By Diane D. Glascoe
I am a dental hygienist licensed in two states, Maryland and Pennsylvania. My question involves treating minors. We often see children for various services, from prophys to fillings, without their parents being physically present in the office. Typically, these are patients of record. If something were to happen, such as a seizure or allergic reaction, could the dentist or hygienist providing treatment be held liable? Also, is a note from the parent giving us permission to render treatment enough to protect us if something happens?
Sometimes, the parent drops the child off at our door and leaves to do errands. Additionally, some minors are teens that have their driver's licenses. They come to their appointment on their own so the parent doesn't have to get off work. Is it legal for us to treat them without a parent being present? And what if someone else brings the child, such as a neighbor, baby-sitter, or grandparent?
In my pediatrician's office, they will not see a minor without the presence of a parent or guardian for any reason, even an allergy shot. Why are we so lax in this area? If the physician's office thinks parental permission is important, why don't we in dentistry feel the same way? Or am I just being too paranoid?
Worried in Washington
I don't think you are being paranoid at all. Some dental practices are lax in the area of consent to treat minors.
The scenario you have described happens all across the country every day. Junior, who is eight years old, has an appointment for two restorations at 10 a.m. His mother drops him off at the front door and leaves to run errands. Mom feels fine about this because she has known the doctor for many years. The thought that something unpleasant could happen does not cross her mind. Imagine her distress when she returns to pick Junior up and discovers that he has been taken to the hospital because he inadvertently swallowed a rubber dam clamp that popped loose when he became combative. Could the doctor be sued? Without expressed consent, most definitely!
Even in some preventive care appointments, children can become nauseous and vomit, especially if they swallow polishing paste or fluoride. No parent enjoys the thought that her child was subjected to some treatment that was vile enough to elicit such a reaction.
Actually, my sources on the Internet Dental Forum tell me the charge would be "assault and/or battery." According to the Web site, www.legal-definitions.com, the definition of "assault" is "threat or use of force on another that reasonably makes that person fear bodily harm." "Battery" is defined as "the use of force on another resulting in harmful contact — a criminal act."
To me, assault and battery constitute a willful act with the intention to do harm to someone. I had never considered that any dental treatment could be considered assault and/or battery. Without a parent or legal guardian's express approval prior to treatment, a clinician could be charged.
Thankfully, many things have changed over the past 25 years. Back in the 1970s, I witnessed certain "control" measures used on children that definitely would not be considered appropriate today. I have seen children being shaken by the shoulders to "shock" them and get their attention when they were being unruly. I have seen children being told to "shut up and lie still." I have seen doctors at the end of their patience raise the chair to an upright position and make remarks like, "Get this brat out of here before I do something I'll regret." Today, any of the aforementioned scenarios could be construed as battery.
In dealing with parents and minors who are patients of record, there is not a huge likelihood that a clinician would be charged criminally if something happened, such as the child having a seizure or an allergic reaction. According to Casey Crafton, DDS, JD, of Columbia, Md., the act of Mom dropping Junior off for treatment could be taken as "implied" permission. However, there is always the possibility that something untoward or unforeseen could happen.
Petra von Heimburg, DDS, JD, of Barrington, Ill. (www.ceprofonline.com), offers this perspective:
"Every office should think long and hard about their policies regarding the treatment of minors. This is an area of the 'judgment call.' For example, I would not suggest that an office allow a parent to drop off a five-year-old and leave the facility. I would also suggest that when the minor (of any age) is undergoing oral surgery that the parent/legal guardian is present. An office should tailor their treatment policy regarding minors to its comfort level."
Unfortunately, we live in a litigious society. I am not particularly litigious, or I would have sued the chiropractor who broke my rib during a chiropractic adjustment (my physician said I should sue him). However, there are individuals who would jump at a chance to sue a doctor or dentist, primarily because these professionals are presumed (either rightly or wrongly) to be wealthy. I wish it was not so, but it is.
This is an area where all staff members must be vigilant. Actually, obtaining permission to treat only becomes a problem when someone forgets to follow through. Usually, there is ample opportunity to interface with a parent or legal guardian before treatment is commenced. Treating emergencies is one area where obtaining permission could be a problem. Many states have laws that protect health-care providers when rendering emergency care.
The bottom line is this: When treating a minor child, you must obtain expressed permission from a parent or legal guardian to avoid any possibility of being sued for criminal actions relating to events that occur during the treatment.
to treat minors
• When the parent brings the child in for the exam and restorative needs are discovered, get "blanket" permission to do any and all of the diagnosed treatment. Always document that permission in the patient's chart, and have the parent sign it.
• The parent or legal guardian may send a signed note granting permission to treat.
• If someone other than the parent or legal guardian brings the child in, and you don't already have permission to treat, call the parent and get permission over the telephone. Be sure the conversation is documented in the patient's chart.
• When treating a child of divorced parents, you must find out who has legal custody and get permission from that person.
• If a grandparent brings the child in for treatment, ask the question, "Does this child live with you?" If the answer is "no," you must contact the parent and get verbal permission before treating.
• When treating foster children, get permission from the caseworker. In some situations, the caseworker has to get permission from an absentee parent, which can be complicated.
From a practical perspective, some offices may feel comfortable being more "liberal" in their policies. Here is a sample letter that could be used:
It is the office policy that the parent/legal guardian may leave the facility while the minor is being treated, provided that:
a. the minor is over the age of 10 years
b. the procedure to be done involves routine dental treatment, such as cleaning, fluoride treatment or fillings
c. the parent/legal guardian is available by phone
d. the parent/legal guardian has signed all the required documentation
e. the parent/legal guardian has informed the office beforehand that he/she will be leaving the facility or that he/she will not be present.
We will inform the parent/legal guardian at what time the treatment is expected to be completed. In case the minor is being picked up, we expect the parent/legal guardian to return on time.'
A time of crisis occurs when some unfortunate incident happens. At that time, it would always be better to have the parent/legal guardian available. However, in case of a threat to the minor's health and well-being, Illinois law assumes consent to emergency treatment has been given and the doctor should proceed in the best interest of the minor by instituting the appropriate measures, such as CPR, calling the paramedics, etc."
In regard to the last sentence, it is always a good idea to confirm what variations exist in your state's laws.
Dianne D. Glasscoe, RDH, BS, is a professional speaker, writer, and consultant to dental practices across the United States. She is CEO of Professional Dental Management, based in Lexington, N.C. To contact Glasscoe for speaking or consulting, call (336) 472-3515, fax (336) 472-5567, or email [email protected]. Visit her Web site at www.professionaldentalmgmt.com.