Wednesday, November 09, 2011
By Dan Schulte, J.D.
MDA Legal Counsel
From the November 2011 issue of the Journal
Question: One of my partners wants to change our Yellow Pages ad to mention that our group provides orthodontic services. None of us has been certified as a specialist in orthodontics by the Board of Dentistry. Can a group of general dentists advertise specialty services?
Answer: You can, if the advertisement discloses that you are a general dentist not certified in orthodontics.
The failure to include this disclaimer could result in a state of Michigan Administrative Complaint and/or an ethical complaint being filed against you alleging a violation of one or more of the following:
1. MCL 333.16261(2), requiring that the conduct of licensed health professionals evidence “good moral character”;
2. MCL 333.16221(d)(i), prohibiting licensed health professionals from engaging in false or misleading advertising;
3. MCL 333.16221(e)(i), prohibiting licensed health professionals from misrepresenting the type, quality, appropriateness, skill, etc., of their services;
4. MCL 333.16261, prohibiting the announcing or holding oneself out to the public as limiting his/her practice to, as being specially qualified in, etc., a specialty for which a board specialty certification is available without first having obtained that specialty certification;
5. Administrative Code Rule 338.11525(i), prohibiting general dentists from announcing, holding himself/herself out to the public as limiting his/her practice to, as being specially qualified in or as giving special attention to a branch of dentistry;
6. MDA Ethical Rule 5.I.3, requiring general dentists advertising specialty services to “emphasize” that the services are being provided by a general dentist and prohibiting the use of the phrases “specialists in” and/or “practice limited to.”
The Administrative Code Rule is directly on point. The rule specifies that a dentist is holding himself/herself out as a specialist when, in any way, the dentist gives public emphasis to some particular specialty service without also disclosing that the dentist is not certified as a specialist.
Therefore, in order for you (a general dentist) to legally advertise that you provide orthodontic services the ad must include a disclaimer making clear that these services will be provided by general dentists. No specific wording is required by the statutes or the Administrative Code Rule. You must make it clear that you are not certified as a specialist. For example, the advertisement may state: “all services provided by general dentists”; “dentists not certified in orthodontics”; or “dentists not specialty certified.”
Unlike the statutes and Administrative Code Rule, which apply to all Michigan dentists, the MDA Ethical Rule applies to only dentists who are MDA members. Similar to the statutes and Administrative Code Rule, the ethical rule requires MDA member dentists to emphasize that the advertised specialty services are being provided by a general dentist. The ethical rule also prohibits a general dentist from using the phrases “specialist in” and “practice limited to.” These phrases are reserved for use by specialists. Words and phrases that imply specialization without actually naming the specialty (such as “braces,” “root canals,” etc.) can only be used if the ad states that you are a general dentist and not certified as a specialist.
If the state finds you in violation of any of the statutes or the Administrative Code Rule it may require you to pay a fine, place you on probation, or suspend or revoke your license. A violation of the MDA Ethical Rule could result in your being censured, placed on probation, or your membership may be suspended or revoked. In either case, probation may include conditions to be fulfilled (e.g., continuing education).
In summary, if you are a general dentist and wish to advertise one of the nine specialties — dental public health, endodontics, oral and maxillofacial pathology, oral and maxillofacial radiology, oral and maxillofacial surgery, orthodontics and dentofacial orthopedics, pediatric dentistry, periodontics, and prosthodontics — you should state in the ad that you are a general dentist and that you are not a specialist.