Have you ever had this experience: You walk in to the operatory just in time to see your assistant perform unsupervised dentistry? Ever catch the tail end of a conversation between patient and auxiliary recommending a completely wrong course of treatment? Have you submitted an insurance form with the wrong codes or billed a patient for a procedure that wasn’t completed? Has your associate or partner dentist made an error or been involved in a malpractice lawsuit? If the answer to these or other similar questions is yes, congratulations, you’re a dentist. If the answer is no, just wait. When any of these or a million similar scenarios present themselves, it is important to know when you are on the hook and what the potential consequences may be.
Vicarious liability, sometimes called respondeat superior, is the legal responsibility that occurs when one party is liable for the actions of another party. Your position of authority does have some strings attached. Those strings are the actions of auxiliaries under your direction (even if they have their own licenses), associates, and partner dentists who act with the implied authority of your business entity. You are even vicariously liable for the work of the lab technician who is completely outside of your control. When it comes to vicarious liability in healthcare, dentists likely shoulder the greatest burden of any healthcare provider. The legal rubric for vicarious liability generally requires a combination of the following:
When vicarious liability is established, your State Dental Agency, most legal jurisdictions, the National Practitioners Database, and your liability insurance carrier stop distinguishing your acts from the acts of staff under your supervision. You can imagine the potential consequences. We will discuss the most common scenarios, involving employees, hygienists, employee doctors, partnerships, and referrals. EMPLOYEES If you benefit from your employee’s activities, you also assume the risk of those employee activities. If an assistant or hygienist gives erroneous advice resulting in an injury to a patient, you may be liable. Generally, if the staff person is acting outside the scope of his or her job description or license without the dentist’s knowledge, the dentist may avoid liability. However, if a dentist conducts him or herself in a way that leads patients to believe the staff person is acting within the dentist’s authority, the dentist may be held liable. The key is to have a good idea what patient/staff interactions look like when you are not around, and this means effective training. Whether you are there or not, the patient may have a justifiable belief that the dental “advice” is yours and you are liable for resulting damages. Many offices find it effective to create scripts for the most common scenarios. Definitely spend some time discussing the home care instructions given to patients. A printed care recommendation page goes a long ways towards rectifying a misunderstood phrase or demonstrating your typical conduct to a court. Billing issues can be especially tedious to dentists, but we have all heard the horror stories that result from False Claims Act violations. Thousands and thousands of dollars, license sanctions, and even jail time. Check those explosion codes and train front office staff to verify procedures. DENTAL HYGIENISTS The vast majority of states require that the dental hygienist, though independent in some of her activities, and semi-independent in others, be under the personal supervision of the dentist. Dentists not only have the right to control activities of the dental hygienist working under the dentist’s supervision but also the duty to supervise the professional activities of the hygienists. Thus the dentist is responsible for the dental hygienist’s wrongful acts. Even where the fee of the dental hygienist is decided upon by and paid directly to the dental hygienist, the relationship between the dentist and the dental hygienist is that of an employer and agent. The dentist protects his patients and license best by having a written hygiene protocol and directing his hygienist to recommend treatment accordingly. In practice, designing the protocol with the hygiene department’s input leads to the most successful implementation. ASSOCIATE DENTISTS When it comes to legal material, vicarious liability through associate dentists provides the most plentiful source of cases. Unfortunately, there are some doozies. Consider a 2003 case where an associate dentist sexually molested a sedated female patient. The patient sued under a theory of vicarious liability. Although the court found that the theory did not apply to the associate dentist (the assault did not serve the employer, was outside the scope of employment, and that the patient could not have a reasonable belief that the dentist's sexual assault was an act of his employer), the court concluded that vicarious liability did apply to the owner dentist because the dental assistant in the room failed to prevent the assault.[ii] Associate dentist liability is somewhat affected by employment classification. The actions of an employee dentist are more likely to result in vicarious liability. However, independent contractor status does not create an impenetrable shield. The typical test for determining the liability relationship of the parties is whether the employer retains the right to control the time, manner, and method of executing the work. In the dental setting, courts will consider whether the owner provided fully equipped offices and support staff, booked appointments and assigned patients to dentists, established charges, and did billing and collections.[iii] Since this describes the vast majority of independent contractor relationships, owners should be aware of the likelihood of vicarious liability in both employee and independent contractor relationships. The good news for employee or associate dentists, is that vicarious liability is a one-way road. You are not vicariously liable for the malpractice of another dentist employed by the corporation, even if that dentist is the officer or director of the corporation. PARTNER DENTISTS There are a number of legal vehicles for creating your business entity. Most partnerships use some type of corporation, which provides significant liability protections known as the corporate shield. If you did not create a legal entity for your practice, the default legal entity is a partnership. The partnership legal entity may have some benefits, but it falls very short when it comes to protecting either partner from the acts of the other – there is no corporate shield. Each partner has unlimited liability for the negligent injuries associated with the practice. A patient who was seen by only one partner may sue all partners for recovery. SPECIALIST REFERRALS Cases involving “negligent referrals” seem to be cropping up more frequently. Legally, a dentist’s duty of rendering dental care and attention is not excusable through delegation or referral. If the referral dentist performs his or her duty incorrectly, the referring dentist could be on the hook. Negligent referrals hinge on a combination of three factors. They are:
Negligent referrals cases are not restricted to out-of-office referrals. Multi-specialty practices, husband/wife partnership practices, and even itinerant dentists specialists working out of a general dental office have all been the subject of these types of legal suits. If your practice falls into one of these categories, be aware of the mutual risks and liability. CONCLUSION Vicarious liability can be tricky – and it can have just as great an impact on your license and career as your own acts. Sometimes practice growth, profitability, and turnover create increased liability. The law has determined that it is up to you to set the practice’s tone, control work procedures, supervise all staff members, and help them recognize the importance of acting in your name. For the purposes of your legal defense, your employees’ professional actions are extensions of your own. Bio: Benjamin Dyches, DDS, JD practiced dentistry for over a decade before studying law. Dr. Dyches is the founder of Aegis Lion (www.aegislion.com), a company designed to provide comprehensive legal, compliance, and transition care for dental practices. References [i] 38 Am. Jur. Proof of Facts 2d 445 (Originally published in 1984). [ii] Marie Y. v. General Star Indemnity Co., __ Cal.App.4th __, 2 Cal.Rptr.3d 135 (3rd Dist., 2003). [iii] Matter of Lane, 160 A.D.2d 1060, 553 N.Y.S.2d 575 (1990)
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