Wednesday, March 28, 2012
By Dan Schulte, J.D.
MDA Legal Counsel
From the May 2012 issue of the Journal
Question: What does the Board of Dentistry Botox Statement mean for Michigan general dentists?
Answer: The Michigan Board of Dentistry issued its Botox Statement on Feb. 29, 2012. The state-run board takes the position that general dentists should only use Botox, derma fillers and neurotoxins if they both: (1) have been properly trained; and (2) the use is within the scope of the practice of dentistry (defined by MCL 333.1101). The Board states general dentists using Botox, derma fillers and neurotoxins who are not properly trained or who are practicing outside the scope of dental practice are placing patients at risk and that the scope of dental practice applicable to general dentists does not include “injections of these substances for cosmetic purposes.”
The state board’s Botox Statement does not have the force of law because it is not a statute or administrative code rule. In civil cases where the issue is whether the use of Botox, derma fillers and neurotoxins was within a general dentist’s scope of practice, the board’s statement may be used as evidence. However, the court would not be obligated to follow the statement. The same would be true in a licensing case before an administrative law judge.
Although the state board’s Botox Statement lacks the force of law, it does provide valuable insight into the board’s current thinking on the use of Botox, derma fillers and neurotoxins in dentistry. The Botox Statement also serves as a warning to general dentists using these substances without proper training, and to those general dentists who are providing treatment outside their scope of practice.
The statement certainly leaves some open questions. First, what would the state board consider to be proper training? The Botox Statement is silent on this issue. The absence of authoritative standards regarding the training required to use Botox, derma fillers and neurotoxins in dentistry means there is no clear guidance on this question. Presumably, the adequacy of training undertaken by a dentist would be judged on a case-by-case basis, and the training should focus on the use of these substances in dentistry (e.g., treatment of the teeth, alveolar process, gums or jaws or their dependent tissues to correct a dental condition such as tempromandibular disorder, involuntary teeth clenching, trigeminal neuralgia or muscle contractions due to over-bites and under-bites) rather than non-dental cosmetic or other applications.
Second, the board’s statement that the general practice of dentistry does not include injections of Botox, derma fillers and neurotoxins for cosmetic purposes is curious. It would seem that if the use of the substances was to treat a disease, pain, deformity, deficiency, injury or physical condition of the teeth, alveolar process, gums, jaws, or their dependent tissues that it would not matter if the treatment was for cosmetic or therapeutic purposes. Many dental services are cosmetic (e.g., whitening, veneers, etc.) but are within the scope of practice of a general dentist despite being cosmetic.
The final unanswered question (and the most significant) is what is meant by “dependent tissues.” This issue is the most significant because treating disease, pain, deformities, deficiencies, injuries or physical conditions of such dependent tissues is within a general dentist’s scope of practice (the same as treatment of the teeth, alveolar process, gums and jaws). The state board does not define this term in its Botox Statement. Nor does there appear to be an authoritative source delineating what would be included in the definition of dependent tissues. Resorting to a dictionary definition of “dependent” (which is what courts do when having to discern the meaning of words in statutes, contracts and otherwise), one would conclude that in order for the teeth, alveolar process, gums or jaws to be dependent on a tissue, the teeth, alveolar process, gums or jaws would have to hang down from the tissue or in some way be controlled, influenced or otherwise depend on the tissue for support, function, existence, etc. A general dentist using Botox, derma fillers and neurotoxins to increase the size of the lips, to lift the corners of the mouth, erase “crow's feet” around the eyes or otherwise when challenged would have to prove that these areas are dependent tissues of the teeth, alveolar process, gums or jaws. This would most likely have to be done with reference only to the dictionary definition of dependent. For example, it might be argued that the teeth, alveolar process, gums or jaws depend on the tissues of the lips, corners of the mouth or around the eyes for support or are somehow controlled, influenced or depend on these tissues.
Until a definition is included in law by statute or an administrative code rule, or until an appellate court adopts a definition in a precedent-setting case, the definition of dependent tissues will be open for interpretation.
The MDA Board of Trustees discussed the Board of Dentistry’s Botox Statement at its March 16 meeting. The MDA board will ask the MDA Committee on Peer Review/Dental Care and MDA Committee on Peer Review/Ethics to review members’ questions on the Botox statement, and then submit the questions to the state Board of Dentistry for its response. This process will likely go on for a number of months.
Despite the remaining questions, general dentists now know that the Michigan Board of Dentistry will insist on proper training in the use of Botox, derma fillers and neurotoxins and that the Board of Dentistry views the use of these substances as illegal unless it is being used for the treatment of a disease, pain, deformity, deficiency, injury or other physical condition of the teeth, alveolar process, gums, jaws or their dependent tissues.
What this means for general dentists is that those seeking to insure they will not be the subject of a licensing action arising from their use of Botox, derma fillers or neurotoxins will be properly trained in the use of these substances for non-cosmetic dental purposes, and will carefully consider whether the purpose of treatment using these substances is to address a condition of the teeth, alveolar process, gums or jaws, their dependent tissues or some other part of the anatomy.
Editor’s Note: The MDA Committee on Peer Review/Ethics recommends that member dentists contact their malpractice carrier to determine its position regarding coverage in light of the new Michigan Board of Dentistry Botox Statement. This is true even if dentists have checked with their malpractice carrier in the past. Since some carriers may not be aware of the Botox Statement, members are encouraged to supply carriers with a copy or make it known that it exists.