By Dan Schulte, J.D.
MDA Legal Counsel
From the January 2011 issue of the Journal
This month’s column will address two related scope-of-practice questions that have recently been posed by MDA members calling in to the MDA office. My answers appear below.
1. A salon next door to my office has asked if we would numb patients who are having cosmetic procedures on their lips (it is not clear to me exactly what the procedure is). Is this within my scope of practice? Are there liability concerns?
2. A few patients have complained to me about having a difficult time sleeping. They want to know about sleep apnea. I know there are courses being marketed to dentists regarding this condition. Some of these patients are asking me for a diagnosis and/or want a recommendation and a prescription for some oral device to treat the condition. I am concerned whether this is within the dental scope of practice. Should I be doing this?
Answer: To answer these and other scope-of-practice questions, reference must be made to the Dental Scope of Practice Statute, which states: "Practice of dentistry means the diagnosis, treatment, prescription, or operation for a disease, pain, deformity, deficiency, injury, or physical condition of the human tooth, teeth, alveolar process, or jaws, or their dependant tissues or an offer, undertaking, attempt to do, or holding oneself out as able to do any of these acts."
Administering an anesthetic for an unknown cosmetic procedure to be performed by a non-dentist in another location, is outside the scope of the practice of dentistry. If you do not even know what the procedure is going to be, how can you know whether it involves the teeth, alveolar process, jaws or their dependent tissue? The fact that the procedure is being performed by someone who is not a dentist in a salon should be a strong indication that it is not the practice of dentistry. The best practice would be to refuse these requests.
Significant liability concerns arise from this activity. Without taking a full health history prior to administering the anesthetic, how would you know whether the patient has allergies and/or is taking medications that may adversely react with the anesthetic? How would you determine if the patient has other health issues that would make your injection of an anesthetic problematic? How can you obtain informed consent from the patient when you do not even know what the procedure is that is ultimately going to be performed? Consulting with your malpractice insurer prior to engaging in this activity is a must. Confirmation of your coverage for claims arising from these services should be obtained in writing.
Patients with sleep apnea cease breathing periodically while sleeping. This results from either a collapse of the soft tissue in the back of the throat or the failure of the brain to signal the muscles to breathe. The diagnosis of the cause is unrelated to the teeth, gums, jaws, alveolar process, and their dependent tissues and therefore outside the scope of the dental practice.
Some treatments for sleep apnea involve the patient wearing a mouthpiece or other oral appliance while sleeping that aids in keeping the airway open. Patients may, following a physician’s diagnosis of sleep apnea, present a prescription for this oral device. You may be asked to custom-fit the device. This is different than diagnosing sleep apnea. The fitting of the device is within the scope of the practice of dentistry since it involves the operation of the teeth, gums, jaws, etc. So long as an M.D. or D.O. is making the diagnosis of sleep apnea and the dentist’s involvement is limited to the custom-fitting of the device, there should not be any scope-of-practice concern.
This article addresses the general dentist scope of practice only. The scope of practice for oral and maxillofacial surgeons is different and no opinion is given in this article regarding that scope of practice.