STANDARD OF CARE
The standard of care is often misused and confused with treatment protocols, parameters of treatment or practice, and procedure techniques. It is not defined as “what everyone else is doing.” It is not what the specialist is doing. It is not what the dental school is teaching. It is not what the study club agrees on. It is not what the latest self-proclaimed dental guru is doing. All of the above may and, more likely than not, will be practicing within the standard of care. All dentists think they are treating their patients within the standard of care. Some have attempted to define the standard of care as the best he or she can do under the circumstances or what the specialist would do under the same or similar circumstances.
These definitions do not completely define the standard of care. The definition has not changed, but how dentists practice has changed. How the standard of care is applied and interpreted evolves with the development of new materials and treatment modalities. It is made malleable by practitioners who perform successful new techniques, as well as by the treatment failures that find their way into the courts .
The standard of care is actually mentioned in the definition of negligence as discussed in Chapter 3. The second element of negligence is: A breach of the duty to render care. Did the dentist violate the applicable standard of care? Whether the dentist provided treatment above or below the standard of care is one of the biggest stumbling blocks of a malpractice lawsuit. In other words: Did the dentist more likely than not provide treatment below the standard of care that subsequently and/or proximately caused the patient’s damages?
The first mention of a standard of care was in the case of Vaughan v. Menlove in 1837. The court described it as the “reasonable caution a prudent man would have exercised under such circumstances” . The theory then gravitated to the healthcare professions. When applied to dentistry, the objective criteria judging the conduct of the defendant (dentist) needed to be changed from “a reasonable man of ordinary prudence” to a higher level for two reasons . First, as members of a learned profession, dentists are expected to possess and exercise skill and knowledge beyond that of ordinary individuals. Second, as to matters involving professional skills and knowledge, the conduct of a dentist should be evaluated in terms of professional dental standards determined by the dental profession, hence the need for expert witnesses. In the late 1800s, professionals and others who undertook any work calling for special skills would be required not only to exercise reasonable care in what they do, but also to possess a minimum standard of special knowledge and ability . Thus, it may not have been sufficient for the dentist to provide the best treatment he or she could, even with the utmost of good faith, if that treatment is below a minimum standard.
In 1898, the case of Pike v. Honsinger clearly stated the elements of the standard of care. Each of the 10 elements presented in this case has developed and evolved to its current understanding .
1. Possess a reasonable degree of learning and skill ordinarily possessed in the practice locality.
The locality rule or community standard states the dentist will be held to the level of treatment at which other dentists are operating in their local communities. This rule is slowly becoming watered down or replaced with the “reasonably prudent dentist standard.” With the availability of information for the profession through continued education, which all states now require, and the ease of keeping up to date with technical advancements through journals and the Internet, the local community rule is being found to be too narrow in its scope. It also evolved away from the locality rule, because concerns arose regarding the reluctance of doctors to testify against one another, especially if they know the defendant and live or work in the same community. This poses the possibility of insulating and perpetuating pockets of substandard practice due to a limited availability of expert witnesses, which would be unfair to claimants. This is similar to the discussion of informed consent in Chapter 8. It also creates a possible conflict of interest for the expert witness when he or she knows the defendant.
For the most part, dentists from New York, Kansas, or Washington all have equal access to the most recent advancements in dentistry. Hence the locality rule has evolved into a wider scope termed the “reasonable prudent standard.” Riley v. Wieman (1988) stated, “We cannot accept the… application of the ‘locality rule.’… [C]onforming to accepted community standards of practice usually insulates (the doctors) from tort liability” . It further applied the locality rule as a minimum standard and placed a further requirement that doctors use their “best judgment and whatever superior knowledge, skill, and intelligence they have” .
2. Use reasonable care and diligence in the exercise of skill and the application of his or her learning.
The reasonably prudent dentist standard states the dentist will be held to the level of care that a reasonably prudent practitioner would have provided under a certain set of circumstances .
What is reasonably prudent? Helling v. Carey (1974) found that the nonuse of a simple procedure, although the procedure was not typically used in that community for patients under 40 years old, was below the standard of care . This decision was based on the conclusion that if a simple procedure would show early signs of disease, and thereby allow an early, more successful treatment or even prevention, it should have been used. Thus, the nonuse of such a procedure—because its use is not a standard within the professional community—is not a reason to limit liability. That 1974 case clearly spelled out that the standards for a procedure or treatment, as set forth by a profession, may be found to be unreasonable if the procedure is basically pain-free, easy, and inexpensive, takes little time, provides a great benefit, and was not done . The procedure should have been done regardless of whether it is a standard within the professional community. Use of a periodontal probe is a good example. Using a periodontal probe routinely during examinations is a painless, quick, easy, inexpensive method to check for periodontal disease. Even if all dentists in the community do not use a periodontal probe on examinations, a dentist’s nonuse of the periodontal probe probably would be considered below the standard of care .
This concept was again stated in Vassos v. Raussalis: “The skill, diligence, knowledge, means and methods are not those ‘ordinarily’ or ‘generally’ or ‘customarily’ exercised or applied, but are those that are ‘reasonably’ exercised or applied. Negligence cannot be excused on the grounds that others practice the same kind of negligence” .
Because of the technical aspect of dentistry, a judge and jury need to rely on an expert to explain what is expected of a “reasonably prudent” dentist. It is the expert’s duty to review and explain what the treatment in question should have been, had a “reasonably prudent dentist” performed the treatment. What the expert witness actually does in his or her office is not relevant, although many times that may be the same. He or she is to make the treatment in question comprehensible to the judge and jury . The expert witness testifies regarding:
1. The standard of care the dentist is held to: Was the treatment/technique within the standard of care? Were all treatment protocols fulfilled?
2. Whether the dentist caused the patient’s injury by the departure from the standard of care
3. Whether the injury is permanent or temporary
4. The proximate or direct cause of the injury
5. What treatment is needed to restore the patient to health
6. The cost of the treatment.
For a dentist to qualify as an expert, the courts look to his or her skill, training, and experience. In Fitzgerald v. Flynn, the court stated, “It is the scope of the expert witness’ knowledge and not the artificial classification by title that should govern the threshold of admissibility” .
In other words, just because someone considers him- or herself a dental specialist does not make that person an expert witness. The relevant criteria are the individual’s knowledge and familiarity with the procedure in question. Therefore, a general dentist with knowledge and familiarity with a procedure may be found competent to testify as an expert witness against a specialist. For example, if a specialist fails to secure informed consent from a patient before providing treatment, a general dentist with experience in such treatment may be found to be an expert witness for or against the specialist . It is not always necessary to have an expert witness as in res ipse (“the thing speaks for itself”) cases, such as in the extraction of the wrong tooth. There must be a lack of ordinary care on the part of the dentist, which a reasonable person, not being a dentist, would not have done.
Is the standard for the specialist dentist different from that for the general dentist? According to Prosser, the courts have held that the standard may be modified if the practitioner holds him- or herself out as having greater skill and/>