The standard of care is a concept that is not likely to be in the forefront of a practitioner's mind at the time of the delivery of care. Yet it becomes the central theme in the defense of virtually every dental professional liability (DPL) claim.
Posted in Risk Management on Tuesday, February 27, 2018
By Craig Fontaine, Fontaine Alissi PC
It would be worthwhile to give some thought to the standard of care issue in advance, especially when there is some potential for an adverse side effect from the treatment or an adverse outcome.
What is it?
The term “standard of care” is often misunderstood. To understand what it requires in practice, one must first understand this legal concept. The standard of care is a standard that is rooted in the legal concept of negligence. Generally speaking, one owes a duty of reasonable care not to harm others. This concept is familiar to all of us in the context of land ownership, the operation of an automobile, or the manufacture of a product. Negligence by a professional is often referred to as “malpractice,” and the duty that a doctor owes to a patient is often referred to as “the standard of care.”
The standard of care is not what may be set forth in a single scientific paper or treatise; rather, it is defined by what is actually done in practice. That means that what constitutes adherence to, or deviation from, the standard of care is often context-driven. What may be actually done by providers in a small private-practice may not be the same as what is done by providers in a well-funded academic setting.
It is also important to know that the law does not require perfection. The concept involves reasonable prudence, in light of the attendant circumstances.
Who determines the standard?
When the subject matter to be considered by a jury is beyond the scope of the understanding for the average person, the law requires expert testimony to explain the subject to them, to help them in making an informed decision. Most states require that the standard of care be defined, and thus established, by expert testimony at the time of trial. Then it is the jury that actually decides what the standard of care was in a particular case. This decision is made by the jury after they have heard the experts on both sides offer their opinions as to what the standard of care is and what was specifically required of the defendant in the given circumstance. The jury then decides what the standard of care required of a practitioner in a given case and whether it was violated.
In virtually all DPL cases, both sides will have experts, and they will offer conflicting opinions to the jury. The jury will then decide what the reasonably prudent practitioner was required to do (or not do) in the circumstance of that case.
The conflict in expressed opinions is often due to the perspective from which each expert views the care in question. That is, the plaintiff's expert will often view the treatment through the lens of hindsight and explain, for example, how a different radiographic assessment would have influenced the outcome. On the other hand, the defense expert will approach the analysis from the perspective of what was reasonably necessary for a proper radiographic assessment at the time treatment was rendered. Exposing the fact that the plaintiff expert is using hindsight in forming his opinions will help the defense, because most states do not permit the assessment to be made from that point of view.
Case in point
Let’s examine this issue more closely. A patient, in her 40s, comes in for mandibular third molar extractions, and subsequently experienced a pathologic fracture in the area of tooth #32. That patient presented to the oral surgeon on referral from her general dentist with a recent full-mouth series of radiographs taken by the general dentist. Though a panoramic radiograph was offered to her by the oral surgeon, the patient refused for two reasons: she did not want the additional radiation exposure, and she did not want to incur the added expense.
However, the oral surgeon felt that he had enough information to proceed with the extraction of teeth #17 and #32 anyway, based on his examination of the patient and the information gleaned from the fullmouth series. The patient was intravenously sedated, and tooth #17 was extracted in a routine fashion. Given the position of #32, the roots were sectioned first. Before the procedure was completed, the patient experienced a bleed and began to arouse from the anesthesia. A decision was made to discontinue the surgery, and the crown was left behind, to be removed at a later time. The patient was informed that the crown was retained.
About a week later, the patient heard what she described as a “pop;” felt pain, and returned to the oral surgeon for evaluation. A panoramic radiograph was taken, which revealed an inferior mandibular fracture below tooth #32. Figure 1 shows this X-ray, as well as the preoperative bitewings. There are several issues in the case, but the radiographic standard of care question presented was: should the oral surgeon have proceeded to do the surgery without a panoramic radiograph or cone beam CT?
Let's examine the standard-of-care issue here. The plaintiff's expert, who came from an academic setting, offered the opinion that the standard of care required more imaging. Specifically, the available presurgical full-mouth series did not clearly show the full apex of tooth #32. Consequently, more imaging was required (at minimum, a panoramic radiograph).
On the other hand, the defense experts offered the opinion that, given the position of the tooth, the fullmouth series was sufficient to satisfy the standard of care. They affirmed that further radiographic analysis would not have altered the decision to perform the surgery, and added that the main reason for further radiographic workup would have been to better assess the potential for inferior alveolar nerve involvement, which was not at issue in the case.
The jury would have to decide what the applicable standard was and would likely base its determination on which expert presented himself as the witness who is more credible and made the most scientific sense.
There are multiple radiographic options available to most dental practitioners. The most common are:
- Full-mouth series
- Cone-beam CT
To determine which are necessary in order to comply with the standard of care, you must consider not only what is necessary to make a clinical determination regarding treatment options, but also whether there are potential risks for the patient that may arise from the lack of information if a particular radiograph is not taken.
Specifically, the dentist should consider:
- Clinical need for information. If the radiographic information is necessary to make a determination regarding how to approach treatment, it is probably required by the standard of care.
- Patient consent. If the patient does not consent to recommended radiographic evaluation and the practitioner feels it is necessary to decide how to approach treatment, documentation of informed refusal and/or refusal to treat may be in order.
- Cost and availability. This may come into the decision-making process, given the availability in the local area and the associated costs of the technology.
- Radiation exposure. Does the benefit outweigh the risk? For example, in the case referred to above, the likely risk of not seeing the full root tip of tooth #32 is the potential to unwittingly involve the inferior alveolar nerve in the extraction process. It likely does not involve any increased or decreased risk of fracture.
The standard of care is always determined by what the standard was at the time of the events in question, not what the standard of care is at the time of trial. This is an important issue, especially as technology rapidly advances and the cost for that technology decreases. As the dental community adopts new techniques and technology, the standard of care evolves.
A final observation is that the old adage that a picture is worth a thousand words is certainly true in dental radiology. A single radiograph may end up being the piece of information that actually helps plaintiff’s counsel to establish that there was indeed a deviation from the standard of care in treatment provided. By way of example, see Figure 2, a misplaced post, and Figure 3, over-exuberance in the use of sealant in endodontic therapy.
Reprinted from the Fourth Quarter 2017 issue of Inside Medical Liability magazine, PIAA. Copyright 2017.