The October issue of the Journal had much to say about establishing standards of care. (Riolo ML, Vaden JL. Standard of care: why is it necessary? Am J Orthod Dentofacial Orthop 2009;136:494-6; Vaden JL, Riolo ML. How can the specialty establish a standard of care? Am J Orthod Dentofacial Orthop 2009;136:497-500; Turpin DL. Improve care with clinical practice guidelines. Am J Orthod Dentofacial Orthop 2009;136:475-6). The phrase “standard of care” is statutory language in all states under torts and negligence. A typical definition is “the prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

The standard of care in any legal case at this time is neither dictated by a professional association consensus, specialty board, or dental society, nor, for instance, in a case involving orthodontics, does it arise from a learned treatise couched under “evidence-based” treatment. However, in our adversarial system, these opinion statements might be admissible for use by the expert witness for either side.

Perhaps the best working description of this legal concept is “in legal practice, duty, breach and causation are united as standard of care and incorporated into statutory language and judicial holdings . . . and defined by summary peer review of the defendant . . . by an expert chosen for medical not legal experience. No surprise that standards of care vary from case to case. Most experts set breach at unacceptable practice, a floor….. educators set aspirational standards, a ceiling. Difficulties arise when breach is equated with deviation from a norm. Then questions arise.…. How much deviation?….. says who?

How many millimeters of crowding added to what measures of lip fullness and incisor inclination does it take to pass or fail an orthodontic treatment plan standard of care for choosing extraction or nonextraction? And when should posttreatment measurements for standard of care evaluation be made—at appliance removal or 3.5 years later?

Writing for the Ocular Surgery News years ago, Harry Shorstein, an active litigation attorney, observed that the primary impetus for increasing malpractice actions in ophthalmology is an internal struggle in the specialty about conservative vs progressive treatment, and jealousy against high-volume, high-profile practitioners. Does that sound familiar?

It is hard enough to control all the variables necessary in clinical orthodontic research to be able to qualify the results as evidence based, or best practice, or quality of care, or clinical practice guidelines. These terms or the like are proper for characterizing findings. It is improper to make an inference that a legal standard is being set. Good intentions aside, the orthodontic establishment must make certain that this phrase is not misused. Be careful when jumping into someone else’s playground.