Understand legal issues when using CBCT scans
As cone-beam computed tomography (CBCT) becomes more prevalent in the dental field, various legal issues are coming to light. When CBCT scans are justified, they can provide the dentist with an enhanced diagnostic tool that offers significant patient benefits when compared to older imaging technologies.
However, there are several key concerns that dentists should keep in mind when using CBCT technology.
Dentists’ standard of care
Medical professionals who are liable for non-diagnosis of any abnormality on the CBCT scan include the dentist who orders the CBCT scan and likely any other professional who uses the CBCT for diagnosis or treatment planning. Dentists must possess the requisite standard of care when diagnosing and treating patients. This standard is normally stated as the level of knowledge, skill and care of a reasonable dentist. To meet this standard when using CBCT, dentists should use CBCT’s full capabilities to obtain maximum diagnostic accuracy. The standard of care must be met whether or not the dentist received specialized training on CBCT imaging because dentists are required to stay current in the areas in which they actively practice by enrolling in continuing education courses. There is even argument that dentists who use CBCT should be held to the higher standard of a board-certified oral and maxillofacial radiologist.
For dental implant placement patients, cross-sectional imaging, which can include CBCT scans, is recommended for all implants before they are placed. However, there is some argument as to whether a CBCT scan itself, as opposed to a CT, is required for every implant placement. And, a dentist may not have access to a CBCT for various reasons. Thus, reasonable dentists may differ in their opinion regarding the necessity of CBCT scan for implant placements, which makes the standard of care in implant placement situations more difficult to define. A CBCT scan, however, should be used in all cases where the general rule of a 2 mm safety zone between the maximum implant drill depth and the superior border of the inferior alveolar nerve canal cannot be accurately determined with only 2-D imaging.
Dentists are also legally and ethically obligated to do no harm to their patients. Improper diagnosis after using a CBCT does not align with this standard because delay of diagnosis leads to delay of treatment. This is not in the best interest of the patient because it can lead to an inferior prognosis. Also, not every patient requires a CBCT scan; therefore, it is the dentist’s responsibility to determine whether a CBCT scan is necessary by using reasonable, careful judgment in light of the patient’s medical and dental history and thorough examination. The dentist should do a cost-benefit analysis before requesting a CBCT scan. When doing so, the dentist should consider whether the likely benefit to the patient exceeds the ionizing radiation risk and the financial cost.
Dentists’ scope of legal responsibility to diagnose
When using CBCT, as with other diagnostic tools, the dentist’s responsibility is not limited to the area of interest being diagnosed or treated. The treating dentist is legally responsible for diagnosing any disease that falls within the scope of the dentist’s license, which is normally broad in scope, encompassing all diseases and lesions of the jaw and related structures. As for a dentist’s responsibility for diagnosing a disease that falls outside the scope of the dentist’s license, the answer is not clear. Thus, it is always a good idea to be cautious and assume the responsibility to recognize any abnormality that appears anywhere on the CBCT scan. If a dentist is unsure of the scan results, he or she should consult with specialists in the field or refer the patient to a specialist.
Whether a dentist practicing under a medical license is legally responsible to recognize a lesion that appears on the CBCT scan but is not in the orofacial complex is another question up for debate. It is more likely than not that his/her responsibility would stretch to these situations because treating these structures falls within the scope of his/her medical license. Thus, dentists with medical licenses should review the entire CBCT scan, not just the intended area of diagnosis, for any abnormalities and refer the patient to a specialist if any are noted.
Keep in mind that a misdiagnosis could still occur even if the CBCT scan is referred to a radiologist specialist for interpretation. In this case, the radiologist would be primarily responsible for the misdiagnosis, which greatly reduces the possible liability of the dentist who referred the scan due to the dentist’s reliance on the radiologist’s specialized expertise. However, this is not to say that the referring dentist would be free of any responsibility in this situation. So, again, it is always better to err on the side of caution when reviewing a CBCT scan, even if that scan will be referred to a radiologist specialist for further review.
A dentist is also responsible for identifying the exact location of vital structures within the CBCT scan for use in diagnosis and treatment planning. Because a dental lab technician is not legally allowed to diagnose, a dentist must take further action to identify the anatomical course of the IANC on a CBCT scan if a lab provides a tracing or images with the outline of the IANC. The dentist’s responsibility is to either confirm or reconfigure the drawn IANC image. To assist with this task, the dentist should ask the lab to provide an estimate of the IANC course as drawn and also the same image absent the lab’s drawing.
Required action after an abnormality is diagnosed
Once the dentist recognizes there is an abnormality on the scan, whether or not it is in the diagnostic area for which the scan was taken, the dentist is legally required to take further action. If the dentist is able, he or she should diagnose the dental disease or lesion. If the dentist can only identify an abnormality but cannot diagnose the exact cause, he or she should either consult with a specialist or refer the patient to a specialist in order to obtain a final, accurate diagnosis.
If the dentist refers the patient to a specialist for a suspicious abnormality seen on a CBCT scan and the patient refuses the referral, the dentist is normally required to inform the patient of the consequences of his/her refusal. In some circumstances, if the patient is not able to afford the proper diagnosis, it may be a good idea for the dentist to pay the specialist’s consultation fee in order to avoid all liability. In addition, it is a wise idea to chart the patient’s refusal of the referral and to have the patient sign an informed refusal form. Once the patient refuses a referral for proper diagnosis, the dentist may and should refuse to treat the patient. However, there would be an exception if the dentist is in the midst of treatment and discontinuing treatment would cause abandonment of the dentist/patient relationship.
Solutions to avoid liability
Due to the high standard of care legally required, a dentist should refrain from using CBCT scans unless and until he or she has received the proper training. Without training, a dentist simply cannot meet the requisite legal standard of care due to the lack of adequate learning and skill that the standard necessitates. Also, once charged with dental negligence, the dentist can prove that he or she made a reasonable judgment error in diagnosing or reading the CBCT scan. However, the dentist will not be able to invoke this defense if he or she failed to stay current with the CBCT technology or obtain proper training, in the form of educational classes, and readings and hands-on experience. It is even a good idea to obtain a certificate of training completion, which could later be used to show a jury that the dentist obtained the requisite competence to use the CBCT technology and to read a CBCT scan.
It is also a wise decision to use the smallest field of view of a CBCT available that includes all areas of diagnostic interest. By doing so, fewer anatomical structures will be shown on the CBCT scan, which will minimize the dentist’s legal responsibility to detect abnormalities in structures outside the area of interest. Also, if another type of scan will produce the same diagnostic result, the CBCT should not be the first choice but should be considered along with 2-D imaging. However, if a CBCT scan would reveal complications that would be difficult to accurately detect on a 2-D image, it should be immediately taken into consideration.
Finally, keep in mind that using a CBCT scan solely for screening purposes should be avoided because unnecessary use and overuse can create conflicts of interest between the dentist and the patient. As such, the patient should also be informed of every available option for diagnosis and the pros and cons of each of those options.
Note: This article was published in Dental Tribune U.S. Edition, Vol. 6 No. 18, December 2011.
About the author
Stuart J. Oberman, Esq., has extensive experience in representing dentists during dental partnership agreements, partnership buy-ins, dental MSOs, commercial leasing, entity formation (professional corporations, limited liability companies), real estate transactions, employment law, dental board defense, estate planning, and other business transactions that a dentist will face during his or her career.