
and, in several states, the dental assistant.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Scope of the Dental Practice Act
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.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Terminology

Examples of terminology
◦ Patient of record
 One who has been examined and diagnosed by a
licensed dentist and whose treatment has been
planned by the dentist
◦ Assignment*
 A specific procedure is assigned the auxiliary to
be performed on a designated patient of record.
 For certain procedures, the dentist does not
need to be in the office or treatment room.
• *May vary from state to state.
•
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Terminology
Direct supervision*
 Dentist is physically in the office at the time the
procedures are performed and examines the
patient before and after the procedure.
General supervision*
 Dentist has designated a patient of record upon
whom services are to be performed. The dentist
shall be physically present in the office during the
performance of the procedures.
• *May vary from state to state.
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•
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Professional Standards

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.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Accreditation

Accreditation is the process by which an
educational program is evaluated and
recognized by an outside agency for having
attained a predetermined set of standards.

In dentistry, the Commission on Dental
Accreditation of the American Dental
Association is responsible for accrediting
educational programs in dentistry, dental
assisting, dental hygiene, and dental laboratory
technology.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier
Certification

Certification requires prerequisites
involving education and clinical experiences.
◦ It measures whether the person has met
certain criteria established by a
nongovernment organization.
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Licensure
Licensure is the credential granted an
individual by the state after meeting
necessary requirements.
 Licensure is intended to protect the
consumer.
 Requirements may include a

◦ Written examination
◦ Clinical examination
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Code of Ethics
Ethics is a branch of philosophy and is a
systematic, intellectual approach to the
standards of behavior.
 A professional code of ethics helps
members of the profession achieve high
levels of behavior through moral
consciousness, decision making, and
practice by members of the profession.
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
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
ADA Principles of Ethics
and Code of Professional Conduct

Each organized group within the profession
of dentistry, including the ADA, ADAA
(American Dental Assistants Association),
and ADHA (American Dental Hygienists’
Association), has developed a code of
ethics for its members.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Ethical and Legal Considerations
for the Administrative Assistant

Ethical and legal decisions may change as
laws and societal influences affect the
delivery of dental care.

The administrative assistant must
constantly be vigilant of the changes taking
place in laws affecting dentistry.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Ethical and Legal Considerations
in the Dental Office

Common business activities that lead to
potential litigation
◦ Making false accusations about another person
in verbal or written communication
◦ Providing another party or agency with
confidential information without consent
◦ Entering inaccurate data on patient records
◦ Duplicating copyrighted material without
permission
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Ethical and Legal Considerations in
the Dental Office
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Using unauthorized software
Gaining access to computer data illegally
Malicious or deliberate damage to data in a
computer
Falsely entering data on insurance claims
Failure to follow federal or state disease
transmission or waste management regulations
Failure to maintain accurate local, state, or federal
government records
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Assignment of Duties
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It is the responsibility of the licensed
dentist to assign specific procedures to
dental auxiliaries.
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Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Legal Assignment of Duties

If a duty that is illegal within the state is
assigned to the dental assistant, the dentist
is liable for this illegal action.

Further, if a dental assistant performs a
procedure that is not legally delegable to be
performed by the assistant, the assistant is
liable for such action.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Factors to Consider
in the Assignment of Duties

Before assigning duties to staff members
◦ Review appropriate credentials.
◦ Retain credentials on file.
◦ Avoid employer-employee conflict in
assignment.
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Consent

Consent is the voluntary acceptance or
agreement of what is planned or done by
another person.

Two forms of consent exist in the delivery
of dental care: informed and implied.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Informed Consent

The basis for the concept of informed
consent is that every adult of sound mind
has the right to determine what can and
cannot be done with his or her body.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Conditions of Informed Consent

Conditions surrounding informed consent
include the following:
◦ Must be freely given
◦ Information about the procedure, treatment,
and diagnosis must be in understandable
language.
◦ Risks and benefits, estimate of success,
alternatives, and choice and prognosis of no
treatment
◦ The patient has the right to ask questions.
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Consent and State of Mind

For consent to be legally valid, the patient
must be an adult of sound mind.
◦ Persons under the influence of alcohol, drugs, or
severe stress may not have sufficient capacity to
give consent for treatment.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Consent for Minors
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When treating a minor, only the parent or
guardian may grant consent; this excludes
grandparents, babysitters, and siblings.
◦ Parents may authorize another party to grant
consent for treatment during their absence, but
this must be done prior to treatment.
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Implied Consent

Agreements that flow automatically from
the relationship between the patient and
the dental professional fall under the
category of implied consent.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Implied Consent Responsibilities

Implied consent responsibilities work in two
ways―those that the dentist owes to the patient
and those that the patient owes to the dentist.

Accepting a patient for treatment implies that the
dentist agrees to accept certain responsibilities for
that patient’s dental care.

Likewise, if a patient agrees to accept treatment by
the dentist, it is considered that the patient assumes
certain responsibilities.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Implied Duties Owed by the DDS to the Patient
Use reasonable care in the provision of
services.
Be properly licensed and registered.
Obtain an accurate medical history prior to
patient treatment.
Obtain informed consent.
Refrain from abandoning the patient.
Charge reasonable fees.
Do not do procedures that one is not qualified
for
Copyright © 2011, 2006 Mosby, Inc., an affiliate of Elsevier. All rights reserved.
Implied Duties Owed by the Patient
to the DDS
Cooperate in your care by following
home care or other reasonable
instructions, take medications as
prescribed, show up for recalls.
 Keep appointments.
 Provide honest answers on the health
history form.
 Remit the fee for services within a
reasonable amount of time.

Copyright © 2011, 2006 Mosby, Inc., an affiliate of Elsevier. All rights reserved.
Informed Refusal

A patient may decline a recommended
procedure or referral from a dentist.

An office should document this refusal for
recommended care in writing.

Not all courts recognize informed refusal.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Managed Care

Managed care refers to a cost-containment
system of healthcare insurance.

Limitations imposed by managed care
companies generally are directed at
payment for services, but the policies may
also limit the actual services received by a
patient.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Managed Care

Managed care systems raise several legal
and ethical issues for the dentist and
healthcare professional.

For the patient’s interest to be protected,
the dentist must be relied on to adhere to
both legal and ethical principles.

Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Risk Management Programs

Risk-management programs aid the dental
professional in identifying, analyzing, and
dealing with risks in the dental office.
◦ Topics include information on operating
safety, product safety, quality assurance,
and waste disposal.
◦
Finkbeiner, 2011, Practice Management for the Dental Team, Mosby-Elsevier.
Risk Management Topics

Topics covered during a risk management
program may include
◦ Abandonment
◦ Fraud
◦ Records management
◦ Defamation of character
◦ Negligence
◦ Invasion of privacy
Abandonment

Abandonment is defined as the severance of
a professional relationship with a patient
who is still in need of dental care and
proper transfers or referrals.
Fraud

Fraud is a deception that is deliberately
practiced in order to secure unfair or
unlawful gain.
Records Management
Nothing can be more valuable in defending
against potential litigation than adequate
records.
 Thorough, accurate, and objective
documentation is your best defense in
litigation.

Defamation Of Character

Defamation of character is the
communication of false information to a
third party about a person that results in
injury to that person’s reputation.
◦ Such communication can be verbal (slander) or
written (libel).
Proving Negligence

To prove negligence, the plaintiff must show
that there was an obligation to provide care
according to a specified standard; that there
was failure to meet that standard, that the
failure to meet the standard led to injury,
and that there was in fact an actual injury
to the patient.
National Practitioner Data Bank

The National Practitioner Data Bank is a
central repository to collect and release
information on professional competence
and conduct.
◦ The repository includes information on paid
malpractice claims and adverse reports of healthcare
licensees.
Invasion of Privacy

Invasion of privacy is a tort that refers to a
number of wrongs involving the use of
otherwise private information.
Invasion of Privacy

Invasion of privacy may involve
◦ Publishing, making known or using
information relating to the private life or
affairs of a person without that person’s
approval or permission
◦ Prying into private affairs
◦ Appropriating the plaintiff’s identity for
commercial use
Good Samaritan Law

The Good Samaritan law is legislation that
grants immunity for acts performed by a
person who renders care in an emergency
situation.
◦ This law does not provide protection for a
negligent healthcare provider who is being
compensated for services.
Americans with Disabilities Act

The Americans with Disabilities Act
identifies five categories of persons who
are protected from discrimination.
1. Persons whose physical or mental
impairment substantially limits one or
more major life activities
2. Persons who have a record of
impairment
Americans with Disabilities Act
3. Persons who, while fully functional and
not actually disabled, are regarded as
having such an impairment due to
severe disfigurement
4. Persons who are discriminated against
because they have a known association
or relationship with a disabled
individual
5. Persons who currently participate in or
who have completed a drug or alcohol
rehabilitation program
Computer Security

Computer security refers to safeguards that
are implemented to prevent and detect
unauthorized access or deliberate damage
to a computer system and data.
Computer Crime
A
computer crime is the use of a
computer to commit an illegal act.
◦ In a dental office, the most common
activity that would violate computer
integrity is software theft, or piracy.
Twelve Steps to Making Ethical Decisions
1.
Perform only duties that are legally
delegated.
2.
Obtain necessary credentials.
3.
Perform requested tasks competently.
4.
Practice safely.
5.
Inform the patient about treatment.
6.
Respect the patient's rights.
Twelve Steps to Making Ethical Decisions
7.
Maintain complete and accurate records.
8.
Maintain professional liability insurance.
9.
Participate in risk-management programs.
10.
Maintain ethical and legal standards.
11.
Maintain current knowledge of your state’s
Dental Practice Act.
12.
Participate in your professional
organization.