October 2008, Volume 4, Issue 9
Published by AEGIS Communications
Standard of Care in Dentistry
You’ve done your research. You’ve mastered your techniques. You’ve tucked away every nugget of advice you’ve received from trusted mentors and respected colleagues. You think you’ve learned everything you needed to know in dental school, or you’ve learned it in the subsequent years spent hard at work in practice. But are you forgetting something? What about the Hippocratic Oath, the Golden Rule—or even Mom or Dad’s advice? Are they practical words of wisdom, or lofty, practically useless ideals? One says to do no harm. Another says do unto others as you would have done to you. Yet another says to use your best judgment.
You most likely chose dentistry as your profession out of a deep desire to help people—to help ease their pain, to help cure their disease, to help improve their well-being and quality of life—all of which is admirable. All of which could also find the most educated, talented, and well-intentioned clinician in a ton of trouble if something goes wrong. And if that happens, there are several defenses that just may not work on the witness stand, when you find yourself trying to explain your course of action to a judge and jury. Not only do the declarations “I did it the way I learned it in school,” “I did my best,” or “I did it the way all of my colleagues are doing it,” sound like excuses for failing a high school shop class, there’s a good chance that they just won’t work in a lawsuit alleging dental malpractice.
To truly properly care for your patients, all dentists are ethically and even legally bound to follow some combination of all of the moral compasses just described. But how? A “standard of care” in dentistry seems to be nebulous at best. Dentists don’t have to sign a Hippocratic Oath, the Golden Rule is purely freedom of choice, and, unfortunately, the advice given by friends and loved ones just may not be enough to hold up in a court of law one day.
There’s more responsibility to the practice of dentistry than would meet the eye of other professions, and all dentists need to be aware of what their own liabilities and responsibilities actually are. And because our own research on a standard of care for the dental profession churned up murky waters, we went straight to a distinguished panel of experts to help clear up the confusion.
Is There a Standard of Care
To attempt to define a standard of care, many of our experts cited the 2004 article, “The Standard of Care in Dentistry, Where Did it Come From? How Has it Evolved?” by Joseph P. Graskemper, DDS, JD, that was published in the Journal of the American Dental Association.1 In that article, Graskemper informs dentists that rather than possessing its own definition, “standard of care” actually exists in the definition of “negligence,” which has four distinct elements; all must be met if it is to be used as grounds for a malpractice suit. He references King2 to state those four elements:
- that a duty of care was owed by the dentist to the patient;
- that the dentist violated the applicable standard of care;
- that the plaintiff suffered a compensable injury;
- that such injury was caused in fact and proximately caused by the substandard conduct.
So what is the discerning dentist to do? How is this group of criteria to be interpreted and carried out in day-to-day practice?
“I think that dentists need to ask themselves only one question: Is the treatment in the best interest of the patient?” says Douglas Terry, DDS, assistant professor in the Department of Restorative Dentistry and Biomaterials at the University of Texas Health Science Center in Houston. “Ethics and the needs of the patient should always be the priority of the clinician. First, ‘do no harm’ is the ethical and legal obligation of treating any patient. If your pursuit as a treating dentist is dollar driven, you are most likely going to cut corners and you will violate both ethical and legal duties.”
Harald O. Heymann, DDS, MEd, professor and graduate program director of operative dentistry at the University of North Carolina School of Dentistry, agrees. “Adhering to a standard of ethical conduct means you try to provide the most conservative procedure possible that is in the patient’s best interest. And part and parcel to that is doing what is needed and not what is necessarily concocted. There are vast differences of opinion in dentistry. If I were to place a patient in front of ten dentists I guarantee you’ll get ten different treatment plans. It doesn’t necessarily mean that any one of those treatment plans is wrong; it means that we all have different approaches to pursuing a common goal, which is the dental health of the patient,” he says.
Terry thinks that there’s a common misconception when it comes to following a standard of care in that many dentists think they are following one by default. “I believe dentists think they are treating patients within the standard of care because they are doing it the way they were taught in dental school, doing it the best they can, or doing it the way everyone else is doing it. However, this is not the standard of care. The standard of care is not the number of dentists who practice a certain way. It is what a reasonable, prudent dentist should be doing under the same or similar circumstances while applying scientific, evidence-based concepts,” he says.
Where Heymann sees problems is with over-treatment. “In my opinion, there is a fair amount of over-treatment today, particularly in the realm of esthetic dentistry,” he says. “While esthetic or cosmetic dentistry is elective by nature, by the same token patients come to us because they respect us as professionals and, as such, we should guide them as to what the most conservative means of improving their esthetics or their appearance may be, not necessarily recommend something that’s going to afford us the greatest level of income. And if that means that the patient needs orthodontics and that the remuneration is going to go an orthodontist instead of you, then so be it, if it’s in the best interest of the patient. To me, that’s the overriding criterion for any standard of care—is it in the best interest of the patient?”
Each patient who presents in your office is unique. For each oral condition you assess and diagnose, there are most likely a few different approaches to treatment that you could take. It begs the question of whether it is even possible to apply a standard of care to a profession that, during the course of one day, could diagnose and treat anything and everything from a cracked tooth to periodontal disease to a purely cosmetic case to the discovery of oral cancer. Acknowledging the subjectivity of treatment plans, Ali Allen Nasseh, DDS, MMSc, explains the difficulties in interpreting the standard of care.
“It’s important to understand the notion of a standard of care. The standard simply reflects that which is minimally required, meaning that anything less would be considered negligent. This is why astute clinicians don’t aspire to the standard of care, but rather to excellence in care,” says Nasseh, who is a clinical instructor at the Harvard School of Dental Medicine in addition to maintaining a private practice in Boston. “Standards of care are set by each state, through the corresponding state’s Dental Act, as well as the cumulative common-law decisions made by various state and federal courts, which create a body of precedent. Standards of care are always changing, and although the Dental Act changes at a slower pace, common-law decisions are always evolving and shaping newer standards for delivery of care. While many of these standards are clear, like most areas of law, there seems to be a large and overwhelming gray area that leads into an inability to clearly depict the exact boundaries of these standards for each and every aspect of dentistry. This is further obfuscated by the inability of even the leading clinicians in the field to interpret the soft science of dentistry into clear-cut clinical conclusions.”
Heymann agrees that there is a definite gray area. “If someone at a state board were hearing a case or a complaint from a patient, they’re going to compare the outcome to what is considered to be the norm, or acceptable, or standard for that particular locality. So they may bring in another dentist from that area to see what is, indeed, considered the standard of care. It does vary geographically. You may have a different standard of care in a rural area where you do not have access to specialists, for example, as opposed to an urban area where specialty care is the norm rather than the exception,” he says. “I think that dentists realize there are standards of care. Are they printed in black and white? Well, not always. It hinges on what is considered the norm for treatment in that particular area. There are always extenuating factors that may have a bearing on how you approached a specific case and may justify something that you may not normally do, but in light of the patient’s medical condition, or the difficulty of the case, or the economics of their situation, these co-variables have a bearing on what the standard may be on that particular patient for that particular case in that particular area.”
Bruce Seidberg, DDS, MScD, JD, FCLM, the immediate past president of the American College of Legal Medicine and chief of dentistry at Crouse Hospital in Syracuse, New York, also agrees. “Practicing dentists know that a standard of care exists, but more likely than not, they do not understand exactly what it is and how it is determined. The basic definition that most lecturers recite is ‘the standard of care is that reasonable care provided to a patient that is provided by similar members of the profession in similar cases and like conditions, given due regard for the state of the art.’ The standard of care continually evolves as new technology and new materials and new court rulings are made known,” he says. “It is not the changes in the standard of care themselves, rather it is keeping up with the changes in the profession and how to incorporate those changes in a practice appropriately, that will impact a practice today and in the future as compared to 5 or 10 years ago.”
Terry adds, “Although the definition of the standard of care has not changed, the method in which clinicians practice has changed and, therefore, the level of care has evolved with the development of new diagnostic tools, biomaterials, treatment modalities, and the advent of new court rulings. The factors that influence the standard of care include the diagnosis, the patient, advancing technologies and materials, and delivery methods for care.”
“New materials, technology, and procedures, along with legal issues, will all have a profound effect on what is considered to be the standard of care in dentistry,” agrees Gary Alex, DMD, co-director of the Long Island Center for Dental Esthetics and Occlusion in Huntington, New York. “For example, suppose a patient is missing an upper lateral incisor. Is the standard of care to place a conventional fixed partial denture or place a dental implant? Could both procedures fall within our definition of standard of care? In my mind, it would depend on the specific clinical situation. Let’s assume that the teeth adjacent to the space are in the right position, look good cosmetically, have no pre-existing restorations, and have no periodontal issues. Let’s assume that the bone quality is good and there are no other mitigating issues. One could make a very compelling and convincing argument that the standard of care in this specific situation is the placement of a single-tooth implant. If, on the other hand, the teeth adjacent to the space are badly broken down or require treatment in any case, then a conventional three-unit fixed partial denture might be the better alternative,” he explains.
W. Kenneth Horwitz, DDS, a private practitioner in Houston, Texas, agrees with that. “I have read countless articles written by people who believe that teeth should not even try to be saved when you can put in an implant. If you don’t place that implant, you’re below the standard of care. I disagree. If my patient and I, after having studied the problem including all of the pros and cons, both agree that the tooth should not be saved and that an implant should be placed, yes, we’ve met a standard of care. But, on the other hand, if we agree that the tooth should be saved, I don’t believe that is below the standard of care. The distinction, especially from an ethical standpoint, is not the procedure itself, but the way in which the procedure was performed,” he says.
If There is a Standard of Care, Can It Be Defined?
As our experts have already described, it’s not just the dentist’s expertise, the patient’s condition, and how the proposed treatment plan gets accomplished that goes toward meeting the standard of care. Where a dentist practices impacts it as well. Richard J. Simonsen, DDS, MS, dean of Midwestern University College of Dental Medicine, explains.
“The standard of care can also be described as how a similarly qualified dentist in a specific community would practice under the same or similar circumstances. Many factors, such as location, the level of scientific discovery of the particular treatment area, and the educational level of the dentist will all directly impact the standard of care. For example, one would not expect that the standard of care for performing a third-molar extraction would necessarily be the same for an oral surgeon in Scottsdale, Arizona, and a general dentist in a remote community in Alaska. Both the location and the educational levels of the practitioners would affect the definition of the standard of care for the two dentists. This is not to say that both dentists would not be carrying out ethical, appropriate treatment and doing the very best for their patients, but clearly a specialist practicing in a modern suburban or urban practice would be held to a higher standard of care than a general practitioner in a mobile clinic in a remote area,” he says.
There are other considerations as well. “Another ambiguity with this definition is who exactly, in a specific locality, decides just what is the standard of care is?” Alex asks. “Also, as materials, knowledge, and clinical techniques improve and advance it is only logical that the level of the standard of care will evolve as well. In this sense the standard of care is a moving target. What is acceptable today may not be acceptable tomorrow. In fact, the bar for the standard of care is continually being raised. Dentists must continually re-educate themselves as new technology, materials, and techniques redefine what is con-sidered to be the ‘standard’ of care,” he says.
The crux of the matter, according to Tom Limoli, Jr, BS, president of Limoli & Associates/Atlanta Dental Consultants, “is there is no ‘standard’ standard of care. Patients will see it as one thing when they come into the office, whether it’s for a toothache or tooth whitening. Dentists will see it as another thing as they practice dentistry to the best of their ability. Then there’s ‘Big Brother,’ which includes the government, it includes the payers, it includes the purchasers, it includes anybody and everybody who’s got a vested interest in everything other than the most important piece of the equation, which is the patient sitting in the chair getting dentistry done by a dentist. And they’ll see it as something else entirely.”
Alex offers this thought. “I believe that much of what is considered to be the standard of care in dentistry will not be defined by dentists at all. There is no doubt in my mind that future malpractice suits, legal cases, and court rulings will all have a profound effect on what is considered to be the standard of care in dentistry,” he says.
Does the Patient Dictate the Standard of Care?
To add to the difficulty in interpreting a standard of care are the patients themselves. If they are coming to the office for a purely elective, esthetic procedure, the standard of care becomes far more difficult to navigate than in a straightforward periodontal or endodontic case. The dentist, while needing to balance what the patient wants and needs with what the dental practice wants and needs, should proceed with caution, our experts warn.
Take, for example, a hypothetical esthetic case of a twenty-something-year-old patient with a perfectly healthy dentition who wants a full-mouth reconstruction simply because they don’t like their smile. If part of the criteria of a standard of care is to do no harm, and do what’s in the best interest of the patient, should dentists not take that case at all?
“I think that it behooves us as professionals to make judgments on what’s best for the oral health of the patient, and sometimes what’s best for the oral health of the patient is not what they want,” says Gerard Kugel, DMD, MS, PhD, associate dean for research at Tufts University School of Dental Medicine. “We’ve all been in that circumstance where we’ve made a decision trying to be nice for the patient—but sometimes trying to do the nice thing is not the right thing to do. Sometimes by doing what’s nice you could get yourself into trouble. If I took on a case like this would I have violated the standard of care? Maybe not. But my own moral standards certainly would have been violated.”
As Heymann explains, “If a patient comes in and they have a perfectly healthy dentition, with aligned teeth and no caries or significant restorations that warrant replacement, then I think the most responsible thing to do is to advise the patient of the most conservative options. Tooth whitening would come to mind. In our continuum of treatment options, we teach our students to always start with the most conservative option—don’t just recommend porcelain veneers for a patient that has otherwise beautiful, healthy teeth. I think many people don’t realize the long-term impact of these decisions. It may be fine to rec-ommend porcelain veneers, and the patient may pick up a mirror immediately after you’ve placed them and they’ll be very happy, but what they have to realize is that those veneers will not last a lifetime. Every time those veneers have to be replaced good tooth structure is being lost and, at some point, they may actually have to have crowns placed or root canals or whatever else that may be possible sequelae from their original treatment. So, I think that any standard of care has to consider: What are the long-term implications of the treatment being rendered? That’s why we try to advocate as conservative an approach as possible to achieve the desired outcome.”
Horwitz relates an important teaching he received from one of dentistry’s esteemed teachers. “Dr. Pankey impressed upon all of us, which is very true, that you don’t want to have ‘reach for the handpiece syndrome,’ which means that you have to do something as soon as the patient gets in the chair,” he says. “We were all encouraged to know ourselves, to know our patient, to know our work, and to apply our knowledge. When you get to know your patients and you build a relationship with them, it’s very easy to be ethical, because what you’re doing to your patients is what you would have them do to you. That’s another definition of ethics.”
What about that big esthetic reconstruction case on a perfectly healthy dentition? “I don’t care if you meet the standard of care or not,” Horwitz emphasizes. “Maybe you make the best crowns in the world. Maybe there is no question about your abilities. Maybe nobody’s ever going to complain. But if what you’re doing—no matter how great it is—is not in the best interest of the patient, then you’re not being ethical. Patients may come in and demand it, saying, ‘Here’s $12,000. I want a make-over.’ Yes, you have a quandary there. But the point is also that you sometimes have to be willing to look at the back of the patient’s head as they walk out the door, after you’ve told them, ‘You know what? I don’t believe that this is the right course of treatment for you. If this is what you really want, if you really want me to destroy good, healthy dentition because you want to look better without putting in the time to do it the right way, please find somebody else to do this for you. It’s not going to be me.’”
Simonsen shares this thought as well. “It should be understood that something is not ethical just because it is legal,” he says. “Of course, everyone is ethical in their own eyes. We all tend to rationalize that what we do is ethical. If a patient requests a full-mouth reconstruction to improve their smile, it is not illegal for the dentist to complete the treatment. However, if the oral health benefit to the patient is on the negative side of the scale (in other words, the patient’s overall oral health over time gets worse from all of the work), and only the patient’s vanity is benefited, then the treatment—in my opinion—is unethical, albeit legal. Dentists must be willing to discourage certain treatment options that patients may have discovered in a consumer publication or other forms of media.”
Ultimately, Kugel says, “We can have professional standards that are very vague, and you can have personal standards that may be much more defined. If you’re at a point in your career where you can make that decision and feel comfortable that you don’t need to do these procedures, that you do only what you feel is appropriate—not based on money, not based on your production schedule—that’s where you want to be personally and professionally.”
The Standard of Care and Evidence–Based Dentistry
Michael D. Weitzner, DMD, MS, vice president of clinical product development at United Healthcare Dental, has another way of explaining the standard of care and what it means to the practicing dentist. “The standard of care is the scientifically vetted evidence to support the treatment rendered,” he says. “Always put the interests of your patient first, be able to support treatment decisions with good science and sound judgment, and document extremely well. If anything, we are being overloaded with information, some of which can be contradictory, and this may be leading to confusion. Even within the evidence-based movement, there isn’t universal agreement on the definition of what constitutes evidence or how it should be used. And sometimes when there is agreement, good quality evidence is not always available.”
Noshir Mehta, DMD, MDS, MS, director of the Craniofacial Pain Center and professor and chairman of the Department of General Dentistry at Tufts University School of Dental Medicine, equates staying up to date on evidence-based dentistry with practicing good ethics. “The ethics of practice, to me, suggests that you owe it to the patient to be as highly conversant with the latest issues and with the evidence that is in existence. That should be something you strive for as your own code of ethics.”
Robert Chapman, DMD, chairperson of the Department of Prosthodontics and Operative Dentistry at Tufts University School of Dental Medicine, concurs. “There is more and more evidence surfacing in the literature all the time,” he says. “It’s a matter of sorting through it. We don’t really have a lot of ways in which this evidence is looked at. There’s always a delay in how the evidence is processed, and then how it’s disseminated. Many journals, lecturers, and educational institutions do this, but it takes time. There is the leading edge, and then it becomes part of a standard, yet not a standard that is promulgated but sort of an agreed-upon standard. At all times, the evidence in the literature should be sought after and considered before making a decision on patient treatments.”
Kugel illustrates this idea with a startling metaphor that he’s used in his lectures: “What if you needed a heart valve replaced and as the doctor was preparing you for surgery he said, ‘Oh, by the way, I’m going to use this new valve. I just got a sample in the mail. I’ve never read a paper on this heart valve but it looks really easy to use.’ You’d jump off the operating table and run for the parking lot. Granted, a heart surgeon’s standard of care is different than a dentist’s, but we do this in dentistry all the time without reading any literature, without gathering any evidence, making treatment decisions based on a company brochure,” he says. “It’s astounding, given how easy it is to do even a basic search on the Internet. Dentists have to be more discerning, more careful.”
Using technology as an example, Weitzner elaborates, “In the absence of new products and/or techniques, many of the changes we are discussing today would not even be a consideration. Nevertheless, evidence of efficacy of a technology is still required before its use can be considered the ‘standard of care.’ For instance, in the case of site-specific antibiotics, their effectiveness in refractory pockets was demonstrated before their use as an adjunct to scaling and root planing. Changing technologies or other trends are not by themselves enough. There must be evidence-based research to support those changes.”
Seidberg concurs. “The determination of the standard of care must not be confused with the introduction of new materials and technology. Neither makes that a standard of care, even if the material or technology becomes a favorite of the profession. The microscope is now considered part of the armamentaria of endo-dontists; however, it is not the standard of care for treatment.”
“We’ve got to be careful that our options and decisions are not driven by popularity,” Kugel adds. “What’s popular can often be dangerous because it doesn’t always mean that it’s appropriate. Just because you know a lot of other dentists are using a specific product or doing a specific technique doesn’t mean that they’re meeting a standard of care. That would essentially mean that the community standard is that we should all jump off a bridge.”
So Much at Stake
There seems to be little argument that the stakes of practicing dentistry have never been higher than they are today. D. Walter Cohen, DDS, chancellor emeritus of Drexel University College of Dental Medicine and dean emeritus of the University of Pennsylvania School of Dental Medicine, thinks that the responsibilities of the practitioners are greater now than they’ve ever been. “The factors that directly impact the standard of care are the things that are being discovered and reported today by researchers and it’s much greater than it was in clinical practice 5 or 10 years ago,” he says. “There are very significant changes in terms of patient treatment, and as a result the level of dental practice today is extremely high. We’re able to do things for patients that are very, very effective. With people living longer and, therefore, keeping their teeth longer, it’s putting more of an onus on the dental practitioner. And, of course, the growing bank of oral-systemic knowledge is changing modern treatment.”
Terry concurs. “With the advancement of medical therapy and pharmacology the clinician is required to continue to advance their knowledge of the medical-pharmacological effects associated with the oral cavity and to incorporate this knowledge into their interdisciplinary treatment planning,” he says.
There are several specific areas where Cohen feels that the standards have been raised. “It’s very clear that the dental practitioner today has much greater responsibilities than he or she ever had before in, first of all, evaluating their patients—which includes obtaining a complete medical history; secondly, informing their patients of all the benefits and risks of treatment; and thirdly, treating their patients,” he says. What worries him is how the busy practitioner keeps up with the advances in the field. “There’s more than a half dozen journals in the English language on periodontal disease alone,” he points out. “But the general practitioner doesn’t have to worry about that alone, he or she has to worry about all of the advances—the advances in materials that affect the treatment of decay, the advances in different approaches and different instruments. It worries me that it will be overwhelming to the practitioner. But I think that studying the literature and abstracting some of these findings is very helpful. Of course, belonging to a study club that meets monthly, or a journal club that selects important articles to discuss are simple ways that the practitioner can stay up to date, and therefore observe the standard of care,” he advises.
Mehta thinks that applying a “universal” standard of care to the profession of dentistry does not accurately reflect the practice of it, especially given the variations from state to state and specialty to specialty. “Basically, most states say that if you’re a general dentist and you’re going to do a specialty treatment—for example, an endodontic procedure—you’re going to be held to the same standard that an endodontist is going to be held to,” he says. “You can’t say, ‘Well, I’m a general dentist, so I can’t or don’t have to do it as well as an endodontist.’ If you’re going to do a specialty procedure, you will be seen at the same level as the specialist. That’s the key. I have heard many attorneys speak about this subject, and they all seem to agree that there can’t be two levels of one type of procedure. It’s either done correctly or it’s not done correctly. So if you’re going to do it, you had better do it correctly. The standard will be set by whoever is a specialist in that area.”
Whether a procedure is done correctly or incorrectly, only one thing matters when a patient claims malpractice: was the patient harmed? “There’s got to be injury,” Horwitz says. “Otherwise, there’s no malpractice. It’s just bad dentistry. If a patient can show injury, then defense becomes very difficult. You’ve got to protect your patient, and they’re only protected if you have as your credo, ‘the least I can do is the best I can do.’ Most malpractice suits, in my limited knowledge of them, result from overzealous treatment. The demands that patients make may or may not be realistic, but it is still the dentist’s discretion and obligation to treat in the patient’s best interest, which in most cases is going to be the most conservative approach possible.”
Nasseh offers some practical advice for heading off a malpractice lawsuit entirely. “The first line of defense against potential legal action for all dentists is managing conflicts internally by direct communication and responsible action against specific charges made by a patient. This is the best preventive action to avoid a formal, legal action,” he says. “Once such action has been initiated, however, complete and thorough patient records are the most important factor in the case outcome. Taking the time to have complete records and noting all significant factors related to the treatment rendered in the progress notes is the best way dentists can protect themselves from legal action. Most legal grievances result from miscommunications or inadequate empathy for the patient. Clear, concise communication can help ward off any misunderstandings down the line.”
Simonsen also recommends that a dentist cover all of his or her bases completely. “If there is a clear violation of the community’s standard of care by a dentist, it is hard to defend,” he says. “For example, if advanced periodontal disease or a visible oral cancer lesion goes undetected and undiagnosed until the patient visits another dentist, the standard of care would have been violated and the original dentist would be liable.”
Patient Communication Will Definitely Help
“If you talk to any good lawyer, they’re going to tell you one word again and again, and that’s communication,” says Michael A. Siegel, DDS, MS, FDS, RCSEd, professor and chair of oral medicine and diagnostic sciences at Nova Southeastern University College of Dental Medicine. “Most lawsuits happen because of poor communication between the dentist and the patient. It’s that simple. If a patient understands what’s going on and they’re offered informed consent, there’s a far less likelihood of potential problems developing. As long as the standard of care is met and there’s good communication between the dentist and the patient, most lawsuits can actually be avoided. A colleague once told me that long before a patient cares how much you know, they’ll want to know how much you care. That should be your approach to practice. People sense when you’re not looking out for them and you’re simply looking out for yourself.”
Cohen believes that good dentist-patient communication lies in good education. “I think the responsibility of the dentist is to present all of the options to the patient. The patient has to be able to make the choice. I don’t think that only we can decide for the patient what’s going to be done. The patient has to participate. Treatment options and the findings of research have become so complicated and complex, the ability to be able to communicate all this to the patient becomes the responsibility of the hygienist and the dentist,” he says.
By his own admission, Limoli has a skeptical view of standard of care in the dental profession. “There is no standard of care,” he says. “It’s one of the biggest cop-outs that the dental profession has. The standard of care is number one, do no harm. The standard of care is that you are practicing an art and a science—a healing art and a caring science. Greed has pushed that away. Industry has pushed that away. Dentists are horrified because they are getting sucked into this big healthcare system, and they can’t escape it.
“There are two things dentists need to protect themselves,” Limoli continues. “One, they must have accurate clinical documentation. Two, they absolutely must have a decent and compassionate chairside manner. Without these things, they’re going to get nailed.”
Heymann adds, “I think the key to a successful practice is to make every patient feel like they are genuinely being cared for. When I hear students talk about procedures, they’ll say, ‘well I did an amalgam today’ or ‘I had a denture come in today,’ I know they’re looking at patients as procedures, and not looking at the patient behind the procedure.”
In addition to the clinical chart, one of Heymann’s colleagues keeps a separate chart on his patients about their interests, their family, and their jobs, “because he genuinely cares about his patients. He’ll spend time talking to his patients when they come in to find out how their family is doing and how work is going and about their interests. He has so many new patients every month he can’t handle them all.”
Heymann warns dentists not to be driven by the dollar. “Don’t think patients don’t see that,” he says. “They see that very clearly when they come into a practice and they feel like more of a source of making a buck as opposed to feeling genuinely cared for. If you genuinely care for your patients, if you do what’s in their best interest, you’ll meet the standard of care because you care. You’ll render that treatment in the highest ethical fashion because you care about the person in your chair.”
Informed Consent Will Help Even More
Our experts also agreed that one of the most important components of a possible future defense case is getting informed consent from the patient. “When I graduated from dental school the prevailing system was of dentist as God—whatever the dentist said was unquestioningly accepted by most patients,” Simonsen relates. “Today, the patient is much better informed and the need for informed consent is much better recognized. Thus, patients today play a much more important role in decision-making, and, therefore, in the acceptance of standards of care.”
Siegal says, “We are much more diligent in providing informed consent to patients and ensuring their privacy rights because it’s law now. I’ve always given patients informed consent, but I was sort of laissez faire about it; not anymore. They all get it. They all have to know what’s going on in their mouth so that they can make an informed decision.”
Seidberg also agrees. “By keeping better, more accurate, and legible records; by obtaining informed consent prior to treatment and documenting the consent; by improving communication skills and explanations to patients; and by having a good expert witness support you if there ever is litigation, will all help to protect you from a malpractice suit. Dentists must be able to provide good background for their decisions, period.”
Chapman believes informed consent needs to be standard operating procedure for all dentists, but even more so in the cases where a patient comes in and wants something that is not in their best interest. “They should be informed of the risks of pursuing the treatment they want, and the potential benefits of alternative treatment plans. That’s why the informed consent process is so important,” he says. “As long as the patient is well informed, it proves that there is an ethical consideration or an ethical decision on the part of the practitioner that the final treatment decision is appropriate based on their clinical knowledge and current research.”
Limoli issues a warning, though. “If anything goes wrong in that dental chair, it’s malpractice—period. There’s no way around it. Obtaining informed consent does not give the doctor permission to commit malpractice. You still have a legal and moral obligation to focus on the person in your chair. You still have a legal and moral obligation to know what you’re doing to that person in you chair. And you still have a legal and moral obligation to do both well.”
The Best Defenses
It has probably happened to every dentist: You assess your patient, you diagnose their condition, and your present your treatment plan, only to be asked, “Does my insurance cover that?” The answer doesn’t do anything to change the diagnosis or the possible treatment approaches. It also doesn’t change the level of responsibility the dentist has to properly diagnose and treat the patient. According to Scott D. Benjamin, DDS, a well-known expert in the field of oral cancer who has a private practice in Sidney, New York, this happens often with comprehensive oral cancer screening. When a patient rejects the idea of having such a screening done because his or her insurance won’t pay for it, it’s up to the dentist to inform the patient of the benefits of having it done as well as the risks of not having it done. He equates a patient’s rejection of an oral cancer exam with a refusal to have a blood pressure check in a physician’s office.
“Our evaluation techniques are looking at the standard vital signs of our patient in the oral cavity,” Benjamin says. “When a patient says they don’t want to pay for an enhanced non-invasive evaluation, what is the moral responsibility of the clinician? If the clinician does not do the exam, he or she has not properly educated the patient on the value of the procedure. He or she has then not met the standard of care in doing what’s best for the patient.”
He points out that all dentists, with every patient they see, have the opportunity to improve the quality of life of that patient. The vast majority of patients come to the office for some other reason than the suspicion of oral cancer. Whether it’s for an annual periodontal exam and prophylaxis or routine or emergency restorative work, a critically important opportunity presents itself at every patient visit.
“Our primary responsibility is to improve quality of life and to improve longevity. Every time a patient presents to a dentist is what I call an opportunistic screening. The patients are presenting to the dental office for another perceived reason. Every opportunity should be taken to do an oral cancer evaluation—or more importantly, a comprehensive oral mucosal evaluation,” Benjamin says. Every adult patient, even those coming in for a basic hygiene visit, has such an examination as standard operating procedure in Benjamin’s office. Further, every patient who exhibits any risk factors in their medical history or in their lifestyle habits is evaluated using fluorescent visualization with a diagnostic aid. “My protocol is that anybody with that sort of history or exhibits those risk factors is having that type of evaluation done at every single appointment regardless of the primary intent of the appointment,” he says.
As a compelling argument for making a comprehensive oral mucosal evaluation part of a standard of care, he cites some alarming statistics that he uses in his lectures. “There’s a huge change in the demographics today of oral malignancies. There’s a five-fold increase in oral cancer in people under the age of 40. The human papillomavirus has been shown in several studies to have a direct correlation to oral cancer, and 75% of the population has been exposed to at least one of the more than 100 strains of the virus. Some studies about to be released are going to show that the traditionally low-risk group of females under the age of 40 is possibly going to be the highest-risk group over the next 10 to 15 years. We’re finding that 25% of the people being diagnosed don’t have any of the conventional risk factors. The incidence of oral cancer is growing at a rate of about 10% or more a year in the United States. And the prognosis remains very bleak. The best chance a patient has is early diagnosis.”
In terms of proving that a standard of care was met in a malpractice lawsuit, Benjamin affirms that the best defense is offense. “One of the questions that will come up in a malpractice lawsuit is to explain what your office procedure is and how you do a comprehensive evaluation. Did you use any of the enhanced technologies? And if you answer no, the question is: Why didn’t you? And then you have to defend why you didn’t. There is no defense for not doing an enhanced examination. Every clinician needs to be aware of that, and to be prepared to suffer the con-sequences, which, basically, means forfeiting everything they have ever worked for, everything they will ever work for, as well as the quality of life of their patient.”
The Role of Insurance in Determining The Standard of Care
Just how much are insurance carriers driving changes in the standard of care? Michael D. Weitzner, DMD, MS, says, “Increasingly, insurers are being asked to justify their coverage decisions based on clinical considerations as much as business considerations. To a certain extent, this is being driven by the marketplace, as insurers need to respond to the evolving evidence just as individual practitioners do, and in addition, demonstrate to purchasers that the insured populations are getting healthier. Our organization has a Clinical Policy and Technology Committee, as do others in the benefits industry. This type of committee reviews the evidence and makes clinical recommendations, based on principles of evidence-based dentistry, which have the potential to impact many of our business functions from plan design, to product development, to utilization criteria, etc. In many cases, as a result of Committee recommendations, coverage has been added or expanded, such as our recent addition of coverage for oral cancer screening, implants, and expanded prevention benefit for pregnant patients.”
Does that mean patients are receiving better care? Not unless the carriers are flexible in what they will cover. “Insurance companies who interfere with treatment decisions and deny good, appropriate treatment plans for the reasons of cost containment affect dental care which can ultimately be related to a lower standard of care,” Bruce Seidberg, DDS, MScD, JD, FCLM, says. “Being more flexible with a broader scope of treatment options that would be in the best interest of the patient rather than allow only the minimal treatment for cost containment improves patient care and ultimately the standard of care.”
D. Walter Cohen, DDS, thinks that insurance companies definitely have a part to play. “With more and more people having third-party coverage, there is an opportunity for insurance companies to get involved in helping to present some of the new information and continuing education programs to help raise the standards of care. The higher the level of practice, and especially in the area of prevention, may mean that it would save expenditures by the insurance companies,” he says.
Regardless of what insurers do, the responsibility for accurate and appropriate treatment still lies with the dentist. “The clinician should be concerned with the diagnosis, not what treatment the insurance company will pay for,” Douglas Terry, DDS, says. “The standard of care is based upon scientific, evidence-based literature, not what an adjuster approves or does not approve. For example, if a patient needs a biopsy for a possible carcinoma and the insurance company will not pay for the biopsy, the standard of care is that it is the responsibility of the clinician to diagnose and offer treatment to the patient. Of course, the patient has the right to refuse the treatment ‘against medical advice.’ But, it is the clinician’s responsibility to properly inform the patient regardless of the insurance company’s policy and to document that conversation.”
“The idea is you always treat the patient’s needs; you never treat their insurance,” Scott D. Benjamin, DDS, says. “The idea of whether insurance covers needed procedures doesn’t change the patient’s need for those procedures.”
Know Your Neck of The Woods Like The Back of Your Hand
Scott D. Benjamin, DDS, identifies one problem inherent in defining a standard of care this way: “If there is a ‘standard’ of care, then every clinician would be held accountable to the same standard, all the time,” he says. “The current ‘state’ of care in dentistry should be whatever we can do as dental clinicians to improve the quality of life of our patients—which is different for every patient. And so, therefore, treatments that may be appropriate and effective for one patient may be completely inappropriate and ineffective for another patient because of socio-economic reasons, because of systemic health reasons, because of all sorts of extenuating dental and medical health reasons. The real issue here is that the standard of care ultimately should be to improve the quality of life of your patient both orally and systemically.”
Benjamin believes that most dentists know this as a general rule, but, unfortunately, many dentists tend to focus more on their patient’s specific dental problems and not the patient’s overall well-being. “There’s been a lot of hype recently on doing a comprehensive cancer exam,” he explains. “However, the real true goal should be doing a comprehensive enhanced oral mucosal exam, which allows the dentist to look for both signs of cancer as well as signs of trauma, irritation, and systemic presentation of diseases. There’s a very faulty misconception that if a basic oral evaluation doesn’t uncover a malignant condition or a potentially malignant condition that the patient is healthy. We all know that is not the case.”
Michael A. Kahn, DDS, professor and chairman in the Department of Oral and Maxillofacial Pathology at Tufts University School of Dental Medicine, elaborates on what constitutes a comprehensive oral exam. First, it includes the careful inspection and evaluation of the soft and hard tissues of the head and neck. “Before you even head into the mouth, every dentist should palpate the neck for all of the normal lymph nodes to ensure that none are enlarged—especially if they are non-moveable, firm, and not hurting, which is a very bad sign that some cancer unbeknownst to everyone has already spread to these nodes,” he explains. “They are supposed to carefully look at all of the frontal exposed skin, such as the nose, ears, and both the upper and lower lips. All of the skin along the neck needs to be examined, looking for skin cancers—both squamous cell on the skin around the mouth and basal cell carcinomas, which are the most common and easily treatable skin cancer. Dentists should even be looking for the most deadly category of skin cancer, the melanomas.
“The clinician should also palpate the submandibular, sublingual, and parotid glands. At the same time, your fingers should be loosely resting on the tem-poromandibular joint while you have the patient open and close, to feel if there is any unusual grinding, and to listen carefully if there is any clicking or other kind of noises that should not be in that joint when it opens and closes. I also tell my students to pay attention to the thyroid gland. This part of the exam, which takes no more that a couple of minutes, should happen before you ever tell a patient to open up and start looking in their mouth,” he emphasizes.
Why do Kahn and our other experts believe this should be a standard to which every dentist should be compelled to conform? It’s very simple, says Kahn—what’s the point of proceeding with elective—and expensive and time-consuming—treatment if the patient has underlying health issues that go undetected and, therefore, untreated?
“You can do incredible esthetic dentistry. The patient will be happy, and you will be happy, and your pocketbook will also be happy because you have earned some significant money doing your thing. Is there significant money involved in doing this type of examination before you even get to the mouth? No. So, unfortunately, there are dentists that pay it short shrift or skip it entirely or do it ala carte. This is a huge mistake,” he warns. “Don’t be too anxious about getting to the ‘fancier’ parts of treating a patient. It all must start with that comprehensive oral exam because, if you do not have an accurate diagnosis, what is the point of treatment planning and performing $10,000 or $15,000 in esthetic dentistry on a patient, have it look dynamite, but, during the entire 4 months it took to create all of that artistry, there was an oral cancer growing in the back of the patient’s mouth and now they have to have major surgery? Now they have to have it all cut out—along with their jaw—and then have about a 20% chance of living for 5 years? What was the point of doing all of that when you did not bother to make sure that the person was going to be alive to enjoy it? Some clinicians think that dentistry does not involve life or death issues. Well, here is the place where it does involve life and death issues.
“Many clinicians are highly motivated, and they understand the big picture that you make sure everything is fine with the patient first,” Kahn goes on. “Then you can go on and rebuild their smile and do all of the expensive bleaching and crowns you and your patient want. On an annual basis, in the very beginning of the appointment, you are morally—and legally—obligated to take care of your ‘neck of the woods,’ so to speak. And your neck of the woods is not just inside the mouth. It is the entire head and neck, from the thyroid gland up. For the millions of Americans who are troup-ing into dental offices at least once a year, that is the standard of care.
The Inside Look From...
Issue after issue, the feature presentations in Inside Dentistry deliver coverage of the relevant and thought-provoking topics specifically affecting the dental profession, as well as oral healthcare in general. The publishers and staff could not bring the underlying concerns surrounding these timely issues to the forefront without the insights shared by our knowledgeable and well-respected interviewees. For their collective generosity of time and perspectives, we extend our sincere gratitude.
1Graskemper JP. The standard of care in dentistry. J Am Dent Assoc. 2004;135(10): 1449-1455.
2King JH. The Law of Medical Malpractice in a Nutshell. 2nd ed. St. Paul, MN: West Publishing; 1986.
About the Contributors
Gary Alex, DMD
Long Island Center for Dental Esthetics and Occlusion
Huntington, New York
Huntington, New York
Scott D. Benjamin, DDs
Sidney, New York
SUNY at Buffalo School of Dental Medicine
Buffalo, New York
Robert Chapman, DMD
Department of Prosthodontics and Operative Dentistry
Tufts University School of Dental Medicine
D. Walter Cohen, DDS
Drexel University College of Dental Medicine
University of Pennsylvania School of Dental Medicine
Harald O. Heymann, DDS, MEd
Professor and Graduate Program Director of Operative Dentistry
University of North Carolina School of Dentistry
Chapel Hill, North Carolina
W. Kenneth Horwitz, DDS
Michael A. Kahn, DDS
Professor and Chairman
Department of Oral and Maxillofacial Pathology
Tufts University School of Dental Medicine
Gerard Kugel, DMD, MS, PhD
Associate Dean for Research
Tufts University School of Dental Medicine
Tom Limoli, Jr, BS
Limoli & Associates/Atlanta Dental Consultants
Noshir Mehta, DMD, MDS, MS
Director of the Craniofacial Pain Center
Professor and Chairman
Department of General Dentistry
Tufts University School of Dental Medicine
Ali Allen Nasseh, DDS, MMSc
Harvard School of Dental Medicine
Bruce Seidberg, DDS, MScD, JD, FCLM
Immediate Past President
American College of Legal Medicine
Chief of Dentistry
Syracuse, New York
Senior Attending Dentist
St. Joseph’s Hospital
Syracuse, New York
Liverpool, New York
Michael A. Siegel, DDS, MS, FDS, RCSEd
Professor and Chair
Oral Medicine and Diagnostic Sciences
College of Dental Medicine
Nova Southeastern University
Fort Lauderdale, Florida
Internal Medicine and Dermatology
College of Osteopathic Medicine
Nova Southeastern University
Fort Lauderdale, Florida
Richard J. Simonsen, DDS, MS
Midwestern University College of Dental Medicine
Douglas Terry, DDS
Department of Restorative Dentistry and Biomaterials
University of Texas Health Science Center
Michael D. Weitzner, DMD, MS
Clinical Product Development
United Healthcare Dental