by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the May 2003 issue of the Journal
Question: Recently at my dental office we had a patient appear who was clearly intoxicated. He smelled of alcohol and was obviously driving himself. I refused to treat him, but was afraid to report him to the police for fear he would sue me for violating patient confidentiality. Did I do the right thing?
Answer: You certainly did the right thing in refusing to treat the patient in an intoxicated condition. You may not have done the right thing in not reporting the patient if the patient had an accident and injured someone.
The dentist-patient privilege only applies to information relative to the care and treatment of a patient acquired as a result of providing professional dental services. It does not appear that you learned of the patient's intoxicated position in providing dental services. Therefore, you or your staff should have called the police. Whether the police would have arrested the patient or simply precluded the patient from driving would be up to the police. Such a call could have saved innocent people, let alone the intoxicated patient, from injury or death.
Question: I am a recently retired dentist and would like to donate my services to help poor people with their dental work. Could I be sued if I do so, and should I continue my professional liability coverage if I provide services to indigent persons?
Answer: Unless your activities fall within the protection of recent immunity legislation, you could be sued if a patient alleges that you violated the applicable standard of practice. A Michigan law, effective Jan. 1, 2002, provides that a dentist or other licensee who provides nonemergency health care to a patient without receiving compensation is not liable in a civil action for damages for acts or omissions in providing the nonemergency health care, unless the actions or omissions were the result of gross negligence or willful and wanton misconduct, or were intended to injure the patient. For the immunity to apply, however, the nonemergency health care must be provided in or as a result of a referral from:
- a health facility whose sole purpose is the delivery of free health care; or
- an entity that is not a health facility and that provides nonemergency health care to uninsured or underinsured individuals through the voluntary, uncompensated services of licensees.
In addition, written disclosure forms describing the limitation of liability and stating that the service is free must be provided to the patients. The patients must sign an acknowledgment of receipt of the disclosure. Note that the immunity provided in this statute does not apply to surgery that requires more than a local anesthetic. Also, the statute applies only to causes of action arising on or after Jan. 1, 2002.
A primary purpose of the statute is to authorize dentists and other health care professionals to perform volunteer, nonemergency services without requiring the health care professional to purchase professional liability insurance. As you can see, however, the law is complicated and technical, and a more careful analysis would be required to determine whether the facts relative to an anticipated activity in this area fit the statute. It would be irresponsible for me to advise that professional liability insurance was unnecessary without a more careful assessment of the facts and circumstances of your case.
Although this statute will likely be subject to constitutional attack, the courts will likely uphold it.
Question: Could I be sued if I treat a person in an emergency situation?
Answer: You could be sued if a person alleges that you violated the applicable standard of practice, unless the Michigan good samaritan immunity statute applies. A long list of health care professionals, including dentists, who in good faith respond to a life-threatening emergency or respond to a request for emergency assistance in a life-threatening emergency within a hospital or other licensed medical care facility are immune from civil damages as a result of an act or omission in rendering the emergency care, except an act or omission amounting to gross negligence or willful and wanton misconduct.
The good samaritan law covering emergencies outside of the hospital or health facility context does not extend to dentists. Keep in mind, however, that the standard of practice applicable to health care professionals in emergency situations is tempered by the facts and circumstances existing; to wit: the emergency.
Although this immunity statute does not extend outside of the hospital or health care facility context, I am not aware of any case in which a dentist was found liable as a result of a good faith effort to assist a person in an emergency situation.