|Year : 2014 | Volume
| Issue : 2 | Page : 91-96
Legal modalities in dental patient management and professional misconduct
Ashish Vashist1, Swati Parhar2, Ramandeep Singh Gambhir3, Ramandeep Kaur Sohi4, Puneet Puneet Talwar5
1 Department of Public Health Dentistry, Sri Sukhmani Dental College and Hospital, Dera Bassi, India
2 Department of Oral and Maxillofacial Pathology, Swami Devi Dyal Dental College, Barwala, Haryana, India
3 Department of Public Health Dentistry, Gian Sagar Dental College and Hospital, Rajpura, India
4 Department of Public Health Dentistry, Rayat and Bahra Dental College and Hospital, Mohali, Punjab, India
5 Department of Public Health Dentistry, Divya Jyoti Dental College and Hospital, Modinagar, Uttar Pradesh, India
|Date of Web Publication||7-May-2014|
Ramandeep Singh Gambhir
Gian Sagar Dental College, Rajpura - 140 601, Punjab
While providing the oral healthcare services, a dentist has to follow certain set of standards to avoid any litigation in the name of malpractice. Consent is a fundamental and established principle in the Indian Law. Not taking consent is considered as deficiency in medical services. Medical records are documentary evidence as per the Indian Evidence Act, 1872. A dental professional is bound by law and ethics while providing treatment to his patients. Disclosure of complete information that is necessary to the patient regarding the treatment is essential to avoid any clauses of negligence against the doctor, even if there is no contract between the doctor and patient. Healthcare malpractice can be challenged under two main categories in the court of law, that is, civil and criminal depending on the nature of offence. A third category lies under consumer protection act, 1986, where professional services provided by the dentist can be challenged. Professional indemnity insurance also known as 'Defense Costs' will pay all the costs, fees, and expenses incurred with their prior consent in the investigation, defense, or settlement of any claim made against the insured.While providing the oral healthcare services, a dentist has to follow certain set of standards to avoid any litigation in the name of malpractice. Consent is a fundamental and established principle in the Indian Law. Not taking consent is considered as deficiency in medical services. Medical records are documentary evidence as per the Indian Evidence Act, 1872. A dental professional is bound by law and ethics while providing treatment to his patients. Disclosure of complete information that is necessary to the patient regarding the treatment is essential to avoid any clauses of negligence against the doctor, even if there is no contract between the doctor and patient. Healthcare malpractice can be challenged under two main categories in the court of law, that is, civil and criminal depending on the nature of offence. A third category lies under consumer protection act, 1986, where professional services provided by the dentist can be challenged. Professional indemnity insurance also known as 'Defense Costs' will pay all the costs, fees, and expenses incurred with their prior consent in the investigation, defense, or settlement of any claim made against the insured.
Keywords: Consent, consumer protection act, dental malpractice, indemnity, legal, litigations, medical records
|How to cite this article:|
Vashist A, Parhar S, Gambhir RS, Sohi RK, Talwar PP. Legal modalities in dental patient management and professional misconduct. SRM J Res Dent Sci 2014;5:91-6
|How to cite this URL:|
Vashist A, Parhar S, Gambhir RS, Sohi RK, Talwar PP. Legal modalities in dental patient management and professional misconduct. SRM J Res Dent Sci [serial online] 2014 [cited 2021 May 8];5:91-6. Available from: https://www.srmjrds.in/text.asp?2014/5/2/91/132079
| Introduction|| |
A dentist is a healthcare professional providing care for the patient, as a physician do. As a result of recent advancements in dentistry, dental profession has touched the same heights as the medical and other allied professions. There has been increase in the number of patients challenging the dentist's authority over treatment planning and consent issues in the past few years. Disputes range from inadequate and inappropriate treatments to serious problems of medical malpractice and negligence.  Thus, while providing the oral healthcare services a dentist has to follow certain set of standards in maintaining records of almost all the activities related to the management of patient. Failure to exercise such practice could invite litigation in the name of malpractice.
The factors that should be considered with utmost care while managing a patient are consent, a detailed case history recording, well-understood drug prescription policy and knowledge of emergency situation handling. Apart from being well aware about the legal consequences in the case of nonconformity to the standards and procedures of law, a dentist should also be attentive enough to stay safe from liabilities arise due to unintentional negligence or bogus litigations with malicious intentions.
| Consent|| |
Consent is a voluntary acceptance or agreement of what is planned or done by another person.  Not taking consent is considered as deficiency in Medical Services under the Section 2 (i) of the Consumer Protection Act. 
Consent is a fundamental and established principle in the Indian Law. Every person has the right to determine what shall be done to his body. Self-defense of body (under IPC Section 96 to 102, 104 and 106) provides right to the protection of bodily integrity against invasion by other.  Thus, in the absence of consent, treatment and diagnosis cannot be forced upon anyone, who does not wish to receive them except in statutory sanction.
What consent means?
As already stated, consent means free voluntary agreement or compliance. In India person above the age of 12 years can give consent for medical treatment. For a person less than 12 years of age or of unsound mind, his/her guardians/person in whose lawful custody he/she is can give consent. 
Provisions for consent under law
Sections 87 to 91, Indian Penal Code (IPC) deals with consent. Section 88, IPC, lay down that an act is not offence, if it is not likely to cause death. Persons who are not qualified in medical/dental profession are not allowed to take the plea of this section, as they are not said to do the act in good faith. Barring physical examination, any medical/dental procedure requires written consent should refer to one specific procedure and not blanket permission. Prisoners and persons released on bail can be treated without their consent in the interest of justice of society. However, consent of the patient cannot be defense to medical or dental practitioner in negligence. 
Types of consent
Health profession in India practices two types of consent. 
- Implied consent is one, which is not written but legally effective. Implied consent is presumed when patient comes to doctor's consulting room and waits for doctor. Such implied consent only goes to history taking and ordinary medical examination such as inspection, palpation, and auscultations; it does not cover the consent for examination of private parts of the patient or matters such as injections etc.
- Informed consent is the idea that the patient must be given enough information about the proposed treatment, in understandable language. The informed consent is to force the doctor to give the patient knowledge that will make him or her on equal bargaining partner, which otherwise was not so, considering doctors special knowledge, that creates an advantage. Thus, informed consent is meant to transform the essence of the doctor patient relationship from status to contract. 
Presently in India, doctrine of informed consent is not in routine practice. But this type of consent may take routes in the Indian healthcare systems soon, since advancement in technology and information is taking place very fast with increased consumer awareness. 
How consent should be obtained
In general, courts and legislatures have defined specific elements that describe the way to obtain informed consent. These elements must be discussed with patient by his/her doctor and must be part of informed consent. These include diagnosis and the nature of illness, nature and the purpose of treatment or procedure recommended, risks and benefits of the proposed treatment, estimate of success of treatment, prognosis if no treatment is elected and alternative treatment plans, right of the patients to ask questions, and have their answers. 
Area most likely to give rise to litigation over informed consent
Lack of informed consent is a cause of malpractice action, and without it, battery (unlawful touching) can be alleged. In practical terms, this means physically or emotionally harming the patient. If there is a procedure, which has complications or undesirable consequences, which a prudent patient does not anticipate, it is necessary to get an informed consent.  Studies indicate that extractions give rise to the majority of litigations in the dental field and to claims that the risks of the extraction were not revealed to the patient.  A study of 20 cases concluded that most of the lawsuits in oral surgery practice can be prevented either through preoperative measures or by dealing with the impact of the surgical error through good patient rapport and communication.  The answer to such issues has come out to be that the surgeon should not deliberately proceed without informed consent.  Adhering to the guidelines mentioned in the following and to be aware of certain laws can prevent us from getting caught in such lawsuits.
Case history recording and record keeping
Records contain a written evidence of the activities of an organization in the form of letter, circulars, reports, contracts, invoices, vouchers, minutes of meetings, books of accounts etc.  Medical records are documentary evidence as per the Indian Evidence Act, 1872 (Amended in 1952 and 1961). Medical records are generally summoned to the court of law in various types of cases in our country [Table 1]. 
As a general rule, access to medical records should be restricted to health professional involved in the continuing care of the patient. Medical records may be used for research and statistics without the patients consent as long as the patient is not identified.
Good record documentation
Meticulous record keeping in the healthcare practice is essential because it enhances the healthcare practitioner/dentists ability to access and monitor patient care. Furthermore, if ever there is a dispute related to care, this information becomes legal evidence, for practitioner and patient alike. 
- A new patient's record should begin with the basic data about past medical history, pre-existing medical and dental conditions and pertinent previous treatment.
- Make sure that patients reported history is consistent with objective findings.
- It is especially important to record any patient's behavior that might interfere with your treatment, including poor communication, instances of noncompliance, or self-destructive behavior.
- Be sure to record all scheduled and unscheduled appointments with an explanation and real-time writings of all conversations and make sure to record events contemporaneously and chronologically.
- Be sure to record all communications with relevant third parties for minor or patients with guardians. In most cases, obtain the patients permission before such communications.
- For fee arrangements that extend over a period of time, use written, signed contracts, preferably truth-in-lending statements. These financial documents and all insurance form are part of a complete dental record.
All records must be contemporaneous and must be signed and dated. Legally, dentist's written records carry more weight than patient's recollection. The cost of good record keeping is miniscule compared with the emotional and physical wear and tear of defending a lawsuit. 
Legal limit for preservation of medical records
- Where there is chance of litigation arising for purpose of negligence, record should be preserved for at least 25 years. Specially because there are rules where the minor have the rights to sue the doctor within three years from the date of majority, for the injuries sustained due to negligence of the doctor during the period of minority. 
- Other medico-legally importance records should be preserved up to 10 years after which they can be destroyed after making index and recording summary of the case.
- Routine case records may be preserved up to 6 years after completion of treatment and up to 3 years after death of the patient. 
- There are certain records, which are of public interest and are transferred to public records library after 50 years for release to public and those involving confidentiality of individuals are released only after 100 years. 
Drug prescription policy
Drugs and Cosmetics Act, 1990
It regulates the import, manufacture, distribution, and sale of drugs and cosmetics. It deals with all drugs used for treatment, diagnosis, or prevention of disease in man and animals. All drugs used in dentistry should be regulated by Drugs and Cosmetics Act 1990. In India there is no separate Dental formulatory for drugs prescription. 
Narcotic Drugs and Psychotropic Substances Act, 1989
It repeals archaic laws such as the Opium Act, 1875 and Dangerous Drugs Act, 1930. Many drugs such as sedatives, tranquillizers, and narcotic analgesics come under this act. Dentists must be careful in dealing with them, as misuse can invite stringent punishment.
Poisons Act, 1919
It regulates possession of poisons for sale, use, or importation. Many substances such as arsenic etc, which are used in dentistry, are regulated by this Act. Possessions of Large quantities have to be regulated by the State Government. 
Emergency situation guidelines
Emergency is not readily defined. It is a relative concept. A dental emergency such as re-implantation of a tooth may not be perceived as an emergency by a trauma team dealing with a femur fracture. Another aspect of emergency is medical emergencies that may occur in the dental office. Failure to deal with emergencies can attract clauses of negligence against doctors even if there is no contract between the doctor and patient. 
- Consent is not required
- Drug reactions are not considered negligent
- Any act done in good faith is exempt from clauses of negligence.
A patient cannot be refused treatment on the ground that it is a medico-legal case and therefore to be seen in a government or approved hospital. The doctor may be guilty of negligent death if he fails to provide emergency. 
Legal vulnerabilities in dental practice
Healthcare malpractice can be challenged under two broad categories in the court of laws; Civil Law and Criminal law. 
Civil Law deals essentially with the rights and duties of individuals and is dealt with in civil courts. Civil courts provide relief of wrongs done to individuals or corporations in the form of compensation or specific performances.
The issues under civil law are further subcategorized as follows: 
a) Tort-It is defined as an act or infringement of right (other than under contract) leading to legal liability. It is further categorized into the following
- Unintentional (negligence/professional negligence)
A contract is defined as an agreement between two or more persons, which creates an obligation to door not to do a particular thing. A contract may be expressed for example: a written document or implied. It is like when a patient sits on the dental chair and opens his mouth when invited to do so.
Indian Contract Act 1972
- What agreements are contract?
All agreements are contracts if they are made by the free consent of parties competent to contract. 
- Who are competent to contract?
Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject. 
- 'Consent' defined
Two or more persons are said to consent when they agree upon the same thing in the same sense. 
Violations of statutes are termed as 'crimes'. They constituted acts that are deemed by the government to be against the public interest.  Thus, a violation of that part of dental practice act that is statutory enacted by the legislature is called crime of dentistry. Such crimes invite penalties such as
- Loss or suspension of license
- Mandatory psychiatric counseling.
- Drug rehabilitation
- Mandatory continuing education
Efforts to amend the procedures for arresting doctors
Based on representations two State Governments previously attempted to address the anomaly of arresting doctors under Section 304-A of IPC by an officer less educated than the doctor.  The Government of Kerala in a GO No. 73231/SS/B4/925/Home, Dated 20-03-93 passed on order that a doctor cannot be investigated or arrested by an officer below the rank of Deputy Superintendent of Police and that he/she should refer the case to a panel set up by the Government of Kerala. 
However, the landmark judgment delivered by a three judge bench on August 6th, 2005, settled once and for all the issue of Criminal Prosecution of doctors for medical negligence. Doctors or dentists now cannot be arbitrarily arrested in the name of criminal negligence while treating patients. Death during Medical procedures was in past, roundly booked under section 304 A of IPC. This is a cognizable offence carrying a penalty of imprisonment for up to 3 years. It also provides for arrest of any person causing death due to a rash and negligent act. 
Consumer Protection Act (COPRA)
The Consumer Protection Act was essentially envisaged to cover business and trade and to protect the interest of the buyer of goods and user of services who pay for the same. In the Supreme Court Judgment of IMA Vs V. P. Shante and others III (1995) (CPJ) SC, the court clearly states that professional services rendered by professionals such as doctors and dentists clearly fall in the definition of section 2 (0) of the Consumer Protection Act and therefore Doctors and Dentists cannot dispute the applicability of 'deficiency of service' to the services they render. 
One of the reasons for bringing medical negligence into the ambit of the CP Act is because the Indian Medical Council Act 1916 and the Indian Dentist Act 1948 has no provision:
- To entertain any complaint against from a patient.
- To take action against medical/dental doctors in cases of negligence.
- To award compensation.
A medical and dental service provider should be well aware about the structure and functioning of the act.
Professional indemnity insurance
It is becoming legally and financially dangerous to treat patients with complex diseases for whom the outcome is uncertain and imperfect results are common. The law suits are not only steadily increasing in number and cost, but are demonstrably jeopardizing the cure of the patient. The litigious atmosphere has led to a practice called 'Defensive Medicine'. 
The litigious atmosphere in India is not yet strong. The insurance cover applies to insurance relating to errors and omissions on the part of a professional while rendering services. All claims relating to compensations are dealt in a court of law. Like any other healthcare field, dental practitioners are also under the obligation to comply with the laws of the country they practice. However, in the best of hands and without negligence complications sometimes can and do occur. Complications that occur in the presence of good planning and communication and are managed appropriately do not amount to negligence, and are unlikely to lead to a successful claim. 
Liability of a dentist in the case of negligence
Dental professionals are liable under four kinds of liabilities 
- Tortious or civil liability
- Contractual liability
- Criminal liability
- Statutory liability
- Tortious or civil liability is of two types
(a) Primary liability - when a dentist is directly liable for an act of negligence in his clinic or hospital it is called primary liability. Most dental negligence would come under this category.
(b) Vicarious liability - dentist who is employed by a hospital or institution is often not primarily responsible for negligence. They may be said to have vicarious liability through the hospital.
- Contractual liability - in a doctor-patient relationship, an implied contract is established when a dentist accepts a patient for treatment. A breach of any aspect of this implied contract, where the dentist is under duty to, treat with care as well as continue to treat and not terminate until patient is cured or patient discontinues treatment, may be considered a contractual liability. 
- The important offences inviting criminal liability with regard to negligence are ,
(a) Section 304A Indian Penal Code (Sec 304 A IPC) - Negligent homicide. A rash or negligent act resulting in death, for example, death on the dental chair.
(b) Sec 336 (IPC) - an act endangering the life of a person (even if there is no injury), e.g. extracting a tooth for a patient with valvular heart disease without antibiotic prophylaxis against endocarditis (even if he does not develop endocarditis).
(c) Sec 337 (IPC) - A rash or negligent act causing simple injury, for example, pain and swelling after extraction due to negligent extraction.
(d) Sec 338 (IPC) - a rash or negligent act resulting in grievous injury, for example, fracture of jaw during extraction due to excessive or improper force.
- Statutory liability - a dentist is liable if there is any infringement of statutes. They then become accountable to a statutory body. The liability depends on the kind of infringement and the provisions in the statute to deal with it. There are many statutes dealing with practice of doctors and dentists, as well as hospitals. Dentists may also be liable to other statutory bodies such as Pollution Control Board. 
Medical establishment, professional negligence errors, and omissions insurance policy
Hospitals, nursing homes, and other medical establishments can get themselves insured with the insurance company. The policy will indemnity the insured in respect of any act committed by the professionals or qualified assistants named in the proposal, engaged by the medical establishment which gives rose to any third party legal liability. Such activities will be a part of the declared medical activities of the establishment. 
The indemnity applies only to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission, or negligence in professional service rendered or which have been rendered by the insured or qualified assistant named in the schedule or any nurse or technician employed by the insured. 
| Conclusion|| |
General adaptation to the fact that oral health is an integral part of general health has increased the expectations and sensitivity towards the oral health and oral health care services. Mistakes do occur in every profession like in everyday life. Unfortunately, in the health profession, mistakes could result in serious consequences for the patient and, in turn, lead to doctor or dentist being answerable. Dental negligence can cause the dentist to face litigation, if the service has been paid for. The dentist has an obligation to inform the patient about all the risks that are inherent in the treatment. There is the need for maintaining the records officially and professionally to protect against any commercial, legal and medico-legal litigation. Aggrieved patients can seek redress in the Consumer Protection Act when negligence exists on the part of the dentist. This can result in monetary compensation to the patient, the consumer, for deficient services on the part of dental professional. Complying with certain rules and regulations and adhering to standard practice, guidelines can save us from such litigations and criminal liability.
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