LITIGATION AND LEGISLATION UPDATE By Sally A. Bowers, JD St. Louis, Mo. Litigation and legislation of particular interest to orthodontists will be reported under this section of the AMERICANJOURNAL OF ORTHODONTICSAND DENTOFACIAL ORTHOPEDICS. Manuscripts for publication and readers' comments may be submitted to Ms. Sally A. Bowers, American Association of Orthodontists, 460 N. LhTdbergh Bh'd., St. Louis, MO 63141.
Orthodontic TMJ litigation in the 1990s: A n ounce of prevention is worth a pound of cure Lynda D. Barbat*
The decade of the 90s has ushered in a more dispassionate era in orthodontic/TMJ litigation. The "No Premolar Extraction" bandwagon has been driven to the edge of the precipice and pushed over the brink by the combined forces of good science and calm, rational minds. However, there is no guarantee this enlightened era will continue indefinitely. As with the ebb and flow of the tides, theories in dentistry tend to drift in and out of vogue. While current litigation trends appear to indicate that TMJ injuries are more often an adjunct claim rather than the focus of the case, suits claiming that orthodontists have caused or aggravated TMJ pathologic conditions and symptoms will continue to be filed. Once the lawsuit has been filed, the fundamental element in the successful defense of these cases is the quality of the defense expert or experts. Particularly where the patient's main allegation is a TMJ injury, the defense must have a highly credentialed, well-spoken expert witness who is thoroughly familiar with the abundance of scientific studies showing no correlation between orthodontics and the development or aggravation of TMJ pathologic conditions or symptoms. There have been several cases in which orthodontic treatment is alleged to have caused or aggravated TMJ pathologic conditions or symptoms, which I successfully defended, on the basis that there is no relationship between the two. These cases will continue to be defended in this manner as long as science and the lit-
*Defense lawyer specializing in professional liability malpractice and medical productS litigation. A member of the State Bar of Michigan, Negligence Law Section, and the Detroit Bar Association. A partner in Vandeveer, Garcia, P.C., Detroit, Mich.
erature permit me to do so, and experts can be obtained who can convey this to the jury. I am convinced that this line of defense by lawyers throughout the country has been responsible for the demise of the "No Premolar Extraction" craze in litigation. But all the "good lawyering" and expert work in the world may only be an incomplete remedy. By the time the orthodontist is sued, the case may already present a situation that can only be partially corrected. As the title of this article implies, prevention by the orthodontist during the doctor/patient relationship is far more valuable than an attempted "cure" by his or her lawyer and experts after litigation has been instituted. As it relates to orthodontic/TMJ litigation, prevention could be spelled SID, screen, inform, document. While I, as a lawyer, would not presume to advise the orthodontic specialty on whether or when to perform TMJ screening examinations, a growing number of orthodontists are regularly performing TMJ examinations on all new patients. Screening helps an orthodontist to establish the patient's condition before any treatment is rendered as opposed to guessing what it was after litigation has been instituted. As Bertrand Russell once said: Aristotle could have avoided the mistake of thinking that women have fewer teeth than men by the simple device of asking Mrs. Aristotle to open her mouth. Informing the patient of what to expect during active orthodontic treatment and retention is also an important element of prevention. Close communication between the orthodontist and the patient is always important. Many orthodontists routinely use written consent forms; many of these forms advise patients that, during their treatment and/or retention, joint symptoms may arise 97
98
Barbat
that are unrelated to the treatment. In surgery cases, many of these consent forms also advise the patient of the various risks of the surgery. Documenting the results of the screening examination and the information given to the patient is vital. All too often a thorough screening examination is conducted but, because no significant abnormalities are found, nothing is recorded. All too often an orthodontist gives a detailed explanation to the patient of the proposed treatment and its risks but does not commit this information to writing. After litigation is filed, the orthodontist must "assume" that he or she said or did certain things in screening or informing the patient. The patient, now the plaintiff, will generally deny these assumptions. A recent case illustrates these points very well. The patient, in his late teens, was dissatisfied with his appearance and dentition. His orthodontist and oral surgeon advised orthodontics and orthognathic surgery to treat the problem. After the orthognathic surgery was performed, the patient experienced postoperative pain and limitation of function that did not subside. The young man was found to have bilateral internal derangements with disk displacement and underwent several joint surgeries. The orthodontist and the oral surgeon were sued; both were accused of causing the TMJ dysfunction.
Am. J. Orthod. Dentofac. Orthop. January 1992
Fortunately, both of the defendant doctors had performed TMJ screening examinations on the patient's initial visit. Both recorded all findings, including negative findings. In addition, the patient had been prevously evaluated by several orthodontists and oral surgeons, all of whom did screening examinations and recorded all findings. All the pretreatment screening examinations documented the same finding: the patient had bilateral clicking without other joint symptoms. The patient had recorded disk displacement before any orthodontics were performed. The screening examination and the recording of all findings by the orthodontists and the oral surgeons who saw the patient made it impossible for the patient and his lawyer to claim that the orthodontist had caused the disk displacement. Although the patient could still claim that the orthodontics and the oral surgery aggravated his condition, both defendant doctors had the patient execute consent forms acknowledging that the orthognathic surgery could aggravate and worsen preexisting joint pathosis. If you had been the orthodontist who was sued in that case, would you have rather come to me empty handed asking for a "pound of cure" or holding the "ounce of prevention" that this orthodontist tendered to me? As this is obviously a rhetorical question, I think I need say no more.
Orthodontic TMJ litigation in the 1990s: A n ounce of prevention is worth a pound of cure Lynda D. Barbat*
The decade of the 90s has ushered in a more dispassionate era in orthodontic/TMJ litigation. The "No Premolar Extraction" bandwagon has been driven to the edge of the precipice and pushed over the brink by the combined forces of good science and calm, rational minds. However, there is no guarantee this enlightened era will continue indefinitely. As with the ebb and flow of the tides, theories in dentistry tend to drift in and out of vogue. While current litigation trends appear to indicate that TMJ injuries are more often an adjunct claim rather than the focus of the case, suits claiming that orthodontists have caused or aggravated TMJ pathologic conditions and symptoms will continue to be filed. Once the lawsuit has been filed, the fundamental element in the successful defense of these cases is the quality of the defense expert or experts. Particularly where the patient's main allegation is a TMJ injury, the defense must have a highly credentialed, well-spoken expert witness who is thoroughly familiar with the abundance of scientific studies showing no correlation between orthodontics and the development or aggravation of TMJ pathologic conditions or symptoms. There have been several cases in which orthodontic treatment is alleged to have caused or aggravated TMJ pathologic conditions or symptoms, which I successfully defended, on the basis that there is no relationship between the two. These cases will continue to be defended in this manner as long as science and the lit-
*Defense lawyer specializing in professional liability malpractice and medical productS litigation. A member of the State Bar of Michigan, Negligence Law Section, and the Detroit Bar Association. A partner in Vandeveer, Garcia, P.C., Detroit, Mich.
erature permit me to do so, and experts can be obtained who can convey this to the jury. I am convinced that this line of defense by lawyers throughout the country has been responsible for the demise of the "No Premolar Extraction" craze in litigation. But all the "good lawyering" and expert work in the world may only be an incomplete remedy. By the time the orthodontist is sued, the case may already present a situation that can only be partially corrected. As the title of this article implies, prevention by the orthodontist during the doctor/patient relationship is far more valuable than an attempted "cure" by his or her lawyer and experts after litigation has been instituted. As it relates to orthodontic/TMJ litigation, prevention could be spelled SID, screen, inform, document. While I, as a lawyer, would not presume to advise the orthodontic specialty on whether or when to perform TMJ screening examinations, a growing number of orthodontists are regularly performing TMJ examinations on all new patients. Screening helps an orthodontist to establish the patient's condition before any treatment is rendered as opposed to guessing what it was after litigation has been instituted. As Bertrand Russell once said: Aristotle could have avoided the mistake of thinking that women have fewer teeth than men by the simple device of asking Mrs. Aristotle to open her mouth. Informing the patient of what to expect during active orthodontic treatment and retention is also an important element of prevention. Close communication between the orthodontist and the patient is always important. Many orthodontists routinely use written consent forms; many of these forms advise patients that, during their treatment and/or retention, joint symptoms may arise 97
98
Barbat
that are unrelated to the treatment. In surgery cases, many of these consent forms also advise the patient of the various risks of the surgery. Documenting the results of the screening examination and the information given to the patient is vital. All too often a thorough screening examination is conducted but, because no significant abnormalities are found, nothing is recorded. All too often an orthodontist gives a detailed explanation to the patient of the proposed treatment and its risks but does not commit this information to writing. After litigation is filed, the orthodontist must "assume" that he or she said or did certain things in screening or informing the patient. The patient, now the plaintiff, will generally deny these assumptions. A recent case illustrates these points very well. The patient, in his late teens, was dissatisfied with his appearance and dentition. His orthodontist and oral surgeon advised orthodontics and orthognathic surgery to treat the problem. After the orthognathic surgery was performed, the patient experienced postoperative pain and limitation of function that did not subside. The young man was found to have bilateral internal derangements with disk displacement and underwent several joint surgeries. The orthodontist and the oral surgeon were sued; both were accused of causing the TMJ dysfunction.
Am. J. Orthod. Dentofac. Orthop. January 1992
Fortunately, both of the defendant doctors had performed TMJ screening examinations on the patient's initial visit. Both recorded all findings, including negative findings. In addition, the patient had been prevously evaluated by several orthodontists and oral surgeons, all of whom did screening examinations and recorded all findings. All the pretreatment screening examinations documented the same finding: the patient had bilateral clicking without other joint symptoms. The patient had recorded disk displacement before any orthodontics were performed. The screening examination and the recording of all findings by the orthodontists and the oral surgeons who saw the patient made it impossible for the patient and his lawyer to claim that the orthodontist had caused the disk displacement. Although the patient could still claim that the orthodontics and the oral surgery aggravated his condition, both defendant doctors had the patient execute consent forms acknowledging that the orthognathic surgery could aggravate and worsen preexisting joint pathosis. If you had been the orthodontist who was sued in that case, would you have rather come to me empty handed asking for a "pound of cure" or holding the "ounce of prevention" that this orthodontist tendered to me? As this is obviously a rhetorical question, I think I need say no more.
