Young patients get braces all the time, so why was one mother so upset by the care her son received from his orthodontist?
Posted in Risk Management on Monday, November 15, 2021
General dentist Dr. David George operated a small practice in a mid-sized town for more than 30 years. He hired specialists for temporary work at his practice on a regular basis. These specialists were independent contractors, according to Dr. George, and the terms of their employment were based on a handshake and not formalized in writing.
One such independent contractor was a young orthodontist, Dr. John Post. Drs. Post and George both graduated from the same dental school and met at an alumni association event.
Dr. Post worked three days a week in Dr. George’s practice and two days in another general dentistry office. Dr. Post’s long-term goal was to build up enough business to be able to open his own practice. Dr. George was aware that this was the plan—he and Dr. Post had a good working relationship—and understood that Dr. Post would provide plenty of notice if/when he was ready to start his own practice.
The Patient’s First Appointment
Elena Rose, a single mother, first came to Dr. George’s office in the summer of 2009 for a general checkup for her 10-year-old son, Alan. Elena and Alan had recently moved to the area to be near Elena’s older sister.
Alan’s initial visit with Dr. George was a general evaluation. Dr. George did an examination, took some films and placed sealants on four first molars. At that appointment, Elena expressed concerns that Alan’s teeth were crooked and asked if Dr. George practiced orthodontics. Dr. George suggested Alan see Dr. Post and asked Elena to go through the front desk to schedule an appointment. No appointment was set at that time, and Alan did not return for care until a year later, because of some family-related issues.
The Treatment Plan
At his next appointment, Dr. George examined Alan, then 12 years old, and placed sealants on two teeth. Elena was also at that visit. That same day, in late June of 2010, Dr. Post saw Alan for an initial orthodontic evaluation and assessment. As part of this consult, Dr. Post took panoramic X-rays and photographs, as well as impressions for study models. Dr. Post prepared a detailed treatment plan and noted that Alan had a Class III malocclusion. Dr. Post testified that he would have discussed this treatment plan, the risks and benefits of care, and that he did, in fact, have Elena’s agreement to proceed with care before he began any active orthodontic treatment.
In July of 2010, Dr. Post placed a Rapid Palate Expander (RPE) on Alan, which was to be in place for four months, followed by traditional orthodontics with bands, wires and elastics would be used. From the time of that appointment, through the end of the year, Alan visited Dr. Post approximately every 2-4 weeks.
Dr. Post prepared a detailed, written informed consent form dated August 4, 2010. At his next appointment, Alan came with his aunt, not Elena, so Dr. Post sent the consent form home with Alan. He spoke by phone with Elena in regard to her agreement to proceed with orthodontic care and the need for her to return the informed consent form. Elena signed and returned the consent form on September 4, 2010. The informed consent form stated (emphasis added):
“Orthodontic treatment usually proceeds as planned and we intend to do everything possible to achieve the best results for every patient. However, we cannot guarantee that you will be completely satisfied with your results, nor can all complications or consequences be anticipated. The success of treatment depends on your cooperation in keeping appointments, maintaining good oral hygiene, avoiding loose or broken appliances and following the orthodontist’s instructions carefully.
The length of treatment depends on a number of issues, including the severity of the problem, the patient’s growth and the level of patient cooperation. The actual treatment time is usually close to the estimated treatment time, but treatment may be lengthened if, for example, unanticipated growth occurs, if there are habits affecting the dentofacial structures, or if patient cooperation is not adequate. Therefore, changes in the original treatment plan may become necessary. If treatment time is extended beyond the original estimate, additional fees may be assessed (emphasis added).”
Elena, in deposition testimony, admitted she signed the form as dated, but stated that she hadn’t read it closely nor did she understand it. She said no one spoke to her about the issues concerning Alan’s growth. Alan, in deposition testimony (and as an adult by the time of litigation), recalled little to no details of any of his dental visits with Dr. George or Dr. Post.
Care Continues for 7 Years
In his visit in November 2010, Dr. Post noted that Alan had some anatomical abnormalities including a slight negative overjet. Alan’s orthodontic care continued in 2011 and into early 2012 uneventfully, with Dr. Post. During these regular, mostly monthly visits, bands were in place with elastics used per the treatment plan.
In February 2012, Dr. Post testified that despite a slight negative overjet/overbite, the elastics were moving the front teeth to where they were biting hard on each other, so he saw movement in the right direction and that during this time there was no open bite, no tongue thrust and no indication of any significant growth spurt. By late 2012, Dr. Post noted a tongue thrust habit and recommended home exercises.
Care continued and Alan was debanded in January 2013. In February 2013, he broke his lower bonded retainer and there was a note about ongoing tongue thrust and exercises at home for that condition. Alan, then 14, was a freshman in high school. The tongue thrust issues continued so he received a tongue crib. Dr. Post noted the tongue thrust needed to be resolved before consideration of more orthodontics to close the bite.
In November of 2013, Dr. Post noted some opening of the bite and that Alan’s growth was causing a Class III malocclusion, with a 2 mm malocclusion on the left side. Dr. Post continued to monitor this and noticed on the next visit in May 2014 that the plaintiff’s malocclusion was now ½ mm on the right and 3 mm on the left. Around this time, there were more issues with his retainers breaking.
In November 2014, Dr. Post charted that Alan, now 16, had significant and continued growth and the malocclusion was worsening. It was now at 1 mm on the right side and 3-4 mm on the left. At this appointment, Alan admitted that he had not been wearing his upper Hawley retainer claiming that it did not fit anymore. The plaintiff was told to bring it to the next appointment for adjustment. Plaintiff did not bring the retainer to the next orthodontic appointment in March 2015 when he returned because his lower bonded retainer had broken a third time. The records indicate that Dr. Post discussed with Alan and Elena that Alan was still growing, he had a 2 mm malocclusion on the right and a 4 mm malocclusion on the left. At this appointment, he noted that Alan may need further orthodontic treatment once he stopped growing. In May 2015, Alan admitted to not having worn his upper retainer for two months and Dr. Post confirmed that it no longer fit because the maxilla had narrowed in the posterior. Dr. Post set a follow-up in six months.
Alan and Elena denied that there were ongoing discussions about the tongue thrust and growth. They denied that they failed to do any home exercises recommended by Dr. Post. Both admitted that Alan always did whatever the Dr. Post recommended and agreed that Alan did have a significant growth spurt in high school, going from 5 feet, 8 inches tall as a freshman to 6 feet, 6 inches his senior year.
When Alan returned in July 2015, Elena was very unhappy with Alan’s condition and that Dr. Post never explained about growth issues before they started. She testified she would never have agreed to orthodontics in the first place had she known this could be the outcome. Dr. Post explained in his testimony that if they had not done any early ortho treatment, the skeletal/dental discrepancy would be much worse than its current state and Alan would be more likely to need orthognathic surgery to correct it later. Dr. Post further noted that he had warned of the unfavorable Class III vertical growth pattern and that is why he finished the patient in a 1 mm Class II position to compensate for a little bit of unfavorable Class III growth potential. He recommended waiting until Alan stopped growing, and discussed the possibility of orthognathic surgery.
Dr. Post left to start his own practice in early 2016. Alan, who was 17 at the time, had his last orthodontic appointment on June 1, 2016, with a different independent contractor orthodontist working for Dr. George and his practice, Dr. Edward Mila. The plaintiff presented with a Class III occlusion with an anterior open bite of 3 mm and overjet of 0 mm. Dr. Mila’s record explained the anterior open bite and decreased overjet was due to unfavorable growth of the mandible after orthodontic treatment. Alan confirmed his body has grown a lot after the orthodontic treatment, and he was instructed to follow up as needed. He never returned.
Elena’s relationship with Dr. George, Dr. Post and the practice had significantly soured at this point. Elena actively fought against the potential cost of another round of orthodontic care and the office manager for Dr. George’s practice got involved. She offered a partial refund of past costs in exchange for an executed release of all claims. The office manager wrote to Elena on June 20, 2017 explaining that 90% of orthodontic cases take an average of 11 adjustments.
The Patient Leaves the Practice
Alan then went to another orthodontist at a different practice. That orthodontist, Dr. Chris Pack, felt that additional orthodontics or orthognathic surgery would correct Alan’s orthodontic condition and open bite. Dr. Pack’s records suggested criticism of past care but acknowledged that growth spurts are indeed a known issue in orthodontic care. By this time, Elena had sought out a lawyer to pursue a possible case against the practice and Drs. George and Post. Dr. Pack spoke with Elena’s lawyer and seemingly was critical of past care, but later would testify that growth issues can’t always be avoided, and this is part of any orthodontist’s consent process and discussion. If an orthodontist discusses these issues with the patient or the patient’s parent or guardian, the orthodontist would have acted properly.
Also around that time, Alan and his mother decided to go to a new general dentist, Elena’s cousin, Dr. Robert Andrew. Dr. Andrew spoke to Elena about Alan’s dental condition at a summer barbecue, shortly before Alan began treatment with him. Elena claimed Dr. Andrew told her that the prior braces needed to be redone or Alan would need surgery to correct his open bite, and Alan “had orthodontic care too early.” Dr. Andrew in deposition recalled none of this conversation in detail.
A lawsuit was filed against both Dr. George and Dr. Post, and the practice. In the process of the lawsuit, Alan had a “consultation” for orthognathic surgery. He never had surgery or a subsequent round of orthodontic care. Indeed Alan, at deposition, did not seem to be overly upset by his orthodontia. Rather, Elena, not a party to the suit since Alan was an adult, seemed to be far angrier and more upset by the care of the practice, Dr. George and Dr. Post. Consultants for the defense fully-defended the care. After a number of years of litigation, Alan decided to drop his lawsuit.
What We Can Learn
This case presents many issues often seen in malpractice litigation. A few of these issues are as follows:
Dr. Post’s informed consent form was very strong evidence for the defense. The form, in plain language, detailed the key issues as it related to this case. Elena admitted to signing this form. This evidence could have been stronger still if details about the discussions with Elena prior to the signing of the form, and her assent to proceed, were recorded in the notes.
Notes about the delay in the return of the signed form and calls about this would also have strengthened the defense. The process of informed consent can often be overlooked beyond just the form itself. Communications, conversations and details of issues for particular patients will always provide a stronger defense to support and bolster a good, detailed form signed by the patient.
Apparent Agency/Vicarious Liability for the Practice
The handshake agreement between Dr. George, the practice and Dr. Post which was the basis for an independent contractor relationship, creates issues because the details of the relationship are not clear. Whether a practitioner is an independent contractor or an employee, it can be an important issue in litigation and governmental agencies. Without a written agreement detailing the terms of the relationship on either side, it can be left open to interpretation, recollection and can create even more problems. This is especially true when the claim is for a higher dollar value.
Disputes over terms can create division in the best of relationships. These kinds of relationships are defined by specific facts. In this case, some of the facts that could be used to determine if Dr. George and his practice were responsible for Dr. Post’s actions include who had control of the work, use of the office practice (supplies, scheduling, assistants, back office, etc.), billing structure, and the patient perception of the alleged agent’s employment status. In this case, some of the factors above suggested that Dr. Post would be deemed to be an agent of Dr. George and the practice. A written and delineated agreement might have helped to demarcate that relationship.
Care and Treatment Issues
The defense had a consultant who could defend the orthodontic care. In addition to the informed consent issues, there were other matters that could have helped support the defense further including well-documented communications with the mother, involvement with the dental providers and counsel, as opposed to the office manager trying to resolve the issues at the end of care, and more detail about discussions about expectations early on and, as the case wore on. Better documentation and addressing of patient concerns earlier, especially as to known complications and risks, can offer solid support to a practitioner and establish that there was good and thoughtful care provided throughout. It could help to prevent later litigation.
While this case ultimately had a good result, the time, emotional stress and expense for the defense made it a difficult process for Dr. George and Dr. Post. Learning from these facts can help guide the practitioner to key issues to resolve before a problem arises.