A reader sent me a copy of an expert opinion letter that he wrote for an insurance company. I thought it was so well written that I want to share it with all of you, because at some time you might be asked to be an expert, and this is how to do it right.
First, here is some background on the case. All the names have been redacted.
The plaintiff underwent adult orthodontic treatment for 3 years, during which she experienced significant alveolar bone loss and root resorption. She claimed that she will lose her 6 mandibular anterior teeth. Our letter writer was acting as an expert for the defense. The basic problems as he saw them were the lack of documented informed consent and the absence of “scout” films taken during treatment. The patient’s medical history was positive for Graves’ disease, for which she was treated with a bone metabolism drug (eg, alendronate sodium or Fosamax); however, she claimed that she was not taking any medications during her orthodontic treatment.
Here is his report. The superscript letters correspond to my remarks in the “Commentary” that follows.
I have thoroughly reviewed the material that was sent to me concerning the above captioned matter. There are a number of salient points related to the merits of this litigation that have bearing on the opportunity to successfully defend this action. This report is based upon a detailed analysis of the orthodontic records sent to me. 1
There is no doubt that adverse or unfavorable changes have occurred during the course of the plaintiff’s orthodontic treatment. Most notably, significant alveolar bone (the bone surrounding the teeth) loss as well as root resorption (decrease in root length of teeth) have occurred in the area of the mandibular (lower) anterior (front) teeth. 2 The degree of these adverse occurrences is very unusual and cannot be attributed to the specific orthodontic mechanotherapy that was employed by the defendant orthodontists. 3
The patient’s medical history was positive for Graves’ disease for which the plaintiff reports being prescribed Fosamax. One of the side effects of this medication is that it has the potential to negatively impact bone metabolism, which of course would be problematic during orthodontic treatment. It is important to discover whether or not she was taking this medication during her active orthodontic treatment. The patient’s deposition indicates that she denies having taken any medication during the course of her orthodontic treatment. I believe it is very important that all medical records from the plaintiff’s attending physicians be obtained and studied to see if she was indeed taking any prescribed pharmacotherapeutic agents to treat her Graves’ disease either immediately before or during the course of her orthodontic therapy. If such was the case, this fact would have a significant mitigating effect upon the alleged culpability of the defendant orthodontists. 4
There are 2 factors that I have concerns about that may preclude the successful defense of this particular action. The first is the lack of an initial “informed consent” document, a document that is universally obtained from all orthodontic patients prior to beginning orthodontic treatment. Such a document clearly states some of the benefits that orthodontic treatment might provide to individual patients (thereby establishing reasonable patient expectations prior to orthodontic treatment) as well as possible adverse effects that may accompany her orthodontic treatment, some of which might be of an “idiopathic” (unknown etiology or cause) nature. 5
Root resorption and alveolar bone loss are fairly common adverse occurrences of adult orthodontic treatment (albeit, these occurrences are usually of little clinical significance), and both findings are sometimes experienced by individual patients even in the absence of undue or poorly applied mechanical force to the dentition via the orthodontic appliances. 6 I did not see an informed consent document in the records provided, and if one exists, it should be produced by the defendant orthodontists. Patients who are not “informed” of potential adverse sequelae to orthodontic treatment (routine or otherwise) cannot give “informed consent” to treatment. The absence of an appropriate informed consent document (and evidence that such a document was read and understood by the patient) remains a major departure from the current acceptable standard of care. 7
The second departure from acceptable orthodontic patient care is the absence of periodic “scout” or monitoring radiographs during orthodontic treatment. These films are intended to detect any possible adverse occurrences such as root resorption of individual or groups of teeth and alveolar bone loss. It is customary to take annual radiographs (either periapical or panoramic) in order to determine if any adverse occurrences have developed. Such a lost opportunity prevents the orthodontist from recommending another course of action to address and manage the clinical issue, and might include abruptly, but appropriately, suspending or ending any further treatment. 8
The aforementioned 2 factors might create an exceedingly difficult position from which to mount a successful defense effort. Unfortunately, the lack of informed consent and the failure to monitor any possible adverse occurrences during treatment are incontrovertible omissions as they relate to the standard of care.
However, with respect to the longevity of the lower front teeth that have been splinted (tethered together by a retaining wire), it is mere speculation as to how long these teeth will remain in the patient’s mouth and be useful either as esthetic and/or functional units. There is no accurate “yardstick” despite the low level of current alveolar bone surrounding these teeth to help predict if these teeth will last 5, 10, 15, or even 20 years in their current position. This unknown factor should have some bearing and mitigating weight on any amount of award or settlement between the parties. In addition, no expert (orthodontist, periodontist, or otherwise) can or should definitively state how long these teeth can remain in the mouth. 9 It should also be noted that the type of splint currently attached to the lower anterior teeth is virtually identical to one these teeth would have received as a usual, customary, and routine retainer used to prevent orthodontic relapse following treatment; this is not an unimportant point. 10 In short, the situation is such that one can only offer mere speculation as to if or when these teeth may be lost during the patient’s lifetime.
Finally, I would suggest another set of periapical radiographs be taken with more precise orientation of the x-ray tube because presently the lower incisors (the ones in question) have been flared forward to the extent that radiographically they give the appearance of being foreshortened leading to an incorrect assessment of the amount of root resorption. In other words, there is a good chance that the resorption looks worse than it actually is. 11
I hope this report is helpful in shedding some additional clarity on what is arguably a complex situation. Please do not hesitate to contact me for any further assessment regarding the plaintiff’s course of treatment or any further discussion you wish to have relative to this report.
As a general rule, I like to list all the records I reviewed in fashioning the report. Although it is not required, at some point you will be asked by the other side’s attorney exactly which records you actually reviewed, so you might as well list them here. Also, he said that he reviewed all the records the attorney sent, but there might be other records that the attorney either didn’t have or didn’t send, so the expert’s opinion could change if new or other records are subsequently discovered.
I like the way he decoded dentalese into English. He got everyone who reads this on the same page as far as understanding what we are talking about.
Right up front, he said that what occurred is unusual and not necessarily related to the mechanotherapy used. He did not say that it didn’t happen but laid the groundwork for a defensive interpretation of the negative sequelae.
In 1 paragraph, he stated the following: (1) the medical history is an important part of treating an orthodontic patient; (2) the defendants took a history, got a positive finding, and noted the patient’s pharmacotherapeutic regimen; (3) this medication can have effects on patients and on the orthodontic treatment; (4) he advised counsel to obtain the patient’s medical records because they might be helpful in the defense of this action; and (5) he mentioned how this information will be helpful.
He was clear and concise regarding the role that informed consent will play and again solidifies the posture that these negative sequelae can occur absent negligent treatment.
He defined the 2 negative sequelae in question and reiterated that: (1) he saw nothing in the treatment records to indicate that the mechanics used caused these concerns; (2) these sequelae often occur, but they are usually minor; and (3) these sequelae can happen idiopathically.
When you have to admit something, admit it. Okay, the informed consent document wasn’t among the records, but that doesn’t mean it doesn’t exist. He said that if it exists it will help the argument that the patient was aware that these things can happen not only from the rendering of negligent treatment, but also “just because.” Finally, when you have to admit something negative, admit it; if you don’t, you look like an idiot trying to defend an indefensible position, and your credibility, especially during trial, suffers.
Once again, if there is a weakness in the case, state what it is and how little or big of a departure it is. Here the writer described why it was important and the different manners in which the findings could have been addressed.
Here the writer debunked the plaintiff’s claim regarding the longevity of her mandibular anterior teeth. It is well stated and factual. Basically, he said that if any plaintiff’s expert says with authority how long those teeth will last, he should be viewed as a quack. This is good because the defendant’s attorney must know how strong a position he can assume regarding the longevity issue, an issue that goes to the heart of one of the claims for damages.
Here the writer minimized the remedial treatment that the plaintiff claimed she had to undergo to treat the longevity issue. The fact that lower 3-3 fixed retainers are commonly placed for years posttreatment goes to the heart of the issue by saying that the mandibular lingual splint wasn’t necessary solely because of the poor crown-to-root ratio, since the same splint would have been used as part and parcel of retaining the orthodontic result. When you can, deny. When you can’t, minimize.
Finally, the expert should provide avenues to discover helpful information for the defense. He basically said that we don’t really know how short the roots are and what the actual crown-to-root ratio is unless we have a properly calibrated periapical film. I have seen claims stating that there was massive root resorption, only to take a better-angulated film and discover that, sure, there is some resorption but nowhere near what was being claimed.
This is serious business. The attorneys for both sides count on their experts to give them education and direction, and to explain the nuances associated with each aspect of the suit. Good experts point out strengths and weaknesses, and help with plans of attack and defensive strategies. If you are on the plaintiff’s side, an injured person is depending on you. If you are on the defendant’s side, a worried colleague is counting on your support. Being an expert is not the place for the timid or the meek. You are an advocate. How you advocate will determine how professional you are, and how professional you are will determine whether the jury believes you.
Finally, there are some really good lawyers out there. They care about their clients, they care about rights and wrongs, and they care about being professional in their own field. There are also some slugs out there, same as in any profession. At some point, if you happen to get hooked up with one of them, you might be asked to say something you really are not comfortable saying. When that day comes—and if you do enough of this stuff, it will—don’t get sucked into deceiving yourself and others. Do the right thing. Tell the attorney that you are not comfortable saying what he wants you to say. Tell him that you can say blah, blah, blah, but you can’t say yada, yada, yada, and be sure to tell him why. Sometimes this type of discussion leads to looking at the issue from a totally different perspective, resulting in a position that you will feel more comfortable taking. Just remember where the line in the sand is.
Being involved as an expert will give you an opportunity to look at yourself in the mirror and find out exactly who you are and what type of professional person you have become. I can tell you that taking the high road is a great way to feel good about yourself and the role you play in your profession regardless of the side you are advocating for.