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The Regulation of Dental Licensing: The Dark Ages?

Published online by Cambridge University Press:  24 February 2021

Bernard Friedland  and
Richard W. Valachovic
Bernard Friedland
Affiliation:
Suffolk University School of Law, currently Practicing at Law Offices of Robert W. Joyce, Newton MA; Harvard School of Dental Medicine
Richard W. Valachovic
Affiliation:
Harvard School of Dental Medicine
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Abstract

Current state laws regulating the licensure of dentists place severe restrictions upon the freedom of movement of practitioners. Most state laws were enacted during a period when a strong rationale for regulating public health and welfare existed. Today, these laws hamper the free movement of dentists and are anachronisms in an era of national standards and practices. The authors contend that the extant laws rest upon outdated assumptions and serve economic and protectionist goals rather than public health and safety.

This Article examines the history and application of the traditional justifications for state licensure and their present ramifications. The authors suggest that replacing the current regulatory system with a national clinical examination and a national licensure program will best serve the interests of the public and the dental profession.

Type
Articles
Information
American Journal of Law & Medicine , Volume 17 , Issue 3 , 1991 , pp. 249 - 270
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1991

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References

1 Three hundred and one articles on the subject were published between 1900 and 1972. See Lawrence, , Reciprocal Licensure in Dentistry: A Historical Review, 88 J. AM. DENTAL A. 1358 (1974)Google Scholar [hereinafter Lawrence, Reciprocal Licensure].

2 See infra text accompanying notes 52-61 & 73-75.

3 The National Dental Board is a written examination taken by dental students. AMERICAN DENTAL ASS'N, FACTS ON LICENSURE: UPDATED EXCERPTS FROM FACTS ABOUT STATES, Nov. 1989, at 6 [hereinafter FACTS ON LICENSURE].

4 Id. at 4.

5 Both Massachusetts and Vermont participate in the NERB examination. Id. at 7.

6 In the discussion concerning cases and legal standards, the reader will notice that the reference is often made to medical licensing, rather than to dental licensing. The reason is that many more cases discuss medicine rather than dentistry. Indeed, one may be hard pressed to find a case concerning dentistry on a particular issue. Although dentistry and medicine differ in some respects, the same principles apply.

7 Dent v. West Virginia, 129 U.S. 114 (1889).

8 Id. at 121.

9 Id. at 122.

10 Collins v. Texas, 223 U.S. 288, 296 (1912).

11 See, e.g., McMurdo v. Getter, 298 Mass. 363, 366, 10 N.E.2d 139, 141 (1937) (the right to engage in any lawful occupation “may be qualified or restricted under the police power, — the broad power, never precisely delimited, to take rational action for the protection of the public safety, health, morals, comfort and good order“); Lawrence v. Board of Registration, 239 Mass. 424, 428-29, 132 N.E. 174, 176 (1921) (“The right to follow a legitimate calling … must yield to the paramount right of government to protect the public health by any rational means. No argument is required to demonstrate that legislation reasonably designed to promote the general health of members of society is within the welfare clause of [the] Constitution.“).

12 Fogland v. Board of Registration in Medicine, 357 Mass. 624, 259 N.E.2d 780 (1970).

13 Sheedy v. Department of Registration and Educ, 33 111. 2d 573, 213 N.E.2d 281 (1965).

14 Small v. Howard, 128 Mass. 131 (1880).

15 Id. at 136.

16 Id. at 132.

17 Note, Medical Malpractice — Expert Testimony, 60 Nw. U.L. REV. 834, 837 (1966)Google Scholar [hereinafter Note, Expert Testimony]. Although Small v. Howard is the case most frequently cited as the case establishing the concept of the “locality” rule, the rule was first announced in Tefft v. Wilcox, 6 Kan. 46 (1870).

18 Recent Important Tort Cases, 31 J. A. TRIAL LAW. AM. 131, 137 (1965); Note, Expert Testimony, supra note 17, at 838. 19 Horton v. Vickers, 142 Conn. 105, 111 A.2d 675 (1955).

20 See, e.g., Ayers v. Parry, 192 F.2d 181 (3d Cir. 1951) (the lack of due care, or the lack of diligence on the part of a physician in diagnosis, method and manner of treatment ordinarily must be established by expert testimony); Couch v. Hutchinson, 135 So. 2d 18 (Fla. Dist. Ct. App. 1961) (a surgeon charged with malpractice was entitled to be judged by standards and practices of his professional school provided'by expert testimony); Purtill v. Hess, 111 111. 2d 229, 489 N.E.2d 867 (1986) (physician required to possess that degree of skill, knowledge and care which a reasonably qualified physician in same or similar community would bring to a similar case under similar circumstances).

21 Speed v. State, 240 N.W.2d 901, 908 (Iowa 1976) (quoting McGulpin v. Bessmer, 241 Iowa 1119, 1131, 43 N.W.2d 121, 128 (1950)).

22 Recent Important Tort Cases, supra note 18, at 136.

23 Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968).

24 Id. at 109, 235 N.E.2d at 798.

25 Halley v. Birbiglia, 390 Mass. 540, 458 N.E.2d 710 (1983).

26 Id. at 543 n.4, 458 N.E.2d at 712 n.4.

27 Stepakoff v. Kantar, 393 Mass. 836, 473 N.E.2d 1131 (1985).

28 Id. at 841, 473 N.E.2d at 1135 (1985).

29 Shamburger v. Behrens, 418 N.W.2d 299 (N.D. 1988).

30 Id. at 306.

31 Id. (citing Dickinson v. Mailliard, 175 N.W.2d 588, 596 (Ohio 1970)).

32 Ardoin v. Hartford Accident and Indemnity Co., 360 So. 2d 1331, 1337 (La. 1978).

33 Id. at 1337.

34 See, e.g., Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972); Simpson v. Davis, 219 Kan. 584, 549 P.2d 950 (1976); Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245 (1975); Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788 (1970); Christy v. Saliterman, 288 Minn. 144, 179 N.W.2d 288 (1970); Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191 (1979); Wiggins v. Piver, 276 N.C. 134, 171 S.E.2d 393 (1970); Bruni v. Tatsumi, 46 Ohio St. 2d 127, 346 N.E.2d 673 (1976); Shier v. Freedman, 58 Wis. 2d 269, 206 N.W.2d 166 (1973). The national standard is also in accord with Restatement (Second) of Torts § 299A (1965).

35 Logan v. Greenwich Hosp. Ass'n, 191 Conn. 282, 465 A.2d 294 (1983).

36 Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So. 2d 254, 258 (Ala. 1982) (citing Zills v. Brown, 382 So. 2d 528, 532 (Ala. 1980)).

37 Hundley v. Martinez, 151 W. Va. 977, 991, 158 S.E.2d 159, 167 (1967).

38 Capitol Hill Hosp. v. Jones, 532 A.2d 89, 93-94 (D.C. 1987).

39 Hall v. Hilbun, 466 So. 2d 856, 870 (Miss. 1985).

40 Id. at 870.

41 Id.

42 Siirila v. Barrios, 398 Mich. 576, 248 N.W.2d 171 (1976).

43 Id. at 625-26, 248 N.W.2d at 191.

44 See, e.g., Cook v. Lichtblau, 144 So. 2d 312, 316 (Fla. 1962) (“[m]oreover, any reasons in logic and law which compel retention of [the locality] rule, in whatever form, were not present in this case“); King v. Williams, 276 S.C. 478, 481, 279 S.E.2d 618, 619 (1981) (the “logic [underpinning the locality rule] has gradually deteriorated with the advance of required higher education, wide dissemination of medical information, and increased access to updated medical facilities“); Pederson v. Dumouchel, 72 Wash. 2d 73, 79, 431 P.2d 973, 978 (1967) (“[t]he ‘locality rule’ has no present-day vitality except that it may be considered as one of the elements to determine the degree of care and skill which is to be expected of the average practitioner of the class to which he belongs“).

45 OKLA. STAT. ANN. tit. 76, § 20.1 (West 1983).

46 OFFICE OF THE INSPECTOR GENERAL, DEPARTMENT OF HEALTH AND HUMAN SERVICES, STATE LICENSURE AND DISCIPLINE OF DENTISTS 43 (1988) [hereinafter INSPECTOR GENERAL, LICENSURE AND DISCIPLINE].

47 Id. A “regionally-biased” procedure is a procedure which is performed primarily in certain parts of the country. The term may also refer not only to a procedure, but also to the manner in which it is performed.

48 This is a valid concern. For example, until this year students taking the NERB examination were permitted, but not required, to do a gold foil restoration, a procedure almost universally agreed to be an anachronism. Such extreme cases, if they still exist must be rare and should be easy to address.

49 Just because one part of the country uses anatomic teeth and another area uses “flatplane” teeth in dentures, or one area believes that a bevel is an absolutely essential feature of a particular restorative preparation, while another geographic region regards a bevel on that same preparation as anathema, does not mean that the quality of the procedures in one area falls below the standard of care rendered in the other area.

50 A plaintiff-patient cannot win a malpractice suit simply by having an expert witness who testifies that he and 80% of the profession would have done things differently. As long as the physician has lived up to an accepted standard of care, the physician will be exonerated, even if the specific procedure used by the physician, or the manner in which it was performed, is used by only a small minority in the profession.

51 These currently include the following: Central Regional Dental Testing Service (CRDTS), Northeast Regional Board of Dental Examiners (NERB), Southern Regional Testing Agency (SRTA), Western Regional Examining Board (WREB). In 1988, thirty-four states participated in one of the regional board examinations. FACTS ON LICENSURE, supra note 3, at 7.

52 Both Vermont and Massachusetts participate in the NERB examination. FACTS ON LICENSURE, supra note 3, at 7.

53 The authors by no means suggest nor recommend such testing. We put forth this hypothetical in order to emphasize the incongruity of the State's argument.

54 Id.

55 INSPECTOR GENERAL, LICENSURE AND DISCIPLINE, supra note 46, at 8. One observer “with more than two decades of experience in dental licensure and examination “ commented as follows: ” ‘Economic discrimination is the big issue. Let's face it. State board licensure policies are supposed to have nothing to do with supply/demand issues. Yet in all too many cases, they have everything to do with such issues.’ “ Id. (emphasis added).

56 Id. at 44.

57 Lawrence, Reciprocal Licensure, supra note 1, at 1363-64 (quoting AMERICAN DENTAL ASS'N, BUREAU OF ECONOMIC RESEARCH AND STATISTICS, THE 1968 SURVEY OF DENTAL PRACTICE (1969)).

58 See, e.g., Spotlight on Licensure, 122 J. AM. DENTAL A. 135 (1991). The authors do not suggest that the ADA is solely or primarily responsible for the current state of affairs. However, as the preeminent national group representing dentists, the ADA should take the lead and seek changes in the current licensing laws. The reason given by the ADA for its rather tepid pronouncements on the matter is that it is up to individual states to change their licensing procedures. “[A]ll recommendations of (he Report of the Special Committee to Study Dental Licensing Procedures … be adopted with the knowledge, understanding and agreement that they be adopted as guidelines for each individual state and are to be implemented at the discretion of each constituent society and state board of dental examiners.” Review of ADA Licensure Policy, 95 J. AM. DENTAL A. 133, 134 (1977).

59 INSPECTOR GENERAL, LICENSURE AND DISCIPLINE, supra note 46, at 8.

60 See, e.g., Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 386 (1978) (“[a] State's interest … must yield when, without reason, it interferes with a nonresident's right to pursue a livelihood in a State other than his own, a right that is protected by the Privileges and Immunities Clause“) (emphasis added) (citing Toomer v. Witsell, 334 U.S. 385 (1948)). Of course, economic protection is not merely not “without reason,” but is an affirmative, impermissible reason.

61 In support of the contention that greater mobility of dentists, with the concomitant threat of an increase in competition, would improve rather then reduce the quality of care, witness the effect of Japanese automobiles on the quality of locally produced cars.

62 INSPECTOR GENERAL, LICENSURE AND DISCIPLINE, supra note 46, at 9.

The major reason cited by the boards for the failure to take more substantial [disciplinary] actions is the insufficient resources available to the boards: Most specifically, the lack of funds to hire additional staff. The result, many boards report, is that the backgrounds of many individuals are checked superficially, if at all, and the boards are compelled to rely too heavily on the assumption that applicants are telling the truth.

Id. (emphasis added).

63 AMERICAN DENTAL ASS'N, OFFICE OF QUALITY ASSURANCE, 114 J. AM. DENTAL A. 246, 248 (1987).

64 INSPECTOR GENERAL, LICENSURE AND DISCIPLINE, supra note 46, at iii.

65 See supra text at note 62.

66 See infra note 69.

67 See infra text accompanying notes 86-89.

68 INSPECTOR GENERAL, LICENSURE AND DISCIPLINE, supra note 46, at 9 (“The great majority of [boards] feel that [the clearinghouses] are of only limited usefulness. Primarily, this because of the fact that neither of them offers a complete listing or even close to a complete listing of all the disciplinary actions taken by the [50 states and the District of Columbia].“).

69 The National Practitioner Data Bank is mandated by the Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101-11152 (1988).

70 The Act is not intended to create a national licensing scheme for dentists or physicians. Its purpose is merely to assist the states, hospitals and other employers in determining who has been subject to suits, complaints or disciplinary action.

71 42 U.S.C. §§ 11132-11133.

72 Id. at § 11135

73 INSPECTOR GENERAL, LICENSURE AND DISCIPLINE, supra note 46, at 23.

74 Id. at 23.

75 Lawrence, Reciprocal Licensure, supra note 1, at 1363 (quoting COMMISSION ON THE SURVEY OF DENTISTRY IN THE UNITED STATES, THE SURVEY OF DENTISTRY: THE FINAL REPORT 361 (1961)).

76 Id. at 1358.

77 See Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 319 (1851) (the diversity and pecularity of local ports left no doubt about the propriety of different systems of regulation for harbor pilots based on “local knowledge and experience“).

78 Hall v. Hilbun, 466 So. 2d 856, 870 (Miss. 1985).

79 AMERICAN MEDICAL ASS'N, U.S. MEDICAL LICENSURE STATISTICS AND CURRENT LICENSURE REQUIREMENTS 21 (1990). Texas is currently the only state that does not accept the National Board test results. Id.

80 Id.

81 Id.

82 AMERICAN BAR ASSOCIATION AND THE NATIONAL CONFERENCE OF BAR EXAMINERS, COMPREHENSIVE GUIDE TO BAR ADMISSION REQUIREMENTS 28-29 (1990).

83 Id. For example, an attorney applying for admission on motion in Kentucky must have practiced for at least five of the past seven years. Alaska, Colorado, Connecticut, Illinois, Indiana, Iowa, Minnesota, New York, Oklahoma and Wyoming have similar requirements; other states have slightly different requirements. Id.

84 Alaska, Illinois, Mississippi, New York, North Carolina, Oklahoma, Pennsylvania, West Virginia and Wisconsin allow admission on motion based on reciprocity. Id.

85 See supra text accompanying note 78.

86 INSPECTOR GENERAL, LICENSURE AND DISCIPLINE, supra note 46, at 23.

87 Commentators have expressed concern over federal control of dentistry. See, e.g., Review of ADA Licensure Policy, 95 J. AM. DENTAL A. 133, 135 (1977). However, a national licensing scheme is not the equivalent of federal control, as the fifty states, the District of Columbia and appropriate United States territories would run the licensing scheme.

88 See supra note 62.

89 Lawrence, , Reciprocal Licensure, supra note 1, at 1359 (quoting Discussion on Unification of Dental Laws, 12 DENT. ITEMS INT. 549 (1980))Google Scholar.