Keeping a Risk-Free Dental Team

The General Dentist's Responsibility for Dental Assistants and Hygienists

By Jake Kathleen Marcus, JD, PGDip

While general dentists focus on maintaining their own licenses and knowledge about their own scope of practice, they do not always pay careful attention to the state requirements governing their assistants and hygienists. Licensure (where required) and regulatory compliance are obligations of the individual dental auxiliary. However, the employing dentist and dental practice is ultimately liable for adverse outcomes attributable, in whole or part, to the acts of dental assistants and hygienists. For this reason, it is important that dentists and dental practice owners are both knowledgeable about the regulations, including scope of practice, of their staff and that they maintain careful records of staff compliance with governing laws and regulations.

The scope of practice for dental assistants and dental hygienists varies depending on the laws and regulations of the state(s) where they work. The following is a general overview of their roles and responsibilities.

Dental Assistants

Dental assistants provide support to dentists and help ensure that dental practices run smoothly. Their duties often include clinical responsibilities such as:

• Preparing patients for dental procedures.

• Sterilizing and setting up dental instruments and equipment.

• Assisting the dentist during procedures by handing instruments and using suction devices.

• Taking and developing radiographs (with proper certification, if required by state regulation).

• Applying dental sealants or fluoride treatments (if allowed by state regulation).

• Making temporary crowns or impressions for study models (if permitted by state regulation).

The Dental Assisting National Board, in addition to overseeing voluntary certification and examination of dental assistants, maintains a detailed compilation of state regulations of dental assistants that can serve as a useful resource (danb.org/state-requirements).

In addition to clinical responsibilities, dental assistants may be given administrative duties such as scheduling appointments, maintaining patient records, and handling billing and insurance claims.

While administrative duties may seem secretarial and without legal risk, it is important to remember that patient records are subject to HIPAA and other privacy regulations. Inaccurate patient records can also lead to harmful clinical decision-making. Errors in billing and insurance claims can lead to the loss of insurance coverage and allegations of fraud, both of which carry grave consequences for dentists and dental practices.

Remember that dental assistants typically work under the direct supervision of a dentist, and they are not allowed to perform procedures that involve diagnosing, treatment-planning or irreversible dental work.

Dental Hygienists

Dental hygienists are licensed professionals whose work focuses on preventive oral healthcare and patient education. Their duties include clinical responsibilities such as:

• Cleaning teeth, including scaling and polishing to remove plaque, tartar and stains.

• Conducting oral health assessments, including examining for signs of gum disease and oral cancer.

• Taking and interpreting radiographs.

• Administering local anesthesia (with proper certification if required by state law).

• Applying dental sealants and fluoride treatments.

• Educating patients on oral hygiene techniques and preventive care.

In some states, dental hygienists can perform advanced tasks, sometimes called “expanded duties,” such as:

• Placing temporary fillings.

• Prescribing fluoride or antimicrobial rinses.

• Performing laser therapy for gum disease.

• Working independently in community settings without direct dentist supervision.

Hygienists are typically not permitted to diagnose dental conditions, perform invasive dental treatments or create treatment plans beyond preventive care.

Key Differences Between Dental Assistants and Dental Hygienists

Dental hygienists require more extensive education (associate or bachelor’s degree and licensure) than dental assistants, who may complete shorter certification programs. Hygienists often have more autonomy in patient care, while dental assistants work more closely under a dentist’s supervision. Hygienists focus primarily on preventive care and patient education, whereas assistants focus on support of the dentist performing procedures and preparing patients for procedures.

The exact tasks allowed for each role depend on state regulations. Always check the laws and guidelines of your state for accurate information.

Dentists’ Legal Exposure for Acts of Dental Assistants and Hygienists

A dentist’s legal exposure for the acts of dental assistants and hygienists depends on several factors, including the level of supervision, the scope of practice regulations in their state, and whether the acts were within the assistant’s or hygienist’s legal authority. Potential liability falls under several legal categories.

Vicarious liability: Dentists can be held legally responsible for the actions of dental assistants and hygienists under the principle of vicarious liability (also known as respondeat superior). This principle means that employers are responsible for the acts of their employees if those acts are performed (1) within the scope of employment, and (2) during the course of their professional duties. For example, if a dental assistant improperly sterilizes instruments, leading to a patient infection, the dentist may be liable. If a hygienist performs a task outside their legal scope (e.g., diagnosing a condition without proper qualifications), the dentist may also face liability for allowing it. Vicarious liability is a common idea under which dentists and dental practice owners are sued for malpractice.

Negligent supervision: Dentists have a duty to properly supervise their staff. Failing to provide adequate supervision, especially for tasks requiring oversight, can lead to liability. For example, if a dental assistant administers local anesthesia (which is often outside their legal scope) without direct supervision, the dentist may be liable for any resulting harm. Dentists and dental practice owners can be sued for malpractice under both vicarious liability and negligent supervision in the same lawsuit.

Failure to train or delegate properly: Dentists are responsible for ensuring that their staff are adequately trained and only assigned tasks they are legally allowed to perform. A dentist could be exposed to legal consequences if an untrained assistant causes harm while performing a procedure or by delegating tasks outside the assistant’s or hygienist’s scope of practice. Knowing the training requirements and scope of practice in the state is critical for both the dentist and the dental practice owner.

Direct liability: Dentists may face direct liability if they fail in their own duties, such as by failing to establish protocols for dental assistants and dental hygienists to prevent errors. Dentists may also be liable if they ignore signs that an assistant or hygienist is performing tasks improperly or by continuing to employ someone who has demonstrated incompetence or negligence. Proving that the dentist and dental practice owner has appropriately followed state regulation requires maintaining detailed records of staff training and practice protocols.

Independent liability of dental hygienists: In some states, dental hygienists may work independently or semi-independently.

In such cases, hygienists may bear primary legal responsibility for their actions, and dentists will not be held liable unless they contributed to the issue (e.g., by failing to review the hygienist’s actions when required). However, an employer dentist or dental practice owner is potentially liable for any harm done within the practice even if the dental hygienist has independent liability. In cases in which hygienists are found independently liable, the employer can, and likely will, be sued as well. Whether the suit is successful does not alter the expense of defending in such litigation.

Acts outside the scope of employment: If a dental assistant or hygienist acts outside their legal authority or scope of employment (e.g., performing procedures they are not trained or licensed to do), the dentist may still be liable if they permitted or failed to prevent such acts. However, if the act was entirely unauthorized and unforeseeable, the employee might bear sole liability.

Mitigating Legal Exposure

Few dental hygienists and dental assistants carry malpractice insurance of their own. When an attorney representing a patient is formulating a lawsuit, the attorney will consider where the “deep pockets” are; that is, who has the most money. Remember that medical malpractice claims are handled on a contingency basis, meaning the attorney only receives payment if the lawsuit is successful. An uninsured defendant is not going to have the funds to pay a successful award. This makes the insured dentist and/or dental practice owner the more inviting targets in litigation. Dentists can mitigate their legal exposure by:

• Maintaining clear documentation of delegated tasks, training and supervision.

• Ensuring all team members are licensed if licensure is required by state law and are practicing within their scope.

• Regularly reviewing and updating office policies to comply with state regulations.

To reduce legal exposure, dentists should:

• Include the acts of staff under the dentist or dental practice malpractice insurance.

• Ensure compliance with all state laws governing dental assistants and hygienists.

• Provide adequate supervision, especially for assistants.

• Not delegate tasks that are outside the staff member’s legal scope of practice.

• Require and document ongoing education and training for all staff.

By adhering to these practices, dentists and dental practice owners can protect themselves while maintaining high standards of patient care. The provision of dental care is a team effort. It is critical for all dentists and dental practice owners to remain diligent when employing, training and documenting the work of the entire team.

Jake Kathleen Marcus, JD, PGDip, has been a regulatory lawyer primarily in the healthcare space for over 35 years. They were recently awarded a postgraduate diploma in technology, media and telecommunications by Queen Mary University of London School of Law. To comment on this article, email impact@agd.org.