canals performed, new implants placed and a replacement bridge made by a subsequent treating dentist. With regard to Botox, the plaintiff alleged that she was “heavily drugged” for the dental procedures when the defendant dentist discussed using Botox around her eyes and therefore she did not, and could not, consent to its use. The plaintiff woke up to realize that Botox had been injected between her eyebrows without her consent. She further testified that months later, the dentist told her that “he would like to administer Botox injections while she was in a groggy state.” Although it was clearly self-serving testimony, the dentist’s documentation regarding the dental indications for the use of Botox and consent discussion was poor. Importantly, the plaintiff also alleged that the use of Botox around her eyes was outside the scope of dentistry. An expert review was critical of the treatment, including that there was no appropriate documentation of the plaintiff’s periodontal condition and care, and there were no notations within the chart advising the plaintiff that much of the treatment was not ideal and that she was proceeding at her own risk. The expert also commented unfavorably on the lack of documentation regarding the dental indications for the use of Botox and the related consent issue. Similarly, imaging studies and documentation by the plaintiff’s subsequent treating dentist showed unacceptable margins around most teeth and improper crown lengths. Additionally, the lack of a bite guard had resulted in dislodged veneers. These objective findings were unfavorable to the defendant dentist and, ultimately, the lawsuit was resolved in favor of the plaintiff. This case study highlights several Botox-related risk factors for dentists, including informed consent and whether its use is within the scope of dentistry. The specific lesson here is that there can be no informed consent discussion when a patient is “dazed and confused.” The Unique Risks Associated with the Use of Botox in Dentistry The use of Botox in dentistry is subject to compliance with the definition of dentistry found in §6601 of the New York State Education Law, which defines the practice of dentistry as diagnosing, treating, operating, or prescribing for any disease, pain, injury, deformity, or physical condition of the oral and maxillofacial area related to restoring and maintaining dental health. The practice of dentistry includes the prescribing and fabricating of dental prostheses and appliances and may include performing physical evaluations in conjunction with the provision of dental treatment. In a written opinion, the New York State Board for Dentistry explained the potential use of Botox and collagen in the practice of dentistry and compliance with §6601. That opinion states, This section does not specify modalities of practice and does not limit the practice of dentistry to any specific methods of treatment. As a result, Education Law does not prohibit a New York State licensed dentist from using botulinum toxin type A and collagen in the oral and maxillofacial area, consistent with Section 6601, as long as it is related to restoring and maintaining dental health. When providing such services, the dentist must also be competent to provide such services. Rules of the Board of Regents Section 29/1(b)(9) defines unprofessional conduct as: “practicing or offering to practice beyond the scope permitted by law, or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform, or performing without adequate supervision professional services which the licensee is authorized to perform only under the supervision of a licensed professional, except in an emergency situation where a person’s life or health is in danger.” Therefore, it is incumbent upon a dentist to provide all services within the defined scope and competently. Whether a specific use of these modalities is lawful would depend upon the circumstances presented. This opinion from the New York State Board for Dentistry provides three basic pieces of guidance on the use of Botox in dentistry: 1. The Education Law does not prohibit a New York State licensed dentist from using Botox and collagen in the oral and maxillofacial area, consistent with §6601, as long as it is related to restoring and maintaining dental health. 2. The dentist must be competent to provide such services. 3. A dentist’s use of Botox solely for cosmetic purposes or beyond the scope of competence can constitute professional misconduct and subject the dentist to licensure proceedings as well as the imposition of fines. Accordingly, as a matter of caution, dentists using Botox as part of their treatment plan should ensure that it is related to the restoration and/or maintenance of dental health and document such in the dental record.4 Similarly, dentists should ensure that they, or the dental provider using it in their office, have the requisite training to use Botox in patient care. The need for requisite training highlights another risk of using Botox in the dental office: dental malpractice. There are several areas of increased risk related Continued on Page 10 » There is no exclusive list of accepted therapeutic or cosmetic uses for Botox in dentistry. This, combined with the lack of FDA approval specifically for dental applications, makes its use subject to regulatory compliance issues as well as the increased risk of professional misconduct charges and malpractice allegations. WWW.SDDSNY.ORG 9
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