08/08/2019

To treat or not to treat? Unvaccinated patients create ethical dilemmas


Dentists have an ethical and legal obligation to do no harm and to protect the health of their patients. But what happens when their patients put others at risk?

Such is the dilemma faced by some practice owners who have called The Dentists Insurance Company’s Risk Management Advice Line with questions regarding their obligation to treat unvaccinated patients. At the core of this dilemma is the return of a disease previously believed to have been eliminated: measles. Between January and June 2019, more than 1,000 new cases had been reported in 28 states nationwide, including California, according to the Centers for Disease Control and Prevention.

The transmission of measles is especially concerning in the pediatric setting. Because the measles vaccine is administered to young children in two doses — the first at 12 to 15 months of age, the second at 4 to 6 years of age — they are not always fully protected.

Immunocompromised patients are another consideration, such as those with cancer or HIV. These patients depend on a circle of protection, otherwise known as herd immunity, to keep them safe from disease. But when the strength of the herd begins to dwindle, their risk increases.

These factors can place dentists in a precarious position. Should they — and can they — refuse to treat unvaccinated patients?

Attorney Arthur Curley of the firm Bradley, Curley, Barrabee and Kowalski PC provided clarity on the issue. Curley stated that dentists are generally not legally obligated to accept unvaccinated patients into their care, nor are they required to retain them. Unvaccinated individuals are currently not a protected class under federal or state law, nor is being unvaccinated a recognized religious tenant, so practitioners are not prohibited from dismissing them.

“Bottom line, so long as there is no other protected classification in which the patient falls, and the doctor gives adequate notice and an opportunity to find other dentists, a dentist may dismiss unvaccinated patients,” Curley said.

In addition, Curley noted that the American Academy of Pediatrics issued a clinical report that stated it is an “acceptable option for pediatric care clinicians to dismiss families who refuse vaccines.” Of the people who have contracted the virus so far, the majority were unvaccinated, according to the CDC.

The ADA Code of Ethics, Section 4 (Code of Professional Conduct) provides guidance on patient selection. It reads as follows:

“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.

Unvaccinated patients are not considered disabled, which is defined as a physical or mental impairment that substantially limits one or more major life activities, Curley said.

He notes that dentists must provide patients adequate notice and follow a formal dismissal protocol when dismissing those patients from their practices. Dentists must also remain available for emergency treatment (for a minimum of 30 days) until the patient finds care through another practitioner.

While there are no clear legal guidelines on accepting or refusing unvaccinated patients, there are ethical ones. Dental practitioners are obligated to protect their patients’ health, but that obligation extends to those who may be exposed to a communicable disease — and unvaccinated patients are the most at risk.

“What is interesting about this debate is that the unvaccinated patient is the one at risk, not those other patients who are vaccinated,” Curley said.

Dentists are advised to screen patients for such diseases prior to providing treatment. Asking patients about their vaccination status or any recent international travel is a reasonable measles screening procedure. Evidence of immunity includes written documentation, laboratory evidence of immunity, laboratory confirmation of measles and birthdates prior to 1957, according to the CDC.

Dentists should also be aware of protecting their employees from unnecessary exposure. In many states, employment regulations require dentists to screen for measles and other infectious diseases. In California, the Division of Occupational Safety and Health has established Aerosol Transmissible Disease Standards to protect workers from infectious diseases. The standard applies to all workplaces at a high risk for infections. However, because outpatient dental clinics and offices generally do not treat symptoms caused by ATDs nor perform procedures that the CDC considers cough inducing, they are conditionally exempt from these requirements if the following four conditions are met:

  • Dental procedures are not performed on patients identified as ATD cases or suspected ATD cases.
  • The Workplace Injury and Illness Prevention Program includes a written procedure for screening patients for ATDs that is consistent with current guidelines issued by the CDC for infection control in dental settings and that should be followed to determine whether a patient may present an ATD exposure risk before any dental procedure is performed on that patient.
  • Employees have been trained in the screening procedure in accordance with the Cal/OSHA Workplace Injury and Illness Prevention Program (Section 3203 of the California Code of Regulations, Title 8).
  • Aerosol-generating dental procedures are not performed on a patient identified through the screening procedure as presenting a possible ATD exposure risk unless a licensed physician determines that the patient does not currently have an ATD.

Practice owners are advised to check with their dental societies and state occupational safety divisions for infectious disease regulations specific to their state.

While it is the ultimate goal of every dental professional to protect the oral health of all patients, choosing whether to treat unvaccinated patients is a personal decision. Finding a balance between legal and ethical obligations can be challenging, but protecting your patients, your practice and yourself should be a guiding force.

Read more of the CDC’s measles resources for health care professionals.

TDIC’s Risk Management Advice Line is a benefit of CDA membership. If you need to schedule a confidential consultation with an experienced risk management analyst, visit tdicinsurance.com/RMconsult or call 800.733.0633.

Reprinted with permission from the August issue of the CDA Journal.



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