A few months ago, a Florida
dentist found himself sitting in the back of a police car in handcuffs facing
felony charges. The State accused him of
using an unlicensed person to provide dental hygiene services to 71 Medicaid
patients. He could receive 15 years in
prison and a fine of $30,000. His
attorney argues that the dentist is innocent because he did not know that his
employee was unlicensed. In North
Carolina, he would not get very far with that defense.
In 1998, our state’s Dental Board
suspended a dentist’s license because he had hired an unlicensed dentist. He argued that he reasonably thought the man
he had hired was licensed. He pointed
out that no one suffered any harm at the hands of the unlicensed dentist. Finally, he stated that traditionally, North
Carolina law requires intent to violate the law as a condition of imposing
criminal sanctions.
The North Carolina Court of
Appeals disagreed. It held that the
Dental Practice Act is designed to protect the public welfare. It ruled that in such cases, the Board does
not need to prove that the defendant intended to violate the law. It is up to the dentist to verify the
licensure status of all employees required by law to be licensed.
Failing to check the licensure
status of potential employees, partners, and agents can also trigger civil
liability. A 2008 New York case involved
claims against a man who allegedly provided dental care to patients in his
wife’s dental office after hours. The plaintiff
claimed that this unlicensed person had permanently damaged his teeth. He argued that the man had breached his implied
contract to properly treat the damaged teeth.
Had the fake dentist been
licensed, he would have been protected by a New York law outlawing breach of
contract claims against physicians or dentists unless those claims are based on
“a special promise to effect a cure.” Since he was not licensed, the laws
designed to protect dentists from such lawsuits did not protect him.
The North Carolina Legislature
has enacted similar laws to protect health care providers from lawsuits. For example, to be enforceable, any doctor’s
promise of a cure must be in writing.
Before filing suit against a doctor, the patient must obtain an expert
witness who states that the doctor failed to provide appropriate care. That witness must meet stringent statutory
requirements. Finally, the legislature
has limited the amount of damages available in malpractice cases. If North Carolina follows the rationale of
the New York case, those protections may not be available if the provider does
not hold a current license. This could
seriously impact the provider’s employer or partners.
Finally, most malpractice
policies only insure for actions carried out by licensed providers. It is entirely possible that an insurer would
refuse to pay damages awarded in cases where the provider does not have a
current license.
Licensing agencies make it
simple and quick for anyone to check the licensure status of a health care
provider. Generally, the information can
be checked on-line in a matter of minutes.
It is important to verify licensure prior to hiring a new employee. As most health care providers must regularly renew
their licenses, it is also important for employers to routinely update the licensure status
of employees.
While it may seem like a lot of
trouble to remember to check licenses of employees, I’m sure the Florida
dentist wishes he had taken the time to check out the hygienist before he hired
her. It may be that the dentist will soon have a lot of time on his hands to check things out.
