Deliberations on duty and deportment

One of the first malpractice cases dealing with the duty we owe our patients was published around the turn of the 20th century. I have always loved this case, Pike v Honsinger , 49 N.E. 716 (1898), and thought I would share a piece of it with you. As you read this, you will notice superscript numbers that were not in the original opinion. I added these. It is these 10 points that I want to discuss.

A physician and surgeon, by taking charge of a case, impliedly represents that he possesses, and the law places upon him the duty of possessing, that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices, and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in the business of practicing medicine and surgery. 1 Upon consenting to treat a patient 2 it becomes his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed. 3 He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge. 4 The law holds him liable for an injury to his patient resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment. 1,3,4 The rule in relation to learning and skill does not require the surgeon to possess that extraordinary learning and skill which belong only to a few men of rare-endowments, but such as is possessed by the average member of the medical profession in good standing. 5 Still he is bound to keep abreast of the times, 6 and a departure from approved methods in general use, if it injures the patient, will render him liable, however good his intentions may have been. 7 The rule of reasonable care and diligence does not require the exercise of the highest possible degree of care; and to render a physician and surgeon liable, it is not enough that there has been a less degree of care than some other medical man might have shown, or less than even he himself might have bestowed, but there must be a want of ordinary and reasonable care, leading to a bad result. 8 This includes not only the diagnosis and treatment, but also the giving of proper instructions to his patient in relation to conduct, exercise and the use of the injured limb. 9 The rule requiring him to use his best judgment does not hold him liable for a mere error of judgment, provided he does what he thinks is best after careful examination. 4 His implied engagement with his patient does not guarantee a good result, 10 but he promises by implication to use the skill and learning of the average physician, to exercise reasonable care and to exert his best judgment in the effort to bring about a good result.


Let’s look carefully at what the court held. Number 1 requires us to possess a reasonable degree of SKEE, a mnemonic for “skill, knowledge, experience, and expertise” such as is possessed by other doctors practicing in our locality, thus qualifying us to engage in the business of orthodontics. In other words, do we have the minimum skills required to practice in our specialty. Back in 1898, about 30 years before we became a specialty, the state of the art of our profession was quite low, at least compared with what it is today. Simply put, it was what it was. Access not only to diagnostic and clinical advances relating to orthodontics but also to basic orthodontic knowledge was limited because there were few, if any, formal university-based programs. There were less than a handful of proprietary programs; textbooks and journals about orthodontics were sparse; local, regional, and national meetings were few and far between; and transportation to any available knowledge venue was costly and time-consuming. It was these reasons that promulgated the belief that standards of care should rightly reflect local community-based standards. Practicing in the hinterlands was quite different from practicing in the major metropolitan areas of the day.

However, with the passage of time, our knowledge base increased, and access to it became easier as universities offering advanced studies proliferated, specialty journals and texts became more abundant, specialty educational programs became standardized relative to accreditation purposes, and traveling to and from scientific meetings became easier. Our specialty knowledge base became more global, and the rural areas were no longer a wasteland vis-a-vis specialty services. In most jurisdictions, our standards of care evolved into more of a national standard, particularly in regard to specialty areas of practice.

Number 2 merely noted that for this standard of care to apply, one needed to find a doctor-patient relationship. This relationship is established when the patient freely requests a doctor’s care, and the doctor consensually agrees to minister to the patient. It is critical to appreciate that from the legal perspective, there is no duty to conform to any standard of care unless a formal doctor-patient relationship exists. Simplistically, a doctor-patient relationship is formed whenever a doctor offers professional advice on which he expects his patient to rely and upon which the patient accepts or forgoes the recommended opinion. The setting in which this bilateral consensual relationship occurred is irrelevant, as are the issues of whether a formal examination was performed, records were taken, fees were charged, and so on. The mere offering and accepting of professional advice is sufficient.

Numbers 3 and 4 complete the triad of the elements required to establish a given standard of care. In addition to having the required knowledge base, one must also execute his degree of SKEE in a reasonable manner. Finally, aside from possessing the requisite SKEE and exercising it appropriately, one must use his best judgment in rendering care to his patient.

Numbers 5, 6, and 7 note that insofar as the standard of care is concerned, one needs only to possess the level of skill as possessed by the average practitioner in good standing and does not need to rise to the level of excellence of a rare few. In addition, we should stay current with advances in our field because it is one way that we maintain the degree of SKEE that is possessed by our fictional average colleague. Finally, number 7 admonishes us that if we depart from the accepted methods of executing our SKEE, we will be held responsible for the outcome, even if our departures were done with the best of intentions.

What I like about numbers 8 and 9 is that even if we possess and exercise the acceptable minimum level of SKEE, we will be held liable for a bad result only if it can be shown that our lack of execution actually led to the bad result. In other words, our lack of skill must be the direct and proximate cause of the patient’s injury. It also covers both ends of the treatment spectrum. It requires us to possess and exercise the requisite level of SKEE not only in diagnosis and active treatment, but also in our patient education and follow-up responsibilities.

Finally, the circle gets closed when we realize that we are not required to obtain a good result; rather, we must use all 3 prongs of the standard of care test in our efforts to bring about a mutually satisfactory result. As far as orthodontics is concerned, it means that we must recognize that although we may wish to hit the proverbial home run with every patient we treat, for the most part, moving the patient along the baselines toward home plate meets our responsibilities. We deal in improvement as opposed to correction. We endeavor to make the abnormal normal, and upon doing so, we recognize that normal is a range, not a point. I’m not advocating that we compromise our efforts. I merely ask that we recognize and pay due homage to our limitations, be they clinical, cooperative, or anatomic.

It’s quite remarkable that a legal opinion that is well over 100 years old can offer the same insight now as it did then. I wonder whether today’s thinking will have the same applicability in 2125. Come to think of it, will orthodontics be anything like what it is today in 110 years? Hmmm.

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Apr 6, 2017 | Posted by in Orthodontics | Comments Off on Deliberations on duty and deportment
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