Refusing the Red-Flag Patient — When Substance Use Complicates Treatment

By Jake Kathleen Marcus, Esq.

An AGD member recently wrote seeking guidance about managing a patient who arrived at his office apparently impaired. According to the dentist:

The patient has come to the practice for appointments while intoxicated and occasionally reeks of alcohol. At her last appointment, she admitted to taking tranquilizers before coming in.

Because the patient drives herself to and from appointments, I am concerned that she might harm herself or someone else.

How should I proceed?

Given the prevalence of substance use and abuse, this is a scenario that will likely happen to most dentists, and it presents legal, ethical and practical challenges.

Legal Considerations

Perhaps the most basic legal issue concerning patients impaired by drugs or alcohol is that they cannot provide valid informed consent. Any treatment performed therefore fails to meet the standard of care and exposes the dentist to malpractice action and dental board sanction.

From a medical standpoint, an impaired patient may have:

• Altered vital signs.

• Unpredictable drug interactions.

• Decreased pain tolerance or responsiveness.

• Complications due to drug interactions with local anesthetics or sedatives.

• Inability to follow postop instructions.

Treating an impaired patient therefore increases the risk of complications such as drug interactions, adverse reactions and aspiration. A poor clinical outcome may be deemed foreseeable and preventable, and therefore negligent, resulting in civil liability, disciplinary action by the state dental board or increased malpractice insurance costs.

However, if the patient requires emergency care (e.g., uncontrolled bleeding, infection or trauma), the dentist is ethically bound to perform limited treatment, which is a defense against civil or dental board action. The nonelective treatment should:

• Stabilize or provide minimal necessary treatment.

• Avoid medications that could interact with suspected drugs.

• Consider referring to a hospital or emergency clinic if impairment is severe.

Whether a procedure is emergent or elective, a dentist is potentially liable for both the danger a substance-impaired patient poses to themselves and others. If an impaired patient injures either themselves or others after leaving the practice — for example, driving under the influence — the dentist could face third-party liability if they (1) were aware of the impairment and (2) took no reasonable steps to prevent foreseeable harm. For these reasons, performing an elective procedure on a substance-impaired patient violates the standard of care.

Ethical Considerations

A dentist can and should refuse to serve a patient under certain conditions, provided that the refusal does not violate the standard of care, dental regulations or professional ethical obligations. The American Dental Association (ADA) does not have a statement directly addressing treating patients impaired by drugs or alcohol. However, there is related guidance within the ADA Principles of Ethics and Code of Professional Conduct (ADA Code). Section 4.A. of the ADA Code, “Patient Selection,” states:

While dentists, in serving the public, may exercise reasonable discretion in selecting patients for their practices, dentists shall not refuse to accept patients into their practice or deny dental service to patients because of the patient’s race, creed, color, gender, sexual orientation, gender identity, national origin or disability.

But what is “reasonable discretion”? Section 4.B. of the ADA Code provides that a dentist may not refuse care to a patient when the situation is urgent or life-threatening. Therefore, the governing ethical considerations are the same as those governing the treatment of patients who are not on drugs or alcohol.

The ADA Code sets forth ethical principles governing dentists’ conduct that can be applied when considering treating substance-impaired patients:

1. Patient Autonomy. (Self-governance.)

• Can a patient provide informed consent when substance-impaired?

2. Nonmaleficence. (Do no Harm.)

• Are you performing a harmful or unduly risky procedure when your patient is substance-impaired?

• Is a substance-impaired patient leaving your office potentially harmful to themselves or others?

Practical Consideration

If a dental patient arrives at an appointment apparently under the influence of illegal substances, misused prescription medications or alcohol, the dentist has both legal and ethical obligations to manage the situation safely and professionally. Even if, as in the situation presented in the member’s email above, the patient admits to being under the influence, the dentist cannot determine with certainty whether the patient is accurately reporting what they have consumed.

In such a situation, the dentist should assess the situation immediately by:

• Observing signs of impairment like slurred speech, unsteady gait, dilated pupils, confusion, aggression or unusual behavior.

• Determining the severity of the impairment by taking into account the patient’s coherency, whether they can give informed consent, and whether they are a danger to themselves or others.

If you determine the patient is impaired, calmly inform them that treatment must be rescheduled due to safety and legal concerns. The patient can be offered a new appointment with instruction that they will only be treated if they are sober. If the patient is belligerent, de-escalate, and safely involve a witness such as your office manager or another staff member.

In order to further ensure the patient’s safety and shield yourself from liability, do not allow them to drive. Offer to call a friend, family member or rideshare service. If the patient insists on driving, you should:

• Advise against it verbally, and document that you did so.

• Notify police if there is an imminent threat to public safety.

• If impairment puts a child at risk — for example, the patient is an impaired parent or guardian — consider a report to Child Protective Services, which, depending on your state, may be legally mandated.

While calling the police to report a patient leaving your office may seem like an extreme measure, the risks to the patient and to others on the road justify the call. You are potentially liable for any injury to a person or property caused by the impaired patient driving from your practice.

Finally, it is critical that illicit drug or alcohol use by a patient and any actions taken should be fully documented in the patient’s chart including:

• Observed signs of intoxication.

• Rationale for postponing or modifying treatment.

• Any conversations with the patient or companions.

• Any referrals or instructions given.

Additional risk management tips regarding patients impaired by illicit drugs or alcohol include:

• A written office policy for managing impaired patients.

• Training staff on how to recognize and respond to drug impairment.

Finally, remember that many people are prescribed anxiolytic or tranquilizing medications for a variety of medical conditions. Dental procedures can be triggering for patients who have experienced trauma, and they may take these properly prescribed medications to self-manage the anxiety. A comprehensive intake form for each patient that documents both legal and illegal drug and alcohol use as well as dental anxiety history can assist in a transparent exchange of information between dentist and patient. But, ultimately, dentists can and should refuse to perform elective procedures on patients impaired by drugs or alcohol.

Jake Kathleen Marcus, Esq., has been an attorney primarily in the healthcare space for over 35 years. She owns Marcus Law in Pennsylvania, representing businesses and individuals with counsel and in litigation. To comment on this article, email impact@agd.org.