By Daniel J. Schulte
MDA Legal Counsel
Published in the May 2006 issue of the Journal
Question: Several patients lately have asked me to not take X-rays. This is usually due to financial concerns (the patient cannot afford them), but sometimes a fear of radiation exposure is also a reason. Is there any law that requires a dentist to take an X-ray as part of a routine exam or prior to providing treatment? Can I have my hygienist perform routine exams to save patients money?
Answer: There is not a Michigan statute stating when dental X-rays must be taken. I am not aware of any managed care contracts that spell out such a requirement.
There is a good reason why a detailed aspect of what is required as part of a dental examination or treatment like this not spelled out in a statute or contract. The reason is that dentists are trusted to and expected at all times to exercise sound professional judgment in making examination and treatment decisions. To avoid malpractice liability you must act in such a way that the standard of dental practice is met or exceeded. Whether not taking X-rays as part of an examination or prior to providing further treatment will be deemed consistent with the standard of practice depends on a variety of factors (such as the time interval since the patient’s last exam and/or last X-rays, the results of other parts of your examination, other information gathered from the patient, and so forth).
If you determine that you cannot examine and/or treat the patient consistent with the standard of practice without X-rays, you should clearly communicate this to the patient and note this in the patient’s record. If the patient elects not to have the exam or treatment performed you should also advise the patient of the possible ramifications of not continuing with the examination and/or treatment. This fact should also be documented.
If you decide that continuing with an examination and/or treatment of the patient without the X-rays does not fall below the standard of practice, you should do so only after obtaining written informed consent from the patient. To obtain proper informed consent you must advise the patient in writing of all of the possible ramifications of further examination and/or the possible treatment without X-rays. You should only proceed if in your sound professional judgment continuing without X-rays is appropriate and consistent with the standard of practice. The informed consent document should specifically state that the patient consents to an examination or treatment without first having X-rays taken. The patient must sign the informed consent document. This document should be included in the patient’s record.
Do not confuse an informed consent document with a waiver of malpractice liability. A patient cannot legally waive a claim based on a dentist’s failure to act in a way that meets or exceeds the standard of dental practice. The informed consent document will simply memorialize what has been explained to the patient and the fact that the patient has chosen to give you consent to go forward without X-rays. The informed consent document will not prevent the patient from suing you for malpractice if the standard of practice dictates that you should not have gone forward without first obtaining X-rays.
Only a dentist can legally perform a dental examination. Michigan Administrative Code Rule 1408 allows you to delegate only the "preliminary examination" (including classifying an occlusion and testing pulp vitality using an electric pulp tester) to a registered dental hygienist. This delegation can be made only if these procedures are performed on a patient under your "assignment." This means that you must first designate the patient as your patient of record and describe the procedures to be performed to the patient.