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CHAPTER 10 Records and Legal Responsibilities 391 Simpo PDF Merge and Split Unregistered Version - http://www.simpopdf.com Fig. 10-14 A, Before injury. B-D, Student who was burned by an inadequately maintained hand piece that over- heated. This lawsuit settled for $280,000. Dentist's Liability for Staffs' Overuse of antibiotics risks resistant-strain development Acts or Omissions and side effects. Studies demonstrate generally no increased therapeutic efficiency of endodontic therapy with antibiotics A dentist is liable for the acts or omissions of the dentist's when performed in the absence of facial swelling.68 Unless staff under the doctrine of respondeat superior ("let the persistent infections occur or compelling systemic reasons master answer"). This is termed vicarious liability, which exist (e.g., uncontrolled diabetes, antibiotic prophylaxis nec- means that the dentist is responsible, not because he or she essary because of mitral valve regurgitation), antibiotics did anything wrong personally, but because the dentist should not be prescribed prophylactically.21a Neither pain nor assumes legal responsibility for the conduct of employees and localized swelling justify antibiotics. However, extraoral agents who act in the course and scope of their employment. swelling, cellulitis, or lymphadenopathy may require sur- The dentist should instruct the staff in advising patients gical drainage or antibiotics or both. The Centers for Disease regarding posttreatment complaints. For example, if the staff Control and Prevention (CDC) estimates about one third of ignores signs of infection, such as difficulty in swallowing all antibiotic outpatient prescriptions are unnecessary. 6 or breathing or elevated temperature, and dismisses the 392 PART ONE The Art o fEndodontics Simpo PDF Merge and Split Unregistered Version - http://www.simpopdf.com patient's complaints as normal postoperative swelling, the except on the grounds of race or disability.* If treatment dentist may be held liable for injury to the patient, such as is limited to emergency measures only, the clinician delayed cellulitis, diagnosis or treatment of Ludwig's angina, must advise the patient that only temporary emergency brain abscess, or other serious complications. endodontic therapy is being provided and that endodon- A clinician must be cautious when delegating responsi- tic treatment is incomplete. The clinician should record bilities and give clear instructions to ensure that staff prop- this information in the patient's chart. For example: erly represent the clinician and the chosen practice methods. "Emergency palliative treatment only. Patient advised Auxiliaries should not be allowed to practice beyond their endodontic treatment of tooth no. 8 needs to be completed, competency level or license. For example, in states where either here or with another dentist. Explained complications legally permissible, the dentist should check an assistant- likely if not soon completed, including infection recurrence placed restoration before patient dismissal. Staff members or tooth loss or both." should not make final diagnoses or handle patient clinical The patient should also be asked to acknowledge that complaints without the dentist's involvement. Staff should be treatment is limited to the existing emergency by endorsing instructed to ask appropriate questions and to relay the an informed consent to emergency endodontics statement as patient's answers to the dentist so that the dentist can deter- follows: mine what should be done. "I agree to emergency endodontic treatment of my tooth no. 8 and have been advised that (1) emergency treatment is for temporary relief of pain and (2), further root canal treat- Abandonment ment of tooth no. 8 after emergency treatment is necessary to Once endodontic treatment is initiated, the dentist is legally avoid further complications, including, but not limited to, obligated to complete the treatment regardless of the pain, infection, fracture, abscess, or tooth loss." patient's payment of any outstanding balance. This require- 2. No legal duty requires a dentist to continue treating ment is posited on the legal premise that any person who former patients on recalls or subsequent emergency care attempts to rescue another from harm must reasonably com- once treatment is complete. Thus completion of endo- plete the rescue with beneficial intervention, unless another dontic treatment for tooth no. 19 does not legally obli- rescuer (i.e., dentist) is willing to assume the undertaking.* gate the dentist to initiate endodontic therapy for tooth Another view is that should a patient be placed in a position no. 3, if endodontic disease began months after the clin- of danger unless further treatment is performed, the dentist ician completed treatment of tooth no. 19. must institute reasonable therapeutic measures to ensure that 3. Any patient may be discharged from a practice for any adverse consequences do not result. arbitrary reason, except on the grounds of race or dis- A dentist performing endodontic therapy should have ability, so long as all initiated treatment is completed. reasonable means of communicating with patients after reg- Accordingly, a former patient who evokes memories of ular office hours to avoid a claim for abandonment. A a "frictional" relationship, who is financially irrespon- recorded message is inadequate if the dentist fails to check sible, or who arrives at the office after an absence of sev- for recorded messages frequently. Therefore answering ser- eral years with an acute apical abscess in a site where vices, pagers, and cell phones are required by the standard of previous care was not rendered may legally be refused care. treatment. If the dentist providing endodontic therapy is away from 4. It is not considered abandonment if a patient is given the office for an extended period, a substitute on-call dentist reasonable notice to seek endodontic treatment with should be available for any endodontic emergency and to another dentist and the patient is willing to seek endo- answer patients' emergency calls. The endodontic treating dontic services elsewhere. Thus if rapport with the dentist should arrange in advance for emergency service patient dissolves, the clinician should not hesitate to with a covering dentist. Leaving a name on the office answer- suggest that the patient would be better served if any ing machine or with the answering service without first remaining endodontic treatment were performed by a determining the availability of the covering dentist is a different dentist. mistake. To avoid an abandonment claim, several prophylactic measures apply: *Bragdon v Abbott 118 S. Ct. 2196, 1998; McNamara v Emmons, 36 Cal. 1. No legal duty requires a dentist to accept all patients for App. 2d 199, 1939; 97 P. 2d 503; Small v Wegner, 267 S.W. 2d 26, 1954; 50 A.L.R. 2d 1970. The Americans With Disabilities Act (Publ. treatment. A private practice dentist may legally refuse No. 101-336); Americans with Disabilities Act, Title III, Regulations, 28 to treat a new patient, despite severe pain or infection, C.F.R., Part 36, Nondiscrimination on the basis of disability by public accommodations and in commercial facilities, U.S. Department of jus- tice, Office of the Attorney Ceneral and Americans with Disabilities Act, *Lee vDeubre, 362 S.W. 2d 900,1962; Clark vHoek, 219 Cal. Rptr. 845, Title I Regulations, 29 C.F.R., Part 1630, Equal employment opportu- 1985. nity for individuals with disabilities, U.S. Equal Employment Opportu- *McNamara vEmmons, 36 Cal. App. 2d 199, 97 P. 2d 503, 1939; Small nity Commission. v Wegner, 267 S.W. 2d 26, 1954; 50 A.L.R. 2d 170. *Murray v U.S., 4'h Cir., 329 F. 2d 270, 1964. CHAPTER 10 Records and Legal Responsibilities 393 Simpo PDF Merge and Split Unregistered Version - http://www.simpopdf.com The clinician may discontinue treatment, provided it is 2. Whether the technique or theory has been the subject of not done at a time when the patient's dental health will be peer review or publication jeopardized (e.g., in the middle of treatment). To discontinue 3. Known or potential rate of technique error treatment, the clinician should do the following: 4. Degree of acceptance of a theory or technique within the 1. Notify the patient of the plan to discontinue treatment relevant scientific community after a certain date. Courts determine whether testimony is based upon the 2. Allow enough time for the patient to obtain care with application of scientific principle or clinical experience. In another dentist, usually 30 days. general, courts are flexible and adaptable in determining 3. Offer to make emergency service available during the whether there is a bright line separating scientific and unsup- interim 30 days until a new dentist is obtained. ported nonscientific evidence. Often technical and special- 4. Provide diagnostic quality records, copies of radio- ized knowledge gained though continuing education and graphs, and other pertinent clinical information in trans- scientific journals, rather than an expert performing the fer records to the new treating dentist. research, is considered sufficient as long as the expert's 5. Allow the patient to select a new practitioner or suggest opinion complies with the Daubert principle. referral by the local dental society if a referral service States are not bound to follow the Federal Rules of Evi- exists. dence in state court trials.* Nonetheless, U.S. Supreme Court 6. Document all of the above in the patient's records, decisions influence state courts that consider placing limita- including a copy of a certified letter sent to the patient tions upon expert testimony. State court trial judges may proposing discontinuance of treatment. either be more liberal or more restrictive in admitting expert witness testimony. If the trial court judge denies admission of scientific evidence as unreliable, untrustworthy, or irrele- Expert Testimony vant, the end result may be to preclude an expert offering any The standard of care that a dentist must possess and exercise opinion. On the other hand, the court may admit such evi- is particularly within the knowledge of dental experts.

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