He did it…No, he did it

Have you ever shared treatment of a patient with another colleague? For example, maybe you practice in an office that has several partners and associates, and all the doctors treat everyone unless the patient has specifically requested that only 1 doctor provide his or her treatment. Legally, we are dealing with a scenario in which a patient is treated by multiple practitioners.

Suppose that a patient suffers a negative sequela of some sort. Assume that it is not the type of injury that is related to a specific event or visit, such as a slip with a disc or bur during interproximal reduction that can be attributed to the doctor holding the hand piece. Rather, it is something that occurred over time, such as an improper treatment plan that all doctors signed on to, or undiagnosed periodontal disease or root resorption that occurred under the oversight of the 2 doctors (or however many saw the patient) who were treating this patient. Assuming that there is fault to be allocated, the question is which doctor or doctors are at fault.

Cybak v Powell et al , no. 273399, Macomb Cr. Ct., Mich Ct. App, (2007), has a similar fact pattern. The first dentist was performing multiple posterior mandibular extractions on a patient, and roots were fractured. Another doctor in the office was called in, and they both were helping each other to remove the remaining roots. Their ministrations not only resulted in removing the roots of the teeth in question but also resulted in the patient’s suffering permanent paresthesia.

At the trial, the plaintiff’s expert was asked whether the injury was caused by faulty application of the additional local anesthetic that was required, use of a faulty extraction technique, or both. What follows are the expert’s responses to a number of questions posed. “There could have been one, two, or all three roots that were improperly manipulated and could have caused the injury.”…“[S]ince both doctors had a hand in the socket with instruments in the socket, I would say that it would be impossible to assess a percentage of responsibility.”…“As far as percentages are concerned, I couldn’t guess at that” (referring to whether the block or the manipulations caused the paresthesia)…“There are some things just unknowable about certain things, and one of them is forensic evaluation of dental procedures that result in injuries…because you had multiple procedures and multiple events occurring.” The trial court granted summary judgment in favor of the defendants because “you can’t have a jury guessing and it is not supported by competent evidence to go to the jury.”

On appeal, the plaintiff claimed that the evidence presented was sufficient to create a question of fact to be determined by a jury using the doctrines of alternative liability and concert of action. The definitions of these legal doctrines is as follows. Under the alternative liability theory, the tort was committed by

…independent acts by two or more tortfeasors, all of whom have acted wrongfully, but only one of whom…injured the plaintiff. Rather than deny the innocent plaintiff his recovery because he cannot prove which of the two or more wrongdoers injured him, the courts impose joint liability on all wrongdoers. In cases of alternative liability, a defendant is free to absolve himself of blame and cast the entire burden on his fellows, even if it be shown that he acted wrongfully, but that defendant must bear the burden of proving that his wrongful act was not the cause of plaintiff’s injury. (cit. omit.)

On the other hand, the doctrine of concert of action is defined as “a true joint tort…Even if defendant caused no harm himself, he is liable for the harm caused by his fellows because all acted jointly.” (cit. omit.)

The case law or legal precedent in Michigan that applies to cases of this sort states the following.

It is well established that if two or more persons engage negligently in concerted activity, and as a result plaintiff is injured, all are liable even though only one directly caused the injury. Liability is imposed on all because all have joined in breaching their duty of care to plaintiff, and he was injured as a result of that breach. Under the concert of action theory, a plaintiff need only allege that the defendants were jointly engaged in tortious activity as a result of which the plaintiff was harmed. (cits. omit.)

The decision of the appellate court to remand the case for a new trial noted that the 2 doctors worked together to remove the tooth in question, and plaintiff’s expert testified that both breached the standard of care regarding the surgical techniques used. Therefore, each could have been responsible for the plaintiff’s injury, even though in all probability only 1 of them actually caused the injury. The court noted that “[b]oth dentists worked together to achieve the tooth extraction and both breached their duty of care to plaintiff. And plaintiff was injured as a result of that breach.”

As if that weren’t enough, the court stated that, even if the 2 doctors were not concerted in their treatment, the alternative liability theory could just as easily apply. The court noted that, because both dentists breached the standard of care owed to the plaintiff (poor surgical technique regarding how the anesthesia was given and how the tooth roots were removed), and that breach by both was the cause of the plaintiff’s injury, then, as a matter of public policy, both should be held liable unless 1 of them could prove that the other was in actuality the tortfeasor.


In my risk management lectures, I refer to the alternative liability theory and the concert in action theory as like the 3 Musketeers: you know, all for one, one for all. This case is a variation of one of the first cases that every fledgling law student learns about. Three guys are out hunting, 2 shoot at what they think is their target, and only 1 has the skills to actually hit the target, but it is the third hunter who actually gets shot. The injured person, however, is at a loss to prove who actually hit him and who missed. It’s almost like what happened to Dick Cheney, but that’s another story. At any rate, both shooters are found to be liable, and the burden of proof shifts to them to prove that his shot didn’t deliver the offending bullet.

In contemporary orthodontic practice, it is not unusual to see a variety of group practice makeups. There may be many orthodontists working in the same office and treating the same patients. Some practices have orthodontists working side by side with other orthodontists, oral surgeons, pediatric dentists, and general dentists, all simultaneously or at least concurrently treating the same patients.

One common occurrence is when 1 doctor starts the patient, who then goes off to college and asks whether an orthodontist there can treat her while she is away, and you can treat her when she is home for vacations. Or, maybe the patient is going on an exchange program for 6 months to a year and will need to continue her treatment with another doctor during that time, ultimately returning to your office in the future for the completion of her care. It is an area fraught with the potential for joint liability to be assessed.

Specifically, the clinical scenarios that are ripe for the application of the 2 legal theories discussed in this article are, as mentioned, when 2 or more doctors treat the patient over the course of about 2 years with negative sequelae, as discussed earlier. In addition, there is the scenario in which an oral surgeon and an orthodontist agree on a misdiagnosis or a faulty treatment plan, as well as the potential for a claim of lack of informed consent to be levied against both. When we look at situations involving root resorption and benign periodontal neglect, we might see this occurring in the general practice-orthodontic and pedodontic-orthodontic practices. It’s easy to imagine a number of potential hypothetical clinical situations.

The risk management lesson is to have the foresight to recognize that, when you work with others, depending on the relationship between the parties, coupled with an appropriate clinical situation, the patient has a heightened potential to incur an injury and occasionally cannot point a finger at the person who actually caused the injury. In those situations, the law provides an avenue of redress, which then places the burden on the operator to say “it wasn’t me, it was him.”

If there is a moral to this story, it is probably that the more cooks working at the stove, all of them with their fingers in the pot, the greater the chance that the recipe won’t be followed exactly as it should be, resulting in an unpalatable situation for all.

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Apr 8, 2017 | Posted by in Orthodontics | Comments Off on He did it…No, he did it

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