TDIC Liability Lifeline - Volume 4, 2022

Substance Abuse and Misuse in Dental Practice

Statistically speaking, it is highly likely that at some point in your career you will encounter a patient or employee who enters the dental office visibly impaired by drugs or alcohol.

The Centers for Disease Control and Prevention (CDC) recently noted that:

• 25% of adults aged 18 and older had at least one heavy drinking day (five or more drinks for men and four or more drinks for women) in the past year.

• 13% of people aged 12 years and over reported illicit drug use in the past month.

• 25% of adolescents in grade 12 reported using e-cigarettes (nicotine vaping) in the past month.

Legalized use of marijuana is another contributing factor, as some patients attempt to self-medicate for dental pain or anxiety before arriving at their appointments. Employees may also believe that the legalization of marijuana means they too can use it for medicinal and recreational purposes. Recent statistics on marijuana use show that:

• 39 states now have legalized highTHC medical cannabis, including the District of Columbia.

• 19 states have legalized medical and recreational marijuana, including the District of Columbia.

• 52 million Americans will have consumed marijuana by the end of 2022.

• 12% of Americans adults have smoked marijuana in the past year.

Substance abuse and misuse by patients, staff members and dentists themselves poses great safety risks. Every member of the practice team, from the front desk staff to practice leaders, should be prepared to identify substance impairment and have the tools to effectively manage someone exhibiting substance impairment.

As is the case for managing risks and reducing potential liabilities in many situations, effective communication and documentation are key tools. The Dentists Insurance Company’s experts offer guidance on handling substance use and abuse situations — from patients to employees to other dentists.

Dentistry and the Chemically Impaired Patient

When a patient arrives for dental care in a suspected state of chemical impairment, it’s time to hit the “pause button.” Step back and assess the situation objectively. Even if the substance a patient has indulged in is legal, medicinal or prescribed, there are significant standard of care issues involved in dealing with a patient under the influence.

Should you treat a chemically impaired patient?

The short answer to this question is a simple and emphatic “no.” TDIC’s Risk Management experts strongly discourage dentists from providing care to patients who exhibit signs of

impairment from alcohol or drugs. Patients who are impaired due to the use of alcohol or drugs cannot fully participate in informed consent discussions. This means that any consent forms signed while a patient is intoxicated may be considered invalid. In addition to the issue of consent, the clinical risks of treating intoxicated patients include:

• They cannot provide accurate medical histories.

• They are more likely to forget postoperative care instructions.

• They cannot be given certain medications due to potential interactions with the substance they have already ingested.

• They are more likely to become belligerent, abusive and in some cases, violent during treatment.

These risks also apply to impaired caregivers of patients who, due to age, infirmity or disability, are unable to provide consent for themselves.

One of the best steps practice owners can take to ensure patients arrive sober to their appointments is having an office policy regarding patient drug and alcohol use. The policy should clearly outline that chemically impaired patients will not be treated, and any patient who presents while under the influence of alcohol, drugs or other mind-altering substances, including prescription drugs, will be asked to reschedule and return when they are not impaired.

Risk Management experts strongly discourage dentists from providing care to patients who exhibit signs of impairment from alcohol or drugs.

Preventing patients from arriving impaired to appointments

Identifying chemically impaired patients

Despite your best efforts to communicate an office policy of providing treatment to sober patients only, you may still encounter patients whom you suspect are under the influence of alcohol or drugs. Some obvious physical signs of impairment are:

• Breath odor

• Bloodshot eyes or flushed face

• Slurred or louder than typical speech

• Damp or clammy skin

• Lack of coordination and balance

• Difficulty making decisions

• Inappropriate comments or behavior

Patients who exhibit signs of being impaired, such as slurred speech or unsteady gait, should be asked whether their behavior could be caused by an underlying medical condition. Some conditions, including diabetic ketosis, mimic the signs of intoxication, and you may be observing a patient in need of immediate medical attention.

TDIC recommends that all dental team members should be trained to identify patients under the influence of drugs or alcohol and be educated on the office’s protocol for handling them.

Best practices for dealing with inebriated patients

Once you’ve established that the patient is impaired by drugs or alcohol — rather than exhibiting signs of a medical condition — rely on established office protocol for rescheduling the patient, getting them safely home and documenting the

interaction. It’s imperative to remain calm and objective at all points of communication and documentation, particularly if the patient is not willing to admit that they are not in a state to safely receive treatment. State the known facts: observable actions and comments made by the patient. Do not editorialize or speculate. Avoid attaching unnecessary or demeaning labels to the patient, such as addict, drunk or junkie.

When developing office protocols regarding intoxicated patients, consider:

• If possible, obtain information on the substance taken, the amount and when it was ingested. Give consideration as to how accurate the patient’s responses might be.

• Recommend rescheduling the appointment.

n Advise the patient that their intoxication limits your ability to accurately access and treat them.

n Share a copy of your office policy on substance use prior to treatments. If necessary, remind them of their previous acknowledgment of the policy and agreement to uphold it.

n Remind the patient of the necessity of not using substances prior to a visit and the ramifications that drug or alcohol use could have on the success of treatment if they indulge after treatment is rendered.

• Rely on in-office safety procedures in case potential behavior issues arise, such as belligerence or aggression.

n Have parameters in place for when to contact law enforcement or what code words staff should use to alert one another of a potentially dangerous situation.

Patients who exhibit signs of being impaired, such as slurred speech or unsteady gait, should be asked whether their behavior could be caused by an underlying medical condition.

• Determine if the intoxicated patient needs assistance leaving the office. The potential for practice liability does not end with a rescheduled appointment. The observation of an impaired patient leaving the office becomes the responsibility of the dentist to determine that the patient has a reasonably safe exit. If a patient is too impaired to undergo dental treatment, they are more than likely too impaired to drive safely. The dentist is legally obliged to warn the patient of the danger of driving or operating equipment while impaired but has no authority to restrict an impaired patient from leaving the office. While dentists are not liable if an impaired patient causes an accident after leaving their practice, TDIC’s experts encourage providers to do the following:

n Offer alternative methods of transportation.

n Encourage the patient to remain on the premises until alternative transportation can be arranged.

n If the patient is unable to do so themselves, call their emergency contact, a taxi or other ride share service to get them home safely.

n Call the police if an intoxicated patient refuses your attempts to prevent them from driving.

• Document all patient discussions thoroughly. Include patient comments (quotes are recommended) and any noncompliance along with the advice,

instructions and educational resources that you provided within the documentation.

n Again, when documenting observations that lead you to believe the patient is impaired, deal only with the facts and not your perceptions.

Following up with impaired patients

The topic of substance abuse and misuse can be thorny. As a health care provider, you are in a unique position to identify problems early on and have crucial conversations with patients about their overall well-being. If a patient shows signs of substance abuse or misuse, including having to reschedule appointments due to impairment, it is time to communicate your concern with them.

This could take place during an office visit later or when they are not impaired or on the phone. For example,

you may choose to reach out personally to a patient to remind them of their rescheduled appointment and your office policy on substance use. Express your concern for their safety and wellbeing as well as your desire to help. It is appropriate to ask if they chose using a chemical substance to cope with dental pain or anxiety and discuss alternate options for helping them be comfortable at their appointment.

If the patient’s problem appears to extend beyond the scope of what you can do for them as a dentist, offer referrals to medical or substance abuse professionals. Communication with the patient’s medical providers when coordinating the delivery of dental treatment may be required for the safety and well-being of the patient.

Your expression of care and willingness to communicate concerns honestly may be just the encouragement the patient needs to seek help.

State the known facts: observable actions and comments made by the patient.

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Alcohol, Substance Use and the Dental Team

TDIC’s Risk Management Advice Line occasionally takes calls from dentists who have concerns about signs of substance abuse in employees. The analysts remind dentists to help support high standards of behavior by clearly defining office policies and professional boundaries.

Within the dental practice

Your practice needs the entire team to be sharp and focused for the schedule to run smoothly. The impact of an employee’s substance abuse on a practice extends beyond impaired performance and productivity. Substance abuse leads to higher rates of absenteeism, workplace accidents and patient injuries — all of which impede safety and increase practice liability.

Since every situation is unique, it is best to exercise an abundance of caution when dealing with employees who appear to be intoxicated or under the influence. TDIC’s Risk Management team advises dentists to contact their human resources specialists or an employment attorney for counsel specific to their situations. Having a drug-free workplace policy detailed in your employee manual is also recommended.

In addition to a documented policy, both the practice owner and the individual who performs human resources duties should be trained in handling these types of sensitive situations. The U.S. Office of Personnel Management (OPM) publishes the guide Alcoholism in the Workplace: A Handbook for Supervisors, which can be a helpful training tool.

In a case reported to TDIC, a dental assistant presented to work on more than one occasion smelling of alcohol. Her performance and interactions with colleagues and patients were declining, and she was using language and a tone inappropriate for the workplace. During a verbal altercation with another staff member, the employee became highly

The impact of an employee’s substance abuse on a practice extends beyond impaired performance and productivity.

emotional and erratic. The dentist had to stop patient care and intervene to address the unacceptable behavior.

The employee shared with the dentist some personal issues and admitted to having an occasional drink to help her cope with the crisis she was dealing with at home. The dentist sent the employee home, with pay, for the remainder of the day, allowing her time to take care of personal issues. The next day, the employee returned to work, with the same attitude, being rude to staff and patients. The situation escalated as the employee continued to demonstrate unprofessional behavior, absenteeism and declining performance over the next few months, making it difficult for others to work with her. To make matters worse, the office did not have a drug and alcohol policy in place. Not knowing how to handle the situation, the dentist contacted TDIC for guidance.

If an employee in your practice exhibits unusual behavior, document your observation in an objective manner and note only the observable facts in the employee’s file. Making a diagnosis or accusation can heighten an already stressful situation and open the practice up to liability. Rather, express concern for patient and coworker safety and state the facts in a manner such as “I am concerned. I have observed you slurring your speech.” As there are situations in which an employee behaves erratically due to a prescription medication or a health issue, addressing the underlying behavior and workplace safety is prudent.

If your drug policy includes fitness for duty testing, and the employee refuses to comply, the employee’s refusal may lead to a finding that they are being

insubordinate. But regardless of an employee’s willingness to comply with the testing, you should help provide them with a safe ride home. Document the interaction and its outcome in the employee’s file, along with the employee’s behaviors that led to the reasonable suspicion and all actions and outcomes that follow.

Outside the dental practice

Often, employers and employees mistakenly believe events and activities that take place outside of the place of employment absolve them of the rules that exist in the workplace. This is not the case. Once an employer invites most or all employees to a hosted social event or party, that event is considered an employment function. The same standard applies to off-site training or conferences that an employer pays for employees to attend.

Risk Management analysts remind practice owners that standard harassment, antidiscrimination and workers’ compensation factors apply at company-sponsored events. Employers can and have been held liable for their employees’ behavior regardless of when or where it occurred.

Celebrating off-site or after hours does not negate the responsibilities of an employer and poses risks. For example, if an employee drives under

If an employee in your practice exhibits unusual behavior, document your observation in an objective manner and note only the observable facts in the employee’s file.

the influence and causes an accident, the employer can also be held liable.

invited and covered the expenses for several members of their team to attend a weekend dental conference. During the day, the conference offered educational workshops, lectures and panel discussions, along with opportunities to explore new products and technology. In the evening, there were events for staff to attend that encouraged socializing and networking.

In this situation, the TDIC analyst recommended having an honest, transparent conversation with the employees right away. The practice leader should clearly identify what behavior is expected of staff members when attending professional meetings and events.

Another consideration is maintaining the professional reputation of the practice. In one call received by the Advice Line, a practice leader

Two of the members of this practice team were seen overindulging in alcohol during the evening events, and their attendance at daytime lectures was sporadic. The practice leader was frustrated and embarrassed by the behavior of these employees, feeling it reflected poorly on the practice and showed a disregard for the educational opportunities. However, the practice leader was uncomfortable addressing the employees’ behavior since it occurred outside of their place of employment.

While employees should be held accountable for their actions at employer-sponsored functions, establishing and maintaining boundaries creates a structure for employees to follow and know what is expected of them, regardless of the setting.

Communicating expectations

The best action practice owners can take to prevent issues with impaired employees is to communicate and document expectations of employee

Risk Management analysts remind practice owners that standard harassment, antidiscrimination and workers’ compensation factors apply at companysponsored events.

behavior through the policies detailed in their employee manual. TDIC Risk Management analysts provide the following direction for including behavioral expectations in an employee manual:

• Have a detailed drug-free workplace policy. The policy should cover rehabilitation/counseling options and disciplinary actions, including grounds for dismissal. If you intend to conduct reasonable suspicion fitness for duty testing, this should be detailed as well.

• A proper policy will cover what substances are not allowed and outline risks including termination if substances are brought onto the premises. Contact your attorney for advice specific to your practice.

• Never assume that everyone has the same definition of “professional behavior.” Cite specific examples of unprofessional and unacceptable behavior and of respectful behavior and professional conduct.

• Specify the circumstances in which professional conduct is expected. If there is a reasonable expectation that employees will be included in employer-sponsored gatherings or represent the employer at professional events, make sure to outline the expected rules of professional conduct outside of the office.

Maintaining an employee manual is a critical point of documentation. Require staff to sign an acknowledgment for every employee manual or policy change and keep these acknowledgments in employee records.

It is also appropriate to provide staff members with friendly reminders of company policies for appropriate professional behavior before off-site events or in-office celebrations.

Practice owners must be mindful that their individual style and personality dictate the office environment in which they and their staff work. They should model the same behaviors they expect from their staff members, abiding by the rules for conduct outlined in the employee manual. With acceptable and unacceptable actions clearly defined, everyone in the office will be less likely to cross the line.

The practice leader should clearly identify what behavior is expected of staff members when attending professional meetings and events.

Substance Abuse and Oral Health

The abuse and misuse of alcohol and chemical substances can wreak havoc on a patient’s oral health. The oral manifestations of drug dependency often include rapid deterioration of the dentition and supporting structures of the oral cavity. Medical history is especially important as a tool to identify past or present drug use, and this information should be identified in the forms used by your office.

People who are struggling with addiction are at increased risk for gum disease and tooth decay. As a dentist, you will most likely be the health care professional to first identify the signs and negative physical effects substance abuse has on a patient’s oral health. By recognizing substance abuse and drug addiction as serious health issues, dental professionals can promote early intervention and preventive strategies.

Here are the most common ways that addictive drugs can cause harm:

• Dry mouth, which increases acid in the mouth and leads to deteriorating enamel

• Acid reflux, which also weakens enamel and hurts soft tissue

• Grinding teeth (bruxism)

• Loss of blood flow to roots and gums

• Ulcers or sores in the mouth that can become infected

• Nutritional deficiencies that can damage teeth and gums

• A focus on attaining more drugs that leads to neglect of hygiene and wellness, including oral hygiene

It is imperative to offer every patient respect and care regardless of any behavior or choice that has affected their oral health. While you should not provide treatment to actively impaired patients, encourage patients to return when they are unimpaired so you can provide the care they need. Doing so without judgement demonstrates to the patient that you are there to encourage and support their path to attaining optimal dental health.

As a dental professional, you are in the best position to educate patients on the risks of substance abuse to their oral health, effective oral hygiene and offer resources and referrals to substance abuse professionals.

Tips for Employee Manuals

Successful dental practices have established expectations and guidelines for employees to follow. Your practice’s policies on maintaining a drug-free workplace are some of several essential elements of positive office culture that should be outlined in your employee handbook. Others include, but are not limited to:

• Displaying a positive and respectful attitude

• Working with honesty and integrity

• Performing their job to a reasonable, acceptable standard

• Maintaining good attendance

• The details of benefits offered (PTO, holidays, health insurance, in-house benefits, etc.)

• Mandatory paid sick leave requirements for full- and part-time employees

• Rate of pay for mandatory meetings, training, travel time and on-call work

• Dress code or uniform standards

• Safety, security and technology requirements

• Policies and procedure for dealing with specific problems or issues

• Responsibly representing the organization at events or work-related functions

Without clear expectations, dentists run the risk of miscommunication and low team morale. These problems will have an impact on the office, its operations, employees and eventually patients.

EMPLOYEE MANUAL

Your office policies and employee manual will also provide a roadmap to apply if disciplinary action may need to be taken. This crucial communication and documentation will reference your policies and any instances where they may have been violated.

Is it time to create or update an employee manual for your practice? TDIC policyholders can log in to their online accounts and access a comprehensive, customizable sample.

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Substance abuse and dentists

The risk factors that contribute to SUD are complex. They include genetic and environmental influences, personality, social pressure, availability of drugs and coexisting mental health problems. It is estimated that 10-15% of healthcare experience SUDs, and that 1 out of 10 dentists will suffer from alcohol or drug abuse at some point in their lifetime.

Dentistry Under the Influence

According to the American Dental Association’s 2021 Dentist Health and Well-Being Survey, most dentists are reporting moderate or severe stress at work. Dental professionals at every stage of practice as well as dental students are dealing with burnout, substance use disorders (SUDs) and other conditions that may impair their abilities to practice competent dentistry.

SUDs can affect anyone. Matthew Korn, DDS, chairs the California Dental Association’s Wellness Program, a source of support to the association’s members who are facing physical and/ or mental ailments, including anxiety, depression and substance dependence. Dr. Korn himself battled alcohol dependency from his college years and into his early years practicing dentistry, although by his own words he was

“born an alcoholic.” He later developed prescription-opioid dependency.

“It got worse and worse over the course of 15 to 20 years, so it wasn’t a single event — it wasn’t a one-time lightbulb that came on where I realized I needed help,” he said. “And for years I remember thinking I was too smart to succumb to this disease. Obviously, I was proven wrong.”

Eventually, enforcement officers with the Dental Board of California’s Diversion Program showed up at his dental practice with badges and guns.

“I thought my life was over,” Dr. Korn said.

Fortunately, that was not the case. Intervention led to recovery. Korn was able to maintain his license, continued

The most obvious impact of substance abuse in the dental profession is the direct risk to dentists and their patients. Impaired dentists are more likely to make mistakes or harm patients. They cannot deliver the best care to their patients and pose a real danger to themselves and others. Practicing dentistry under the influence of alcohol or drugs is a violation of the

Dental professionals at every stage of practice as well as dental students are dealing with burnout, substance use disorders (SUDs) and other conditions that may impair their abilities to practice competent dentistry.

ADA’s Principles of Ethics and Code of Professional Conduct, which states that, “The dentist has a duty to refrain from harming the patient.”

Early identification of the signs and behaviors associated with substance use disorder and drug diversion reduces the risk of harm to patients and providers. Staff play an important role by reporting any concerning behaviors witnessed within the office to a supervisor or their local dental board. Some signs of that indicate potential alcoholism or chemical dependency include:

• Frequent tardiness or unexplained absence

• Difficulty meeting scheduled appointments and/or deadlines

• Impaired motor coordination

• Prescribes large doses of controlled substances

• Frequent and prolonged bathroom breaks

• Obvious physical changes; lack of attention to hygiene/appearance

• Dramatic mood swings

• Periods of isolation

• Unexplained family and/or financial difficulties

• Decline in quality of care or exercising poor judgment with treatment plans

It is an extremely uncomfortable experience for a dentist to discover they have a colleague who may be abusing drugs or alcohol. However, the ethical duty is clear. The American Dental Association’s Principles of Ethics and Code of Professional Conduct states, “Dentists have an ethical obligation to urge chemically impaired colleagues to seek treatment. Dentists with first-hand knowledge that a colleague is practicing dentistry when so impaired have an

ethical responsibility to report such evidence to the professional assistance committee of a dental society.” When there is a need to report, ensure confidentiality and maintain an atmosphere of mutual respect and accountability.

Getting confidential support

If you believe a colleague has an alcohol or chemical dependency problem, the American Dental Association offers resources to seek help. You can download its directory of well-being programs offered nationwide or email dentalpractice@ada.org for confidential assistance.

Dr. Korn offers hope and encouragement that there is support and help available to other dentists struggling with SUD. “They’re going to get the help they need,” he assured. “Dependence is treatable.”

Staff play an important role by reporting any concerning behaviors witnessed within the office to a supervisor or their local dental board.

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Frequently Asked Questions About Substance Use and Dentistry

patient of your office policy accordingly.

If you have determined that a patient is under the influence, staff should encourage the patient to remain on-site and make alternative transportation arrangements, such as calling a taxi or ride-share service or notify the emergency contact listed on the health history form and ask them to pick up the patient. Should the patient become belligerent or abusive, notify security or law enforcement.

Answer: If a patient shows signs of visible impairment due to any substance, TDIC recommends rescheduling the appointment and asking the patient to return when they are not impaired. Explain to them that for ethical and safety reasons, you cannot provide treatment to intoxicated patients.

It is important to realize that the smell of marijuana in and of itself is not an indication that the patient actively uses the drug or is currently under the influence. Be careful not to discriminate against any individual you suspect may use or abuse a substance. Ask questions to access knowledge that will help you make an informed decision about provision of care. Objectively document observations that lead you to believe the patient is impaired.

You can inquire about the individual’s use of marijuana and whether the use is for medicinal purposes (then consult with their physician) or recreational use. Request — as with someone who drinks alcohol — that they not use/consume prior to treatment as an altered state may impair their ability to provide informed consent for treatment. Initiate this dialogue with patients by requesting they update their health history at every visit. If recreational marijuana is legal in your state and the patient admits to occasional use, note this in the treatment record and advise the

Answer: This is an unfortunate and difficult scenario in which the safety and well-being of the patient must take precedence in your response.

Generally, a minor should not be treated when their adult caregiver is chemically impaired. The adult in question is authorized to make treatment decisions and consent on behalf of the patient. Therefore, the same risks that exist in treating intoxicated adults apply to when a minor patient is accompanied by an intoxicated adult caregiver: they cannot provide accurate medical history, their decision-making is questionable, they are unlikely to remember care instructions and they cannot fully participate in informed consent discussions.

Many states do have laws that allow healthcare providers to proceed without parental consent in case

Question: Am I allowed to reschedule a patient who appears to be using marijuana?

Question: My pediatric patient’s parent appears to be intoxicated. Should I still treat the patient?

of emergency. The step to provide emergency treatment without the parent’s informed consent should only go forward in the rare situation that delaying dental treatment could endanger the child’s health.

By law, dentists are mandated reporters, obligating them to notify the appropriate authorities when they feel the adult accompanying a minor patient may be a danger to themselves or others. This includes intoxicated adults who insist on leaving the office with children in a vehicle. Report all physical signs of child abuse, child neglect, elder abuse, elder neglect and domestic violence that are observable in the normal course of a dental visit. Document what you observed in the patient’s chart, along with information detailing how, when, and to whom you reported the abuse.

patient’s parents. Abuse of alcohol or drugs is not a protected class as it would be in pregnancy, abortion and birth control. Therefore, the parent or legal guardian can be advised of the dentists’ reasonable suspicions. It is also important to note that dentists and other licensed dental care providers are mandated reporters for evidence of child, disabled or elder abuse. In a case where impairment of a minor is due to drugs or alcohol, both of which are illegal for a minor to consume, that may be evidence of child abuse. Depending on the source of the drugs or alcohol, this observation may be an event reportable to child protective services.

Early detection and intervention of substance use disorders, like most medical conditions, leads to better treatment outcomes. Your intervention may very well save a life. Discuss the drug use, its effects on the body, its impact on a healthy smile, and its risk of death. Suggest to the parent and patient that they seek treatment and support and offer to refer them to trusted specialists.

Answer: If during a dental exam you find signs that would indicate a minor is abusing drugs or alcohol, do not hesitate to discuss your observations with your patient and their parents. You may be the first to discover tangible evidence of a problem that parents have not even begun to suspect.

Dentists sometimes wonder if it is a violation of patient privacy laws to discuss potential drug use with a minor

Unfortunately, there is the possibility that you will discover signs of drug use in a patient and either they or their adult caregiver will deny it. In this situation, it’s best to respectfully acknowledge that you are there for your patient and their parents as part of their healthcare support system. Assure them that if they need assistance, you will be happy to direct them to helpful resources and check on their oral condition. In the meantime, remind them of oral health tips that are important for all patients, but especially those at greater risk of injury, disease or decay due to drug use:

• Avoid sodas and soft drinks

• Cut back on sticky and sugary foods

• Chew sugar-free gum to promote salivary flow

• Stick to a consistent daily oral hygiene routine

• Keep regular dental hygiene appointments

Question: I am concerned that a minor patient is showing signs of drug abuse. What is my responsibility?

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