Jurisprudence and Legal Concepts in Dental Hygiene

Core Review

Sources of Law Affecting Dental Hygiene

1. Statutory Law (Dental Practice Act)

• Each state has a Dental Practice Act that defines the practice of dentistry and dental hygiene
• Establishes the scope of practice for dental hygienists
• Defines licensure requirements, grounds for disciplinary action, and penalties for violations
• Creates the state board of dentistry to administer and enforce the Act
• The NBDHE tests general principles; specific state laws vary

2. Administrative Law (Rules and Regulations)

• Rules promulgated by the state board of dentistry to implement the Dental Practice Act
• More detailed than the statute itself (specific supervision requirements, continuing education requirements, infection control standards)

3. Common Law (Case Law)

• Legal principles established through court decisions
• Includes tort law (negligence, malpractice, battery) and contract law
• Precedent: lower courts must follow the decisions of higher courts

Standard of Care

Definition: The standard of care is the level of care that a reasonably prudent dental hygienist (or dentist) with similar training and experience would provide under similar circumstances in the same or a similar community.

Key concepts:

• The standard is what a REASONABLE and PRUDENT clinician would do, not what the BEST clinician in the world would do
• The standard is based on the clinician's training and education — a specialist is held to a higher standard in their area of specialty than a general practitioner
• The standard evolves over time as knowledge and technology advance — it is not static
• A clinician is NOT expected to guarantee good outcomes — only to provide care that meets the standard

How the standard of care is established in court:

• Expert witness testimony (most common): a qualified expert describes what a reasonably prudent clinician would have done
• Published standards and guidelines (ADA, ADHA, CDC, professional textbooks)
• State practice acts and board regulations

Violation of the standard of care = breach of duty, which is an element of negligence.

Negligence and Malpractice

Negligence: The failure to exercise the standard of care that a reasonably prudent person would exercise in similar circumstances. Negligence is a general legal concept not limited to healthcare.

Malpractice (Professional Negligence): Negligence committed by a professional (dentist, dental hygienist, physician, etc.) in the course of their professional duties.

Four Elements of Negligence/Malpractice — ALL FOUR must be proven:

1. Duty: The clinician owed a duty of care to the patient. This is established by the clinician-patient relationship. Once a patient is accepted for treatment, a duty is owed.

1. Breach of Duty: The clinician failed to meet the standard of care. The care provided fell below what a reasonably prudent clinician would have provided. This is the element that expert testimony typically addresses.

1. Causation: The breach of duty caused the patient's injury. Two sub-elements:
   • Cause in fact: "But for" the clinician's breach, would the injury have occurred?
   • Proximate cause: Was the injury a foreseeable consequence of the breach?

1. Damages: The patient suffered actual harm (physical injury, financial loss, pain and suffering). Without damages, there is no viable claim, even if negligence occurred.

Example: A dental hygienist fails to review the medical history and treats a patient on warfarin without checking the INR. The patient experiences prolonged, uncontrolled bleeding requiring emergency department treatment.

• Duty: The hygienist-patient relationship existed.
• Breach: Failing to review the medical history before treatment falls below the standard of care.
• Causation: The failure to identify anticoagulant use led to treatment without appropriate precautions, which directly caused the bleeding.
• Damages: The patient experienced physical injury requiring emergency care.

Common grounds for malpractice claims in dentistry:

• Failure to diagnose (periodontal disease, oral cancer)
• Nerve injury (inferior alveolar, lingual nerve during anesthesia)
• Treatment without informed consent
• Failure to refer to a specialist
• Infection control breaches
• Foreign body aspiration or ingestion
• Adverse drug reactions (failure to review medical history)

Intentional Torts

Unlike negligence, intentional torts require intent (the act was intentional, even if harm was not intended):

Battery: Harmful or offensive touching of a person without their consent. In dental hygiene, treating a patient without consent or treating a different tooth/procedure than what was consented to may constitute battery.

Assault: Creating a reasonable apprehension of harmful or offensive contact. Threatening a patient with harm.

False Imprisonment: Restraining a patient against their will without legal justification.

Defamation: Making false statements that harm a person's reputation. Libel = written; slander = spoken.

Informed Consent (Legal Perspective)

From a legal standpoint (complementing the ethical discussion in the ethics module), informed consent has specific legal requirements:

• Consent must be INFORMED: The patient must be told: diagnosis, nature and purpose of the procedure, risks (material risks — those a reasonable patient would want to know), benefits, alternatives, and consequences of no treatment
• Consent must be VOLUNTARY: Not obtained through coercion or undue influence
• Patient must have CAPACITY: Legal and mental ability to make the decision
• Failure to obtain informed consent: Can be grounds for a battery claim (no consent at all) or a negligence claim (consent obtained but disclosure was inadequate)

Documentation

The legal adage is: "If it is not documented, it did not happen." From a legal perspective, the patient record is the primary evidence of what occurred.

Legal requirements for documentation:

• Contemporaneous: Record at the time of treatment or immediately after. Late entries must be clearly marked as such.
• Accurate: Factual, objective, complete. Do not use white-out or erase. Corrections should be made by drawing a single line through the error, writing "error," initialing, and dating.
• Legible: Another clinician should be able to read and understand the record.
• Comprehensive: Should include assessment findings, diagnoses, treatment planned and delivered, patient education, informed consent, medications administered, and any adverse events.
• Patient access: Patients have the legal right to access their records (HIPAA).

What should be documented:

• Medical history review (including updates at each visit)
• Vital signs
• Extraoral and intraoral examination findings
• Periodontal charting
• Radiographic findings and interpretation
• Dental hygiene diagnosis
• Treatment plan and informed consent
• Treatment rendered (specific tooth numbers, surfaces, procedures)
• Patient education and instructions
• Recommended follow-up and recall intervals
• Any adverse events or complications
• Canceled or missed appointments
• Referrals made
• Informed refusal (if applicable)

Abandonment

Definition: The unilateral termination of the clinician-patient relationship by the clinician without:

1. Giving the patient reasonable notice
2. Providing for an orderly transfer of care (referral to another clinician)
3. Ensuring the patient's condition is stable (not in active treatment requiring immediate care)

What constitutes abandonment:

• Dismissing a patient in the middle of active treatment without arranging for completion of care
• Failing to provide emergency coverage or an alternative when the practice is closed
• Refusing to see a patient for continuing care without notice
• Dismissing a patient without providing a reasonable opportunity to find a new provider

What does NOT constitute abandonment:

• Properly dismissing a patient with written notice (typically 30 days), offering to transfer records, and providing emergency coverage during the notice period
• The patient choosing not to return (patient-initiated termination)
• The patient moving away
• Completion of the treatment plan (the relationship naturally concludes)

Safe patient dismissal protocol:

1. Document the reason for dismissal (e.g., repeated no-shows, non-compliance, non-payment, disruptive behavior)
2. Send written notice to the patient (certified mail recommended) providing:
   • The reason for dismissal
   • A reasonable period (typically 30 days) during which emergency care will be provided
   • An offer to transfer records to a new provider
   • A statement that the patient should seek a new provider
3. Do NOT dismiss the patient in the middle of active treatment — complete the current phase of care or arrange for transfer
4. Do NOT withhold records for unpaid bills (this may itself violate state law)

Scope of Practice

Definition: The range of procedures, services, and functions that a dental hygienist is legally authorized to perform. Scope of practice is defined by the state Dental Practice Act and varies from state to state.

Key scope of practice concepts:

• Direct Supervision: The dentist must be physically present in the office when the hygienist performs procedures. The dentist must diagnose and treatment-plan before the hygienist provides care.

• General Supervision: The dentist must diagnose and authorize treatment, but does not need to be physically present while the hygienist performs authorized procedures.

• Indirect Supervision: The dentist must be in the facility but not necessarily in the treatment room.

• Direct Access: The hygienist may provide certain services without prior dentist authorization or supervision. This varies significantly by state.

• Collaborative Practice: An arrangement where the hygienist may practice with a written collaborative agreement with a dentist, without direct supervision.

Procedures commonly within dental hygiene scope:

• Patient assessment (medical/dental history, vital signs, intraoral/extraoral exam, periodontal charting)
• Scaling and root debridement
• Fluoride application
• Sealant placement
• Radiographic exposure
• Oral hygiene instruction
• Nutritional counseling
• Tobacco cessation counseling

Procedures that may or may not be within scope (varies by state):

• Administration of local anesthesia
• Administration of nitrous oxide
• Placement of temporary restorations
• Suture removal
• Impressions for study models
• Laser therapy

Practicing Outside Scope: Performing procedures not authorized by the state Dental Practice Act constitutes practicing dentistry without a license — a serious offense with potential criminal and civil penalties, plus board disciplinary action.

Mandatory Reporting

Dental professionals are mandatory reporters — legally required to report certain situations:

Child Abuse and Neglect:

• In all 50 states, dental professionals are mandatory reporters
• Report suspected abuse or neglect to child protective services or law enforcement
• The standard is REASONABLE SUSPICION, not proof
• Failure to report can result in criminal penalties and civil liability
• Signs of abuse: unexplained bruises/injuries, injuries at different stages of healing, injuries inconsistent with the reported history, fear of parents/caregivers, neglected appearance, untreated dental disease indicating medical neglect

Elder Abuse and Neglect:

• Many states require reporting of elder abuse
• Adult Protective Services is the typical reporting agency

Infectious Diseases:

• Selected communicable diseases must be reported to public health authorities (varies by state)
• Tuberculosis, syphilis, hepatitis, HIV (some states)

Licensure and Discipline

Licensure: The state grants a license to practice based on meeting specific requirements (education, examination, background check). The license is a privilege, not a right.

Grounds for disciplinary action by the state board:

• Fraud or misrepresentation in obtaining a license
• Conviction of a crime related to the practice of the profession
• Substance abuse impairing professional performance
• Unprofessional conduct
• Gross negligence or incompetence
• Violation of the Dental Practice Act or board rules
• Practicing beyond scope of practice
• Failure to maintain infection control standards
• Sexual misconduct with patients

Possible disciplinary actions:

• Reprimand (formal censure)
• Probation (practice monitored)
• Suspension (temporary loss of license)
• Revocation (permanent loss of license)
• Fines
• Mandatory continuing education or remediation

Clinical Application

A dental hygienist treats a patient for quadrant scaling. During treatment, a #15 curette tip fractures and a small piece is lost in the patient's mouth. The hygienist cannot locate the fragment despite careful inspection. The patient is not informed. The patient develops a persistent cough and later is found to have aspirated the fragment, requiring bronchoscopy for removal.

Legal analysis:

• Duty: Established by the clinician-patient relationship
• Breach: (1) Potentially using excessive lateral pressure on the instrument (technique error leading to fracture), (2) Failing to inform the patient (failure to disclose — battery/informed consent violation), (3) Failing to take a post-procedure radiograph or refer for evaluation (substandard care)
• Causation: The aspiration of the instrument fragment is directly linked to the clinician's actions and failure to inform
• Damages: The patient required an invasive medical procedure and experienced harm

Correct approach: Inform the patient immediately if an instrument fractures. Take radiographs to locate the fragment. Document the event. Refer for medical evaluation if not recovered. This is a "never event" that should be disclosed honestly (veracity) and managed appropriately.

Common Traps

• TRAP: Thinking that a bad outcome automatically means malpractice occurred. Bad outcomes can occur even with perfect care. The key is whether the standard of care was met — not whether the outcome was ideal.
• TRAP: Confusing battery and negligence. Battery = lack of consent (intentional tort). Negligence = failure to meet the standard of care (unintentional).
• TRAP: Assuming scope of practice is uniform across states. It is NOT. The NBDHE tests general principles, not state-specific laws, but you should know that scope varies.
• TRAP: Thinking that a signed consent form is a complete defense against a malpractice claim. Informed consent is a process and a defense against battery, but not against negligence. A patient can consent to treatment and still sue for negligent care.