This is a situation that applies to almost all dentistry that is done in the office. This is especially so if one considers the definition of dentistry as being the treatment of diseases by surgery or other methods.
I explained that while there are questions as to the benefits of this ruling, as well as the costs involved to achieve this goal, those questions are irrelevant.
Those issues become irrelevant because this issue has been defined as a “MINIMUM STANDARD.” What others do or don’t do is irrelevant should you have a problem. It becomes impossible to defend a civil action should you fail to follow the code. I had cited a case that showed how this played out and what the costs were.
LEGAL TACTICS
I have been personally involved with two cases that relied on this section. I have seen this section applied in board hearings and I have been involved where dentists lost in the civil arena.
The issue that should come to mind should you be sued is – what tactics will an attorney take to win. You have to be prepared for your defense.
The tactic that I have seen attorneys use is to attempt to show that you have not followed the MINIMUM STANDARDS in a particular area, which is mandated and crucial to the patient’s health.
Having shown a dentist’s failure to follow minimum standards of infection control for patient safety, it would not be difficult for a jury to question the care that you did give.
Even if the care is excellent, you have already been tarred and feathered for failing to follow the Minimum Standards of Infection Control and placing your patient at risk.
If you are practicing below the MINIMUM STANDARD, that is demonstrable and very
objective, why should a jury believe that the care you render is acceptable?
X-RAYS AND ULTRASONICS
There are problems with infection and cross contamination between X-rays and ultrasonic cleaners that we should be aware of. There are standards that must be met so that you can realistically minimize this potential risk to you and your patient.
Let’s address your x-ray procedures if the patient has to be moved to another room when x-rays are to be taken.
Does your assistant remove her gloves and wash her hands prior to leaving the room before going to the x-ray room for this procedure? Does she then wash her hands prior to taking x-rays, and does the door to your x-ray room have protective barriers that are used and removed each time the assistant takes the x-rays and touches the doors to open and close them?
Does this sound silly to you, a waste of time and inefficient? Based on how dentistry was performed for years in the past, you might have answered yes to the previous question.
FOLLOWING PROTOCOL
How long can an infection stay viable outside the host is a legitimate question that should be asked. But the better question to ask is: are you following protocol as defined in the California dental practice act? If yes, you can defend yourself. If not, you might want to think about the potential liability that you could face.
After that, you can ask if the codes are really making the patient safer, or just creating problems to the practice of dentistry and increasing your costs, or the costs to your patients.
According to California Dental code section 1005 B(2) “Medical exam gloves shall be worn whenever there is potential for contact with blood, blood contaminated saliva, or mucous membranes.” I tend to think that the definition would be met when taking x-rays.
CD Code section 1005 B (3) “Health care workers shall wash hands and put on new gloves before treating each patient.” I am certain that all health care workers in your office are putting on gloves prior to treating a patient, though I do question if hands are being washed at all times.
But the kicker now comes from the following:
“Health care workers shall wash hands after removing and discarding gloves after the treatment of each patient OR BEFORE leaving the operatory.” (Emphasis mine)
CD Code section 1005 (6) “Protective attire must be removed when leaving the
operatories and work areas.”
One might question if taking a patient from the operatory to the x-ray room IS treating a new patient. If you have to take off your gloves when you leave the operatory it would then seem clear that you have to wash your hands and place new gloves before taking the x-rays, which is the treatment of a patient with the potential for touching mucous membranes.
So, are you following the code as written? Should a problem arise in your office, can you defend yourself that you have followed the MINIMUM STANDARDS and you are not practicing in a shoddy, haphazard manner?
When one deals with ultrasonic cleaning of instruments, the consensus was that instruments are placed in the ultrasonic cleaner, then bagged and sterilized. The question to be asked would pertain to the ability of the ultrasonic cleaner to kill bacteria.
If it doesn’t kill bacteria, what are the risks to your staff from the ultrasonic cleaner becoming the focal point for potential infection to your staff from handling the instruments? Do you have to change the ultrasonic solution after each use?
What are your liabilities should a staff member poke herself with an instrument coming out of the ultrasonic? Imagine what could become of an incident such as this.
LEGAL LIABILITIES
I am playing devil’s advocate. If I were to be retained by you I would be pointing out these issues and hoping that the other sides aren’t aware of the code sections, or that they wouldn’t think to use them. This was evident in the case that I worked on, because the first law firm dropped the case, when they couldn’t prove causality.
The second lawyer didn’t worry about causality, but only that MINIMUM STANDARDS OF INFECTION CONTROL weren’t followed. It became definitional that malpractice occurred, and the patient had been harmed.
But if I am retained by the patient, or the board is asking me to look into a case, I can tell you emphatically that these issues are high on my list to review.
And I will restate that should a case involve lawyers, it is about winning.
In a civil case it is about getting money for the client, which is a powerful motivator for an attorney on contingency to prevail.
If it is a board action, money is also a powerful motivator because the board can only collect the fees for the investigation when they prevail.
I have previously written that the board will always win. In your board hearing, the trial before a judge, allows only for the judge’s opinion to be expressed. The board can choose to ignore if it wants.
In a study of the board’s decisions, it was shown that the board reversed all judges’ opinions that favored the dentist. Money is a major motivator and, by reversing the judges’ opinions, the board collects from the dentist.
CONCLUSION
I have also taken the position that sometimes rules are being made by those that don’t practice, and may not even be dentists. If a professional abdicates his professional responsibility to oversee his profession then others will do so, and the results can often be deleterious to that profession.
This is coming to pass with the comments that I hear about the costs to comply and with the facetious remarks that the rules are impossible to comply with and have no basis because one can’t sterilize the mouth prior to treating the patient.
But the rules are changing all over the country. You can take it for what it is worth, but should you wind up with a problem, I hope that you have listened so as to minimize your risk of exposure.
Ask your local dental society to look into the issue prior to problems arising, because by then it might be too late, if it isn’t already so.
Barry Levy DDS
Dr. Levy is on the California Dental Board’s panel of expert witnesses for board investigations, is a guest lecturer at UCLA and UCSF and works as a consultant on dental malpractice issues.
(Note: The California Dental Board is mandated to review its infection control regulations each year. Amendments were considered at a May 14, 2004 hearing. The amendments were approved by the California Dental Board. This has changed some of the code numbers cited, but not the main point of this article. It is suggested that you read and review the changes as the new language specifically cites “A copy of this regulation shall be conspicuously posted in each dental office”)