The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
_________________________
:
OPINION : No. 85-605
:
of : MARCH 14, 1986
:
JOHN K. VAN DE KAMP :
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE JOHN W. WITT, CITY PROSECUTOR, CITY OF
SAN DIEGO, has requested an opinion on the following question:
Is a dentist authorized to utilize the following in the course of the practice
of dentistry: (1) urinalysis; (2) blood analysis; (3) hair analysis; (4) transcutaneous nerve
stimulation; (5) electrogalvanic stimulation; (6) palpation to diagnose problems with the
liver, thyroid and adrenal glands, (7) dietary recommendations; (8) prescribing Elavil to
relax muscles, or (9) using oral drops to determine vitamin or mineral assimilation.
CONCLUSION
In the course of the practice of dentistry a dentist may utilize urinalyses,
blood analyses and hair analyses, transcutaneous nerve stimulation and electro-galvanic
stimulation, may offer dietary recommendations, may use oral drops to determine vitamin
assimilation, and may prescribe the use of Elavil to relax muscles, if such undertakings
are necessary to diagnose or treat a disease of the human teeth, alveolar process, gums,
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jaws, or associated structures, and if they have been accepted as an effective means
thereof by the dental community. A dentist is not authorized to palpate the liver, thyroid
or adrenal glands.
ANALYSIS
Section 1627 of the Dental Practice Act (Bus. & Prof. Code, div. 2, ch. 4, §
1600 et seq.) authorizes the practice of "dentistry" in California. Section 1625 defines
that practice as follows:
"Dentistry is the diagnosis or treatment, by surgery or other method,
of diseases and lesions and the correction of malpositions of the human
teeth, alveolar process, gums, jaws, or associated structures; and such
diagnosis or treatment may include all necessary related procedures as well
as the use of drugs, anesthetic agents, and physical evaluation. Without
limiting the foregoing, a person practices dentistry within the meaning of
this chapter who . . .
". . . . . . . . . . . . . . . . . . . . . .
"(b) Performs . . . an operation or diagnosis of any kind, or treats
diseases or lesions of the human teeth, alveolar process, gums, jaws, or
associated structures, or corrects malposed positions thereof.
". . . . . . . . . . . . . . . . . . . . . ."
We are asked if a dentist may utilize or perform any of the following in the course of that
practice: urine, blood, and hair analyses; transcutaneous nerve and electrogalvanic
stimulations; palpation to diagnose problems of the liver, the thyroid and the adrenal
gland; offer dietary recommendations; prescribing Elavil; utilizing oral drops to
determine vitamin and mineral assimilation. The question is asked in part because the
undertakings, such as they be, clearly involve the practice of medicine and therefore may
not be performed unless one is "authorized to [do so] pursuant to a certificate obtained in
accordance with some . . . provision of law. . . ." (§ 2052; cf. § 2061.)1 We must
1
Section 2052 of the Medical Practice Act (Bus. & Prof. Code, div. 2, ch. 5, § 2000 et seq.)
provides:
"Any person who practices or attempts to practice, or who advertises or
holds himself or herself out as practicing, any system or mode of treating the sick
or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for
any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other
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therefore examine the Dental Practice Act to determine whether it authorizes a dentist to
perform the procedures in question. (57 Ops.Cal.Atty.Gen. 341 (1974) (dentists
performing acupuncture); cf. 66 Ops.Cal.Atty.Gen. 428, 430 (1983) (authority of RN to
inject a contrast agent for a diagnostic study); 64 Ops.Cal.Atty.Gen. 240, 243-244 (1982)
(authority of RN to prescribe, administer or furnish drugs).)
Section 1625 in conjunction with section 1627 of the Dental Practice Act
authorizes a licensed dentist to--
1. diagnose or treat,
2. by surgery or other method,
3. diseases and lesions (and correct malpositions),
4. of the human teeth, alveolar process (i.e., the socket within the jawbone
in which the root(s) of a tooth are set), gums, jaws, or associated structures,
and 5. such diagnosis or treatment, may include all necessary related
procedures, as well as the use of drugs, anesthetics and physical evaluation. (§ 1625.)
The scope of dental practice so defined is not open ended. The broad definitional
authority found in the first, second, third and fifth components -- that to diagnose and
treat by surgery or other method (and to perform an operation of any kind (subd. (b)),
utilizing all necessary related procedures including physical evaluation, is limited by the
fourth component to correcting diseases and lesions of the human teeth, alveolar process,
jaws and associated structures. Thus any diagnostic or treatment endeavor a dentist
would undertake must be related and directed thereto. (Cf. 57 Ops.Cal.Atty.Gen. 341,
343 ("that facial area"). In other words, section 1625 literally focuses on particular
localities and any authority it provides is circumscribed accordingly. (Cf. 66
physical or mental condition of any person, without having at the time of so doing
a valid, unrevoked, or unsuspended certificate as provided in this chapter, or
without being authorized to perform such act pursuant to a certificate obtained in
accordance with some other provision of law, is guilty of a misdemeanor."
The inquired procedures constitute the practice of medicine because they involve the diagnosis
or treatment of physical conditions.
Section 2061 of the Medical Practice Act echoes the last part of section 2052, thus:
"Nothing in this chapter shall be construed as limiting the practice of other persons
license, certified, or registered under any other provision of law relating to the healing arts when
such person is engaged in his or her authorized and licensed practice."
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Ops.Cal.Atty.Gen. 302, 308-309 (1983) (defined authority of psychologists is limited to
mental, as opposed to physical conditions).)
Such observation however may be only stating the obvious and further
explanation is required. That is because the phrase "diseases and lesions . . . of the
human teeth, alveolar process, gums, jaws, or associated structures" is elusive. A
"disease" we know is an impairment of the normal state that interrupts or modifies the
performance of the body's functions, systems or organs (Webster's Third New Internat.
Dict. (1971 ed.) at 648), while a "lesion" is "an abnormal change in structure of an organ
or part due to injury or disease." (Id., at 1296.) (Accord, Stedman's Medical Dict. (5th
Lawyer's Ed. 1982) at 403 & 776.) But that does not help much to define the authorized
scope of dental practice.
Section 1625 provides that a dentist may diagnose and treat diseases and
lesions of certain structures mentioned therein, a formulated definition of the scope of the
practice that has existed since the progenitor of the current Dental Practice Act was
enacted in 1915. (Stats. 1915, ch. 426, § 11, p. 705 ("diseases or lesions of the human
teeth or jaw").) The problem is that there are certain dysfunctions of those structures that
are specifically diseases of them in that they specifically occur or manifest themselves
there both with respect to the cause of the problem (i.e., its etiology), and the abnormal
physical condition presented (i.e., its pathology and symptomology). (E.g., dental caries
and malocclusions, the two most common dental abnormalities (Guyton, Textbook of
Medical Physiology (5th ed. 1976) at 1070), pyorrhea (cf. Whetstone v. Bd. of Dental
Examiners (1927) 87 Cal.App. 156, 158, 162-164), myofascial pain-dysfunction,
abcesses, and sometimes temporomandibular osteoarthritis). A dentist may certainly
diagnose and treat such diseases or lesions. Those problems are particularly localized and
section 1625 clearly authorizes a dentist to address them. However, other abnormalities
of the structures mentioned in section 1625 are but degenerative changes in those
structures that have been brought about by a systemic dysfunction elsewhere in the body.
(E.g., scurvy (see, e.g., Davidson, The Principles and Practice of Medicine (7th ed. 1964)
at 474-480; Guyton, supra, at 983; Medical Reference Library, Symptoms & Illnesses
(Time, 1983) at 256-257; Wyngaarden & Smith ed. Cecil Textbook of Medicine (16th ed.
1982) at 1370-1372), AIDS, pregnancy, etc. See generally Burket's Oral Medicine (7th
(Lynch) ed. 1977), ch. 33, pp. 651-661.) What is the dentist's authorized role in such
cases? In other words, may a dentist proceed to diagnose and treat the root cause of a
problem with a section 1625-structure when such is elsewhere in the body?
The answer is not easily articulated and a hard and fast rule cannot be set
because there are innumerable possibilities of systemic dysfunction which can have some
effect on a structure mentioned in section 1625. Generally speaking though, we believe
that where a systemic problem is such that it is particularly apt to localize itself in one of
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those oral-structures, it is within the defined province of dentistry to diagnose and treat it.
(Cf. 16 Cal. Admin. Code, § 1033.) On the other hand, where the organic disturbance is
such that its effect on the 1625-structure is merely incidental to something greater
occurring elsewhere in the body, we do not believe a dentist is authorized to undertake its
diagnosis or treatment. Rather, "if such organic disturbance be suspected . . . the proper
course of action would be for the [dentist] to refer the patient to a physician . . . who can
order and tailor such diagnostic tests as are necessary to discern it and who has the
wherewithal to interpret the results, to diagnose the problem and to plan a course of
treatment accordingly." (66 Ops.Cal.Atty.Gen., supra, at 309, fn. 10 (licensed
psychologists suspecting that an organic imbalance may be the cause of a mental,
emotional or psychological distress).) In other words, the dentist's role -- which is not at
all minimal in overall patient care -- would be to recognize the possibility of a greater
systemic problem from the oral pathology and to make an appropriate medical referral.
In connection therewith, any treatment a dentist would provide would be specifically
directed and localized to the manifestation of the problem in the structure mentioned in
section 1625 rather than being directed to the underlying etiology itself. To posit
otherwise pits the dentist between the Scylla of treating but the oral part of an overall
problem while ignoring the rest and the Charybdis of addressing the rest, even indirectly,
and thus "operating" on structures other than those upon which he or she is authorized to
work. (§ 1625, § 1625, subd. (b); cf. Jacobs v. Board of Dental Examiners (1922) 189
Cal. 709, 714 ("operate").)
With this in mind we can answer the specifics of the question asked.
However, our answer must still be general because we are not healing arts professionals
with sufficient expertise as to the efficacy of the procedures involved (indeed some are
very novel) and because we are not specifically told with sufficient exactitude the
condition(s) a dentist would address by their application.
We can begin with examples of the two extremes posed by items #6
(palpation of the liver, thyroid and adrenal gland) and #8 (prescribing Elavil to relax
muscles). Palpation is the physical examination with the hands of an area, organ or
structure to discern an abnormality with it. The method involves the use of fingertips for
touch, the metacarpophalangeal area of the palms for vibration, and the dorsal aspect of
the hand for temperature. (Rose & Kaye, Internal Medicine For Dentistry (St. Louis:
The C. V. Mosby Co., 1983) at p. 7.) Using palpation to diagnose a problem with the
liver, adrenal gland or thyroid would not be within the authorized practice of dentistry as
we have viewed it because it is not likely that a dysfunction of those organs would affect
a dental structure specifically but rather would produce a systemic disturbance with
serious effects elsewhere if not throughout the body. Given that, any diagnosis to be
made as to the status of those organs -- even should an abnormality with them be the
cause of a defect in a section 1625 structure -- would be a medical determination for a
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physician to make and not one to be made by a dentist. Should such an abnormality be
suspected, it would behoove a dentist to refer the patient to a physician so it could be
determined. (Cf. 66 Ops.Cal.Atty.Gen., supra, at 309, fn. 10.) A dentist might "treat" the
symptoms that have particularly manifested themselves in the teeth, alveolar process,
jaws, gums, or associated structures, but such treatment would have to be specifically
directed to them. A dentist would not be authorized to address or treat the problem of the
underlying etiology itself.
With respect to the prescribing of Elavil (item #8), dentists are specifically
authorized by section 1625 to use drugs in the course of their treatment of "diseases of
the mouth." (Cf. Bus. & Prof. Code, §§ 4036, 4213, 4227, 4228; Health & Saf. Code,
§§ 11026, 11150, 11210.) To the extent that Elavil (amitriptyline HCl), a trycyclic
antidepressant with sedative effects (see Physician's Desk Reference (1984 ed.) pp. 1278-
1280), or any other drug would be useful in that endeavor whether to produce local or
general insensibility to pain, to relax a patient, or to combat a localized infection (e.g.,
gingivitis), its use by a dentist is specifically authorized. (Cf. 57 Ops.Cal. Atty.Gen. 341,
343, supra, citing Painless Parker v. Board of Dental Examiners (1932) 216 Cal. 285,
295.)
The same would be said for urinalysis (#1) and blood analysis (#2), and
perhaps for hair analysis (#3) and the use of oral drops to determine vitamin and mineral
assimilation (cf. "applied Kinesiology") (#9). Urinalysis and blood analysis are useful
and well established diagnostic tools to ascertain how well or poorly various bodily
systems are performing. They also are used to disclose the presence of infection. We are
told that the other two procedures also serve a diagnostic purpose: hair analysis and the
placing of oral drops of a particular nutrient on an area of skin followed by observing
musculature contraction, would be used to determine vitamin and mineral deficiencies
and the general nutritional status of a dental patient. The value of these as diagnostic
tools, however, has not been generally accepted. Nevertheless, to the extent that either of
them or the first two diagnostic tests could efficaciously be used to help diagnose an
abnormality specifically localized in a structure mentioned in section 1625, its being used
would be an authorized component of a dentist's diagnostic armamentarium. However,
the use of any such test to diagnose a systemic disturbance that has but incidentally
manifested itself in such a structure would exceed a dentist's authority.
The same dichotomy would apply to a dentist giving nutritional advice
(#7). While section 2068 of the Medical Practice Act specifically provides that its
strictures should not be construed to prohibit any person from "providing nutritional
advice or giving advice concerning proper nutrition," the section also declares that no
authority is conferred thereby "to practice medicine . . . or to undertake the prevention,
treatment, or cure of disease . . . or to state that any product might cure any disease . . . or
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condition in violation of any provision of law." Nevertheless, the Legislature has clearly
recognized that health practitioners can provide nutritional advice in the course of their
practice. (§ 2068.)2 Surely the giving of the same is an integral part of good dentistry for
it is all well established that the eating of certain foods can be harmful to one's dental
health and the lack in one's diet of certain foods with their vitamin and mineral content
can be just as deleterious. (See, e.g., Guyton, Textbook of Medical Physiology, supra, at
970-986; J. Katz, "Nutritional Disorders," Internal Medicine for Dentistry, supra, at pp.
1102-1113.) A dentist would be authorized by section 1625 to offer nutritional advice
incident to treating problems with the structures mentioned therein that have been caused
by improper nutrition but again, if serious nutritional disturbances which affect other
parts of the body are suspected, referral to a physician should be made.
We understand transcutaneous nerve stimulation (#4) and electrogalvanic
stimulation (#5) to be variations on acupuncture -- a method of controlling pain that is
now respected and generally accepted within the medical community. (See, e.g., Bus. &
Prof. Code § 2075; cf. 57 Ops.Cal.Atty.Gen. 340, 341, supra.) In 57 Ops.Cal.Atty.Gen.
340 we were asked whether a dentist could use acupuncture in the course of his practice.
We concluded that one could: Although acupuncture was then a novel treatment or mode
of pain control and although it was not taught as part of any study at an accredited
California dental school, we saw no legal objection to its being used in licensed dental
practice. (Id., at 343.) The Legislature, we said, "intended to give the dentist broad
discretion in his selection of an appropriate method of treatment for an affliction of that
facial area described in section 1625" (ibid.) and "the administration of some mode of
anesthetic for the production of local or general insensibility to pain had long been a part
of the practice of dentistry." (Ibid.) Thus we concluded that acupuncture -- for the direct
treatment of an affliction or to control pain in assistance to such -- came within the
definition of dentistry as a licensed dentist is authorized to practice pursuant to section
1625 of the Dental Practice Act and accordingly that dentists could use it "as long as it
2
Section 2068 requires persons in the commercial practice of providing nutritional advice to
post the following statement in an easily visible and prominent place in his or her place of
practice:
"NOTICE
"State law allows any person to provide nutritional advice or give advice
concerning proper nutrition--which is the giving of advice as to the role of food and food
ingredients, including dietary supplements. This state law does NOT confer authority to
practice medicine or to undertake the diagnosis, prevention, treatment, or cure of any
disease, pain, deformity, injury, or physical or mental condition and specifically does not
authorize any person other than one who is a licensed health practitioner to state that any
product might cure any disease, disorder, or condition."
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relates to their special area of authorized practice." (Id., at 341.)3 We follow suit today
and conclude herein that a dentist may employ subcutaneous nerve stimulation and
electrogalvanic stimulation as part of the treatment of a disease or lesion of the teeth,
gums, jaw or alveolar process, or corrections of malpositions thereof.
We have answered the question of whether a dentist might undertake
various endeavors in the course of his or her practice in general terms upon our
perception of the practice of dentistry that is defined in section 1625. Two other aspects
of the Dental Practice Act must be considered.
Section 1670 provides that a dentist may have his license revoked or
suspended by the Board of Dental Examiners for "unprofessional conduct, or
incompetence, or gross negligence, or repeated acts of negligence in his or her profession
. . . ." In such context, the term "gross negligence" has been defined to be either the want
of even scant care or an extreme departure from the ordinary standard of professional
practice. (Yellin v. Board of Medical Quality Assurance (1985) 174 Cal.App.3d 1040,
1058-1059; Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184,
198 ("an extreme departure from the standard of medical care"); accord, Franz v. Board
of Medical Quality Assurance (1982) 31 Cal.3d 124, 138; Mulligan v. Hearing Aid
Dispensers Examining Com. (1983) 142 Cal.App.3d 1002, 1006 ("generally accepted
practices and procedures within the professional community").)
Again, we have no expertise to determine the efficacy of the procedures
involved. Nor is it for us to determine whether their use, in particular situations or at all,
would extremely depart from standard professional practice. Rather that is a
determination for the Board of Dental Examiners to make upon expert testimony as to
such. (Gore v. Board of Medical Quality Assurance, supra, 110 Cal.App.3d at 196; Thole
v. Structural Pest Control Bd. (1974) 42 Cal.App.3d 732, 738; cf. Contreras v. St. Luke's
Hospital (1978) 78 Cal.App.3d 919, 927.) But should it be shown that an extreme
departure from the accepted practices and procedures within the dental community has
taken place, the offending dentist could be appropriately disciplined. (See also § 1705.5:
on an application by ten dentists, the superior court may issue an injunction restraining a
dentist from violating the Dental Practice Act.)
3
The fact that acupuncture was not taught as part of any study at an accredited
California Dental School was an irrelevancy in determining whether it fell within the
scope of authorized practice because the scope of that authorized practice is not
predicated on the discipline's curriculum but rather upon the statutory definitions. (Id., at
341, 343.)
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Another possibility along these lines exists. Section 1680, subdivision (p)
of the Dental Practice Act defines "unprofessional conduct" upon which the board may
discipline a licentiate to include:
"[t]he clearly excessive prescribing or administering of drugs or
treatment, or the clearly excessive use of diagnostic procedures, or the
clearly excessive use of diagnostic or treatment facilities, as determined by
the customary practice and standards of the dental profession"
It also provides that a violation of that subdivision constitutes a misdemeanor.
Once again, we are not versed in the intricacies of the procedures which are
inquired of herein and we are not given sufficient specifics as to their intended use and
connection with the practice of dentistry. At least four of the procedures are novel and
their being used at all has been seriously questioned. Should it be shown in the
appropriate forum that any of those procedures, or indeed any of the other five, is of no
value in the proper practice of dentistry, the Board of Dental Examiners would be
authorized to institute disciplinary action against a dentist who consistently utilized it
(§§ 1670, 1680(p); cf. § 1670, repeated acts of negligence) and a public prosecutor would
also be justified in instituting criminal proceedings against him or her. (§ 1680, subd.
(p).)
We therefore conclude that in the course of the practice of dentistry a
dentist may seek a urinalysis, blood analysis, and hair analysis, may use oral drops to
determine vitamin assimilation, may prescribe Elavil to relax muscles, may offer dietary
recommendations, and may use transcutaneous nerve stimulation or electrogalvanic
stimulation to control pain, where such endeavors could effectively be used to diagnose
or treat a disease of the teeth, gums, jaw, alveolar process or associated structures. A
dentist may not palpate the liver, the thyroid or the adrenal gland to discern problems
therewith.
*****
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