UNDERSTANDING “CALEB’S LAW” – AB 2235 by Attorney Matthew Kirkpatrick, BPE Law Commercial Practices Group.
In 2015, Caleb Sears, a six year old, went to his local oral surgeon’s office for a routine tooth extraction. While under general anesthesia Caleb stopped breathing and suffered massive injuries resulting in his death. At least four other pediatric deaths similar to Caleb’s occurred just last year.
These deaths moved Assembly Member Tony Thurmond of the Richmond in the Bay Area to ask this question: Is the current status quo in pediatric dental anesthetics was effectively protecting the children in California?
As you should know, oral surgeons are currently permitted to perform dental procedures while simultaneously administering anesthesia. This is in stark contrast to other healthcare professionals who are required to rely on a separate practitioner to administer anesthesia and monitor the patient. Additionally, it appears that the equipment used to monitor patients can vary widely from office to office. Perhaps it is time for this practice to change.
To see if that is the case, Assemblyman Thurmond has sponsored Caleb’s Law, which is formally known as AB 2235. Caleb’s Law has three main provisions, all of which amend the Dentistry Chapter of the California Business and Professions Code.
1. Investigation Committee
The Dental Board will be mandated to establish a committee to investigate the current statutes and regulations governing the administration and monitoring of oral conscious sedation, conscious sedation, and general anesthesia for dental patients under the age of 21. The committee will review all incident reports, investigatory information, policies and guidelines of other states and national dental associations, and studies regarding the use of pediatric anesthesia. The committee is required to present its findings to the Dental Board on or before November 1, 2017. The committee’s findings may result in big changes in the way the practice of dentistry administers anesthesia.
2. Formal Reporting After Patient Hospital Transfer
To help with ongoing oversight of dental anesthesia there will be new requirements for the reports that practitioners must submit to the Dental Board after:
1) The death of his or her patient during the performance of any dental or dental hygiene procedure;
2) The discovery of the death of a patient whose death is related to a dental or dental hygiene procedure performed by him or her;
3) The removal of a patient to a hospital or emergency center for medical treatment for a period exceeding 24 hours as a result of dental or dental hygiene treatment or when oral conscious sedation, conscious sedation, or general anesthesia was administered, except in the case of a scheduled hospitalization.
The new report to will have to include:
1) The date of the procedure;
2) The patient’s age in years and months;
3) The patient’s weight and sex;
4) The patient’s American Society of Anesthesiologists (ASA) physical status;
5) The patient’s primary diagnosis;
6) The patient’s coexisting diagnoses;
7) The procedures performed;
8) The sedation setting;
9) The medications used;
10) The monitoring equipment used;
11) The category of the provider responsible for sedation oversight;
12) The category of the provider delivering sedation;
13) The category of the provider monitoring the patient during sedation;
14) Whether the person supervising the sedation performed one or more of the procedures;
15) The planned airway management;
16) The planned depth of sedation;
17) The complications that occurred;
18) A description of what was unexpected about the airway management;
19) Whether there was transportation of the patient during sedation;
20) The category of the provider conducting resuscitation measures;
21) The resuscitation equipment utilized.
Importantly, the form also must include a statement that shall not be considered an admission of guilt, but is for educational, data, or investigative purposes.
3. Updated Informed Consent
Hopefully you will never be subject to the new reporting guidelines. You will likely be subject to the final portion of Caleb’s law which imposes new requirements on informed consent. Under the new law, practitioners will be required to obtain written informed consent from a minor patient’s parent or guardian prior to administering general anesthesia or conscious sedation. The written informed consent must include the following statement:
“The administration and monitoring of general anesthesia may vary depending on the type of procedure, the type of practitioner, the age and health of the patient, and the setting in which anesthesia is provided. Risks may vary with each specific situation. You are encouraged to explore all the options available for your child’s anesthesia for his or her dental treatment, and consult with your dentist or pediatrician as needed.”
AB-2235 has passed the first committee and is on track to pass the next stage of the legislative process. Given everyone’s sensitivity to pediatric deaths, it seems likely to become law.
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