Unconventional Dentistry: Part III. Legal and Regulatory Issues

Unconventional Dentistry: Part III. Legal and Regulatory Issues
By: Burton H. Goldstein, DMD, MS, FRCD(C)
UD presents issues of dental quackery, fraud and malpractice, and it also engenders professional concerns about public protection and professional risks. Case reports illustrate numerous issues. The reader is encouraged to evaluate the cases for problems related to malpractice, fraud, ethics, behaviours and professionalism. A discussion of ethical issues is beyond the scope of this paper.
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Quackery, Fraud and Malpractice
Quackery has been defined as Çƒ?the fraudulent misrepresentation of oneÇƒÙs ability and experience in the diagnosis and treatment of disease or of the effects to be achieved by the treatment offered.Çƒ?5 For dentists, physicians and laypeople, quackery may be broadly defined as Çƒ?anything involving overpromotion in the field of health.Çƒ?6 This definition would include dubious ideas, products and services regardless of the promotersÇƒÙ sincerity.
Unproven methods, ideas and services may be experimental rather than quackery. Unproven methods require formal scientific study and the informed consent of patients to qualify as experimental rather than quackery. Dubious methods can be harmful physically, psychologically, emotionally and financially because of the treatment itself, because of the delay or failure to get treatment that might be helpful, or because of the resultant confusion.7 Quackery is also harmful in diminishing public confidence in science, medicine and dentistry, perverting science and public health and feeding a degeneration in professional ethics.
Health fraud is the deceptive promotion, advertisement, distribution or sale of a service, product or remedy for diagnosis, prevention, cure, treatment or mitigation of a disease (or other condition) or for the provision of a beneficial effect on health but which has not been scientifically proven safe and effective for such purpose.8 The term Çƒ?fraudÇƒ? usually implies intentional deception, without belief in the truth of the representation or, recklessly, without regard for the truth.9 Additionally, a practice promoted without adequate knowledge or understanding, notwithstanding sincere belief, may be considered fraud.8 Fraud is difficult to prove in court.
Malpractice means failing to meet the accepted standard of practice; it is the degree of skill and knowledge that would be expected of any reasonable provider in the profession under similar circumstances. Courts decide the standard of care for individual cases. Standards of practice in medicine and dentistry ideally reflect scientific knowledge and science-based methods. Licensed unconventional practitioners such as natu ro pathic physicians, chiropractors and massage therapists are judged by standards of practice in their professions, which may or may not be science-based. Non-licensed, unregulated practitioners such as herbalists, therapeutic touch practitioners and reflexologists do not posses any recognized school-specific standards and may be judged by lay standards that are difficult to define, assess and quantify.10
Quackery can overlap malpractice, and malpractice may not involve quackery. As examples, injuring the mandibular nerve while extracting an impacted mandibular third molar without warning the patient in advance may be malpractice, but is not quackery. Dental splints are used for preventing habit-related tooth wear, but promoting or using dental splints to cure dysmenorrhea may be quackery. To make matters more confusing, recommending homeopathic medication to prevent infection and swelling may be the standard of practice for naturopathy but might be quackery and malpractice for a dentist or physician.
Recent malpractice claim data for chiropractors, massage therapists and acupuncturists in the United States show less frequent claims and less severe injuries than for physicians.10 The most prevalent unconventional medicine (UM) cases currently in the Canadian court system involve chiropractors.11 There appears to be a disproportionately small awareness of regulatory, disciplinary and legal cases involving unconventional dentistry (UD). With the growing emphasis in dentistry on evidence-based care and scientific standards of care, licensed dentists practising UD may be more likely to be judged negligent in a claim.