© Springer International Publishing Switzerland 2015
Sanjivan Kandasamy, Charles S. Greene, Donald J. Rinchuse and John W. Stockstill (eds.)TMD and Orthodontics10.1007/978-3-319-19782-1_10
10. TMD and Its Medicolegal Considerations in Contemporary Orthodontic Practice
Department of Dental Medicine, Division of Orthodontics, NYU-Lutheran Medical Center, 5800 3rd Ave, Brooklyn, NY 11220, USA
Department of Orthodontics, School of Dentistry, University of Western Australia, Nedlands, WA, Australia
Centre for Advanced Dental Education, Saint Louis University, Saint Louis, MO, USA
Private Practice, Midland, WA, Australia
University and Instruction, Padova, Italy
Department of Maxillofacial Surgery, University of Padova, Padova, Italy
10.1 The Standard of Care
The diagnosis and management of patients exhibiting temporomandibular disorders (TMD) in the orthodontic setting is fraught with great debate, confusion, diverse opinions, and philosophies. Because TMD has a multifactorial etiology and is layered in nature, it currently is viewed as reflecting more of a medical and psychosocial model regarding its diagnosis and subsequent management. As such, it is critical that orthodontists understand their limitations, the need for adequate training in this continually evolving area, and the need for thorough and well-documented records [1, 2].
Given these caveats and concerns one must first ask, are there medicolegal considerations specific to the diagnosis and treatment of TMD associated with the practice of orthodontics? The simple answer is no; the medicolegal considerations are the same across the board in all of the healing arts. However, from a risk management perspective, one of the first concerns is addressing the elements that a potential plaintiff needs to prove for an orthodontist to be found liable regarding any treatment he or she has rendered. Those elements are that there was a duty to conform to a given standard of care and that the breach of this duty was the direct or proximate cause of any injury suffered.
It is only through the existence of a doctor-patient relationship that orthodontists are required to conform to a certain standard of care; which will vary slightly throughout the world. This “conformance” is the duty to which we are held. Three elements comprise this duty. First, regardless of the general or specialty area of dentistry in which you practice, you are bound to possess the degree of SKEE (skill, knowledge, education, and expertise) as is possessed by the average practitioner in good standing, within the same area of practice, acting under the same or similar circumstances. Second, you must exercise this degree of SKEE in a reasonable manner. Third, you must use your best judgment as you go about administering the care you render to a patient.
At this point, a certain distinction needs to be made. A plaintiff can initiate a lawsuit against you based on your failing to conform to a given standard of care as described above; but it is here that one must be aware that a suit can also be filed claiming that the practitioner did not obtain adequate informed consent even though the care itself may have been adequate. In other words, there are different legally recognized “causes of action” to which a practitioner may become exposed. You can be sued for one or the other or both. The standard of care is the same. Did you divulge whatever information was required in order for the patient to adequately grant you their informed consent to proceed with whatever treatment you are proposing to render. This is discussed in detail further on in this chapter.
10.2 Defining the Duty of Care
10.2.1 Ascertaining the Patient’s Chief Complaint
In the practice of orthodontics, including the treatment of any signs or symptoms of TMD, one of the more common breaches of the duty that we owe our patients is not conducting an adequate comprehensive examination. Whenever we see a new patient, the first thing we need to do after we introduce ourselves is to ask the patient “What can I do for you?” “How can I help you?” “Why are you here?” What you are attempting to do is to elicit the patient’s chief complaint. This is the first step in conducting a comprehensive examination of the patient. You may find out that one of the patient’s chief complaints does or does not include symptoms that may relate to TMD. Attempting to elicit not only what the patient’s concerns are but also integrating this information with your impressions is important because it will guide you to have to make the first in a number of decisions, that being whether or not you want to treat this patient’s particular problem.
The standard of care requires that you MANAGE every patient appropriately. You are not obligated to treat every patient that enters your office nor are you required to treat every type of clinical problem. If you are comfortable treating patients presenting with TMD, fine; if you are not, the standard of care requires that you must either refuse to treat the patient or you can offer a referral to someone else who has more SKEE in this particular area. Referral is an appropriate way to manage a particular problem.
As the title of this chapter relates to TMD in the orthodontic patient, let us develop a hypothetical patient. She is in her early 30s, single, and employed in a middle management position. Her chief complaints are that she does not like the crowding of her upper and lower anterior teeth, nor the look of her smile, and she states that her jaw sometimes clicks on opening which she finds annoying at times. Assuming that you believe you possess the requisite SKEE in both orthodontics and TMD to treat the patient, what is next?
10.3 The Comprehensive Clinical Examination
10.3.1 The Patient’s Medical, Dental, and Social History
As with any examination, the critical risk management concerns are twofold. First, that the exam was appropriately conducted given the totality of the circumstances attached to any particular patient; and second, and of equal importance, is that the results of your examination were adequately documented. All findings, both positive and negative, need to be documented. This is a cardinal risk management principle. If a finding is negative, meaning it was not found to be present, then that negative finding is what needs to be documented. If the negative finding is not documented as such, it will not be presumed that the lack of documentation was because the finding was negative; rather it will be presumed that that part of the exam was not performed.
The first step after obtaining the patient’s chief complaint is to perform a comprehensive clinical examination and the first part of this activity involves obtaining adequate prior medical, dental, and social histories. This may or may not provide you with any information that impacts on your diagnosis and treatment of any given patient but one thing is certain, if you do not obtain this information, you will never know whether or not it was important. As there are numerous medical and psychological factors that can relate to treating an orthodontic patient who also happens to present with TMD symptomatology, not obtaining an adequate history is a breach of the standard of care owed to every patient.
The past dental history may also elicit relevant information such as whether or not the patient has undergone prior orthodontic treatment and if so what treatment was performed. In addition, you would want to know whether the TMD sign or symptom is acute or long standing as this may have some bearing on how you will manage a particular problem. Again, obtaining this information certainly falls within the standard of care.
A comprehensive clinical exam also includes a social history that encompasses looking into any habits or lifestyle activities that may relate to both the etiology of the malocclusion and the TMD symptomatology presented. In a TMD patient, a social history could also include the possibility of referring the patient for psychological assessment depending upon the circumstances of the patient’s presentation.
These three aspects, medical, dental, and social, of a patient’s history should not be ignored as they are core elements of formulating a differential diagnosis and an appropriate treatment plan for every patient. It relates to what we were taught at the beginning of our dental education – never treat a stranger.
10.3.2 The Examination
The remainder of the clinical exam consists of a functional and extra oral examination, and an intraoral examination of the patient’s hard and soft tissues, and a radiologic examination. This is discussed in more detail in Chapter Three.
The functional examination is just that, an examination of the functional status of a soon to be orthodontic patient. Function includes an evaluation of the joints and an evaluation of the occlusion both static and dynamic.