By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
At the Florida Board of Dentistry meeting held on November 15, 2013, one of the committee chairs discussed an issue that has arisen nationally that is causing dentists legal problems. The issue arises when individuals contact a dentist over the internet seeking “information” on a dental condition or problem, and possible treatment or procedures that can resolve these issues.
The concern is that the dentist may actually be diagnosing a dental condition or problem the individual has. The bigger concern arises if the individual contacting the dentist is in a different state from the one in which the dentist is licensed. Then the dentist is actually practicing dentistry in the state in which the individual is located.
In this blog I will discuss some of the issues a dentist can encounter when diagnosing a condition or problem over the internet. I will also talk about ways a dentist can reduce his or her risk.
Issues Dentists Can Face When Diagnosing a Condition Over the Web.
Diagnosing a non-patient over the internet can cause a myriad of different problems for the dentist involved, including these situations:
1. By diagnosing in a state in which the dentist is not licensed, he or she is engaging in the unlicensed practice of dentistry in that state. This can lead to criminal charges in that state and disciplinary actions in the state where the dentist is licensed.
2. Cases have arisen where incorrect diagnoses have been rendered because the individual failed to provide complete information, and the dentist failed to physically examine the individual or follow other procedures normally followed.
3. There have been instances where such individuals have filed complaints or claims against dentists for providing them information upon which they relied.
4. In most cases, a dentist’s professional liability (dental malpractice) insurance will not cover professional negligence in another state.
Recommendations to Reduce Risk.
I recommend that dentists take the following steps to help reduce risk if involved in providing information to non-patients over the internet or in the media (radio, television, newspaper, etc.):
1. Make sure that you have proper warnings and disclaimers that are included in every such e-mail communication or listserv communication you make.
A. Include the state in which the dentist is licensed/practicing and explain that the communication is not considered to be diagnosing, prescribing, treating or practicing any profession in any other state or jurisdiction.
B. Include a disclaimer or statement in every e-mail listserv or other communication with non-patients that you are providing general information for educational purposes only, and the individual must seek and follow the advice of a dentist in his or her geographic area to make any diagnoses.
C. Include that the person receiving the information cannot rely on it for treatment purposes since an actual physical examination must take place before any reliable information/recommendations can be made in any individual’s case.
2. Inquire with your professional liability insurer or agent to ask about “broad form coverage” and attempt to obtain coverage that includes educational activities, marketing activities and other similar activities. Make sure the “broad form coverage” also covers these activities in different states.
3. Make sure your professional liability insurance provides coverage for legal expenses involved in defending against administrative complaints and investigations initiated by any state or federal agency that could result in disciplinary action against you or your license. You probably need at least $25,000 in coverage for this. However, $50,000 or $75,000 in coverage for such matters is preferred. Buy this coverage separately if necessary. Lloyd’s of London provides such coverage separately.
4. Find out where the individual contacting you resides or is communicating from. Require complete information, including complete name, address and telephone numbers.
5. Be extremely reluctant to criticize care, services, procedures, materials or appliances used or prescribed by other dentists.
Contact Health Law Attorneys Experienced in Representing Dentists.
The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Comments?
Have you ever been asked to consult with a patient over the internet? Did you know all of these issues could up? Please leave any thoughtful comments below.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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