REVIEW ARTICLE

Bar, Bench and Bioethical issues: Legal Aspects for Dental Practice in India- A Review

Harsha Kewlani1, Anup Panda2, Deepika Chari3, Balraj Shukla4, Radhika Valera5, Vaidehi Patel6
1,5-6
Post Graduate Student, Department of Pediatric and Preventive Dentistry, College of Dental Sciences and Research Centre, Bopal, Ahmedabad, India
2
Professor and Head, Department of Pediatric and Preventive Dentistry, College of Dental Sciences and Research Centre, Bopal, Ahmedabad, India
3,4
Senior lecturer, Department of Pediatric and Preventive Dentistry, College of Dental Sciences and Research Centre, Bopal, Ahmedabad, India

Introduction: legal issues. Thus, with increasing

awareness and knowledge about law, it is
The health profession, since the very
now necessary for the health professionals
beginning is considered to be the noble
to maintain basic standard of care and
profession.
treatment and train the helping staff to
‘Professional’ refers to the one who maintain clinical records of the patients,
practices a learned profession. The proper consents and clear communication
essence of each and every health with the patient to avoid any litigations.
profession is service above self.
Ethics in medicine and dentistry and
Nowadays, with increasing awareness
Ethical principles:
about the rights of the individuals and
various laws, medical and dental Ethics can be defined as the science
professionals are facing more lawsuits than of the human character and behaviour in
before. And due to lack of knowledge in the the situations where one can make
medico-legal aspects that includes distinction between the right and the wrong,
informed consent, dental and medical where duty must be followed and good
negligence, etc. the health professionals interpersonal relations should be
are not able to provide the standard maintained.1
treatment and care which then leads to

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6 basic Ethical principles2 on which practice same thing in the same sense'
of dentistry is based on: according to Section 13 of The Indian
Contract Act.
To do no harm, To do good, Respect for
persons, Justice, Veracity or truthfulness - Preferably taken in a language that
and Confidentiality patient understands. It is beneficial for the
doctor to take a signed consent as it avoid
unwanted allegations, suspicion and/or
Terminologies: litigations and gives substantial protection

➢ Consent3: The term consent can be to the doctor. Following are the types of

defined as 'two or more persons are said consent3:

to consent when they agree upon the

➢ Implied consent According to Rowe implied consent is ‘by being in the chair
at the dental surgery the patient with an open mouth implies
that they are there for the dental treatment’ and continued
‘in the past a dentist would undertake treatment as he or
she saw fit, which the patient would accept without
argument.’
➢ Proxy consent or Provided by parent or relative
Substitute Consent In cases where patient is mentally unsound or unconscious
or is a minor
➢ Loco parentis In cases of emergency due to unavailability of parent or
guardian, person (for e.g. teacher, warden, etc.) bringing
the patient for dental treatment can give the consent.
➢ Blanket consent Printed form is taken which covers (similar to a blanket)
almost everything a hospital or dentist might do to the
patient, without actually mentioning anything specifically.
Not legally adequate for any of the procedure that has any
risks or alternatives.
➢ Oral consent True of simple procedures and is acceptable in certain
situations only.
Determined by the behaviour of the patient taken in front of
the witnesses and is implied consent.

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2. When patient is not satisfied with the

When is consent not valid:4
treatment.
Consent given under fear, fraud or
3. If the patient does not get the desired or
misrepresentation of facts, or by a person
expected relief/result.
who is ignorant of the mis implications of
the consent, or who is under 12 years of 4. Charging fees more than what was

age is invalid under sec. 90 Indian Penal expected by the patient.

Code. 5. When patient fails to follow advice of the

doctor and does not get expected or
➢ Negligence: 5,6
satisfactory results.

Alderson defined negligence as “the

omission to do something which a What is deficiency of service?8
reasonable man, guided upon those
- Any fault, shortcoming, imperfection or
considerations which ordinarily regulate the
Inadequacy in quality or manner of
conduct of human affairs, would do, or doing
performance that is required to be
something which a prudent and reasonable
maintained by or under any law for the time
man would not do”.
being in force or has been undertaken to be
performed by a person in pursuance of a
What can be called Dental
contract or otherwise in relation to any
Negligence?6,7 As observed by the
service.
Supreme Court of India the essential
components of negligence are: ‘duty’,
‘damage’ and ‘dereliction’ that is stated in Who is Liable?9
the Law of Torts. An act can be considered
Hospitals and Dentists with
negligent, if a certain standard of care was
independent practice offering paid
owed by the dentist, but failed to maintain
services/treatments as well as
the same, or due to lack of care there is an
Doctors/hospitals who are being paid by
injury and there is a connection (proximity)
insurance organisations to their clients.
the negligent act and the resultant injury.

What are non-Negligent acts?4

Who is not liable?9
1. In cases of emergency where consent
form is not obtained. Hospitals and Dentists offering free
services.

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Types of liabilities [9]

Main Types of liabilities:

1. Tortious liability or Civil When a dentist is proved negligent in his hospital or

liability clinic it is called primary liability. It is usually in the form
• Primary tortious liability of compensation preferably by cash.
• . Vicarious liability Dentist who is employed/hired by a hospital or institution
is usually not primarily responsible for negligence,
instead the hospital is liable for the negligence.
However, in cases where the patient is admitted by the
dentist in his/her personal capacity, then the dentist will
be considered personally liable.
2. Contractual liability when a dentist accepts a patient for treatment, an
implied contract is established in the doctor-patient
relationship. The dentist is under duty to treat with care
as well as continue to treat and not terminate until
patient is cured or patient discontinues treatment. A
breach in any aspect of this implied contract may be
considered a contractual liability.
3. Criminal liability Criminal liability is penal nature and involves
punishment in the form of fine or imprisonment or both.
It is considered to be a crime not only against the
aggrieved party but also against society.
4. Statutory liability If there is any infringement of statutes dentist is liable
and they are then accountable to a statutory body. This
type of liability mainly depends on kind of infringement
and provisions in statute to deal with it.

Consumer it is widely believed that any service of

healthcare that are paid for, shall be
As per definition of consumer in
covered by the gambit of the act. Any
Consumer protection Act 2019, any person
service that is health related that is
who avails any service for a consideration
provided by the government hospital or a
or buys something can be called a
private hospital where a patient is charged
consumer8. In the list of ‘service’,
a fee, that can be full or concessional, can
Healthcare is not explicitly mentioned, still
be challenged in the consumer court.

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Consumer Protection Act 10: Consumers can claim the compensation in

consumer courts under various jurisdiction
Instead of enhancing CPA 1986 that are:8
through amendments, the Government
1. District commission - Jurisdiction up to
brought outrightly new act, CPA 201911 that
Rs. 50 lakhs. (Patient can claim up-to Rs.
came into force in July 2020, and an
50 lakhs)
updated notification was released in
December 2021 regarding jurisdiction 2. State Commission (each state has one

under all the three commissions. state commission) Jurisdiction above Rs.
50 lakhs and up to Rs. 2 crore that is the

Procedure for patient/consumer:12 amount patient can claim is from Rs. 50

lakhs to Rs. 2 crore. It is also a supervisory
Section 2 of the Consumer Protection
court and also has the power to call for all
Act, 2019 defines a ‘complaint’ as any
the records and can pass appropriate
written allegation made by a consumer to
orders in any dispute that is pending or
obtain relief under the Consumer
decided by the District Commission.
Protection Act in case of an unfair contract,
unfair trade practice, defective goods, 3. National Commission (entire country

deficiency of services, restrictive trade has one national commission) Jurisdiction

practice, or hazardous goods or service. A above Rs. 2 crore. Here, the National

complaint may also include written Commission acts as an appeal agency, for

allegation to claim the liability against the decisions of the State Commission.

product manufacturer, seller, or service

provider.
The Supreme Court of India acts as court
1. As provided under section 69 of CPA, a of appeal in cases where the National
complaint has to be filed within 2 years of Commission has served as court of first
date on which cause of action arises. instance.

2. As per section 38 of CPA, a copy of What a dentist should do in case a

complaint should be sent to dentist within complaint is filed against him for dental
21 days from the date of its admission negligence:
directing the dentist to give his version or
• First of all, dentist has to appear in
reply within a period of 30 days, which may
court either personally or through
be extended up to 45 days. If within 45 days
advocate.
no reply is provided by the dentist, then the
• Dentist has to file his version or reply.
court will proceed ex-party.

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• In the reply dentist shall defend Commission, as the case may be,
himself against all the allegations commission may initiate contempt
made by the complainant. proceedings against dentist or
• It is mandatory in consumer courts to complainant and may punish with
decide and conclude the cases imprisonment for a term which shall
speedily preferably within a period of not be less than one month but which
three months after filing. One or more may extend to three years, or with
of the following things can be directed fine which shall not be less than
by the District Commission after the 2,000 rupees but which may extend
proceedings, if the committee is to Rs.10,000 or with both.
satisfied by any of the allegations
mentioned in the complaint about the
service that are proved the What Pediatric dentists can do as

commission may order to: precautions:13

• return the charges/fees paid by the Informed consent:

complainant.
When a parent is consenting on
• award any or all of the following:
behalf of a child, the considered standard
i. compensation.
is “what would reasonable parents in
ii. cost of the case
similar situation want to know about the
iii. harassment compensation
risks and benefits to their child before
iv. interest of award amount
consenting to care.” Proper Information
• Where a complaint instituted before
about probable outcomes, risks, and
the District Commission, the State
consequences for each of the feasible
Commission or the National
alternatives for care is also an essential
Commission, as the case may be, is
part of full informed consent.
found to be vexatious or frivolous, it
shall, for reasons to be recorded in Informed consent in Pediatric
the writing, dismiss complaint and Dentistry helps clarify that the relationship
make an order that the complainant is a contract between the dental
shall pay to the corresponding dentist professional and parent on behalf of the
such cost, not exceeding 10,000 intended beneficiary patient, and the
rupees, as may be specified in order. dentist can clarify the dentist’s
• Where dentist or the complainant requirements as to child and parental
fails to comply with any order made behaviour during the discussion of care.
by the District Commission, the State
Commission or the National

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Discussing behaviour management consent (preferably written) of the

with patients and parents: parent/guardian in order to carry out the
procedure.
Many of the surveys indicate that the
behaviour management or behaviour
Maintenance of records: 14,15
guidance techniques and pharmacological
The dental record, also referred to as
interventions may not be a part of informed
the patient's chart, is the official office
consent for many dental professionals,
document that records all of treatment
although pediatric dentists in particular
done and all patient-related
appear much more attentive to this issue
communications that occur in the dental
than general practitioners. Some of the
office. The dental records are important as
procedures that include tell-show-do,
it provides for continuity of care for the
nonverbal communications, positive
patient and also is critical in the event of a
reinforcement, and voice control might be
malpractice insurance claim. Most dentists
benign and implicit to ordinary human
prefer making notes in paper dental
interactions that may not require. Other
records as they find it more convenient.
behaviour guidance/management
Generally, patient records are housed in
procedures would be controversial, and
file folders for protection. These files are
failing to discuss these is a red flag in itself,
labelled with the following information (in
for malpractice. Especially discussing
the following order):
questionable behaviour
management/guidance techniques as well
• Patient’s surname followed by first name;
as possible pharmacological alternatives,
middle name; and Patient’s degree or
and their costs all fall under informed
seniority.
consent.
HOMAR – Hand over mouth with airway
restriction is one of the techniques some of The information mentioned should

the parents may find questionable. An primarily be clinical in nature. All the basic

obvious alternative to HOMAR technique is information should be clearly written, not

use of General Anaesthesia and Conscious containing many abbreviations in

Sedation. registration form. The dental team should

For the treatment under general be punctual, meticulous, and thorough in

anaesthesia, a standard of care is required dental office record keeping tasks. The

along with a special training, and a properly record should be updated with sign and

equipped setup. date by the person entering the new

Both of the above-mentioned information. The identity of the practitioner

techniques require a proper informed rendering the treatment should be clearly

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noted and mentioned in the record, in submitted. An affidavit of an expert can

practices with more than one dental be filed as well.
practitioner.
5. Corroborative medical literature should
be submitted.
Reference cases:

1) Bharat Shastri v. Dr. Anand 6. Relevant case law on the subject will
Krishnamurthy also be helpful.

Court: National Consumer Disputes

Redressal Commission
Conclusion:
2) Aparna Aggarwal alias Anjali Singla
Mistakes happen in almost every
v. Dr. Ankur Sabharwal
profession, as it does in life. Unfortunately,
Court: District Consumer Disputes in health profession sometimes even a
Redressal Commission minor mistake can lead to the serious
consequences for the patient which in turn
makes the respective medical/dental
To-do list for the dentist to avoid
professional answerable. It is dentist’s duty
litigation14
to carefully evaluate the patient, properly
1. Avail the services of a good lawyer. diagnose the case, inform the patient about
possible risks and alternatives of the
2. Timely filling of the written statement, provisional treatment plan and then decide
reply and all legal documents as the treatment plan according to the
required. convenience of the patient.

At any point of time dentist should not

3. Proper maintenance of case history of
fail to maintain proper dental records of all
his/her patient, all the clinical records
the patients as they may serve as an
preferably of all the appointments,
important reference in case any legal issue
agreements with doctors, Radiographs,
arises. A complex legal maze is opened
laboratory test results (if any), etc. which
once the negligent lawsuit is filed against
will be of immense help in supporting
the dentist. The legal process and issues
doctor’s claim.
being difficult and distressing to navigate it
is advised to avoid this when possible and
4. Expert evidence of a qualified and
also it can be stated that following the
independent professional should be
ethics is the key to successful practice.

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ORCIDS 9) Vashist A, Parhar S, Gambhir RS,

Harsha Kewlani https://orcid.org/0000-0002-5745-1852 Sohi RK, Talwar PP. Legal modalities
Anup Panda https://orcid.org/0000-0002-9229-0097
Deepika Chari https://orcid.org/0000-0003-2514-9031 in dental patient management and
Balraj Shukla https://orcid.org/0000-0002-0923-5135
Radhika Valera https://orcid.org/0000-0002-4931-6925
professional misconduct. SRM
Vaidehi Patel https://orcid.org/0000-0001-6160-9846
Journal of Research in Dental
Sciences. 2014;5(2):91.
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public health. Harvard University 11) Consumer Protection Act, 2019.

Press; 1986. Available

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2) Soben P. Essentials of Public Health
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Dentistry.
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UJMDS. 2013;1(02):17-20.
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surgeon. Jaypee; 2004.
Management of medical records:
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facts and figures for surgeons.
A, Mishra H, Dinesh A, Yadav D.
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ACKNOWLEDGEMENTS
8) Updated notification of CPA,2019.
Available from This review article would not have been

https://consumeraffairs.nic.in/sites/d possible without the constant support,

efault/files/232278.pdf guidance and motivation from the Head of

Department of Pediatric and Preventive

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Dentistry Dr. Anup Panda and Dr. Deepika

Chari and Dr. Balraj Shukla. I would also
like to acknowledge my other co-authors
who constantly motivated and supported
for this article. The entire team of
Department of Pediatric and Preventive
Dentistry, College of Dental Sciences and
Research Centre needs to be lauded for
their contribution and combined efforts in
this article. Each and every author played a
key role in this article. There were no
conflicts of interest among the authors.

FUNDING

This study did not receive any specific

grant from funding agencies in the public,
commercial or not-for-profit sectors.

CONFLICT OF INTEREST

There was no conflict of interest between

the authors and the study protocols and the
conclusion has been accepted
unanimously.

Corresponding Author:
Dr. Harsha Kewlani
Department of Pediatric and Preventive
Dentistry, College of Dental Sciences and
Research Centre, Bopal, Ahmedabad, India-
382115
Email: [email protected]

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