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November 6, 1998 Civil Division-Kent County Richard L. Sklut, DDS 2205 Silverside Road Wilmington, DE 19810 Re: Opinion of the Attorney General concerning the licensing of oral-maxillofacial surgeons Dear Dr. Sklut: On behalf of the Delaware Board of Dental Examiners, you have asked whether a board certified oral and maxillofacial surgeon with a certificate to practice medicine and surgery in the State of Delaware can practice such surgery in this State without also being licensed as a dentist. Oral and maxillofacial surgery is a unique dental specialty in that it is commonly practiced by both physicians and dentists with adequate training and while it is not a recognized as a medical specialty, it is recognized as a dental specialty by the American Dental Association. In fact, the organization which provides national board certification for oral and maxillofacial surgeons, the Board of Oral and Maxillofacial Surgery, requires a dental degree or other dental education approved by the American Dental Association as a condition of national board certification. It is our opinion that the issuance of a dental license by the Board of Dental Examiners is required even for a duly licensed medical doctor to practice exclusively as an oral and maxillofacial surgeon in Delaware.(1) In relevant part, the practice of medicine is defined in the Medical Practice Act (24 Del. C. chapter 17) as including surgery and all respective branches thereof. 24 Del. C. § 1703(a). This is a broad definition and, although such surgery is nationally recognized as a dental specialty, it is nonetheless, broadly speaking, a branch of surgery. Therefore, in the absence of other particular statutory language, a duly licensed Delaware medical doctor, as a part of his or her medical practice could practice such surgery. Accordingly, one must inquire whether other statutory enactments condition the terms under which a medical doctor can practice oral and maxillofacial surgery in Delaware. There are a number of states in which oral and maxillofacial surgery may be practiced under either a medical license or a dental license. In fact, that situation apparently pertained in Delaware in the Code of 1915 where Chapter 30, Part 7 of Section 890 provided "Nothing in this chapter shall be so construed as to interfere with the rights and privileges of physicians and surgeons in the discharge of their professional duties." In 1933, in 38 Del. Laws ch. 48, § 30, the General Assembly included the following limiting language in the dental act: "... unless he practices dentistry as a specialty." That language is substantially similar to the wording found in the present act in 24 Del. C. §1134(b)(1). There is a clear legislative intent to limit the broad scope of the statutory description of surgery as it appears in the Medical Practice Act. It should also be noted that 24 Del. C. § 1764 expressly provides that the Medical Practice Act does not apply to dentists or to dental surgery. This statutory exemption addresses the fact that a duly licensed dentist may, if qualified, perform oral surgery without being licensed as a physician. It does not answer the question of whether a duly licensed physician also needs a dental license to practice oral and maxillofacial surgery in Delaware. The answer to that question turns on the specific wording of the Dental Practice Act and not the Medical Practice Act. The provisions governing the requirements and conditions for the issuance of a dental license are contained in Chapter 11, Title 24 of the Delaware Code. Twenty-four Del. C. § 1134(b)(1) provides that nothing in chapter 11 prevents "[a] legally qualified physician or surgeon from extracting teeth or treating pathological conditions about the mouth, teeth, oral tissues or of radiographing such tissues unless the person practices dentistry as a specialty." (Emphasis supplied.) The statute governing dental practice cannot limit the medical doctor's right to perform surgery. However, since oral and maxillofacial surgery is a dental specialty, and the practice of that specialty is governed by the provisions of 24 Del. C. ch.11, a licensed medical doctor cannot practice oral and maxillofacial surgery in Delaware without practicing dentistry as a specialty. Therefore having a medical license would not obviate the need for a concurrent dental license in order to perform oral and maxillofacial surgery in Delaware. It is therefore the advice of the office of the Attorney General that the Board may conclude that an oral and maxillofacial surgeon (irrespective of board certification), either with or without a license to practice medicine and surgery in Delaware, must have a dental license issued by the Board of Dental Examiners to practice lawfully this dental specialty within Delaware. Very truly yours, Michael M. Tischer Deputy Attorney General Approved: Michael J. Rich State Solicitor cc: Hon. M. Jane Brady Keith R. Brady, Chief Deputy Attorney General Lawrence W. Lewis, Deputy Attorney General Ms. Carol Ellis Ms. Chrystyna Savitz 1. This opinion does not address any credentialing or by-law requirements of hospitals or other facilities, except to observe that it is our understanding that there are hospitals in Delaware where the practice of oral and maxillofacial surgery is placed within the dental department and others where it is within the department of surgery. Such placement is not dispositive of the question of whether or not a dental license is required under current Delaware law.