OPINION CLEARINGHOUSE The issues facin g dentistry today are num erous. So are the num ber of opinions on any given issue. In this section of The J o u rn a l w e enco u rag e responsible and w ell-w ritten expression of opinion. A rticles are chosen on a com petitive basis. As in o th er parts of The Jo urnal, opinions expressed or im plied are strictly those of the authors and do not necessarily reflect the opinion or official policies or position of the A m erican Dental A ssociation.
Good bites, bad bites, and malpractice suits Charles S. Greene, DOS, Chicago Imagine this scenario: a patient sees a dentist who recommends the re moval of certain fixed bridge abut ment teeth because of periodontal breakdown. Oral rehabilitation is accomplished with crowns and re movable partial dentures. After this work is completed, the patient com plains of diminished chewing ability and soreness of the tissues under the partial dentures. Several ad justments fail to produce significant improvement, according to the pa tient. One month later, the patient expe riences dizziness, momentary blackouts, arm and shoulder pain, frozen shoulder, numbness in the fingers, and a feeling of pressure in her head. These symptoms conti nue for about 11 months, during which time the patient is hospitalized twice. The provisional diagnosis is thoracic outlet syndrome. While in the hospital for tests, she is “visited” by a dentist who is a friend of her physician. (Since the dentist is not a member of the hospital staff, his visit cannot be regarded as a consulta tion.) He is there at the physician’s request, because the patient has suggested a connection between her current symptoms and her “un
satisfactory” dental work. The den tist offers to test her assumption by placing cotton balls between her maxillary and mandibular teeth for 12 hours. The patient experiences significant improvement in her symptoms and, on her release from the hospital, she sees the dentist for further treatment. He fabricates a hard plastic splint and proposes full-mouth “re-rehabilitation.” Th is story may not seem to be very startling or unusual, but there is a punch line: the patient sues the first dentist for malpractice, assisted in her suit by the second dentist. Even this may not seem too remarkable, except that the basis for her mal practice suit is iatrogenic malocclu sion. No other criticism is offered in regard to the first dentist’s work— just that the bite is wrong. The tes timony of the second dentist is the major argument for the plaintiff’s case. How does the second dentist know that the bite is wrong and that it caused the patient’s problems? He tested it with cotton balls, and he confirmed it later in his office by means of various so-called diag nostic occlusal registrations and recordings. This story is not a hypothetical
one; the situation was real, and I re cently was asked to testify in this particular case. At this time, other similar malpractice cases are in liti gation, and many of them seem to have a common denominator: the patient is being supported by a den tist in bringing suit against another dentist, and the basis for the suit is iatrogenic malocclusion. Orthodon tists, as well as general practition ers, are involved as defendants. Criteria necessary for standards of care I am not opposed to dentists’ sup port of patients in dental malprac tice suits. Those dentists who pro duce inferior dental work, or who neglect dental disease, are vulnera ble to lawsuits. The traditional legal basis for such suits, however, is either prima facie negligence or misconduct, or the production of substandard results. Substandard means, specifically, below the cus tomary standard of comparable treatment by fellow practitioners in the community (the community may be defined as nationwide in some cases). To speak of “standards” in regard JADA, Vol. 96, January 1978 ■ 13
to closed margins, caries removal, or the length of root canal fillin g s is possible today only because some criteria have been established for good and bad, or at least fo r adequate and inadequate, in these relatively tangible and concrete areas of dental practice. The same cannot be said, however, fo r all phas es of dental treatm ent, because no agreement has yet been reached in certain areas as to what constitutes m inim ally acceptable standards of diagnosis and treatm ent. Readers of the academic and clin ical dental literature are aware that occlusion ranks high on the list of controversial topics in dentistry. No single d efinition of occlusal har m ony or disharm ony, let alone “ g o o d ” and “ bad” occlusion, has been established, and no particular philosophy of occlusion is being es poused here. The dental scien tific com m unity has not yet defined what the stan dards of acceptability are fo r occlu sion of natural or prosthetic teeth. Therefore, all of us are in trouble if the courts find that one dentist, who espouses no specific name-brand philosophy of occlusion, is guilty of m alpractice fo r producing a “ w ro ng ” occlusion according to testim ony by another. Dental controversies in the courts This article is intended to alert den tists to a dangerous new phenom enon that is em erging— resolution of scientific controversy in the courts rather than through the usual professional channels. Although juries of laymen may be excused fo r not appreciating placebo effects, spontaneous re
missions, and clinical thinking about cause-and-effect relation ships, professionals should not be guilty of these errors. A dentist who is pleased that his patient re sponded positively to his m inistra tions should resist the tem ptation to leap into a courtroom . A mo m ent’s reflection should tell him that this positive response is a com plex phenomenon, especially if the symptoms are prim arily sub jective, and he should interpret his clinical results cautiously. Furtherm ore, I cannot believe that dentists would like to see a court room decision establish that a cen tric relationship is “ o ff,” that cusp inclines are “ too fla t,” that occlusal topography is not correctly related to TMJ “ determ inants,” or that in c i sal guidance is not properly corre lated with TMJ m orphology. And yet, these were the issues discussed in the courtroom in this particular case, along with the issue of “ caus in g ” symptoms and “ c u rin g ” them. The verdict is in The outcom e of the trial was a happy one: the defendant-dentist was found not guilty of m alpractice. However, the case could have come out differently. Why did the jurors decide the way they did? Were they persuaded that the dentist was not culpable, or did they just feel that the patient’s symptoms were too remote? What if the symptoms had been more localized to the TMJ re gion? How did they feel about the suffering and financial p light of the patient who was, ultimately, the vic tim of a controversy in dentistry? How would they have reacted if cer tain witnesses on either side had been more or less charism atic and
14 ■ OPINION CLEARINGHOUSE / JADA, Vol. 96, January 1978
THE AUTHOR
GREENE Dr. Greene is d ire cto r o f the Den tal C linic, Michael Reese Hospital and Medical Center, 29th St and E llis Ave, Chicago, 60616.
convincing? It seems that the outcome of this case, and probably of many others like it, was based on these types of considerations rather than on the academic issues as we m ight see them w ithin the profession. The de cision of a jury is not the resolu tion of a scientific controversy— they d on ’t understand what w e’re talking about when w ethrow around a lot of scientific jargon in the co urt room. Instead, their decision prob ably reflected their emotional and intellectual response to the evi dence and argum ents in one case. Moreover, as the lawyer pointed out, the legal outcom e of this case does not constitute a precedent for other such cases, although a guilty finding m ight have been so con strued. What this means fo r the rest of us is simple: Caveat, doctor— the next “ bad bite” m alpractice trial may be your own.
Good bites, bad bites, and malpractice suits Charles S. Greene, DOS, Chicago Imagine this scenario: a patient sees a dentist who recommends the re moval of certain fixed bridge abut ment teeth because of periodontal breakdown. Oral rehabilitation is accomplished with crowns and re movable partial dentures. After this work is completed, the patient com plains of diminished chewing ability and soreness of the tissues under the partial dentures. Several ad justments fail to produce significant improvement, according to the pa tient. One month later, the patient expe riences dizziness, momentary blackouts, arm and shoulder pain, frozen shoulder, numbness in the fingers, and a feeling of pressure in her head. These symptoms conti nue for about 11 months, during which time the patient is hospitalized twice. The provisional diagnosis is thoracic outlet syndrome. While in the hospital for tests, she is “visited” by a dentist who is a friend of her physician. (Since the dentist is not a member of the hospital staff, his visit cannot be regarded as a consulta tion.) He is there at the physician’s request, because the patient has suggested a connection between her current symptoms and her “un
satisfactory” dental work. The den tist offers to test her assumption by placing cotton balls between her maxillary and mandibular teeth for 12 hours. The patient experiences significant improvement in her symptoms and, on her release from the hospital, she sees the dentist for further treatment. He fabricates a hard plastic splint and proposes full-mouth “re-rehabilitation.” Th is story may not seem to be very startling or unusual, but there is a punch line: the patient sues the first dentist for malpractice, assisted in her suit by the second dentist. Even this may not seem too remarkable, except that the basis for her mal practice suit is iatrogenic malocclu sion. No other criticism is offered in regard to the first dentist’s work— just that the bite is wrong. The tes timony of the second dentist is the major argument for the plaintiff’s case. How does the second dentist know that the bite is wrong and that it caused the patient’s problems? He tested it with cotton balls, and he confirmed it later in his office by means of various so-called diag nostic occlusal registrations and recordings. This story is not a hypothetical
one; the situation was real, and I re cently was asked to testify in this particular case. At this time, other similar malpractice cases are in liti gation, and many of them seem to have a common denominator: the patient is being supported by a den tist in bringing suit against another dentist, and the basis for the suit is iatrogenic malocclusion. Orthodon tists, as well as general practition ers, are involved as defendants. Criteria necessary for standards of care I am not opposed to dentists’ sup port of patients in dental malprac tice suits. Those dentists who pro duce inferior dental work, or who neglect dental disease, are vulnera ble to lawsuits. The traditional legal basis for such suits, however, is either prima facie negligence or misconduct, or the production of substandard results. Substandard means, specifically, below the cus tomary standard of comparable treatment by fellow practitioners in the community (the community may be defined as nationwide in some cases). To speak of “standards” in regard JADA, Vol. 96, January 1978 ■ 13
to closed margins, caries removal, or the length of root canal fillin g s is possible today only because some criteria have been established for good and bad, or at least fo r adequate and inadequate, in these relatively tangible and concrete areas of dental practice. The same cannot be said, however, fo r all phas es of dental treatm ent, because no agreement has yet been reached in certain areas as to what constitutes m inim ally acceptable standards of diagnosis and treatm ent. Readers of the academic and clin ical dental literature are aware that occlusion ranks high on the list of controversial topics in dentistry. No single d efinition of occlusal har m ony or disharm ony, let alone “ g o o d ” and “ bad” occlusion, has been established, and no particular philosophy of occlusion is being es poused here. The dental scien tific com m unity has not yet defined what the stan dards of acceptability are fo r occlu sion of natural or prosthetic teeth. Therefore, all of us are in trouble if the courts find that one dentist, who espouses no specific name-brand philosophy of occlusion, is guilty of m alpractice fo r producing a “ w ro ng ” occlusion according to testim ony by another. Dental controversies in the courts This article is intended to alert den tists to a dangerous new phenom enon that is em erging— resolution of scientific controversy in the courts rather than through the usual professional channels. Although juries of laymen may be excused fo r not appreciating placebo effects, spontaneous re
missions, and clinical thinking about cause-and-effect relation ships, professionals should not be guilty of these errors. A dentist who is pleased that his patient re sponded positively to his m inistra tions should resist the tem ptation to leap into a courtroom . A mo m ent’s reflection should tell him that this positive response is a com plex phenomenon, especially if the symptoms are prim arily sub jective, and he should interpret his clinical results cautiously. Furtherm ore, I cannot believe that dentists would like to see a court room decision establish that a cen tric relationship is “ o ff,” that cusp inclines are “ too fla t,” that occlusal topography is not correctly related to TMJ “ determ inants,” or that in c i sal guidance is not properly corre lated with TMJ m orphology. And yet, these were the issues discussed in the courtroom in this particular case, along with the issue of “ caus in g ” symptoms and “ c u rin g ” them. The verdict is in The outcom e of the trial was a happy one: the defendant-dentist was found not guilty of m alpractice. However, the case could have come out differently. Why did the jurors decide the way they did? Were they persuaded that the dentist was not culpable, or did they just feel that the patient’s symptoms were too remote? What if the symptoms had been more localized to the TMJ re gion? How did they feel about the suffering and financial p light of the patient who was, ultimately, the vic tim of a controversy in dentistry? How would they have reacted if cer tain witnesses on either side had been more or less charism atic and
14 ■ OPINION CLEARINGHOUSE / JADA, Vol. 96, January 1978
THE AUTHOR
GREENE Dr. Greene is d ire cto r o f the Den tal C linic, Michael Reese Hospital and Medical Center, 29th St and E llis Ave, Chicago, 60616.
convincing? It seems that the outcome of this case, and probably of many others like it, was based on these types of considerations rather than on the academic issues as we m ight see them w ithin the profession. The de cision of a jury is not the resolu tion of a scientific controversy— they d on ’t understand what w e’re talking about when w ethrow around a lot of scientific jargon in the co urt room. Instead, their decision prob ably reflected their emotional and intellectual response to the evi dence and argum ents in one case. Moreover, as the lawyer pointed out, the legal outcom e of this case does not constitute a precedent for other such cases, although a guilty finding m ight have been so con strued. What this means fo r the rest of us is simple: Caveat, doctor— the next “ bad bite” m alpractice trial may be your own.
