to malpractice for dentists who use Botox that include competence, supervision, and informed consent. Competence The dentist, or person under their supervision, should be trained in the storage, preparation, dosage, and use of Botox through an accredited course. For example, the user should be aware of the lethal, maximum recommended, and proper therapeutic dosages for patients. The user should also be aware of the side effects and contraindications of Botox. Supervision/Vicarious Liability New York State law permits “licensed medical professionals” such as RNs and LPNs to inject Botox under the supervision of a physician or dentist. Nonlicensed individuals may not inject Botox, even with supervision. A dentist can face malpractice liability based upon an allegation of failing to adequately supervise or permitting an unlicensed individual to perform a Botox injection. In addition, under the doctrine of “vicarious liability,” one person may be held liable for the acts of another person. Therefore, in the dental setting, a dentist may be vicariously liable for anyone permitted to perform Botox injections in their office, and this type of liability may not be covered by your malpractice policy. Informed Consent The use of Botox in the restoration or maintenance of dental treatment requires a detailed informed consent discussion about the material risks, benefits, and alternatives, including not using it as part of the treatment plan. In addition, the dentist should inform the patient that Botox is not FDA approved for specific uses in dentistry and explain its “accepted” uses in dentistry. It is important to discuss and emphasize that there are no guarantees related to the use of Botox, especially for aesthetic results. The dentist should be familiar with the information on the package insert including, but not limited to, storage, dosage, use, contraindications, warnings, side effects, and adverse reactions. Possible side effects when used in conjunction with antibiotics are commonly overlooked as part of the informed consent discussion. Some antibiotics, including gentamycin, amikacin, tobramycin, and neomycin, may exaggerate the effects of Botox.5 Fortunately, adverse reactions to Botox are localized and uncommon. Side effects may include a temporary change in facial expression, allergic reactions, rash, itching, headache, neck or back pain, muscle stiffness, difficulty swallowing, or shortness of breath. However, when a facial injury related to the use of Botox is permanent, it can result in a significant liability award. As noted below, if the use of Botox is outside the definition of dentistry, there is an additional risk that it will fall outside of professional liability coverage. Finally, the dentist should use their best professional judgment in deciding what is part of the informed consent discussion, and it is vital to document the discussion in the dental record. It is recommended that a separate note be made independent of any pre-made electronic or paper consent form. Lesser-Known Additional Risks to Consider When Using Botox Breach of Contract and Advertising Liability In addition to malpractice and professional misconduct allegations, dentists may also face breach of contract allegations. More specifically, a patient may be dissatisfied that they did not obtain relief from TMJ pain, still have a gummy smile, or wrinkles around the mouth are still visible. As part of the treatment plan and informed consent discussion, the dentist should manage expectations regarding the results of the Botox treatment and ensure that the patient understands that there are no guarantees to achieve a specific result. Similarly, dentists who advertise Botox treatment as part of their practice (or as available in their office by another vendor) using websites, advertisements, and/or social media must comply with New York State truth-inadvertising laws.6 Professional Liability Insurance Coverage Issues Related to Botox Use Allegations related to the use of Botox may fall outside the scope of professional liability insurance coverage. Some of these types of allegations include using Botox outside the definition of dentistry and inappropriate guarantees made to patients. When there are Botox allegations that fall outside the scope of professional liability coverage, a dentist’s personal assets could be exposed, and they could be responsible for a monetary payment related to those allegations. For these reasons, dentists should be certain that their use of Botox is within the definition of dentistry and that no guarantees are made regarding the outcome from its use. In addition, dentists should review their professional liability insurance policy to determine whether their current use of Botox falls outside of the policy’s coverage. Botox: The Verdict for Dentists The use of Botox in dentistry provides the benefits of increased treatment modalities for patients and the possibility of a competitive edge. While attractive, these potential benefits should be viewed in the context of the additional unique risks dentists face when using Botox. Caution must be taken to ensure that the use of Botox is within the definition of dentistry. Similarly, dentists must ensure that they, or the licensed professional performing the injections, have the competence and experience to perform the treatment. Additional attention should be given to ensure that an appropriate informed consent discussion takes place before treatment and that it is documented in the dental record. Patient expectations as to the results of Botox treatment need to be managed with an emphasis on dispelling any notion that there are guaranteed results. Finally, dentists should be aware that certain uses of Botox that do not fall within the definition of the practice of dentistry may fall outside of professional liability insurance coverage. Kristen Guarente is a claims specialist with MLMIC Insurance Company. Al Anthony Mercado is the managing attorney for Mercado May-Skinner NY and an employee of MLMIC Insurance Company. This article originally appeared in MLMIC’s The Scope Dental Edition, Issue 12, Second Quarter 2023 and has been reprinted here with permission. Copyright MLMIC Insurance Company, 2023, All Rights Reserved. REFERENCES/FOOTNOTES: 1. accessdata.fda.gov/drugsatfda_docs/ label/2011/103000s5236lbl.pdf. 2. Applications of botulinum toxin in dentistry: A comprehensive review: Natl J Maxillofac Surg. 2015 Jul-Dec; 6(2): 152–159. ncbi.nlm.nih.gov/pmc/ articles/PMC4922224/. 3. Botox Therapy in Dentistry: A Review. J Int Oral Health. 2015; 7(Suppl 2): 103–105. ncbi.nlm.nih. gov/pmc/articles/PMC4672850/. 4. Dentists can contact The New York State Board for Dentistry at dentbd@nysed.gov, Telephone: (518) 474-3817, ext. 550 with questions of whether a particular use of Botox falls within the definition of the practice of dentistry. 5. Althawadi, N., Ujam, A. & Visavadia, B. Botox hidden dangers. Br Dent J 232, 192–193 (2022). doi.org/10.1038/s41415-022-4006-3. 6. NYS General Business Law §349 & §350. Continued from Page 9 » 10 SDDS BULLETIN SEPTEMBER/OCTOBER 2023 — VOLUME 40 ◊ NUMBER 5
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