Our responsibility to obtain informed consent for another doctor’s treatment is the subject of Jing v Karpov , 2008 NY Slip Op 52107(U) [21 Misc 3d 1120(A)]. The facts show that at the initial visit, the defendant orthodontist acquired diagnostic records, discussed the treatment plan with the patient, and then placed separators. The patient returned a week later at which time bands, brackets, and archwires were placed (the first premolars were left unbracketed for extraction). At this appointment, the patient, soon to be the plaintiff, was also given an informed consent form to sign. This form stated that some patients might require the extraction of some deciduous or permanent teeth, and that the risks associated with this procedure should be discussed with the doctor who renders it. Also, in the notes section of the form was an entry stating that extraction therapy was discussed to correct the patient’s crowding and open bite. The orthodontist, soon to become the defendant, referred the patient to a periodontist for extraction of the 4 first premolars.
The orthodontist had previously referred 4 or 5 patients to this periodontist for extractions without incident. The periodontist had a consultation visit with the plaintiff on the same day that the braces were placed and, 1 week later, removed both first premolars on the right side with piezoelectric equipment to effect the extractions. At a follow-up phone call 2 days later, the patient stated that the pain from the extractions was slowly dissipating. A week later, the 2 left first premolars were removed with the same technique, and the sutures were removed from the right side. A week after that, the sutures on the left side were removed, and the periodontist’s notes indicate that the extraction sites were healing well. At the last follow-up visit a week later, the patient stated that the maxillary left extraction site felt “weird,” although she had no pain. The periodontist irrigated the socket site after finding food trapped in it; the other sites looked fine. The periodontist noted that the patient had not followed instructions regarding postoperative brushing and soft-diet recommendations.
A few weeks later, the plaintiff returned to the defendant for a routine orthodontic adjustment visit; while there, she complained of pain in the lower left side of her mouth. The defendant orthodontist examined the area and determined that the plaintiff had exposed bone in both the maxillary and mandibular extractions sites. She also discovered active inflammation at the maxillary right extraction site. At the mandibular right extraction site, she found what appeared to be a sharp bony edge subgingivally. Upon finishing the orthodontic adjustments, the plaintiff was referred to an oral surgeon.
The oral surgeon diagnosed dry sockets in 3 of the 4 sites, noting significant amounts of necrotic bone, a significant loss of bone in the area of the extraction sites, and purulent exudate. The surgeon performed a corrective alveoloplasty and explained to the plaintiff that bone grafting might be necessary in the future.
When the patient returned to the defendant orthodontist for her next visit, passive coils were placed to allow for limited tooth movement into the extraction sites until more healing had occurred. The defendant then discussed several treatment options with the plaintiff, all of which depended on the healed result. A month later, the plaintiff underwent a bone grafting procedure performed by the oral surgeon. Another routine orthodontic adjustment visit followed. The plaintiff missed her next orthodontic adjustment visit and notified the defendant’s office that she would seek to continue her orthodontic treatment elsewhere.
Subsequently, at her deposition, the plaintiff testified that as far as her injuries were concerned, her mouth smelled like a “dead fish,” she had lost her appetite, she could not eat solid food, she was burned out from having to see different doctors every week, she missed a lot of work, and she suffered from depression because of all the bone loss and what she would have to go through to correct everything.
The new orthodontist ordered a CAT scan and subsequently told the patient that treatment would take another 3 years and that if the teeth were moved slowly enough, the extraction spaces could probably be closed, but she still might need more grafting after her orthodontic treatment was completed.
The plaintiff brought suit against the orthodontist, alleging negligence because she did not note the original root structure of her teeth; if she had done so, she should have referred the plaintiff to an oral surgeon for the extractions rather than a periodontist; the selection of the periodontist for the extractions was a negligent referral because the orthodontist should have known that the periodontist was unqualified; also, the orthodontist ordered the wrong teeth extracted, since second premolars instead of first premolars had less risk of injury. Finally, because she, the plaintiff, had not been offered the alternative of another viable extraction pattern, the orthodontist failed to obtain the plaintiff’s informed consent.
In its holding, the court was clear that the mere referral of a patient, without more, does not render the referring doctor liable for the negligent acts of the referred-to doctor. The treating doctor is solely responsible for the treatment he or she renders. This is true even though the surgery in question was recommended by the defendant, and the plaintiff returned to the defendant for follow-up treatments after the negligent acts committed by the referred-to doctor. If the defendant had known that the periodontist had used the piezoelectric equipment only a few times, or if the defendant had had more input into the method of the extraction technique used, the court might have held differently.
As to the informed-consent issue, the consent form was read and signed by the patient, even though this was done at the same appointment when the braces were placed. The court noted that legal precedent has established that “[a] referring physician is not required to disclose the material facts, risks, benefits, and alternatives to a procedure performed by another physician to which the patient was referred; rather, it is the obligation of the subsequent treater to obtain the consent. [The law] places the duty of obtaining informed consent on the individual who provides the professional treatment.” The court granted summary judgment to the defendant and dismissed all claims against her.
The reality of a claim for making a negligent referral is that liability will not hold against the referring doctor unless any of the following elements are met. The first is that the referring doctor knew or should have known that the referred-to doctor was incompetent or impaired. Incompetency has to do with lack of SKEEE (skill, knowledge, education, experience, expertise, and so on). In other words, was the doctor educationally qualified to render the treatment in question or was his or her ability to perform the procedures compromised or limited? In this situation, there was no way that the orthodontist knew that the periodontist was using piezoelectric equipment as part of the extraction mechanotherapeutics; even if she had known, it would be negligence only if she knew of the periodontist’s inexperience with the technique. As for impairment, if the referring doctor knows or should have reasonably known that the referred-to doctor has a problem with, for example, alcohol or drugs, or if the doctor has other physical or mental limitations that impair his or her ability to function than under those conditions, one might be able to show that a negligent referral was made.
Other factors that have been found to impute liability for negligent referrals are the degree of control or input of the referring doctor regarding the procedure to be performed by the referred-to doctor. Contrast the following statements: “please perform free gingival graft on tooth 24” vs “please evaluate tooth 24.” The first statement specifies a certain procedure to be performed. The second asks for an evaluation and a recommendation. When possible, couch your referral in terms of a consultation instead of dictating a specific procedure to be performed. It is a subtle but meaningful distinction. I know, we’re orthodontists. I’m not going to ask the general dentist or surgeon to evaluate the 4 first premolars for extraction. We all will specify the procedure in that situation. However, it could very well be different when dealing with third molars.
I know orthodontists who, when dealing with an orthognathic case, will work it up, obtain a differential diagnosis, determine and recommend the type of surgery to be performed, and specify how much and in what direction each jaw is to be moved. I’m not going to make a judgment as to whether they are qualified to do so. I will state that doing this is risky from a risk-management perspective. Along these same lines, you don’t want to go into the operating room and help to place the stent if one is used, or help with fixation of the archwires or bars. As my wife would say, it’s just not necessary.
I suppose that’s why they call it risk management. The issue really comes down to how one wants to manage the various risks associated with the procedures we perform, including referrals and recommendations. It also includes the degree of control or participation we maintain in the ministrations of others. In short, you want to keep as much of an arms-length relationship as possible. We get into enough trouble speaking on our own behalf; there is no need to do so for others.