Guest Column: By Dr. Barry Levy DDS

By: Dr. Barry Levy DDS

If you are not aware of, or are not complying with minimum standards of infection control, you can be in for a rude awakening. While the below article addresses cases litigated in California, it is important for dentists across the country to understand many precedents are set in California and can affect how you practice dentistry in your home state.

Recently the California Dental Board cited section 1005 of the California Profession and Business code in a disciplinary action against a dentist (Section 1005 defines “minimum standards” of infection control to be followed while practicing). Because of the dentist’s failure to follow the minimum standards of infection control the board hearing was being used to determine if this dentist would be able to continue to practice dentistry. Penalties could range from fines, to suspension, to revocation of one’s license. It is easy to see the impact that the failure to follow minimum standards of infection control could have on your life should a problem arise and the board decides to investigate how you practice.

A recent malpractice case was brought against two dentists, because of a post-operative infection following an extraction. This case should drive home this concern and show how critical the language in the dental code is.

A large law firm was handling this case for the patient. After a year of negotiations the firm told the patient that they were dropping the case because they could not link the treatment to the post-operative infection. The judge allowed the patient time to find a new attorney. The new attorney took the case and, even with no way to link the infection to the treatment, won a settlement.

So why did the dentists’ lawyers settle this case after getting a law firm to drop out?

The lawyers for the dentists settled this case rather than risk trial, because the liability was too great. It was impossible to defend the position that a post-operative infection was not the dentists’ responsibility when they failed to follow the minimum standards of infection control when treating this patient.

A dentist cannot afford to litigate when he has FAILED to follow minimum standards of infection control and his patient winds up with a post-operative infection. A jury would hear the failure to follow the minimum standards as proof of negligence. A dentist could not argue that he didn’t know the code. Ignorance of the law is no excuse. And, in California, a course in infection control must be taken in order to renew one’s license.

Of particular importance is the language of the code section that states, “Sterile gloves shall be worn in connection with surgical procedures involving soft tissue and bone.” That can be taken to include periodontal treatment, extractions, endodontic treatment and, indeed, almost all of dentistry. Sterile gloves are not the medical exam gloves that are currently being used.

Should a complaint be filed, or legal action pursued against a dentist, the failure to follow the minimum standards are easily proven, and worse, could be shown to be occurring on an ongoing basis. In the civil case, the deposition of the dentist took about 20 minutes. The settlement was large.

The questions were very simple. “What size glove do you wear? Do all of your staff wear gloves? Do these gloves come in boxes of 100? Are you familiar with code section 1005?”

The answers of “large”, “yes”, “yes” and “no” were all that was needed to show the negligence. There were no questions directed to how the patient was treated, or what was done, or to try and link the treatment to the infection. These simple questions and unambiguous answers locked this dentist into negligence by failing to follow the code section.

The continued and ongoing failure to properly follow minimum standards of infection control could change a simple act of negligence into continuous acts of negligence.

My experience with the California Dental Board is that one act of negligence is treated very differently than continued acts of negligence.

If a dentist wasn’t using “sterile gloves” for one patient, the odds are very high that a thorough investigation would prove that all patients were at similar risk. The lone act of negligence would immediately become continued negligence.

But because of recent court action the stakes have risen even higher. It is bad enough to be sued in civil court, and facing a dental board investigation is a horrendous experience, but the precedent has been set so that criminal proceedings could be brought against you.

Should dentists fail to follow the minimum standards of infection control, and should they treat children, they will have met the minimum letter of the law that could see them charged with felony child endangerment (penal code 273 (a) a). This was the precedent that was set in the Dr. Ford case.

The Dr. Ford case involved sedation of a 15 year-old patient, who suffered a heart attack and brain damage in the dental office. This injury to the patient was deemed by a lawyer in the Attorney General’s office to be a criminal act. In the preliminary hearing, the judge, having heard the evidence, ruled that placing a child in a situation where there is a probability of harm, EVEN if no harm occurs, and knowing the consequences of your action rises to the letter of the law for criminal prosecution. There are now some lawyers who believe that an informed consent form is proof that the letter of the law for prosecution has been met.

Dr. Ford was exonerated of all charges against her, but the precedent had been set. It becomes easy to see that failing to follow the minimum standards of infection control could easily meet the letter of the law as applied in the Dr. Ford case, not to mention negligence, defined in black and white.

If you fail to follow “Minimum Standards” of infection control you have definitely placed your patient in a situation where there is a probability of harm, even if no harm has occurred and you are aware of the consequences of your action.

When the state was prosecuting Dr. Ford they argued that guidelines were not followed. They didn’t argue that minimum standards had been violated, because in this case the minimum standards weren’t. Having an unsatisfactory result when not following guidelines can be argued, and argued successfully, by showing that the standard of care in the community was met. Failing to follow a minimum standard can never be argued in that manner and, indeed, the standard of care in the community would be irrelevant in your defense.

AMALGAM RISK PRECEDENT:

We can throw in the interesting aspect of dental amalgam just to show how this can be applied as well, once a precedent is set. While the American Dental Association continues to argue that amalgam is perfectly safe, some dentists in California settled a lawsuit involving amalgam restorations.

In this lawsuit the dentists paid a settlement, and the settlement stated that the use of amalgam poses a health risk to the patient. The settlement even included the language that the use of amalgam in children under age six is contraindicated.

So using amalgam could cause a problem as the precedent has been set that placing a child in a situation where there is a probability of harm, even if none occurs, and knowing the risks can be viewed as rising to the letter of the law for criminal prosecution.

Pending federal legislation even cites the California settlement in the language of that bill. Certain consumer groups have gone on record to state that the use of amalgam should be a criminal act. It would not be a far leap that at some time in the future a test case might be filed. To say that this could never happen is what the profession had said in the Dr. Ford case.

But once the precedent is set, the argument that it could never happen can no longer be used.

What we are finding is that small, very vocal groups of consumer advocates are pushing legislation that can be very harmful for the way you practice and for your fiscal health. The problem is that once these groups get the legislation passed, the precedent is set and you may find that you have to follow these regulations in order to practice in a manner that mitigates possible civil, board or even criminal action.

Intelligent and learned dentists may argue that some of the precautions are not really necessary. When the new regulations are defined as minimum standards for the care of the patient, when certain materials are defined as potentially harmful, and when precedent has been set by cases that have been tried, your ability to defend yourself becomes more difficult if not impossible, should a problem occur.

I hope that this brief article that started out with the issue of infection control, has been informative. These situations can have a profound effect on you should a complaint or lawsuit ever be initiated against you. We are entering a new era for dentists, and it is becoming increasingly more important that you are aware and practicing within the letter of the law.

I strongly believe that the dental profession must take strong steps to regulate and protect their profession. When dentists get so involved that they don’t, then others make the rules and regulations that you must follow.

And because time is money, I want to finish with the cost to you should the California regulations come to apply to your state.

If you have to change one box of gloves each week to sterile gloves to comply with the minimum standards of infection control, the cost is over $3000/year. A busy practice using 5-10 boxes a week would be looking at an increase in cost of $15-30,000/year for sterile gloves.

(Dr. Levy has served as an expert on several cases, and is on the California Board of Dental Examiners panel of expert witnesses to assist in investigations)