by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the April/May 1996 issue of the Journal
Question: I have become aware that another dentist in my locality is over-delegating duties to his dental assistants in violation of the law. I know that he is violating the law, because I have obtained from the MDA a current copy of the state of Michigan's rules in this regard. Is it my responsibility to report this colleague to the MDA? Or should he be reported to the state?
Answer: The 1994 amendments to the Public Health Code require all health professionals to report other health professionals to the state licensing authorities if the health professional has "knowledge" that the other health professional has committed a violation under section 16221 of the Public Health Code, or article 7 of the Public Health Code, or a rule promulgated under those statutes.
Section 16221 of the Public Health Code sets forth a long list of grounds for discipline. Included is the negligent delegation to employees or other individuals, and practice outside the scope of license. In addition, grounds for discipline include a violation of the rules promulgated under article 15 of the Public Health Code. The Administrative Rules of the Michigan Board of Dentistry establish clear parameters with respect to the delegation of procedures by a dentist to a dental assistant. Assuming the conclusions in your question are correct, that the delegation violates the statute or rules, and that you have "knowledge" that there is such a violation (and not mere suspicion or speculation), reporting is required. It is therefore your responsibility as a health professional to report this colleague to the state. There is no legal requirement that the colleague be reported to the MDA. The MDA peer review system refers matters to the state if the allegation constitutes a violation of the law.
Question: Can this reporting be done anonymously? If not, is it confidential?
Answer: There is no provision that the report can be made anonymously. Unless the health professional otherwise agrees in writing, the identity of the reporting health professional must remain confidential unless disciplinary proceedings are initiated and the reporting health professional is required to testify in the proceedings.
Question: Can I be held liable for reporting or not reporting?
Answer: Failure to report does not subject a health professional to a civil cause of action for damages. This was a significant legislative accomplishment by MDA and other health care associations. Without this provision, a health professional could be liable to a patient who is injured by another health professional on the allegation that a report would have precluded the treatment or lack of treatment that caused damages. Failure to report may, however, subject the nonreporting health professional to disciplinary action under the Public Health Code. The health professional making the report, if done in good faith, is immune from civil or criminal liability.
Question: Am I legally required to report other violations of the law, such as OSHA, if I am aware of them? Do I become, in effect, an accomplice if I fail to report a colleague?
Answer: The mandatory reporting requirement under the Public Health Code only applies to a violation of article 15, or the rules promulgated under that article, or article 7, or the rules promulgated under that article, which relate to controlled substances. Therefore, there is no legal requirement that a dentist report a colleague for violating OSHA or any other law not included specifically in the cited Public Health Code provisions. This does not mean, however, that a dentist does not have a moral or ethical responsibility to report a colleague, or to report unethical conduct to the Michigan Dental Association Peer Review Committee.