CIVIL LAW AND THE DENTIST

Chapter 3

CIVIL LAW –

Civil law covers the lawsuits between 2 individuals. Most often a lawsuit is caused by one person who feels wronged (plaintiff) and the person they are seeking restitution from (defendant).

There are 2 Divisions of Civil Law: Contract Law and Tort Law

A. Contract Law –

When two or more people or party's make and agreement, also called a contract, their contract is covered under the Contract Law division of the legal system. Examples of contract law would be: Breach of contract, Fee for service rendered, services to a patient. Not all contracts are formalized in dentistry.

There are 3 elements of a valid contract:

1.     Everyone in the agreement must be legally competent.

a)     Example: A minor is not considered to be legally competent.

·        In dental offices, it is common to have a teenage patient come in without their parent. Usually they are coming straight from school. It is important that before any treatment is started, that a parent or guardian consents to the treatment.  

b)    The persons signing a contract must be legally able to sign a contract.

·        If a person is mentally challenged, is under the influence of medications, is a minor, is not a legal guardian, is not able to understand theinformation and treatment you are recommending, etc, then they may not legally be able to sign a legal and binding contract.

2.     The agreed upon Act must be legal.

a)     When entering into an agreement with another individual, if a person wants to ensure that the other party will follow through with the agreement, then each party should be sure first that they are agreeing on something that is legal.

3.     Consideration must be involved. 

a)     Money or services in exchange for services rendered must change hands. If services are provided for free, there is no legal contract.

·        There are many clinics that provide free dental care. If a patient receives treatment and they are not happy with the end result, the dentist

·        If a patient has treatment done and (s)he and the doctor agree on an exchange of service instead of a cash exchange, they have created a legal contract. This type of payment system always brings to mind a trip I made to Indonesia years ago. In that country it was common to receive payment in the form of farm animals, such as chickens. In the US it is more likely another professional who performs a service that is equitable to that which the dentist performs, thus creating a win-win situation for both parties.

·        Dentists who perform treatment for a fee are legally bound to provide good care that brings no harm to the patient or the patient's teeth.  Having said that, dentists are still ethically bound to provide good care whether a patient pays or not. Remember that a person's ethical standards are their highest standard.

b)    If a patient has failed to pay the agreed upon fee, it is still considered a legal contract. Because a fee was agreed upon by both parties. 

Breach of Contract:

1.     When two parties come to an agreement, whether written or oral and one party feels that the other has failed to keep their part of the agreement, the failing party is in Breach of Contract. 

2.     As a dental assistant you will play a vital role in documenting patient's visits. Both the doctor and his staff's documentation of the dentist's actions regarding the fulfillment of an agreement will protect him/her in the event that a patient is not happy with their care.

3.     There are four defenses against the charge of Breach of Contract:

a)     Fulfilling the requirements agreed upon.

·       By documenting all treatment that was proposed, agreed upon, and performed, as long as it fulfills the agreement that was made betweenthe dentist and his/her patient, you have a strong defense against a breach of contract.

·       When working with the public, it is difficult to get everyone to see the end result of the planned treatment in the same way. If a dentist has a patient with badly decayed and crooked front teeth, he may recommend either crowns, veneers, or a bridge. What often happens is the patient becomes very excited at the prospect of having new, pretty, straight, white teeth. They imagine them as they want them to be, not necessarily as they will be. The dentist often tries to inform the patient that their teeth will still be crooked when treatment is complete, but the patient has ideas of their own. In the end, the patient receives beautiful new teeth that are still crooked, and the patient is not happy.  The patient may not be able to see the improvements because they can only see the things that are still the same. This type of communication breakdown has brought many-a-fine dentist to the court room to defend their practices. It is very important to document discussions with the patient so that there is proof that the possible outcomes of the recommended treatment were addressed from the beginning.  

b)    If the patient does not provide opportunity to satisfy the agreement, the dentist is not in breach of contract.

·        Last year my sister had her wisdom tooth out and had a piece of bone come through her tissue about 4 weeks later. She called her dentist checked. My sister did not go to her appointment because she felt better by the time the appointment date arrived. She did not provide the opportunity for the dentist to potentially satisfy their agreement and placed herself in breach of contract. If anything further had occurred, my sister had also placed herself outside of that doctor's care by not following through with her end of the agreement.

·        When a patient calls to cancel an appointment and does not want to reschedule or if the patient does not show up for an appointment, it is very important that it is documented in their chart. In this case the patient again places him or herself in breach of contract and the dentist is not liable for not fulfilling the terms of agreement. The patient has withdrawn from the contract.

c)    When a patient fails to return to the dental office for recommended treatment, they withdraw from their contract.

·        As soon as a dentist agrees to take on a new patient, (s)he places him/her self in contract with that person and is obligated to care for their dental needs until there comes a point where the dentist chooses to legally release that patient from his or her care. However, if a patient choose not to follow the doctor's recommendations, the patient removes them self from the doctors care.

d)    If a patient fails to follow the instructions of the dentist he is in contributory negligence.

·        A few years ago I was working for a dentist who had just placed a 6 unit porcelain bridge on a gentleman's upper front teeth (#6-#11).  The patient was thrilled with his bridge, which had taken him quite a while to save enough money for.  After the bridge was cemented and the patient was given his post-operative instructions, he went out to celebrate with his buddies and decided to try out his new teeth by opening a beer bottle with them. He broke the porcelain completely off of all six teeth. The next day he was back at our office wanting the doctor to repair the bridge for free. He felt that he was not given proper instructions advising him that his new porcelain (glass) teeth were breakable and that he should not open beer bottles with them. Of course we had documented the conversation regarding how to care for a porcelain bridge on the day that we cemented it and the gentleman was told he would have to pay for another bridge from his own money. He ended up suing my boss and lost. 

B. Tort Law –

The rights and duties of people towards each other (human rights) and wrongs committed in violation of these rights and duties. Tort is a wrongful act in which the injured party can seek recovery for damages in a civil action. 

In dentistry we have a professional duty to our patients. If something goes wrong or if a patient is unhappy with their care or treatment, it will involve Tort Law.

There are 4 "D's" of Tort Law. Each of the four elements ("D's") must be present for a Tort to be considered to have been committed.

1.     Duty 

a.     A legal duty must be owed by one person to another person.

b.     Dentists have a legal professional duty to their patients.

2.     Dereliction

a.     Failure to perform, abandonment or intentional neglect by one of the parties.

b.     Once a dentist agrees to treat a patient and/or take them as a patient they are obligated to care for that patient from that point on (unless the treatment was free). A dentist must be available to treat the patient as well. If a dentist leaves town without someone else standing in for them in their absence, this can be considered abandonment. Or if a dentist moves to another state, and does not provide the patients with information as to who will be taking over their care, or letting the patient know that (s)he will no longer be able to care for their dental needs, this can be construed as abandonment. It is expected that a dentist who no longer wishes to treat a patient will send a letter stating that they are releasing the person as a patient. It is also expected that the patient be given sufficient notice to find another dentist who can take over their care. To stop care without notifying the patient first is considered abandonment.

3.     Damage  

a.     When the plaintiff (patient) is hurt by the defendant (dentist) it is considered a breach of duty. This does not always mean a physical injury was received.

4.     Due to

a.     The plaintiff must prove that there was damage from the defendant's actions or lack of actions.

b.     In dentistry, this must be the direct cause of a patient's injury.

Ethical and Legal Requirements:

1.     A dentist cannot reject a patient for reasons such as race, health status (HIV, HBV, etc), handicaps, or income (welfare).

2.     If a dentist does not have the proper facility (wheelchair accessible) or is not qualified, trained, or otherwise unable to treat a patient, they can refer them out (example: sedative reasons). 

EMERGENCY NEW PATIENT: If a New Patient(NP) comes in with an emergency, a dentist is not legally bound to provide treatment. This is where ethics comes in to play. There may be a legal obligation depending on the circumstances. This is in regards to NP's only and not patient's of record.

PATIENT OF RECORD: The dentist is obligated to provide emergency treatment to this patient. Once they are accepted as a patient by the dentist, the dentist is bound to provide care for them.

So does this mean that if a patient calls in the middle of the night with a toothache, the dentist must run down to the office to provide immediate care? No. The dentist can send the patient to the hospital emergency room as well. Most dentists leave their home number on their office answering machines for emergency situations. Patients are usually respectful and only use the number for emergencies only.

LIABLE:  The dentist is held responsible for actions to his or her patients.

There are five ways that a dentist is held responsible:

1.     Breach of contract

2.     Maligning a patient – damaging their reputation

a.     Slander – words that are spoken and that defame the patient

b.     Libel – words put in writing that defame the patient

c.      In both of these cases, the dentist is also held responsible for what his staff says regarding the dentists patients. It is common for dental staff to go out to eat together during their lunch break. It is also common for them to speak about their day and the patients that they saw. During these luncheons, it is very important that patient names are never used in public. I have heard stories countless times of staffs that were talking about one of their patients while out to eat and a patients friend or relative was sitting in the next table over hearing the entire conversation. This has become an even greater concern with the new HIPAA laws that are in existence just to protect peoples privacy.

3.     Dentists are help responsible for permitting a hazard in their dental office. Whether they are personally responsible or not.

a.     Wet floors or loose rugs which people can slip, trip, or fall on.      

b.     Tripping over equipment – power cords and dental equipment hoses and rheostats are notorious for tripping people or tangling with their feet.

c.      Instruments (dull or worn) breaking while in use – even the newest endodontic drill can break off in the canal of a tooth. But if the dentist is using faulty, old, or worn equipment and it causes injury they are held responsible.

d.     X-ray head hitting patient. Anyone who has taken an x-ray understands this risk. X-ray arms and heads are notorious for floating and getting too close for comfort with the patient. However, if we sit a patient up or down and leave our x-ray equipment in line with their head, and cause injury, they have the right to take legal action against us.

e.      Patient light falling on the patient. I have actually seen this happen. The light was suspended from the ceiling and it came loose and smacked the patient. Luckily no one was hurt and the doctor quit fixing his own equipment. Thank goodness!

4.     Technical assault

a.     Intentional or unintentional contact with a person that was not consented to.

b.     In the dental office a patient consents to contact when they agree to treatment.

c.      A few years ago in Springfield, a patient was unhappy with his bill and his treatment and hauled the dentist over his front reception desk and beat him up. The dentist spent time in the hospital and the patient was brought up on technical assault charges and went to jail. This is a very rare occurrence.

5.     Malpractice

a.     Professional misconduct

b.     Unreasonable lack of skill 

·        Dentists are expected to keep up with the level of skill found in the area in which they practice. That is why dentists must participate in continuing education to keep up their skills as well as find out about the latest technologies and materials.

·        A dentist may not practice orthodontia on patients if (s)he does not have the proper training. 

c.      Lack of fidelity (faithfulness) in performing duties

d.     Practice contrary to established rules