Liability Problems in Handling Toxic Substances
Working in a dental office often entails working with a number of toxic substances, most of which fall under OSHA guidelines that protect both employees and patients from unnecessary exposure. Mercury, beryllium and silica are often cited as substances employees must either handle or be exposed to which can be toxic in certain situations. Some of the other dental products requiring dental office to obey OSHA laws concerning Material Data Safety Sheets (MSDS) include air polishing powder, ammonia inhalant, prophy paste, etching gel, bonding prep, cavity liner, 2-tone or trace disclosing solution, lubricants, surgical milk, aerosols, and stannous fluoride.
What are the liabilities involved in having employees handle these substances? First, most workplace injuries are covered by workers’ compensation insurance, which protects employers from large damage awards by employees who contract illnesses or diseases for on the job work. Workers compensation is a preemptive statute in Massachusetts, meaning that it becomes a good defense to most lawsuits under any cause of action having to do with workplace injuries.
However, that doesn’t mean dental offices are off the hook when their employees suffer ill effects from toxic substances. Having violations of the OSHA regulations is a big door opener to liability if dental practices are not careful. OSHA inspector citations for violating toxic substance rules can set the table for other liabilities besides OSHA fines if the dentist does not literally clean up his or her act.
For example, if an employee knows about toxic substance violations and suffers an adverse action like a termination or a demotion, then they can gain traction for an employment lawsuit under OSHA whistleblower statutes. The safe bet is to not make those adverse actions against employees who happen to know violations are being committed. Making the employees know that you are taking steps to correct the violations is important in this type of situation. Making sure all employees are informed of proper procedures to take in handling toxic chemicals, and informing them of where the required MSDS posters are is another primary step to take. OSHA has special labeling regulations, and requires specific procedures in handling many toxic substances, including biological waste.
There are also independent contractors who visit the dental office who may be exposed to toxic chemicals and file suit under various causes of action. The workers compensation statute does not cover independent contractors, like those hired to do specific projects, cleaning service employees, repairmen, and workers hired to do renovations. Temporary employees may or may not be covered under insurance by the employment agency furnishing them. Keeping toxic chemicals away from areas where these workers are present is important, as well as having clearly marked signs to warn of possible exposure.
Patients exposed to toxic chemicals are always prone to filing suit against dental practices they believe caused their illnesses through exposure. Informed consent forms that include reference to substances used in particular procedures can be helpful in avoiding liability in these areas. A good example of this type of consent is with regard to mercury in amalgam fillings, since much publicity has drawn attention to its adverse effects on health. Having a composite alternative to amalgam for fillings is a good idea, and offering patients a choice of amalgam or composite before procedures is probably the best way to handle this issue.
Keeping on top of the latest ways dental supply companies are making it less likely that toxic substances are being removed from dental practice facilities is not altogether difficult, when regular contact is being made with dental supply representatives. It’s possible to find out information from those salespeople or from dental supply catalogs about both replacement of toxic chemicals with alternative less harmful substances as well as the use of different types or models of equipment to lessen effects of toxic exposure.