To understand Axelrad v Jackson, 142 S.W. 3d 418 (Tex.App.) 2004 , one first must understand the doctrine of comparative negligence. This doctrine began as contributory negligence: if a plaintiff contributed in any way to his or her injury or demise, the plaintiff was barred from bringing suit against the defendant, since his or her own action or inaction contributed to the detriment. Over time, this was perceived as a little too draconian for many jurisdictions. This was because a doctor could be found to be 99% at fault with the patient only 1% contributorily negligent, and then the patient would be barred from recovery. Over time, most jurisdictions switched to some form of comparative negligence. In this scenario, the degree of negligence on the defendant’s part is compared with the degree of negligence on the plaintiff’s part, and any award is proportionately reduced. There are many variations and thresholds among the various states, but what is important for the rank and file practitioner to know is simple. You want to do everything in your power to document every instance of noncompliance so that if you are ever found to be liable for having committed malpractice in a comparative-negligence state, you will lose less. This is important if the jury awards the plaintiff $1.2 million and you have $1 million in coverage. Lucky you, you get to write a personal check for $200 grand. However, if the jury found that the plaintiff was 20% contributorily negligent, that $1.2 million award is reduced by $240,000, so the total award is now $960,000 and within your policy limits. Now that we are on the same page, on to our case.
The case addressed many issues, but the important one for us is whether a patient can be found comparatively negligent if his responses to queries concerning his medical history are untrue. In typical legal fashion, the court said sometimes yes and sometimes no. Now for the rest of the story.
The plaintiff called the defendant, complaining of abdominal pain. The defendant told him to take Pepto-Bismol. The discomfort got progressively worse, so the following day, the plaintiff went to the defendant’s office; a history was taken, and some laboratory tests were ordered. Later that day, the defendant called back, saying that the tests were normal except for 1 result that was not back from the laboratory by that time. The plaintiff was told to take a laxative and give himself 2 enemas. After taking the laxative and after the first enema, the plaintiff doubled over in pain and was taken to the hospital. He was diagnosed with a perforated colon, had part of his colon removed, suffered a negative drug reaction, wound up in intensive care, yada, yada, yada. Then came the lawsuit. At the trial, the defendant claimed that the plaintiff withheld vital information when he took his medical history, specifically facts relating to his symptoms, such as in which quadrant the pain started, the timing of the discomfort, and so on. The defendant claimed that the plaintiff’s misinformation was the actual cause of the misdiagnosis, which in turn led to all of the plaintiff’s problems. The jury found the plaintiff 51% liable and the defendant 49% liable. In Texas, this precluded the plaintiff from any recovery. He subsequently appealed the verdict.
The specific issue on appeal was whether a plaintiff’s failure to completely relate his medical history to the treating physician constitutes contributory or comparative negligence. This was an issue of first impression for Texas courts, so they looked to the laws in other states for guidance in fashioning a decision. They came up with the following: (1) a patient has no duty to diagnose his own condition; (2) a patient, because he lacks a medical background, has a limited a capacity to select and communicate the pertinent and relevant aspects of his medical history to the treating physician; (3) a patient can rely on the doctor to ask appropriate questions about specific events, the onset and chronology of symptomatology, and so on, regarding the patient’s history; (4) a patient has a duty to respond accurately and truthfully to all questions posed to him; (5) a patient has no duty to volunteer information not specifically asked of him; and (6) however , he must volunteer information “if the patient is aware that the treating physician has failed to ascertain some aspect of the patient’s medical history which the patient knows involves a risk of harm to [himself] during the course of future medical treatment” if the information is not revealed (cit.omit.).
For our purposes, a good example would be if the doctor failed to ask about drug allergies, and the patient was allergic to the penicillin class of drugs and knew that he had an infection and required an antibiotic. The rest of the case includes much testimony about the actual questioning of the plaintiff and his answers, but the upshot was that the plaintiff had no duty to volunteer information not asked of him, and he should not have been judged comparatively negligent. So, the case was reversed and remanded for a new trial.
Commentary
So, what does this mean to a practicing orthodontist? The answer, a common axiom taught to every medical resident, is to “never treat a stranger.” We need to take 2 things seriously: the patient’s chief complaint, and obtaining the patient’s adequate and comprehensive history (medical, dental, and social).
We can ill afford not to hear the patient’s desires relative to the perceived condition and the scope of orthodontic intervention. Here’s where it gets sticky. Turning to our Principles of ethics and code of professional conduct , under “Principles and advisory opinions,” we find that Principle I notes: “Members shall be dedicated to providing the highest quality orthodontic care to their patients within the bounds of the clinical aspects of the patient’s condition, and with due consideration being given to the needs and desires of the patient.” Suppose our patient desires only partial or limited treatment, yet our doctor believes that you do the whole thing and do it the “right” way. Because of the disconnect, if our patient is treated by this doctor, 2 years later, when the doctor is concerned because the A-P discrepancy has still not been resolved, our patient will be really upset that it has taken so long to close her central diastema. Okay, I stretched it a little but, trust me, only a little. We must be responsive to what the patient wants, and, if we are uncomfortable with that, then we should not accept this person as a patient. Doctors are not ethically, or legally for that matter, required to accept everyone as a patient as long as we do not engage in illegal discrimination or it is not an emergency situation. The courts have repeatedly stated that we need not treat all who darken our doors because we are not innkeepers or common carriers bound to accept all who seek our services.
We should obtain comprehensive histories on our patients. My recommendation is to obtain this history face to face. Using a form that the patient fills out at home and brings in is fraught with danger. The patient might not be able to read, might not understand the basis or purpose of the questions, or might not have the opportunity to provide the best response if the form has boxes to check only “yes” or “no” to a question. Consider Mom’s answer to your question as to whether Junior has ever had any type of cardiopathy, knowing that some require prophylactic antibiotic coverage. If Mom can answer only “yes” or “no” on a form, you might get a “no” answer, but, if she is asked orally, the response might be, “well, he did when he was younger, but he outgrew it.” Prudent risk management dictates that, at this juncture, you should contact the child’s physician to find out what the problem was, whether it is still an issue, and whether prophylactic antibiotic coverage is recommended.
When we take this history—medical, dental, and social—what if our patient lies to us? Well, if that happens, and it does, and the case goes south and you’re sued, you will have a wonderful defense. On the other hand, if you don’t ask all of the good probing questions, your patient is under no obligation to figure out what you should have asked and tell you anything voluntarily. You are the doctor; you know what is important and what isn’t. You know, or can find out, which diseases, medications, habits, and so on, can have consequences and which ones won’t. Don’t you want to know about the bisphosphonates your 60-year-old patient is taking? You should. Don’t expect the patient to tell you if you don’t ask.
There are more than a few medical conditions that can impact orthodontic treatment (see Patel A, Burden D, Sandler J. Medical disorders and orthodontics. J Orthod 2009;36:1-21). If we don’t ask, we shouldn’t be surprised if at some point one of these conditions has a negative impact on our ministrations. The patient’s dental history in terms of exfoliation pattern and family history in this area is an example of additional data that can be useful. Socially, smoking and some habits can play a part in our outcomes. It’s not a matter of “don’t ask, don’t tell”; it’s more like “if you don’t ask, they won’t tell.”
Finally, there is the ever-present risk-management reason for obtaining a comprehensive history. I can’t say that a good history will prevent a malpractice suit. Certainly, in the right case, it will. I, along with every other risk manager, can absolutely tell you that a poorly obtained and documented history in the wrong case is akin to driving another nail into the coffin and will not bode well for the doctor defendant.
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