When you consider the vast array of serious ethical issues facing medical professionals today, this seems like such an insignificant issue. But the issue of determining what group of professionals can perform teeth-whitening procedures just may affect the way that medicine is regulated across the United States. It’s a concept that certainly sounded weird to me until a dental colleague brought an obscure, but potentially game changing, legal case to my attention last week.
In 2010, the North Carolina State Board of Dental Examiners sent out 42 letters notifying teeth-whitening providers in mall kiosks, hair salons, and retail stores that they were illegally practicing dentistry and must immediately cease their operations. The mall kiosks were actually individual franchises employing workers who were not dentists, registered dental hygienists, or dental assistants. Without any formal dental education, they simply dressed up and masqueraded as dental professionals. In the cleaning process, the customers were offered high concentration carbamide peroxide, not the weaker over-the-counter teeth whitening products sold in retail stores. The workers claimed they were not practicing dentistry because they didn’t physically place the containing tray with the peroxide in the client’s mouth. Instead, they instructed the person to do it themselves. Of course, using extremely acidic peroxide without the knowledge of oral anatomy, awareness of the principles of patient care, or an understanding of the ill effects it could have on unhealthy gums is dangerous.
Sounds like an open-and-shut case, just like it was in Alaska, Oklahoma, Connecticut, South Carolina, and here in Tennessee where teeth whitening kiosks were banned as an unlicensed practice of dentistry. This case in North Carolina is different as the Federal Trade Commission stepped in and said the state board was trying to stifle competition and was in violation of antitrust laws. The board responded with a lawsuit against the FTC, stating that the state’s General Assembly had given the board the power through a clear statue to define the practice of dentistry in order to protect North Carolina’s citizens from illegal and unsafe practices. The case is still climbing up the judicial ladder, but could end up in the U.S. Supreme Court.
So why should a medical professional care?
If the FTC prevails, it could markedly limit or even eliminate the role of state medical, dental, and other professional boards in the country. Healthcare practitioners would lose even more of their autonomy to self-regulate, which is one of the marks of a true professional.
Historically, medicine has been self-governing through medical organizations and state boards that determined licensure requirements, maintained ethical codes, and practice standards, established grievance procedures, administered discipline to miscreants, and encouraged collegiality.
But waves of change have seriously eroded this practice in the last two or three decades. The government has become much more skeptical about the value and the effectiveness of self-governance as competitive pressures have intensified, collegiality has plummeted, and medicine has been highly commercialized. Government tends to see healthcare as a high-cost commodity dispensed by doctors who seek to serve their own interests and are thus in need of government regulation in the public interest. Unfortunately, there is some truth to their assertions.
Healthcare professionals have become more self-centered in light of the “new financial realities” of practice. Physicians in particular are less involved in their governing organizations and fear participation in grievance or discipline activities with all the medical-legal ramifications. Many are just trying to survive the tsunami of change coming at them which, like a tidal wave approaching shallow water, is gaining speed and mass every day. To appreciate that, just look at the 2,700 page “Patient Protection and Affordable Care Act,” which spawned more than 6,000 pages of new regulations in its first nine months of existence. It is expected to grow much larger this year.
Why are we in this mess? What is a doctor to do?
Could the reason the healthcare vehicle is out of control be the fact that we have taken our hands off the wheel? Could it be that we should be spending less time complaining that we are headed for the cliff and instead put our foot on the brake? Could we be so busy taking care of patients, as laudable as that is, that the fundamental foundations of the doctor-patient relationship are eroding away during our watch?
As this issue looks at healthcare law, maybe you and I should look in the mirror and decide to step up, speak out, and get much more involved as a professional. No one understands the challenges, joys, and frustrations of caring for the sick better than we do. We can be heard if we don’t look out for our own goals, but instead support the interests of the common good.
With good self-governance, united voices and persistent participation in determining the future of medicine, coming generations won’t dare accuse us of professional neglect.