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Review Article

Legal modalities in dental patient management

and professional misconduct

Ashish Vashist, Swati Parhar,1 Ramandeep Singh Gambhir,2 Ramandeep Kaur Sohi,3 Puneet Singh Talwar4
Department of Public Health Dentistry, Sri Sukhmani Dental College and Hospital, Dera Bassi, 2Department of Public Health Dentistry,
Gian Sagar Dental College and Hospital, Rajpura, 3Department of Public Health Dentistry, Rayat and Bahra Dental College and Hospital,
Mohali, Punjab, 1Department of Oral and Maxillofacial Pathology, Swami Devi Dyal Dental College, Barwala, Haryana, 4Department of
Public Health Dentistry, Divya Jyoti Dental College and Hospital, Modinagar, Uttar Pradesh, India

ABSTRACT
While providing the oral healthcare services, a dentist has to follow certain set of standards
to avoid any litigation in the name of malpractice. Consent is a fundamental and established
principle in the Indian Law. Not taking consent is considered as deficiency in medical
services. Medical records are documentary evidence as per the Indian Evidence Act,
1872. A dental professional is bound by law and ethics while providing treatment to his
patients. Disclosure of complete information that is necessary to the patient regarding the
treatment is essential to avoid any clauses of negligence against the doctor, even if there
is no contract between the doctor and patient. Healthcare malpractice can be challenged
under two main categories in the court of law, that is, civil and criminal depending on
the nature of offence. A third category lies under consumer protection act, 1986, where
professional services provided by the dentist can be challenged. Professional indemnity
insurance also known as ‘Defense Costs’ will pay all the costs, fees, and expenses
incurred with their prior consent in the investigation, defense, or settlement of any claim
made against the insured.

Key words: Consent, consumer protection act, dental malpractice, indemnity, legal,
litigations, medical records

INTRODUCTION authority over treatment planning and consent issues in

the past few years. Disputes range from inadequate and
A dentist is a healthcare professional providing care for the inappropriate treatments to serious problems of medical
patient, as a physician do. As a result of recent advancements malpractice and negligence.[1] Thus, while providing the
in dentistry, dental profession has touched the same heights oral healthcare services a dentist has to follow certain
as the medical and other allied professions. There has been set of standards in maintaining records of almost all the
increase in the number of patients challenging the dentist’s activities related to the management of patient. Failure to
exercise such practice could invite litigation in the name of
Address for correspondence: malpractice.
Dr. Ramandeep Singh Gambhir,
Gian Sagar Dental College, Rajpura - 140 601, Punjab, India. The factors that should be considered with utmost care
E-mail:raman1g@yahoo.co.in
while managing a patient are consent, a detailed case history
Access this article online recording, well-understood drug prescription policy and
Quick Response Code: knowledge of emergency situation handling. Apart from
Website:
www.srmjrds.in
being well aware about the legal consequences in the case
of nonconformity to the standards and procedures of law,
DOI: a dentist should also be attentive enough to stay safe from
10.4103/0976-433X.132079 liabilities arise due to unintentional negligence or bogus
litigations with malicious intentions.
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Vashist, et al.: Legal modalities in dental practice

CONSENT Presently in India, doctrine of informed consent is not

in routine practice. But this type of consent may take
Consent is a voluntary acceptance or agreement of what is routes in the Indian healthcare systems soon, since
planned or done by another person.[2] Not taking consent advancement in technology and information is taking
is considered as deficiency in Medical Services under the place very fast with increased consumer awareness.[4]
Section 2 (i) of the Consumer Protection Act.[3]
How consent should be obtained
Consent is a fundamental and established principle in In general, courts and legislatures have defined specific elements
the Indian Law. Every person has the right to determine that describe the way to obtain informed consent. These
what shall be done to his body. Self-defense of body (under elements must be discussed with patient by his/her doctor and
IPC Section 96 to 102, 104 and 106) provides right to the must be part of informed consent. These include diagnosis and
protection of bodily integrity against invasion by other.[2] the nature of illness, nature and the purpose of treatment or
Thus, in the absence of consent, treatment and diagnosis procedure recommended, risks and benefits of the proposed
cannot be forced upon anyone, who does not wish to receive treatment, estimate of success of treatment, prognosis if no
them except in statutory sanction. treatment is elected and alternative treatment plans, right of
the patients to ask questions, and have their answers.[4]
What consent means?
As already stated, consent means free voluntary agreement Area most likely to give rise to litigation over
or compliance. In India person above the age of 12 years can informed consent
give consent for medical treatment. For a person less than 12 Lack of informed consent is a cause of malpractice action,
years of age or of unsound mind, his/her guardians/person in and without it, battery (unlawful touching) can be alleged. In
whose lawful custody he/she is can give consent.[4] practical terms, this means physically or emotionally harming
the patient. If there is a procedure, which has complications or
Provisions for consent under law undesirable consequences, which a prudent patient does not
Sections 87 to 91, Indian Penal Code (IPC) deals with anticipate, it is necessary to get an informed consent.[5] Studies
consent. Section 88, IPC, lay down that an act is not indicate that extractions give rise to the majority of litigations in
offence, if it is not likely to cause death. Persons who are the dental field and to claims that the risks of the extraction were
not qualified in medical/dental profession are not allowed not revealed to the patient.[6] A study of 20 cases concluded that
to take the plea of this section, as they are not said to do the most of the lawsuits in oral surgery practice can be prevented
act in good faith. Barring physical examination, any medical/ either through preoperative measures or by dealing with the
dental procedure requires written consent should refer to one impact of the surgical error through good patient rapport and
specific procedure and not blanket permission. Prisoners and communication.[7] The answer to such issues has come out to
persons released on bail can be treated without their consent be that the surgeon should not deliberately proceed without
in the interest of justice of society. However, consent of the informed consent.[8] Adhering to the guidelines mentioned in
patient cannot be defense to medical or dental practitioner the following and to be aware of certain laws can prevent us
in negligence.[4] from getting caught in such lawsuits.

Types of consent
Case history recording and record keeping
Health profession in India practices two types of consent.[4]
Records contain a written evidence of the activities of an
• Implied consent is one, which is not written but legally
organization in the form of letter, circulars, reports, contracts,
effective. Implied consent is presumed when patient
invoices, vouchers, minutes of meetings, books of accounts
comes to doctor’s consulting room and waits for doctor.
etc.[9] Medical records are documentary evidence as per the
Such implied consent only goes to history taking and
Indian Evidence Act, 1872 (Amended in 1952 and 1961).
ordinary medical examination such as inspection,
Medical records are generally summoned to the court of law
palpation, and auscultations; it does not cover the
in various types of cases in our country [Table 1].[9]
consent for examination of private parts of the patient
or matters such as injections etc.
As a general rule, access to medical records should be
• Informed consent is the idea that the patient must be
restricted to health professional involved in the continuing
given enough information about the proposed treatment,
care of the patient. Medical records may be used for research
in understandable language. The informed consent
and statistics without the patients consent as long as the
is to force the doctor to give the patient knowledge
patient is not identified.
that will make him or her on equal bargaining partner,
which otherwise was not so, considering doctors special
knowledge, that creates an advantage. Thus, informed Good record documentation
consent is meant to transform the essence of the doctor Meticulous record keeping in the healthcare practice is essential
patient relationship from status to contract.[5] because it enhances the healthcare practitioner/dentists ability
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Vashist, et al.: Legal modalities in dental practice

Table 1: Types of cases summoned in our country for release to public and those involving confidentiality
Insurance cases of individuals are released only after 100 years.[11]
Workmen’s compensation cases
Personal injury suits
Malpractice suits Drug prescription policy
Will case
Criminal cases Drugs and Cosmetics Act, 1990
Human organs transplant cases It regulates the import, manufacture, distribution, and
sale of drugs and cosmetics. It deals with all drugs used for
treatment, diagnosis, or prevention of disease in man and
to access and monitor patient care. Furthermore, if ever there
animals. All drugs used in dentistry should be regulated by
is a dispute related to care, this information becomes legal
Drugs and Cosmetics Act 1990. In India there is no separate
evidence, for practitioner and patient alike.[10]
Dental formulatory for drugs prescription.[12]
• A new patient’s record should begin with the basic data
about past medical history, pre-existing medical and
dental conditions and pertinent previous treatment. Narcotic Drugs and Psychotropic Substances Act, 1989
• Make sure that patients reported history is consistent It repeals archaic laws such as the Opium Act, 1875 and
with objective findings. Dangerous Drugs Act, 1930. Many drugs such as sedatives,
• It is especially important to record any patient’s behavior tranquillizers, and narcotic analgesics come under this act.
that might interfere with your treatment, including Dentists must be careful in dealing with them, as misuse
poor communication, instances of noncompliance, or can invite stringent punishment.
self-destructive behavior.
• Be sure to record all scheduled and unscheduled
appointments with an explanation and real-time writings Poisons Act, 1919
of all conversations and make sure to record events It regulates possession of poisons for sale, use, or importation.
contemporaneously and chronologically. Many substances such as arsenic etc, which are used in
• Be sure to record all communications with relevant dentistry, are regulated by this Act. Possessions of Large
third parties for minor or patients with guardians. In quantities have to be regulated by the State Government.[12]
most cases, obtain the patients permission before such
communications. Emergency situation guidelines
• For fee arrangements that extend over a period of time, Emergency is not readily defined. It is a relative concept. A
use written, signed contracts, preferably truth-in-lending dental emergency such as re-implantation of a tooth may not
statements. These financial documents and all insurance be perceived as an emergency by a trauma team dealing with
form are part of a complete dental record. a femur fracture. Another aspect of emergency is medical
emergencies that may occur in the dental office. Failure
All records must be contemporaneous and must be signed to deal with emergencies can attract clauses of negligence
and dated. Legally, dentist’s written records carry more against doctors even if there is no contract between the
weight than patient’s recollection. The cost of good record doctor and patient.[12]
keeping is miniscule compared with the emotional and
In emergencies
physical wear and tear of defending a lawsuit.[10]
1. Consent is not required
2. Drug reactions are not considered negligent
Legal limit for preservation of medical records 3. Any act done in good faith is exempt from clauses of
• Where there is chance of litigation arising for purpose negligence.
of negligence, record should be preserved for at least
25 years. Specially because there are rules where A patient cannot be refused treatment on the ground
the minor have the rights to sue the doctor within that it is a medico-legal case and therefore to be seen in a
three years from the date of majority, for the injuries government or approved hospital. The doctor may be guilty
sustained due to negligence of the doctor during the of negligent death if he fails to provide emergency.[12]
period of minority.[11]
• Other medico-legally importance records should be
Legal vulnerabilities in dental practice
preserved up to 10 years after which they can be destroyed
Healthcare malpractice can be challenged under two broad
after making index and recording summary of the case.
categories in the court of laws; Civil Law and Criminal law.[13]
• Routine case records may be preserved up to 6 years after
completion of treatment and up to 3 years after death
of the patient.[11] Civil law
• There are certain records, which are of public interest Civil Law deals essentially with the rights and duties of
and are transferred to public records library after 50 years individuals and is dealt with in civil courts. Civil courts
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Vashist, et al.: Legal modalities in dental practice

provide relief of wrongs done to individuals or corporations However, the landmark judgment delivered by a three judge
in the form of compensation or specific performances. bench on August 6th, 2005, settled once and for all the issue
of Criminal Prosecution of doctors for medical negligence.
The issues under civil law are further subcategorized as Doctors or dentists now cannot be arbitrarily arrested in the
follows:[13] name of criminal negligence while treating patients. Death
a) Tort-It is defined as an act or infringement of right during Medical procedures was in past, roundly booked
(other than under contract) leading to legal liability. It under section 304 A of IPC. This is a cognizable offence
is further categorized into the following carrying a penalty of imprisonment for up to 3 years. It also
• Unintentional (negligence/professional negligence) provides for arrest of any person causing death due to a rash
• Intentional and negligent act.[14]
b) Contract
A contract is defined as an agreement between two or more
Consumer Protection Act (COPRA)
persons, which creates an obligation to door not to do a
The Consumer Protection Act was essentially envisaged to
particular thing. A contract may be expressed for example:
cover business and trade and to protect the interest of the
a written document or implied. It is like when a patient
buyer of goods and user of services who pay for the same.
sits on the dental chair and opens his mouth when invited
In the Supreme Court Judgment of IMA Vs V. P. Shante
to do so.
and others III (1995) (CPJ) SC, the court clearly states
that professional services rendered by professionals such as
Indian Contract Act 1972 doctors and dentists clearly fall in the definition of section
1. What agreements are contract? 2 (0) of the Consumer Protection Act and therefore Doctors
All agreements are contracts if they are made by the free and Dentists cannot dispute the applicability of ‘deficiency
consent of parties competent to contract.[12] of service’ to the services they render.[15]
2. Who are competent to contract?
Every person is competent to contract who is of the age One of the reasons for bringing medical negligence into the
of majority according to the law to which he is subject, ambit of the CP Act is because the Indian Medical Council
and who is of sound mind and is not disqualified from Act 1916 and the Indian Dentist Act 1948 has no provision:
contracting by any law to which he is subject.[12]
3. ‘Consent’ defined 1. To entertain any complaint against from a patient.
Two or more persons are said to consent when they agree 2. To take action against medical/dental doctors in cases
upon the same thing in the same sense.[12] of negligence.
3. To award compensation.
A medical and dental service provider should be well aware
Criminal law about the structure and functioning of the act.
Violations of statutes are termed as ‘crimes’. They constituted
acts that are deemed by the government to be against the
public interest.[13] Thus, a violation of that part of dental Professional indemnity insurance
practice act that is statutory enacted by the legislature is It is becoming legally and financially dangerous to treat
called crime of dentistry. Such crimes invite penalties such as patients with complex diseases for whom the outcome is
• Loss or suspension of license uncertain and imperfect results are common. The law suits
• Mandatory psychiatric counseling. are not only steadily increasing in number and cost, but
• Drug rehabilitation are demonstrably jeopardizing the cure of the patient. The
• Mandatory continuing education litigious atmosphere has led to a practice called ‘Defensive
• Fines Medicine’.[16]
• Jail
The litigious atmosphere in India is not yet strong.
The insurance cover applies to insurance relating to
Efforts to amend the procedures for arresting doctors errors and omissions on the part of a professional while
Based on representations two State Governments previously rendering services. All claims relating to compensations
attempted to address the anomaly of arresting doctors under are dealt in a court of law. Like any other healthcare
Section 304-A of IPC by an officer less educated than the field, dental practitioners are also under the obligation to
doctor.[14] The Government of Kerala in a GO No. 73231/SS/ comply with the laws of the country they practice. However,
B4/925/Home, Dated 20-03-93 passed on order that a doctor in the best of hands and without negligence complications
cannot be investigated or arrested by an officer below the sometimes can and do occur. Complications that occur in
rank of Deputy Superintendent of Police and that he/she the presence of good planning and communication and are
should refer the case to a panel set up by the Government managed appropriately do not amount to negligence, and
of Kerala.[14] are unlikely to lead to a successful claim.[17]
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Vashist, et al.: Legal modalities in dental practice

Liability of a dentist in the case of negligence which gives rose to any third party legal liability. Such
Dental professionals are liable under four kinds of liabilities[5] activities will be a part of the declared medical activities of
1. Tortious or civil liability the establishment.[19]
2. Contractual liability
3. Criminal liability The indemnity applies only to claims arising out of bodily
4. Statutory liability injury and/or death of any patient caused by or alleged to have
been caused by error, omission, or negligence in professional
1. Tortious or civil liability is of two types service rendered or which have been rendered by the insured
(a) Primary liability – when a dentist is directly liable or qualified assistant named in the schedule or any nurse or
for an act of negligence in his clinic or hospital it technician employed by the insured.[19]
is called primary liability. Most dental negligence
would come under this category. CONCLUSION
(b) Vicarious liability – dentist who is employed by
a hospital or institution is often not primarily General adaptation to the fact that oral health is an integral
responsible for negligence. They may be said to part of general health has increased the expectations and
have vicarious liability through the hospital. sensitivity towards the oral health and oral health care
2. Contractual liability – in a doctor–patient relationship, services. Mistakes do occur in every profession like in everyday
an implied contract is established when a dentist accepts life. Unfortunately, in the health profession, mistakes could
a patient for treatment. A breach of any aspect of this result in serious consequences for the patient and, in turn,
implied contract, where the dentist is under duty to, lead to doctor or dentist being answerable. Dental negligence
treat with care as well as continue to treat and not can cause the dentist to face litigation, if the service has
terminate until patient is cured or patient discontinues been paid for. The dentist has an obligation to inform the
treatment, may be considered a contractual liability.[5] patient about all the risks that are inherent in the treatment.
3. The important offences inviting criminal liability with There is the need for maintaining the records officially and
regard to negligence are[5,18] professionally to protect against any commercial, legal and
(a) Section 304A Indian Penal Code (Sec 304 A IPC) medico-legal litigation. Aggrieved patients can seek redress in
– Negligent homicide. A rash or negligent act the Consumer Protection Act when negligence exists on the
resulting in death, for example, death on the dental part of the dentist. This can result in monetary compensation
chair. to the patient, the consumer, for deficient services on the
(b) Sec 336 (IPC) – an act endangering the life of a part of dental professional. Complying with certain rules and
person (even if there is no injury), e.g. extracting regulations and adhering to standard practice, guidelines can
a tooth for a patient with valvular heart disease save us from such litigations and criminal liability.
without antibiotic prophylaxis against endocarditis
(even if he does not develop endocarditis). REFERENCES
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How to cite this article: Vashist A, Parhar S, Gambhir RS, Sohi
14. Pandit MS, Pandit S. Medical negligence: Criminal prosecution RK, Talwar PP. Legal modalities in dental patient management and
of medical professionals, importance of medical evidence: professional misconduct. SRM J Res Dent Sci 2014;5:91-6.
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Source of Support: Nil, Conflict of Interest: None declared
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