A Dentist’s Guide to the Law. American Dental Association
Some dental office locations are required by state law to have automated external defibrillators (AEDs) on site; in some instances, the legal requirement may be contingent on whether the office provides deep sedation.
Regardless of any legal requirement, an on-premises AED may be a prudent investment. We are not aware of any incident where a dentist has been found liable for failure to have an AED on premises. However, if a patient expired from cardiac arrest in a dental office (or, to take another example, an allergic reaction — or even for no discernable reason), it is not farfetched that the decedent’s attorney would argue that such an occurrence was reasonably foreseeable, that proper use of the AED would have avoided the death, and that the dentist was negligent (failed to meet the “standard of care”) in not having available the AED. The trend towards requiring AEDs is clear — in many jurisdictions, they are required in locations such as health clubs, large office buildings, public transportation centers, schools, etc.
A prudent practice should assure that they are, at absolute minimum, in compliance with applicable law. The practice may wish to check with their insurance carrier regarding legal requirements in their state, coverage with respect to this equipment, and liability-related issues (e.g., the extent to which any risks associated with acquiring the AED may be outweighed by having the AED and trained staff on site, and the availability in your state of “good Samaritan” laws that might provide additional protection for an AED user in the event of a lawsuit). Your state dental society may also be able to provide some guidance in this regard.
The mere purchase of the equipment is not enough. The equipment should be stored in an easily accessible location. Training with respect to the equipment is critical, and in some instances may be legally required (likewise consider which — if not all — of your staff should be trained). Finally, make sure that the equipment is properly maintained. The manufacturer may be able to help you with respect to periodic testing and safety checks.
The trend towards requiring AEDs is clear — in many jurisdictions, they are required in locations such as health clubs, large office buildings, public transportation centers, schools, etc.
2 Source: Americans with Disabilities Act Title III Regulations. Part 36 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (as amended by the final rule published on September 15, 2010), www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm#a402
3 OCR FAQ, “Is a covered entity required to prevent any incidental use or disclosure of protected health information?” http://www.hhs.gov/ocr/privacy/hipaa/faq/incidential_uses_and_disclosures/206.html
Chapter 7.
Practice Marketing
34. What Legal Limits Are There on Advertising My Practice?
Federal, state and sometimes local law laws govern advertising, which can include promotions offered via websites and social media. The central point for dentists is to make sure their promotional efforts are neither false nor misleading in any material respect and that they have a reasonable basis for making any claims announced.
Most state dental practice acts and other state laws prohibit false, misleading or deceptive advertising. Many of these statutes provide that damages (in some cases treble damages plus attorneys’ fees) are available to the successful plaintiff. Some state laws regulating professionals also contain specific prohibitions on certain types of advertising claims. It is important to check the advertising regulations and rules in your state before advertising.
If the dental practice is planning to use a trade name, a licensing board permit will likely be required (these are sometimes called “fictitious” or “assumed” name permits). State laws regulating businesses may also require registration of assumed business names in either the state or county offices, depending upon the type of business entity in question.
The Federal Trade Commission (FTC) monitors ads and publicity efforts. The FTC provides helpful resources for businesses interested in federal advertising laws and policies, including unfair or deceptive advertising and federal warranty law.
Unfair or deceptive advertising can include:
• Bait-and-switch tactics
• Deceptive demonstrations or prices
• Defamation of the competition
• Fraudulent contests
• Fraudulent testimonials
• Misleading or unsubstantiated claims
• Misuse of the word “free”
Before you send marketing information to patients (or have another party send it on your behalf), or disclose any patient information for marketing purposes, make sure you do not risk violating applicable federal, state, or local laws, such as consumer protection laws, advertising laws, laws regarding testimonials, privacy laws such as HIPAA, or your state’s laws regulating advertising by dentists. You should also understand the impact of any warranties made in an advertising communication.
Your state’s dental advertising laws and regulations may restrict the information that may be included in an advertisement, statements about specialties and services, the use of testimonials, claims about quality or results, the use of paid referral services, offers of gifts or inducements to patients or prospective patients, or statements about pain or sedation. These laws may require dentists to retain copies of advertisements for a period of time. For information about your state’s laws regulating advertising by dentists, contact a qualified attorney. Your state dental society may also have information about your state’s dental advertising laws.
Related References and Resources
• Advertising Basics for Dentists and Dental Associations: A Guide to Federal and State Rules and Standards
ADA.org/en/member-center/member-benefits/legal-resources
• Advertising and Marketing
http://business.ftc.gov/advertising-and-marketing
• Frequently Asked Advertising Questions: A Guide for Small Business
www.business.ftc.gov/documents/bus35-advertising-faqs-guide-small-business
35. What Rules Apply to Dental Specialty Claims?
Many states regulate the conditions under which a dentist who is a specialist may advertise the specialty. Many states also require that a general dentist who offers services in a specialty area clearly state in any advertisement that he or she is a general dentist. There are also ethical considerations.
Related References and Resources
• Advertising Basics for Dentists and Dental Associations: A Guide to Federal and State Rules and Standards
ADA.org/en/member-center/member-benefits/legal-resources
• ADA Principles of Ethics and Code of Professional Conduct
ADA.org/en/about-the-ada/principles-of-ethics-code-of-professional-conduct