Separate but equal

“One way or another, I’m gonna find ya, I’m gonna getcha getcha getcha getcha…” So begins Debbie Harry’s hit song “One way or another.” It started me thinking about the different causes of action we face as orthodontic practitioners. What are the different ways we can be placed in legal jeopardy? One way is to commit a criminal act such as insurance fraud or sexual assault. Another way might be to engage in administrative failures: not following the rules and regulations promulgated by our respective state boards of dentistry or state statutes pertaining to health care providers. Finally, there are many civil acts such as slander or libel, medical malpractice, premises liability, and so on. You might think that the most common tort that potentially exposes us to liability is medical (dental) malpractice; if that is true, then a really close second is lack of informed consent. When one is studying the law, one is told that assault and battery go together hand in hand. In reality, so it is with medical malpractice (practicing beneath an accepted standard of care) and lack of informed consent—they too go hand in hand. So usually, when we are sued, the plaintiff claims both negligent treatment and lack of informed consent. That way, they hope that one way or another, they can getcha, getcha, getcha.

However, one needs to appreciate that these 2 causes of action, legal theories upon which you can be sued, are totally separate but equally dangerous. You can have practiced well within the standard of care and still be found liable for not having obtained a patient’s informed consent. Conversely, you can have obtained the patient’s informed consent but still be found liable for having breached a given standard of care that resulted in an injury. This is what Brady v Urbas , 80 A.3d 480 (Pa Superior Ct, 2013), is all about.

The facts of this case are straightforward. The plaintiff had a podiatric condition regarding her left foot that was successfully treated by the defendant in 2007. A year later, she sought treatment for a different condition concerning a toe on her right foot. The defendant performed surgery that was unsuccessful. Surgery was reperformed 10, 16, and 22 months later, but all of these interventions were also unsuccessful. The plaintiff sued, claiming that the surgeries were negligently performed, and as a result she was left in extreme and constant pain. During the discovery phase of the litigation, at the defendant’s deposition of the plaintiff, he questioned her regarding whether she had been informed about the risks of the surgery, whether she gave her informed consent to the procedures in question, and so on.

Before the trial, the plaintiff made a motion to preclude the defendant from delving into the entire issue of informed consent. The motion went something like this. Since I am only suing the doctor for rendering negligent treatment that fell below the standard of care, anything he may have discussed with me relative to the risks of surgery is not relevant as to whether he did or did not deviate from the standard of care. In addition, any evidence regarding my knowledge of the possible risks of surgery or negative consequences resulting therefrom are not defenses to claims of professional negligence and thus should not be allowed to be delved into because the probative value of any such testimony is outweighed by the danger of unduly prejudicing the jury through presenting misleading or confusing issues and facts.

The defendant doctor responded something along these lines. Look, I’m not presenting the informed-consent evidence to prove that I practiced within the standard of care. I’m offering it to show that she was aware of the risks, alternatives, and potential complications because they go directly to her credibility as a witness and to show her state of mind at the time of the surgeries. Also, my discussions with the plaintiff about the risks, alternatives, or complications related to the surgeries aren’t prejudicial at all because the mere fact that the surgery was unsuccessful is not evidence that malpractice occurred. My informed consent discussions with her about the risks of pain, swelling, recurrence, nerve damage, or permanent deformities, and her acknowledgment of such, once again go to prove her credibility, an area that I am allowed to explore.

Not only was the plaintiff’s motion to preclude the informed-consent evidence denied, but also at the conclusion of the trial, when the jury members went to deliberate, they were given copies of the informed consent forms signed by the plaintiff. It should not come as a surprise that the jury found for the defendant and that the plaintiff appealed the verdict. The issue on appeal was essentially whether the court erred by allowing introduction of the informed consent-related material in a case founded solely on a theory of negligent treatment.

Upon reviewing the entire trial record, the appellate court noted that the trial court found the consent forms to be relevant. The trial court’s reasoning was that all risks and complications associated with any treatment rendered must be relevant in determining whether there was negligence regarding the treatment. In addition, the probative value of such evidence far outweighs any potential prejudice that might be construed. The appellate court disagreed with both of these findings in its decision by first stating the rule of evidence governing relevancy.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.…Although relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (cit. omit)

The court quoted from a case decided in another jurisdiction, noting that whereas that decision was not binding, it could not help but be influenced by the following:

The plaintiff’s awareness of the general risks of surgery is not a defense available to the defendant physician against the claim of a deviation from the standard of care. While the plaintiff or any other patient may consent to risks, she does not consent to negligence. Knowledge by the trier of fact of informed consent to risk, where lack of informed consent is not an issue, does not help the plaintiff prove negligence. Nor does it help the defendant show he was not negligent. In such a case, the admission of evidence concerning a plaintiff’s consent could only serve to confuse the jury because the jury could conclude, contrary to the law and the evidence, that consent to the surgery was tantamount to consent to the injury which resulted from that surgery. In effect, the jury could conclude that consent amounted to a waiver, which is plainly wrong. (cit. omit)

In a medical malpractice action, the plaintiff must prove that (1) there was a duty on the part of the practitioner to adhere to a given standard of care, (2) the treatment rendered breached that standard of care, (3) the breach of the duty was the direct and proximate cause of (4) the injuries sustained as a result of the breach. The appellate court noted that the plaintiff’s

consent to her surgeries and knowledge of the risks associated with those surgeries ha[s] no tendency to make the existence of any fact of consequence to the determination of this action more or less probable than it would be without this evidence. In other words, evidence of informed consent is irrelevant in a medical malpractice case. Moreover, assuming arguendo that such evidence had some marginal relevance in this case, the evidence clearly could have misled or confused the jury by leading it to believe that [the plaintiff’s] injuries simply were a risk of the surgeries and that she accepted such risks, regardless of whether [the defendant’s] negligence caused the risks to occur.

Put another way, the court said that although the plaintiff signed informed consent forms relating to the potential risks, consequences, and limitations related to the surgery, she never signed a consent form that would allow the defendant to render negligent treatment. The court concluded that the evidence of the plaintiff’s informed consent regarding the surgeries was inadmissible because of lack of relevancy and therefore was an abuse of discretion by the trial court. In addition, the appellate court found that the trial court should not have given the jury copies of the informed consent form because it was misleading, confusing, and unfairly prejudicial. The verdict of the trial court was overturned, and the case was remanded for a new trial.


So, a new patient has some mild maxillary and mandibular crowding and a significant overjet with palatal impingement in the incisive papilla area by the mandibular anterior teeth but no clinical evidence of periodontal compromise. All the patient wants corrected is the maxillary and mandibular anterior alignment. He doesn’t care about his “overbite” (overjet), and he doesn’t care about the deepbite (overbite). All he wants is straight teeth. Six months, in and out—brackets, aligners, whatever.

The current philosophy espoused by many of us is to give patients what they want. Right, wrong, who knows, who cares; and to top it off, it doesn’t matter. Why? Because the patient can be informed of the potential negative sequelae concerning the conditions you are not going to address. Patients don’t have to treat every malady they have. It’s their body. We can educate them, inform them, cajole them, implore them, tell them in no uncertain terms that we believe it is in their best interest to yada, yada, yada, but ultimately the choice is theirs.

Contrast the above scenario with the following. The patient has simple maxillary and mandibular crowding, a Class I mutilated malocclusion with a few missing posterior teeth, some loss of vertical dimension, and obvious signs of active periodontal disease. He only wants straight teeth. He doesn’t care about space redistribution for eventual prosthetic replacement. He doesn’t care about regaining the vertical dimension, he doesn’t care about the periodontal disease, he only wants the social 6 to look nice. Treating this case is negligence. Why? Because the evidence is clear that the initiation of orthodontics in a patient with active periodontal disease will significantly worsen his already compromised periodontal condition. Although patients can consent to assume the risks that certain things may happen, they cannot consent to allow the doctor to practice below the standard of care and injure them in the process. We don’t allow that as a matter of public policy. As the court said, to allow a patient to consent to the provision of negligent treatment is just plain wrong.

The bottom line is that there is a fine line between only correcting some things and allowing others to remain as they are when there is little potential for negative sequelae to result, vs only correcting some things to the almost certain detriment of the patient by practicing beneath the standard of care. Sometimes the line is not only fine, but also blurry. What is a doctor to do?

When we talk about informed consent, we are really talking about patient autonomy: the concept that a competent patient has a right to decide what will and what will not be done to his or her body. Fair enough. Many practitioners out there believe that this puts them between a rock and a hard place. This needn’t be the case. For all the autonomy that our patients have, guess what, we have the same thing. It’s called practitioner autonomy. No one puts a gun to your head and says, you must provide X, Y, and Z treatment. You are free to accept or reject the patient’s preferences. If you are uncomfortable with doing partial treatment, if you don’t think it’s the right thing to do, if you don’t believe that it is at worst neutral, don’t do it . It’s really that simple.

It comes down to what level and in what way you want to manage the risk presented. We all have different risk tolerances. Some of us can’t imagine doing whatever, but others think nothing of it. We have different professional perspectives, we have different value systems, we have different degrees of ethics and morality, we each face risks differently, and we care differently; that is the way it is. There is, however, a commonality to the bottom line, or at least there should be. We don’t knowingly cause our patients harm. If we unknowingly do it, it’s negligence. If we knowingly do it, it’s wonton and willful indifference or misconduct.

Our patients too have different risk tolerances. Some of them have no problem embracing risky surgical procedures because in their minds the benefits to be obtained far outweigh any associated risks. Others eschew even the slightest risk with vehement passion, believing that whatever potential negatives exist, they will surely happen to them. For those who say “okay Doc, let’s do it; I understand what can go wrong, and I’m cool with the potential downside,” they have knowingly assumed the risks at hand, and they have given their informed consent. The only thing they ask, they demand, they rightfully deserve, is that you do what you are supposed to do in a manner and at a level that falls within a given standard of professional care. They are not consenting to allow you to do your job poorly.

Informed consent vs negligence, separate but equal, one way or another.

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Apr 6, 2017 | Posted by in Orthodontics | Comments Off on Separate but equal
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