Legal Updates for Health Care Liability
Help for Dentists Navigating the Uncharted Waters of COVID-19
According to the Centers for Disease Control and Prevention (CDC), COVID-19 is a respiratory illness thought to spread between people who are in close contact with one another (within about six feet) through respiratory droplets produced when an infected person coughs or sneezes. Given the characteristics of the dental setting, there is a high risk of COVID-19 infection between dental practitioners and patients. Not only are dentists and their staff in very close proximity to patients, their procedures involve instruments and air-water syringes that create a spray that may contain contaminated aerosols or droplets. These may consequently spread to their surroundings. Also, dental apparatuses may be contaminated with pathogenic microorganisms after use and would continue to expose the clinical environment.
In recent weeks, many governors across the United States have issued “stay at home” directives, including orders prohibiting elective dental procedures. Dentists and dental practices are no exception to the millions across America who are impacted by these orders, which only allow “essential” businesses to continue operating and only permit medical procedures that are emergent or urgent. Dentists face much uncertainty in complying with these guidelines while simultaneously handling increased legal and business concerns. The key is understanding the steps that can be taken in order to reduce the risk of infection, and liability.
State Orders Impacting Dentists and Subsequent Guidance Provided by National Organizations
In Pennsylvania, Governor Wolf issued an order closing all non life-sustaining businesses. He allowed life-sustaining health care services to remain open, but specifically prohibited all elective procedures. This has created much confusion for the dental community. On March 26, 2020, the Pennsylvania Department of Health (DOH) provided further guidance by delineating that dental facilities must cease all dental treatment, except urgent and emergency procedures.
Per the DOH’s directives, dentists must conduct a pre-interview screening via telephone or teledentistry, not only to determine whether the patient’s dental concern is emergent or urgent, but also to determine whether a patient is suspected or confirmed to have COVID-19. Thereafter, normal dental practices may be followed for emergency and urgent procedures for patients who are not suspected or confirmed to have COVID-19. The DOH mandated, however, that the following procedures must be implemented when treating patients with confirmed or suspected COVID-19 during emergency and urgent procedures:
- Provide the patient with a facemask upon entry to the office and guide the patient to the procedure room.
- Ask the patient to: (1) wash his/her hands with soap and water for at least 20 seconds; and (2) use an antimicrobial mouth rinse when possible.
- Only personnel wearing disposable, CDC-approved masks, goggles or a face shield, and disposable gowns and gloves are to be permitted to enter the procedure room and provide care.
- Only the minimum number of dental professionals necessary to complete the procedure must be in the procedure room.
- Antibiotics and pain management treatments that do not generate aerosol must be considered.
- For aerosol-generating procedures, a high-volume evacuator and a rubber dam must be used, when possible.
- Before the patient exits the room, place a clean mask on the patient and ask the patient to wash his/her hands per CDC guidelines.
- After the patient leaves the procedure room, it must be disinfected according to CDC guidelines.
Pennsylvania dentists who closed their practice due to COVID-19 were encouraged to remain available to speak to patients and triage calls for dental emergencies. Dentists were also encouraged to use teledentistry, if available, for patients who may be experiencing pain and/or infection and who could be treated by prescribing antibiotics and pain medication.
Similar orders were issued in many states across the country. In bordering states, like New York and New Jersey, for example, all elective procedures were suspended. In New York, “elective” is not defined, and like many states, the determination is left to the clinical judgment of each dentist individually. In New Jersey, the governor’s order defined an “elective” procedure as any dental surgery or invasive procedure that can be delayed without undue risk to the current or future health of the patient, as determined by the patient’s treating dentist. New Jersey’s order, therefore, specifically defers to the dentist’s clinical judgment. Many orders related to dentists that were implemented at the state levels strongly encouraged dentists to follow COVID-19 guidelines set by the American Dental Association (ADA) and the CDC. The ADA recently recommended that dentists keep their offices closed to all but emergency and urgent procedures until April 30, 2020, at the earliest. This aligns with recommendations from the CDC as well the Centers for Medicare and Medicaid Services (CMS).
The ADA specifically defines dental emergencies as those that are “potentially life threatening and require immediate treatment to stop ongoing tissue bleeding, alleviate severe pain or infection.” Dental emergencies include uncontrolled bleeding, cellulitis with swelling that may compromise the patient’s airway, and trauma involving facial bones that could compromise the patient’s airway. Urgent dental care is defined by the ADA as “the management of conditions that require immediate attention to relieve severe pain and/or risk of infection and to alleviate the burden on hospital emergency departments.” Some examples of urgent dental care, per ADA guidelines, are dental pain from pulpal inflammation, third-molar pain, treatment for tooth fractures, final crown/bridge work, denture adjustments, and necessary pre-op and post-op care for critical medical procedures. Non-emergency procedures include extractions of asymptomatic teeth, routine care and cleanings, and restorative and aesthetic dentistry.
Suggestions for Possible Risk Mitigation and Liability Reduction
Liability is an important consideration for dentists in this rapidly changing landscape. It is not unthinkable, for example, that a dentist may fail to take precautions outlined by the CDC and thereby contribute to the spread of the virus. Another scenario is where a dentist needs to conduct a “juggling act” between performing an emergency procedure within the standard of care while attempting to diminish the risk of COVID-19 infection. Consider these best practices.
Keep your patients apprised and informed. Dentists should tell their patients in writing how their practice has changed due to COVID-19. They should explain that, per state directives, their offices are closed for all care except emergent and urgent procedures. Examples of what is considered emergent or urgent should be provided. Dentists should also delineate all of the precautions and policies that have been implemented. It is important to explain that the health and safety of your patients and staff are the highest priorities, and that your practice is diligently monitoring updates from all state and federal entities and associations. Dentists should also inform patients about their availability by telephone and/or teledentistry.
Be flexible and prepare to make temporary adjustments. For example, before allowing a patient to enter the office, pre-visit screenings should be conducted by telephone or teledentistry, as per ADA and CDC guidelines. Appointments could be scheduled in a manner so that the number of people in the office at any given time is limited. Staff should be trained on all sanitation and sterilization requirements as per state and federal guidance, including those issued by the CDC, ADA, CMS and OSHA. Dentists may also want to limit aerosol-generating procedures when feasible and when such measures would not increase the risk of other adverse events. For the same reasons, extra-oral dental radiographies may be considered as appropriate alternatives to intra-oral imaging.
Comply with teledentistry requirements. For dentists engaging in teledentistry, either for the first time or at an increased rate, they must be sure to consult their licensing boards and professional associations in order to ensure that their use of teledentistry complies with all requirements for licensing, security, HIPAA, other privacy and confidentiality, patient consent specific to teledentistry, and proper clinical documentation. Dentists may also want to consider updating their informed consent forms, or creating a separate form for care during the pandemic that sets forth the risks of viral infection, the steps taken in the office to limit the spread of the disease, and that the procedure is considered emergent or urgent per state directive so the patient can consider not only the risks and alternatives of the procedure itself, but also the care under the COVID-19 circumstances.
Follow the guidelines set forth by the CDC and the ADA. It is important to note that these guidelines are just what the term implies. They are simply guidelines proposed by federal agencies and organizations. They are broad, do not take individualized circumstances into account and are not intended to set forth the standard of care. Therefore, when facing the significant challenges of COVID-19, it is important that dentists revert back to what they know best—providing care in accordance with their best clinical judgment. Notably, the ADA guidelines on COVID-19 state that dentists should exercise professional judgment, carefully consider the risks, and weigh those risks against benefits to the patient, the practice’s employees and the public at large.
We are navigating uncharted seas in this COVID-19 crisis. Specific emphasis and review of all guidelines issued by federal and state governmental authorities and professional organizations, including the CDC and the ADA, should be frequent in the coming weeks and months. When in doubt, consult your Code of Ethics and utilize those who have special skills, knowledge or expertise. Marshall Dennehey’s COVID-19 Task Force will continue to monitor changes and provide guidance for all clients and health care providers as this landscape continues to rapidly evolve.
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