Before they treat patients, dentists learn the principle of nonmaleficence, or “do no harm,” according to the ADA. In other words, dentists have a duty to refrain from harming the patient and to protect the patient from harm.
The primary obligations of dentists include keeping their knowledge and skills current, knowing their lack of experience and when it is appropriate to refer the patient to a specialist or other professional, and understanding when delegating patient care to auxiliaries is appropriate.
In the use of auxiliary personnel, dentists must protect the health of their patients by only assigning duties that can legally be delegated to qualified helpers. Dentists are further required to prescribe and supervise care provided by all auxiliary personnel working under their direction.
LegalDictionary.net defines gross negligence as:
“an act taken without exercising even the most basic amount of care owed to others. Such an act involves a deliberate disregard for the safety or well being of another person. Gross negligence does not refer to actions undertaken with the intent to harm another, but acts for which the perpetrator knew, or should have known, would result in injury or damages to another person. Such acts may be seen by the courts as bordering on intentional conduct, depending on the level of recklessness involved.
Negligence.laws.com loosely defines clinical negligence, also referred to as medical malpractice, as negligence by a medical professional that results in an injury to a patient. Plaintiffs in clinical negligence cases must establish four proven elements:
- The medical professional owed a duty of care to the plaintiff.
- The medical professional breached the duty of care.
- The breach was both the actual and proximate cause of the injury.
- The injury resulted in damages to the plaintiff that are economic (such as medical expenses or compensation for lost work) or non-economic (such as pain and suffering).
Clinical Negligence Case Study #1
An unnamed dentist obtained consent and patient information from an unnamed 33-year-old patient and performed a new patient examination and a prophylactic cleaning in her office.
The filed complaint alleged that the dentist was grossly negligent in the conduct of the new patient examination. It was impossible to tell from the dentist’s records how thorough the examination was because the records did not indicate what was included in the analysis.
The dentist failed to explain why the examination did not meet the standard of care. The accepted standard of care requires new patient exams to include a thorough head and neck examination that provides for bimanual palpation of the sublingual areas, periodontal six-point probing, a blood pressure test if indicated, the status of the temporomandibular joint, full mouth x-rays (if clinically necessary), and notation of medications prescribed or drug reactions and allergies reported in the patient’s past medical history. The findings of each step of the exam must be recorded to establish a baseline for comparison in subsequent examinations.
The dentist failed to follow any standard of care in the examination process and did not document the findings. For example, dentists should monitor any lesion observed in the patient’s mouth for 10 to 14 days and biopsy the lesion or refer the patient to an oral surgeon if it has not healed.
Six months after the initial visit, the patient returned for a maintenance visit. It was noted that the left lateral border of the patient’s tongue was rough. Instructions were not presented to the patient as to the care of the lesion or what actions to take should it not heal. There were no notes on how long the growth had been present. The records list the lesion as “asymptomatic.”
The patient returned for two more maintenance visits six months apart, and the lesion had grown and changed. The patient was not referred to an oral surgeon for a biopsy.
When the lesion had grown more substantial, and it had become painful to eat and to talk, the patient was referred to an oral surgeon. The biopsy revealed cancer. The patient underwent cancer treatment but ultimately died.
The dentist had no prior history of discipline. The discipline for this case did not include any jail time, but the probation period included remedial education and community service.
Clinical Negligence Case Study #2
Luis Ramos, a 36-year-old dental assistant working in an oral and maxillofacial surgery office in San Diego, received 15 years in prison in 2016 for molesting 13 anesthetized patients under his care between January 2015 and January 2016.
Ramos was in charge of the postoperative recovery room, where he monitored patients as they came out of the anesthesia used for their oral surgeries. He was alone with the patients. The victims were all female. A 17-year-old victim was waking up from the anesthesia to find Ramos groping her. Hours of video surveillance of the recovery room corroborated her story, and the investigation discovered many more victims who came forward later. It was uncovered in the inquiry that Ramos had a drug and alcohol addiction that contributed to the behavior.
Ramos’ employer said that he came highly recommended and had a “stellar resume.” At the time, he was licensed and in good standing with the California Dental State Board. Even at that, it is not appropriate for a male assistant or a male dentist be in a treatment room alone with a female patient, anesthetized or awake, especially if there is a door that can be closed for privacy.
The situation was preventable had the dental assistant not had access to vulnerable female patients in a private setting.
Your Management
Even if you have hired who you feel are top notch candidates, the law must be followed regarding the direct or indirect supervision of their work. Giving a trusted dental assistant too much unsupervised freedom can be costly under the wrong circumstances.
Over the long course of their practice, dentists will be responsible for recruiting, vetting, and hiring many dental staff members.
Few dentists have the experience with employment law or with various issues related to human resources management necessary to foresee any problems that may occur in the hiring process. The dentist or dental office administrator must use a source that has the experience, time, and expertise in negotiating the processes of recruiting and vetting employees.
Cloud Dentistry offers and encourages dental professionals to purchase background checks for their potential hires. Licensing for dental professionals varies state by state and country to country, so licenses must be verified against the appropriate state or country database. In today’s technology climate, dentistry has become a smaller world, so using a cloud-based platform for hiring with peer review makes it easier to choose qualified auxiliaries for patient care and safety.
Mr. Tepichin, cofounder of Cloud Dentistry, graduated from Duke University with a BS in biology and economics and a minor in chemistry. He also holds a JD from Harvard Law School.
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