Arecent U.S. Supreme Court decision ruled that a patient with human immunodeficiency virus, or HIV, is a person with a disability as defined by the Americans with Disabilities Act, or AwDA, and that treating that person differently than other dental patients, without a proper medical justification, could violate the AwDA. While this has caused a great deal of controversy among some dentists, it should be remembered that the court’s decision dealt with a patient’s right to receive care from the dentist of his or her choice. It did not deal directly with the issue of the quality of the care that is received by a patient. Questions of quality of care are dealt with in the legal system through malpractice litigation. So it is important that the controversy over this case not obscure the most important legal concern that dentists face—malpractice. The differences between the statutory prohibition against discrimination and malpractice are best illustrated by an example.
Questions of quality of care are dealt with in the legal system through malpractice litigation.
Scenario 1.
A dentist is treating Mr. A., a 32-year-old patient, for his second occurrence of oral candidiasis, or thrush, in the last six months. In both cases, the patient’s history does not reveal that he is taking any medications or has any medical condition associated with the development of candidiasis. Because the last bout of thrush was refractory to topical treatment with clotrimazole troches, the dentist prescribes systemic fluconazole, the treatment that eventually cleared up the last infection. The follow-up visit shows that the condition has resolved. Mr. A. expresses his gratitude for the treatment, stating that he is getting married in two weeks and does not wish to have the wedding pictures show the infection. The dentist congratulates him on his forthcoming marriage and wishes him well.
Scenario 2.
Three years later, the same dentist is planning his defense in a malpractice case brought by Mr. A., his wife and their 4-month-old child, all of whom are infected with HIV. The suit alleges that the dentist’s failure to recognize the potential for HIV infection in Mr. A. and to recommend HIV testing for him resulted in a delay in Mr. A.’s receiving antiretroviral drugs and the transmission of HIV to Mr. A.’s wife and child. Mr. A. alleges that the dentist never mentioned HIV, and the dental record does not mention HIV or HIV testing.
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ELEMENTS OF MALPRACTICE
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To prove malpractice, Mr. A.’s attorney must convince the jury that the dentist had a duty to Mr. A. and his family, that the dentist breached that duty, that the dentist’s actions caused injury to Mr. A. and his family, and that the injuries to Mr. A. and his family have a certain monetary value (damages).
Duty.
Whether there is a legal duty is measured by different standards for different legal relationships. In most states, the dentist-patient relationship typically is formed when the dentist exercises independent professional judgment on behalf of the patient. The dentist treated Mr. A. for at least two visits and exercised professional judgment in prescribing medication for Mr. A.’s illness. There was a clear dentist-patient relationship and thus a duty to act as a reasonable dentist toward Mr. A.
While the dentist never treated Mr. A.’s wife and child, most courts also extend the concept of duty to include foreseeable third parties whom the professional’s actions put at risk. This is analogous to the situation in which a dentist medicates a patient for surgery, and then does not warn the patient about driving and makes no effort to stop the patient from driving himself or herself home. Anyone that the patient injured in a subsequent accident could claim that the injury was due to the dentist’s failure to treat the patient properly.
In contrast, the AwDA imposes on dentists a general legal duty to make their offices accessible to the disabled, which can result in liability before a patient even reaches the office for care. Once the patient seeks dental care, the dentist is obligated to treat the patient the same as a nondisabled patient unless doing so would pose a significant risk to the dentist or others. Thus, a dentist may breach a duty to a patient under the AwDA by refusing to accept the patient for treatment, well before any dentist-patient relationship is formed for medical malpractice purposes.
Breach of duty.
To prove dental malpractice, Mr. A.’s attorney must show that the dentist failed to do what other reasonable dentists would have done in the same or similar circumstances. The reasonable dentist is not the average dentist. The courts have made it clear that what many others do is not always what should be done. For example, if the ADA were to recommend a certain approach to treatment of dental patients, then the court could find that a reasonable dentist would follow that recommendation, even if most dentists did not. In contrast, duties under the AwDA are established by federal law and the administrative regulations promulgated by the federal agencies that enforce the AwDA, which may or may not take into account best dental practices as recognized by the profession and the ADA.
In defending against malpractice, the dentist faces two questions: would a reasonable dentist have recognized the potential link between the patient’s lesion and HIV infection? And, having recognized the link, should the dentist refer the patient to another health care provider? The courts have held that the practice of dentistry does include the diagnosis of systemic illnesses, that can affect dental care, such as bleeding disorders or jaundice.1 To argue that the reasonable dentist would not have recognized the link between the lesion and HIV, the dentist would have to establish that HIV is such an unusual condition that no one but a highly qualified specialist would be aware of it. It also would have to be argued that the relationship of HIV infection to oral candidiasis is unusual or not well-documented.
As of June 30, 2000, more than 750,000 cases of acquired immunodeficiency syndrome, or AIDS, had been reported to the Centers for Disease Control and Prevention, or CDC. More than one-half of these had been reported in the previous seven years. Forty percent of the total number of cases occurred in people 30 to 39 years of age.2,3 In 1996, it was estimated that there are between 650,000 and 900,000 HIV-infected people in the United States.4 In 2000, the CDC estimated that only about 350,000 of these HIV-infected people had been reported as AIDS cases.2 These data indicate that a substantial number of HIV-infected people are unaware of or are in denial about their infections. Given the prevalence of HIV infection, it would be difficult to argue that this is an unusual disease. As to the argument that the relationship between HIV infection and thrush is obscure, the plaintiff could point out that this is widely discussed in the dental literature. A key word search of the computerized database AIDSLINE revealed that 167 articles were published from 1990–1997 that mentioned AIDS and oral candidiasis or thrush. A search of the dental literature also identified 163 review articles that were published from 1990–1997 that discussed oral manifestations of HIV infection.
Assuming Mr. A. establishes that a reasonable dentist should recognize the link between candidiasis and HIV, what would the reasonable dentist have done next? Given the precedent that dentists should arrange for diagnostic tests when an oral malignancy is suspected, Mr. A. could argue that a dentist has a duty to explain the possibility of HIV infection to the patient and make an appropriate referral.
Since the issue is how the dentist ensures that the patient learns of the possible infection and is followed up properly, it does not matter if the dentist orders the test, as long as the dentist arranges a consultation with the appropriate medical professional, properly counsels the patient about the importance of the consultation and makes an effort to ensure that the patient follows through with the consultation.
For other comparable conditions, such as oral cancer, the dentist’s duty is to arrange a referral to an oral and maxillofacial surgeon or a properly qualified physician. This duty is illustrated nicely by a case in which the court found that failure to diagnose a severe sinus infection and to refer the patient to a physician was a breach of a dentist’s duty of care.5 This case also suggested that the dentist should contact the patient’s physician to ensure that the patient will be seen.
In most states, as long as the patient is aware that the dentist is arranging the referral and does not object, the dentist does not need specific additional consent to speak to the physician’s office, as necessary, about the patient’s medical condition to arrange the referral. If the dentist’s state of practice has specific laws requiring the patient’s consent before discussing the patient’s condition with another health care professional caring for the patient, either for all medical conditions or only for HIV, then the dentist must get the patient’s permission before arranging the referral. (As I discuss later in the "Dealing With Non-dental Conditions" section, it must be carefully documented if the patient refuses such permission.) If the patient is a member of a health maintenance organization or a managed care plan, the dentist may need to contact the plan’s referral center and ensure that it takes responsibility for the referral—if this is required for referrals under the plan. If the request for referral is made by telephone, it should be followed up with a written request to ensure that there is proper documentation of the transaction.
Causation.
Mr. A. must show that the dentist’s breach of the standard of care was the cause of his and his family’s injuries. In this case, Mr. A. could clearly establish that the dentist’s failure to follow the standard of care delayed the diagnosis and treatment of his HIV infection. Mr. A.’s wife and child would make the claim that had he been properly counseled, he would have been tested and his HIV infection would have been diagnosed. Therefore, he would not have engaged in unprotected intercourse, or at least his wife could have made a knowing choice about exposing herself to the disease. The attorney who was representing the child certainly could argue that the child had no choice in the matter. The dentist’s attorney might raise the question of whether the woman was infected through other means or was herself the means of infecting her husband, but these defenses would be difficult to prove. How a particular jury would view causation is not certain, but the evidence would strongly suggest that there was causation, and it is clear that the wife and child would be very sympathetic "innocent victims" to present to a jury.
The injury in this case is alleged to have occurred because of the failure to recognize HIV infection, not because the HIV-infected person was treated differently. Thus any litigation would be for malpractice, rather than for discrimination under the AwDA.
The courts consider that the amount of monetary damage is the amount of money that would be required to restore the plaintiff to the situation that would be in place if the breach of duty had not occurred.
Damages.
The monetary value of the patient’s injury must be demonstrated. The courts consider that the amount of monetary damage is the amount of money that would be required to restore the plaintiff to the situation that would be in place if the breach of duty had not occurred. In the case of HIV infection, this is likely to be a considerable sum of money. The medical care costs of treating the HIV in these three people could run into hundreds of thousands of dollars and the indirect costs of loss of income, pain, suffering and so forth could be many times that amount. Just the delay in treatment can support substantial damages. For example, a jury awarded $300,000 in compensation and $700,000 in punitive damages to a patient whose physician failed to make a timely diagnosis of HIV, a circumstance that delayed the patient’s treatment by only one year.6 It is important to note that this case occurred in 1990, before the advent of the current, highly effective antiretroviral drug therapy.
Again, it should be noted that the question of injury and damages are related to the care (or lack thereof) that was rendered after Mr. A. became a patient and does not deal with the refusal to allow him to become a patient. A refusal to treat him would be dealt with under the AwDA, and the monetary recompense to the patient would be established under the statute, along with any related malpractice claims stemming from the same transaction.
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ORAL CONDITIONS ASSOCIATED WITH HUMAN IMMUNODEFICIENCY VIRUS INFECTION
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If dentists wish to avoid the malpractice issues described in this article, they should do two things. First, they should be familiar with the most common diseases that have oral manifestations. They should be particularly alert to the oral conditions associated with HIV infection, as this infectious disease is well-described and prevalent. When any of the oral manifestations of HIV are present, dentists personally should rule out HIV or refer the patient to a medical consultant to rule out HIV. Secondly, the patient’s dental record should contain any recommendations that pertain to referral for care, testing or both, and it should be kept in a manner that preserves patient confidentiality in accordance with applicable law.
There is a wealth of dental literature about recognizing oral lesions that are associated with HIV infection. We will summarize this literature with regard to a lesion’s ability to identify potential HIV infection. However, for a more detailed description of these and less frequently occurring HIV-related lesions, we recommend the review articles listed in the references section.7–17 Readers who are interested in viewing HIV-associated lesions can find them on the World Wide Web.18,19
Lesions that are essentially diagnostic of immunosuppression.
There are two types of lesions that are almost always found in the presence of immunosuppression. Oral hairy leukoplakia is an adherent white patch with a shaggy surface that varies from fine vertical streaks to wrinkled plaques. This lesion usually is located bilaterally on the ventrolateral part of the tongue but may involve the dorsal surface of the tongue and, occasionally, the buccal mucosa. Its most remarkable characteristic is the fingerlike projections that lead away from the base of the lesion. The diagnosis usually is made on the characteristic appearance. If, however, a confirmation is sought to rule out other persistent white lesions, in particular epithelial dysplasia, a histopathologic examination of a mucosal biopsy demonstrating Epstein-Barr virus DNA is required.20 An alternative, noninvasive technique using either filter or cytospin insitu hybridization can demonstrate the presence of Epstein-Barr virus.21 Occasionally, empirical drug management with high-dose acyclovir helps establish the diagnosis, although the lesions recur as soon as the therapy is discontinued. Recognizing oral hairy leukoplakia should always lead the dentist to recommend HIV testing.
Kaposi’s sarcoma seldom is found in people who are not immunosuppressed. The only other population in which it typically is found is in elderly men of Mediterranean origin or people living in Africa. In HIV infection, it occurs far more frequently in males, but it is known to appear in females. It is extremely rare in children. In its early stages, Kaposi’s sarcoma appears as persistent, red or purplish-blue macules or nodules that do not blanch when palpated. These lesions may progress to bulky tumescences that may interfere with normal function. Although these lesions may occur anywhere in the oropharyngeal region, there is a site predilection for the palatal mucosa and the gingiva. The differential diagnosis includes ecchymotic patches, hemangioma and erythematous candidiasis when the tumor appears on the palate. Gingival lesions resemble reactive lesions such as pyogenic granuloma and peripheral giant-cell granuloma. Diagnosis is confirmed by microscopic examination of lesional tissue. Any dentist seeing this type of lesion should recognize the high potential for HIV infection and recommend HIV testing, as well as refer the patient to a practitioner who can provide a definitive diagnosis and appropriate management.
Infectious lesions that are indicative of HIV infection if they are refractory or recurrent.
There are several oral manifestations of HIV infection that also are found in people who are not HIV-infected. The HIV-infected person usually has a condition that is more severe and more difficult to treat. The HIV-infected patient also is likely to have the condition reappear after it has been successfully treated. There are four general classes of these infections.
Candidal infections.
Four different types of candidal infections have been associated with HIV infections. Angular cheilitis is characterized by red-fissured, scaly or ulcerated tissue in the corners of the mouth. It usually is caused by Candida albicans but may be caused by Staphylococcus aureus alone or in combination with C. albicans. Ulcerated lesions may mimic herpes labialis. It is diagnosed by simple observation.
Pseudomembranous candidiasis, also known as thrush, is recognized by characteristic soft, creamy white plaques that look like curdled milk. These lesions can be wiped off with gauze, leaving an erythematous, sometimes bleeding, surface. Although any oral site can be affected, the buccal and vestibular mucosae, ventral part of the tongue and soft palate most frequently are involved. A burning sensation, difficulty in swallowing and a foul taste are common complaints.
Erythematous candidiasis is characterized by smooth-to-granular red macules and patches, which may be associated with a burning sensation. The palate, buccal mucosa and dorsal tongue are the most common sites of involvement. This form of candidiasis may mimic erythroplakia and contact stomatitis.
Hyperplastic leukoplakia, also known as candidal leukoplakia, is characterized by adherent white lesions with rough surfaces that typically are asymptomatic. This form of candidiasis has a predilection for the anterior buccal mucosa and tongue and often is associated with chronic history of cigarette use. The differential diagnosis of this type of lesion includes frictional keratosis, leukoplakia and lichen planus.
Clinical presentation and response to anti-fungal therapy are the primary means of making the diagnosis of candidiasis. Exfoliative cytology is a noninvasive method of microscopically detecting superficial fungal microorganisms, although an incisional biopsy is recommended when precancerous oral lesions are included in the differential diagnosis. Definitive diagnosis of fungal species also can be made by culture.
While candidal conditions are found in non–HIV-infected people, they usually are secondary to concurrent treatment with broad spectrum antibiotics, corticosteroid use or xerostomia. The appearance of these lesions should raise the suspicion of HIV infection unless the patient has other risk factors for candidiasis. The presence of HIV infection is more likely if the condition is recurrent or refractory to conventional treatment.
Recurrent herpes simplex virus infection.
Herpes simplex ulcers are common in both HIV-infected people and those who are not infected. In non–HIV-infected people, these lesions occur on the keratinized oral mucosa and tend to be self-limiting lesions that heal over a short period. The lesions in HIV-infected people, however, tend to be more widespread, persistent and atypical in appearance; they are multiple coalescing lesions that form large, irregular ulcers. The differential diagnosis includes aphthous stomatitis, drug-induced ulcers, necrotizing stomatitis, neutropenic ulcers, cytomegalovirus ulcers, herpes zoster, deep mycotic infections, ulcerative squamous cell carcinoma and lymphomas.
All of these conditions also have been associated with HIV infection. Persistent ulcers in a potentially HIV-infected person require incisional biopsy for a definitive diagnosis. Viral isolation from tissue cultures of the ulcers may indicate when it is necessary to distinguish between the different herpes viruses. Any patient who exhibits severe, recurrent, refractory herpes simplex lesions should be considered to be at a substantial risk of being HIV-infected. The need for HIV testing should be discussed with such patients.
Periodontal disease.
Although gingivitis and periodontitis are common oral diseases, people with HIV infection develop some unusual forms of them and tend to have an accelerated progression of chronic adult periodontitis. Besides conventional adult periodontitis, HIV-infected people may develop linear gingival erythema, or LGE; necrotizing ulcerative gingivitis; and necrotizing ulcerative periodontitis.
LGE is characterized by a distinct and intensely red band at the free gingival margin, in addition to punctate or diffuse erythema of the attached gingiva. Key features of LGE include lack of bleeding when probing and minimal plaque for the amount of erythema. The gingival pattern may be isolated to several teeth or involve the majority of the dentition. An unusual feature of this gingival condition is that it does not respond to routine control measures. Atrophic lichen planus, plasma-cell gingivitis and thrombocytopenia-induced gingival lesions may mimic this form of HIV-associated gingivitis. Diagnosis is made by clinical presentation and its persistent nature despite plaque removal.
Necrotizing ulcerative gingivitis and periodontitis are painful conditions that result in significant tissue destruction. Necrosis of one or more interdental papillae and eventual loss of normal gingival architecture without the loss of periodontal attachment characterizes necrotizing ulcerative gingivitis. Significant bleeding and a fetid odor are evident in the acute stage of the disease. Typically, the anterior gingiva is the most common site of involvement, but the lesions may be widespread. This disease may progress to necrotizing ulcerative periodontitis, which is associated with severe radiating pain, gingival ulceration, rapid loss of gingival attachment and alveolar bone destruction. Tooth mobility and bone sequestration often accompany these ulcerative lesions. Most dramatic is the rate of aveolar bone loss. Tissue destruction that typically would take years to develop in an immunocompetent person will occur in months in the HIV-infected patient without appropriate intervention. This rapid bone loss also occurs at much earlier age than is customary. Diagnosis usually is made by typical clinical presentation and lack of response to débridement, scaling, and topical and systemic anti-microbial agents. The dentist should be highly suspicious of HIV as an underlying cause in any patient who is experiencing linear gingival erythema or a rapidly developing periodontitis, particularly when the patient is young.
Aphthous ulcers.
These lesions are common in immunocompetent people, but when they occur in HIV-infected patients they tend to be more severe. In general, these ulcers tend to recur more frequently and persist for longer periods, and they are more likely to manifest as major or herpetiform aphthous ulcers when they affect HIV-positive patients. These oral ulcers have a predilection for the freely movable, nonkeratinized tissues. As with any persistent oral ulcer that is refractory to treatment, a tissue biopsy is needed to obtain a definitive diagnosis. Management of these persistent and recurrent oral ulcers includes short-term use of topical or systemic corticosteroids. These large persistent ulcers may interfere significantly with proper nutrition and contribute to rapid weight loss and the wasting syndrome that is associated with HIV. Weight loss may be apparent to the dentist or may be elicited through the taking of a patient history. The appearance of recurrent, refractory, severe aphthous ulcers should lead the dentist to suspect HIV infection and to a discussion about the need for HIV testing.
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DEALING WITH NONDENTAL CONDITIONS
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Dentists should have a standard protocol for dealing with patients with medical conditions that require evaluation and treatment that is beyond the scope of dental practice. Such a protocol should meet three objectives: ensure that patients in similar circumstances are treated consistently to comply with the AwDA, ensure that the patient’s counseling and referral to a consultant are properly carried out, and provide legally sufficient documentation of the consultation and referral.
HIV illustrates the interplay of these three factors. People with HIV are considered disabled under the AwDA. Assume that a dentist adopts this article’s recommendations for managing patients with HIV, including use of an HIV-specific counseling form that explains the risks of HIV and why the patient needs to be tested and evaluated by a physician (Figure
). Assume further that the dentist does not follow the same procedure for patients with oral cancer or other non-medical conditions but just tells patients with these conditions to see a physician and documents this with a note in the chart. HIV-infected patients could claim discrimination; they are treated differently than other patients who also require medical referrals. Conversely, an attorney representing the estate of a patient who had had oral cancer and died because he or she did not follow through with the consultation will claim that the dentist violated his or her own standard of care by not giving the oral cancer patient the same care in arranging consultations as he or she gives to HIV-infected patients. Thus the AwDA and the standards for malpractice demand that the dentist develop a consistent approach to managing all patients with medical conditions that are beyond the scope of general dental practice.
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ABSTRACT
ELEMENTS OF MALPRACTICE
). Such handouts are valuable for all serious conditions, not just HIV infection. HIV should have its own information sheet because of the special legal issues posed by state laws governing HIV testing that do not apply to other medical tests. (The figure
