Ethics and Law in

Dental Hygiene
To teach is to learn.
JAPANESE PROVERB
Cheryl Davis RDH, BS, JD
cheryldavis64@yahoo.com

Topic: The Dental HygienistClient Relationship

Text: Ethics and Law in Dental Hygiene,
2d ed. Phyllis L. Beemsterboer

Objectives
At the end of this session, the learner will be able to
Describe the professional obligations that exist
between the DH and Client
Recognize the differences between Civil Law,
Criminal Law, and Torts as they relate to DHs
List the three most common legal actions filed
against DHs and understand how to avoid them

Professional Obligations
Relationship is a critical factor in delivering quality
DH care: a 2-party association and commitment.1
The DH must understand expectations of Client
and communicate any limitations that may exist.
DHs obligation: To comply with the laws and
standard of care. Failure to do so can result in
complaints, sanctions, or criminal penalties.

Legal Framework of
Relationship
In addition to the professional relationship that
exists, the relationship between the DH and the
Client is also legally binding.
This awareness must guide the DHs actions,
decisions, record keeping, and professional
conduct in all aspects of their association.

Differences between Civil and

Criminal Law
The most common consequences of causing harm
to a Client are Civil Actions, the legal remedy for
committing a wrongful act that violates the
Clients person, privacy, property, or rights.1
The Two Main Categories of Civil Actions are:
Breach of Contract claims (express or implied)
Claims based on Tort LawWhat is a TORT?

Tort Law

A Tort is defined as a private or civil wrong or

injury . . . for which the court will provide a
remedy in the form of an action for damages.2
It is also defined as a wrong resulting from
breach of legal duty created by societal
expectations of performance.1

General Classifications of Torts

An intentional tort is a deliberate and purposeful

act that has substantial certainty of untoward
consequences from the act.1 Intentional torts
relate to persons and to property.1,2
An unintentional tort does not have the
requirement of intent; however harm or injury do
occur. The most well-known is probably
Negligence.3

Criminal Actions

Criminal Actions--A violation of societal rules

outlined by statutory law, e.g., practicing without a
license, physically harming someone with a
weapon1
Important terms: Plaintiff, Defendant, Deposition,
Discovery, Trial, Witnesses and Evidence
Burdens of Proof: Beyond a reasonable doubt and a
preponderance of the evidence (>50%)4

Rights and Responsibilities of

Client and Practitioner
(See Handout)
Failure by either party to meet its obligations
can result in litigation. This topic will be
covered in-depth during a subsequent class.

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Legal Actions Against the Dental

Hygienist
The three most common legal actions related to
dental health care practice are
Failure to obtain informed consent
Malpractice
Breach of Contract1

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Informed Consent

The requirement of informed consent is based

on the premise that every citizen has the basic
right to be free from invasions of their body
without permission.1
Two important cases are worth examining:

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Informed Consent-Court Case

(1)
Union Pacific Railway v. Botsford, 141 U.S. 250, 251 (1891).
No right is held more sacred, or is more carefully guarded
by the common law, than the right of every individual to
the possession and control of his own person, free from all
restraint or interference of others, unless by clear and
unquestionable authority of law.

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Informed Consent-Court Case

(2)
In 1914, the U.S. Supreme Courts position
regarding a persons authority over their person as
determined in Botsford was extended to the
delivery of health care in
Schloendorff v. Society of New York Hospital, 105
N.E. 92, 93 (1914), when the court opined that

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Court Case (2) (cont.)

Every human being of adult years and sound

mind has a right to determine what shall be
done with his own body; and a surgeon who
performs an operation without his patients
consent commits an assault.

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(3) Elements of Informed

Consent
Establishing a successful cause of action requires
proof of three elements:
(1) The DH had a duty to disclose information re
the proposed treatment
(2) The DH breached that duty
(3) The breach was the cause of the injury to the
Client3

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Who can give Informed

Consent
Competent adults have sole authority re
treatments for their own body unless they are
incompetent or incapacitated, in which case
consent must be obtained from an authorized
person.1
Guidance is found in statutory law; the classes of
persons authorized to give consent are prioritized.

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Who can give valid Informed

Consent in Order of Authority
(1) An Appointed guardian, (2) Person with a durable
Power of Attorney for health care decisions, (3)
Spouse or Registered Domestic Partner, (4) Children
> 18 years of age, and (5) Parents, and Adult
siblings1
Authorization is not valid if a person of higher
authority refused consent or two or more persons
within the same class cannot agree.

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Professional Malpractice

Defined: The failure of a health care provider to

exercise the degree of care, skill, and learning
expected of a reasonably prudent provider under
similar circumstances.1
A standard of care can be established legislatively,
administratively, or by expert testimony.
Statute of limitations is 2 years in most states.3

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Breach of Contract

The most common claim associated with dental

health care injuries occurs when the DH promises
the Client that the injury suffered would not occur.1
The DH is not expected to be a guarantor of the
Clients health care results; therefore, the DH must
be careful not to make statements that a client
may interpret as a guarantee of outcome.

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Summary of Key Points

In DH-Client relationships, both parties have R & R
that should be communicated or expressed clearly.
Recognize the differences between Civil and
Criminal Law and how to avoid legal actions.
At the core of most legal actions against DHs, or
health care workers in general, is a breach of duty.
Keywords: Duty-Breach-Causation----Harm

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Quiz Time!

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Thank you for your kind

attention.
Honor is like a rugged island without a shore;
once you have left it, you cannot return.
NICOLAS BOILEAU

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References
Beemsterboer PL: Ethics and Law in Dental
Hygiene, ed 2, St. Louis, Missouri, 2010, Elsevier,
Inc.
1

Blacks Law Dictionary, ed 8, St. Paul, MN, 2004,

West Publishing Company.
2

Kionka, EJ: Torts in a nut shell, St. Paul, MN, 1991,

West Publishing Company.
3

LaFave WR, Scott AW: Criminal Law, ed 2, St.

Paul, MN, 1986, West Publishing Company.
4

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