Limits to the standard of care

Who determines the standard of care to which we are held? Some would say that dental schools or orthodontic programs do; they don’t—they are merely exemplary. Others might say that it is our dental societies or governing organizations; they don’t, either. They do provide some guidance in some situations, such as our Parameters of Care, but, as to defining the standards of care, not really. Still others would respond that legislatures set the standard of care. Well, they do insofar as statutory considerations are concerned, but that’s not what we are really interested in. In reality, the standard of care is determined in great part by the nonpersons we know as expert witnesses. You know, these are the people who come into our courtrooms and swear to tell the truth, the whole truth, and nothing but the truth. What is it they actually do? First, they interpret “dentalese” into English for the benefit of the trier of fact (the jury). Second, they state what they believe the standard of care is in the community in question. Third, they provide an opinion about whether that standard was breached and, if so, by whom. Next, they provide details of what the injuries were or were not. Finally, their perseveration results in an opinion as to whether the breaching of what the standard of care happens to be was the actual cause of the injury suffered. Yep, that’s what experts do so that the jury can do what it has to do.

So, if the experts determine what the standard of care is, what would happen if they all got together and determined a high threshold for breaching it? To put it another way, suppose the standard of care were set so low that it would take an awful lot to breach it. Come to think of it, that is the type of tort reform that would really cut down on malpractice suits. Too bad that the courts won’t let us get away with that. This long lead-in is what Helling v Carey, 519 P.2d 981 (1974), was all about. This case, going on 40 years old, is still as good a piece of law today as it was back then.

The facts are simple. The plaintiff went to an ophthalmologist complaining of vision problems. The defendant-doctor prescribed contact lenses. The plaintiff then saw the defendant 10 times over a 5-year period for follow-up visits because her vision was not right. The defendant attributed all of her visits to problems associated with the contact lenses. Finally, he tested the plaintiff’s eye pressure and field of vision for the first time and discovered that she had glaucoma. She had essentially lost her peripheral vision, and her central vision was reduced to approximately 5° vertically by 10° horizontally. Essentially, she was seeing out of a small tube; she was 32 years old. As a quick review, open-angle glaucoma is a condition in which there is an interference in the ease with which the nourishing fluids can flow out of the eye. This results in pressure gradually rising above the normal level to such an extent that damage is produced to the optic nerve with a resulting loss in vision. The first symptom is usually loss of peripheral vision. The disease has few symptoms and, unless a pressure test is performed, is often undetected until the damage has become extensive and irreversible.

Now it starts to get interesting. During the trial, the experts for both the plaintiff and the defense testified that glaucoma tests are not usually performed on patients under the age of 40 because this group almost never develops this disease. The bottom line was that the standard of care was not to test for glaucoma in patients in their 20s, as the plaintiff was when she was seeing the defendant. The result was that the trial court found in favor of the defendant. Naturally, the verdict was appealed, and the appellate court affirmed the lower court’s ruling. The case finally found its way to the Washington Supreme Court. The plaintiff contended in her appeal that the standard of care for the specialty of ophthalmology was inadequate to protect her from the incidence of glaucoma (1 in 25,000), and that the defendant was negligent by failing to give the plaintiff a pressure test that would have discovered the disease earlier, so that it could have been treated, and her vision would not have been compromised.

The Supreme Court, noting the uniqueness of the case, summed up the legal question this way. This was not a case of whether the defendant had any greater special ability, knowledge, or information that would require him to comply with a higher duty of care than that “degree of care and skill which is expected of the average practitioner in the class to which he belongs, acting in the same or similar circumstances.” The issue was whether the defendant’s compliance with the standard of the profession, not requiring a routine pressure test to persons under the age of 40, was adequate to insulate him from liability for negligence merely because the risk of glaucoma is so rare in this age group.

The court noted that, although the incidence of glaucoma is only 1 in 25,000 for persons under the age of 40, it seems quite minimal. However, that 1 person is entitled to the same protection that patients over the age of 40 get: essentially, the detection of glaucoma in a timely enough manner to be able to arrest this grave and devastating result of the disease. The test is simple to perform, relatively inexpensive, and harmless; there is no judgment factor involved, and there is no doubt that the test can detect the evidence of glaucoma. The court then quoted 2 of the most famous US Supreme Court justices. The first, Oliver Wendell Holmes, stated: “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” This was followed by a quote from Judge Learned Hand, who wrote: “(I)n most cases reasonable prudence is in fact common prudence; . . . a whole calling may have unduly lagged in the adoption of new and available devices. . . . Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission” (cits. omit.).

The court in our case, reversing the lower court’s rulings, summed it up this way. “[G]iven the facts of this case reasonable prudence required the timely giving of the pressure test to this plaintiff. The precaution of giving this test to detect the incidence of glaucoma to patients under 40 years of age is so imperative that irrespective of its disregard by the standards of the ophthalmology profession, it is the duty of the courts to say what is required to protect patients under 40 from the damaging results of glaucoma.”

Commentary

In this case, the court determined that it was inappropriate for the fox to guard the henhouse. From a risk-management perspective, how can we analogize this case to orthodontics? I can think of at least 2 ways. First, what is our current standard of care regarding the routine taking and charting of probing depths on our patients? I don’t think we have one. Some would argue that we should do a perio probe screening on all adult patients before we start treatment. Okay, what is an adult? Over age 18? Over 30? So, if we don’t have a standard of care on this issue, how can an orthodontist be found liable if a plaintiff argues that we breached it?

Second, do we have a standard of care regarding the taking of a screening film at some time after treatment has started to check for root resorption? If it is found, at what intervals should future films be taken? Again, I don’t think a definitive standard exists. I know many who advocate that a routine scout film should be taken about 9 months, give or take a few, into treatment, but is this recommendation a definitive standard of care? If we don’t have a standard of care on this issue, how can an orthodontist be found liable if a plaintiff argues that we breached it?

Although it is not exactly the same as the Helling case because there is no articulated standard, it is essentially the same thing. Would a court allow us to have either no standard of care or one that sets the threshold so high that we could never be found to have breached it? I don’t think so. Let’s just follow the court’s logic. In the first scenario, a perio probe is cheap, and a screening is simple, easy, and noninvasive; look at what can be prevented by performing these procedures. In our second scenario, a scout film is simple, easy to acquire, relatively inexpensive, and minimally invasive; once again, look at what can be prevented with this procedure.

So, what is the bottom line here? Purely from a risk-management perspective, we need to start thinking about the risk-benefit analysis, both to our patients and to ourselves, about performing certain procedures in light of the well-established and adopted thinking espoused by the Helling case. Not only does it make good sense, but it also makes for good practice. If we are unwilling to either take matters in to our own hands or address this professionally, we can always wait for the courts to do it for us.

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Apr 11, 2017 | Posted by in Orthodontics | Comments Off on Limits to the standard of care
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