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From the States Legislation & Litigation
From the States
Legislation & Litigation
Legislation Colorado has renew ed its dental care program fo r persons receiving state old-age pensions and public assistance. Arizona and Kansas adopted laws permitting pharmacists to substitute generic fo r brand nam e drugs. Kansas has joined the majority of states in adopting a sunset law that governs state boards of dentistry. Maryland enacted several measures aim ed at abuses of the Medicaid program by physicians and dentists.
Arizona drug substitution law is administered by the state board of pharmacy. The Arizona board of pharmacy has until Jan 1, 1979, to develop a formulary of generic and brand name drugs which are clini cally and biologically equivalent. The new law provides the usual op tion for the practitioner to require a brand name drug on the prescription. No substitutions are permitted for prescribed drugs mailed from out of state pharmacies.
Colorado extends denture care plan for elderly through June 30, 1979. The Colorado dental care act of 1977 provides denture care and related dental services to persons receiving old-age pensions and public assist ance. The legislature eliminated a provision that authorized the health department to contract with dental laboratories directly. The law sets out the maximum fees for all services with a requirement that the patient pay 20% of the dentist’s charges. An appropriation of $252,000 is au thorized for the one-year extension.
Kansas adopts drug substitution and sunset laws. The Kansas drug sub stitution law has the usual provision permitting practitioners to specify whether a generic drug may be sub
stituted for a brand name drug. No special formulary is established. An unusual stipulation in the definition of a drug is the exclusion of amygdalin (laetrile). The Kansas sunset law calls for abolishment of the dental board on July 1,1983, unless the board is con tinued or reestablished by the legisla ture before that date. The law specifies that no extension of the au thority of an agency, including the dental board, may last for more than six years. The Kansas dental board was reconstituted to include three dentists, one dental hygienist, and one public member.
Maine “denturist” law amended to include provisions for suspension and revocation of licenses. The 1977 Maine law creating a new cate gory of licensed dental auxiliary to assist the dentist in providing den ture care did not include provisions for suspending or revoking licenses. Among the causes for disciplinary action against a “denturist” are hold ing out as a dentist and performing procedures not under the direction and direct supervision of the employer-dentist. The 1977 law also was amended to correct an inadver tent mistake in defining entitlement for a “denturist” license. The law now requires all applicants for license to undergo board examina tion, including those who meet cer tain training and experience stan dards.
Maryland imposes penalties for practitioners who abuse medical as sistance program. A physician or dentist who is convicted of fraud in connection with the Medicaid pro gram is ineligible to receive any further payments under the program. A second new law is directed at prac titioners who are guilty of fraud in
receiving overpayments. Whether convicted in a criminal action or found liable in a civil action based on fraud, the practitioner will be as sessed three times the overpayment as an award to the state. A third new law makes it a misdemeanor for a practitioner to destroy or alter a pa tient’s medical record. One who commits such an offense is subject to a fine up to $5,000 and imprisonment up to one year.
Tennessee dental law amended to include physical evaluation of pa tients as part of oral surgeon’s prac tice. The Tennessee law was amended to specify certain respon sibilities of the board mainly in reg ulating “certified” or “registered” dental assistants as well as dentists and dental hygienists. But the most significant amendment adds to the definition of dental practice “the use of a complete or limited physical evaluation of patients by a board eli gible or board certified oral surgeon or a resident in an approved oral surgery program so long as such oral surgeon or resident is practicing in a hospital setting.”
Vermont dental law amended to ex pand definition of unprofessional conduct. The major additions to the Vermont dental law specify fraudu lent or deceptive practices, including advertising. A significant addition to the unprofessional conduct section is a prohibition against dentists an nouncing to the public as specialists unless they have met the educational standards set by the ADA Commis sion on Accreditation of Dental and Dental Auxiliary Programs or unless they are eligible to take the ADAapproved certifying board examina tion. (The reference to the Commis sion is technically incorrect; the ADA Council on Dental Education sets standards for determining who may ethically announce as a dental specialist.) Vermont has adopted a shortened period for bringing medical malprac tice actions. The period is one of the following: three years from the date of the incident; two years from the date the injury was discovered or reaJADA, Vol. 97, July 1978 ■ 143
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& L IT IG A T IO N
sonably should have been dis covered, but in no event more than seven years from the date of the inci dent. Exceptions to the new statute of limitations include no limitation where fraudulent concealment of an injury is shown and two years after discovery of a foreign object in the body.
Virginia provides public hearings for those complaining of rules and regulations of licensing boards. A hearing agency designated as the Joint General Laws Subcommittee is required to hold hearings when complaints are received about rules and regulations established by any one of 29 licensing or regulatory boards including the board of den tistry. The Virginia legislature adopted a resolution creating a nine-member commission to study the containment of health care costs. No representative of health care pro vider groups may serve on the com mission. Among the commission’s assignments is to determine whether regulation of third party payments is in the public interest and “to recom mend the content of a proposed sta tute to establish a state rate review program consistent with the public’s interest and federal law.”
Wisconsin includes dental treatment in state-funded programs for hemophilia victims; optometry law limits advertising restrictions. The new law provides for both institu tional and noninstitutional services for those suffering from hemophilia and related blood disorders. Dental treatment is included as part of the maintenance program for be neficiaries. An amendment to the Wisconsin optometry law bans any regulation that attempts to restrict “nonvariable services,” that phrase being defined as “services for which a fee can be objectively determined prior to the time the services are ren dered.”
Litigation This month’s report features an official opinion of the California attorney genera l that root canal pastes (N-2 or
RC-2B) may legally b e prescribed by a dentistfo r an individual patient’s needs. Also featured is a US Suprem e Court decision upholding a fed era l antitrust complaint against the National Society of Professional Engineers. Malpractice decisions involving dentists are also presented.
California attorney general issues 33-page opinion validating pre scription ofN-2 or RC-2B endodontic pastes by dentists. The opinion of the California attorney general con cludes that “a pharmacist may com pound and dispense, pursuant to an individual prescription of a dentist, for an individual patient’s needs, ma terials in a formula similar to the products N-2 or RC-2B even though such materials have not received an investigational new drug (IND) or new drug approval (NDA) clearance from the federal Food and Drug Ad ministration or the (California) State Department of Health, and even though the commercial sale of such materials may be prohibited, pro vided that the component elements of such materials in any combination or singly have not been banned by state or federal law or regulation.” (Opinion o f Eville ). Younger, Attor ney General, State o f California, CV 76/212 and CV 77/236, May 2, 1978.)
US Supreme Court upholds Depart ment of Justice civil antitrust com plaint against ethical code of Na tional Society of Professional En gineers. The engineers’ code of ethics prohibits its members from submitting competitive bids to pur chasers of engineering services. The federal district court ruled that the anticompetitive bidding ethic was, on its face, a violation of the federal Sherman Act. The federal court of appeals upheld the district court on the ethics issue. The US Supreme Court reviewed the case to determine whether the anticompetitive bidding ethic could survive as a reasonable restraint on competition. In a 15-page series of concurring opinions (with a dissent on a lesser issue), the Su preme Court upheld the lower courts’ ruling that the ethic in question con stituted a per se violation of the fed
144 ■ LEGISLATION & LITIGATION I JADA, Vol. 97, July 1978
eral Sherman Act. (National Society o f P rofessional Engineers vs United States, 98 Sup Ct 1355, 1978.)
Missouri court of appeals upholds jury verdict against dentist for wrongful death of 18-year-old pa tient. The decedent was a regular patient of the dentist for seven years. In 1970, the dentist admitted the pa tient to a hospital for the extraction of two impacted third molars. The pa tient had a history of asthma. The question before the jury was a mixed one—whether the dentist knew or should have known of the patient’s asthmatic condition and, if so, whether the dentist’s extraction pro cedure should have been postponed when symptoms of asthma occurred before surgery. The plaintiff’s expert witness, a physician, concluded that “By failure of [the dentist] to post pone or cancel this operation because of the knowledge of asthma, he en abled the start of a whole series of events which led to the use of an agent which is harmful to an asthma tic patient, which in turn led to the lack of oxygen... damage to the brain and cardiac arrest.” The jury appar ently believed the dentist should have recognized the asthmatic symptoms or should have known of the patient’s history of asthma. The lack of oxygen apparently was attrib uted to the anesthetic agent. The anesthetist, a nurse, testified that she was not aware of the patient’s asthmatic condition. (McKinley vs -------- , 563, SW 2d 505, 1978.)
Illinois appellate court upholds ver dict for dentist in malpractice case. The plaintiff claimed that her injury, permanent numbness and pain following extraction of the lower left third molar, was caused by the negligence of the defendant, an oral surgeon. The trial judge directed a verdict on the plaintiffs contention that she did not give her informed consent to the surgery. On her con tention that the defendant’s negli gence was the kind that a lay person could determine (res ipsa loquitur), the jury found for the dentist. (Grubb v s -------- , 373, NE 2d 1082, 1978.)
Legislation & Litigation
Legislation Colorado has renew ed its dental care program fo r persons receiving state old-age pensions and public assistance. Arizona and Kansas adopted laws permitting pharmacists to substitute generic fo r brand nam e drugs. Kansas has joined the majority of states in adopting a sunset law that governs state boards of dentistry. Maryland enacted several measures aim ed at abuses of the Medicaid program by physicians and dentists.
Arizona drug substitution law is administered by the state board of pharmacy. The Arizona board of pharmacy has until Jan 1, 1979, to develop a formulary of generic and brand name drugs which are clini cally and biologically equivalent. The new law provides the usual op tion for the practitioner to require a brand name drug on the prescription. No substitutions are permitted for prescribed drugs mailed from out of state pharmacies.
Colorado extends denture care plan for elderly through June 30, 1979. The Colorado dental care act of 1977 provides denture care and related dental services to persons receiving old-age pensions and public assist ance. The legislature eliminated a provision that authorized the health department to contract with dental laboratories directly. The law sets out the maximum fees for all services with a requirement that the patient pay 20% of the dentist’s charges. An appropriation of $252,000 is au thorized for the one-year extension.
Kansas adopts drug substitution and sunset laws. The Kansas drug sub stitution law has the usual provision permitting practitioners to specify whether a generic drug may be sub
stituted for a brand name drug. No special formulary is established. An unusual stipulation in the definition of a drug is the exclusion of amygdalin (laetrile). The Kansas sunset law calls for abolishment of the dental board on July 1,1983, unless the board is con tinued or reestablished by the legisla ture before that date. The law specifies that no extension of the au thority of an agency, including the dental board, may last for more than six years. The Kansas dental board was reconstituted to include three dentists, one dental hygienist, and one public member.
Maine “denturist” law amended to include provisions for suspension and revocation of licenses. The 1977 Maine law creating a new cate gory of licensed dental auxiliary to assist the dentist in providing den ture care did not include provisions for suspending or revoking licenses. Among the causes for disciplinary action against a “denturist” are hold ing out as a dentist and performing procedures not under the direction and direct supervision of the employer-dentist. The 1977 law also was amended to correct an inadver tent mistake in defining entitlement for a “denturist” license. The law now requires all applicants for license to undergo board examina tion, including those who meet cer tain training and experience stan dards.
Maryland imposes penalties for practitioners who abuse medical as sistance program. A physician or dentist who is convicted of fraud in connection with the Medicaid pro gram is ineligible to receive any further payments under the program. A second new law is directed at prac titioners who are guilty of fraud in
receiving overpayments. Whether convicted in a criminal action or found liable in a civil action based on fraud, the practitioner will be as sessed three times the overpayment as an award to the state. A third new law makes it a misdemeanor for a practitioner to destroy or alter a pa tient’s medical record. One who commits such an offense is subject to a fine up to $5,000 and imprisonment up to one year.
Tennessee dental law amended to include physical evaluation of pa tients as part of oral surgeon’s prac tice. The Tennessee law was amended to specify certain respon sibilities of the board mainly in reg ulating “certified” or “registered” dental assistants as well as dentists and dental hygienists. But the most significant amendment adds to the definition of dental practice “the use of a complete or limited physical evaluation of patients by a board eli gible or board certified oral surgeon or a resident in an approved oral surgery program so long as such oral surgeon or resident is practicing in a hospital setting.”
Vermont dental law amended to ex pand definition of unprofessional conduct. The major additions to the Vermont dental law specify fraudu lent or deceptive practices, including advertising. A significant addition to the unprofessional conduct section is a prohibition against dentists an nouncing to the public as specialists unless they have met the educational standards set by the ADA Commis sion on Accreditation of Dental and Dental Auxiliary Programs or unless they are eligible to take the ADAapproved certifying board examina tion. (The reference to the Commis sion is technically incorrect; the ADA Council on Dental Education sets standards for determining who may ethically announce as a dental specialist.) Vermont has adopted a shortened period for bringing medical malprac tice actions. The period is one of the following: three years from the date of the incident; two years from the date the injury was discovered or reaJADA, Vol. 97, July 1978 ■ 143
5 IS L A T IO N
& L IT IG A T IO N
sonably should have been dis covered, but in no event more than seven years from the date of the inci dent. Exceptions to the new statute of limitations include no limitation where fraudulent concealment of an injury is shown and two years after discovery of a foreign object in the body.
Virginia provides public hearings for those complaining of rules and regulations of licensing boards. A hearing agency designated as the Joint General Laws Subcommittee is required to hold hearings when complaints are received about rules and regulations established by any one of 29 licensing or regulatory boards including the board of den tistry. The Virginia legislature adopted a resolution creating a nine-member commission to study the containment of health care costs. No representative of health care pro vider groups may serve on the com mission. Among the commission’s assignments is to determine whether regulation of third party payments is in the public interest and “to recom mend the content of a proposed sta tute to establish a state rate review program consistent with the public’s interest and federal law.”
Wisconsin includes dental treatment in state-funded programs for hemophilia victims; optometry law limits advertising restrictions. The new law provides for both institu tional and noninstitutional services for those suffering from hemophilia and related blood disorders. Dental treatment is included as part of the maintenance program for be neficiaries. An amendment to the Wisconsin optometry law bans any regulation that attempts to restrict “nonvariable services,” that phrase being defined as “services for which a fee can be objectively determined prior to the time the services are ren dered.”
Litigation This month’s report features an official opinion of the California attorney genera l that root canal pastes (N-2 or
RC-2B) may legally b e prescribed by a dentistfo r an individual patient’s needs. Also featured is a US Suprem e Court decision upholding a fed era l antitrust complaint against the National Society of Professional Engineers. Malpractice decisions involving dentists are also presented.
California attorney general issues 33-page opinion validating pre scription ofN-2 or RC-2B endodontic pastes by dentists. The opinion of the California attorney general con cludes that “a pharmacist may com pound and dispense, pursuant to an individual prescription of a dentist, for an individual patient’s needs, ma terials in a formula similar to the products N-2 or RC-2B even though such materials have not received an investigational new drug (IND) or new drug approval (NDA) clearance from the federal Food and Drug Ad ministration or the (California) State Department of Health, and even though the commercial sale of such materials may be prohibited, pro vided that the component elements of such materials in any combination or singly have not been banned by state or federal law or regulation.” (Opinion o f Eville ). Younger, Attor ney General, State o f California, CV 76/212 and CV 77/236, May 2, 1978.)
US Supreme Court upholds Depart ment of Justice civil antitrust com plaint against ethical code of Na tional Society of Professional En gineers. The engineers’ code of ethics prohibits its members from submitting competitive bids to pur chasers of engineering services. The federal district court ruled that the anticompetitive bidding ethic was, on its face, a violation of the federal Sherman Act. The federal court of appeals upheld the district court on the ethics issue. The US Supreme Court reviewed the case to determine whether the anticompetitive bidding ethic could survive as a reasonable restraint on competition. In a 15-page series of concurring opinions (with a dissent on a lesser issue), the Su preme Court upheld the lower courts’ ruling that the ethic in question con stituted a per se violation of the fed
144 ■ LEGISLATION & LITIGATION I JADA, Vol. 97, July 1978
eral Sherman Act. (National Society o f P rofessional Engineers vs United States, 98 Sup Ct 1355, 1978.)
Missouri court of appeals upholds jury verdict against dentist for wrongful death of 18-year-old pa tient. The decedent was a regular patient of the dentist for seven years. In 1970, the dentist admitted the pa tient to a hospital for the extraction of two impacted third molars. The pa tient had a history of asthma. The question before the jury was a mixed one—whether the dentist knew or should have known of the patient’s asthmatic condition and, if so, whether the dentist’s extraction pro cedure should have been postponed when symptoms of asthma occurred before surgery. The plaintiff’s expert witness, a physician, concluded that “By failure of [the dentist] to post pone or cancel this operation because of the knowledge of asthma, he en abled the start of a whole series of events which led to the use of an agent which is harmful to an asthma tic patient, which in turn led to the lack of oxygen... damage to the brain and cardiac arrest.” The jury appar ently believed the dentist should have recognized the asthmatic symptoms or should have known of the patient’s history of asthma. The lack of oxygen apparently was attrib uted to the anesthetic agent. The anesthetist, a nurse, testified that she was not aware of the patient’s asthmatic condition. (McKinley vs -------- , 563, SW 2d 505, 1978.)
Illinois appellate court upholds ver dict for dentist in malpractice case. The plaintiff claimed that her injury, permanent numbness and pain following extraction of the lower left third molar, was caused by the negligence of the defendant, an oral surgeon. The trial judge directed a verdict on the plaintiffs contention that she did not give her informed consent to the surgery. On her con tention that the defendant’s negli gence was the kind that a lay person could determine (res ipsa loquitur), the jury found for the dentist. (Grubb v s -------- , 373, NE 2d 1082, 1978.)