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Legal Aspects of Orthodontic Practice: Risk Management Concepts
LEGAL ASPECTS OF ORTHODONTIC PRACTICERISK MANAGEMENT CONCEPTS By Donald E. Machen, DMD, MSD, JD Pittsburgh. Pa. In this and succeeding issttes of the AMERICANJOURNALOF ORTHODONTICSAND DENTOFACIALORTHOPEDICS,factual risk managenlent scenarios will be presented. These scenarios are based on composites of actual court cases that have been tried to verdict or decision. Vahtable risk management lessons may be learned from careful analysis of the course of the events described. Please be advised that the standard of care determined in any case is specific for that jurisdiction and that set of facts as established by expert testimony for the prevailing party. Readers' comments may be addressed to Dr. Donald E. Machen, 5801 Beacon St., Pittsburgh, PA 15217.
Alternative treatment plans
A recent case emphasizes the importance of thorough diagnosis and treatment planning on individual patient care. Only in this way can effective informed consent be offered, thereby permitting the patient to choose the treatment alternatives desired, and for which he or she will have assumed the associated risks or complications. FACTUAL BACKGROUND
In this case, a woman in her 40s presented for orthodontic evaluation. After careful clinical examination, medical and dental histories, and diagnostic records, the practitioner prepared a diagnosis and a treatment plan, which he presented to the patient. This plan included an initial period of orthodontic appliance care followed by orthognathic surgery. The patient requested an alternative approach, preferring to delete the orthognathic surgery. The practitioner developed a purely orthodontic treatment plan as an alternative, carefully documenting that this alternative plan would produce a compromise result and, more significantly, might expose the patient to an increased risk of developing signs and symptoms of temporomandibular joint dysfunction (TMJ). A second treatment conference was held, and an appropriate chart entry was made. The conference highlights were reduced to a letter that was sent to the patient for review and signature. On several occasions during orthodontic care, the patient complained that the results were not satisfactory and that, unless orthodontics alone could provide better results, she would change her mind and elect orthognathic surgery. The practitioner advised the patient that,
aside from some minor improvements, the treatment was essentially completed. At this time, the patient consented to undergo a revision in the treatment plan, in essence opting for the original treatment plan that included orthodontics and orthognathic surgery. Unfortunately, the alternative treatment plan involved orthodontic tooth movements, that required time-consuming reversal, once the decision was made to undergo orthognathic surgery. With this understanding, the practitioner modified the treatment plan and proceeded to prepare the patient for orthognathic surgery. Although progress was documented, the patient became impatient with the practitioner's treatment and consulted another provider. During her treatment by the subsequent orthodontist, the patient developed myofacial pain and TMJ dysfunction. In her complaint, the patient alleged that the initial practitioner's diagnosis and treatment of her problem had been improper. Specifically, she asserted that she should have been more fully advised of the potential complications associated with selecting an alternative treatment plan, including but not limited to development of a TMJ dysfunction. At trial, the jury returned a verdict in favor of the practitioner, accepting his version of the scenario that was totally supported by the records, correspondence, and documentation, much of which was signed by the patient. DISCUSSION
Many orthodontists believe that performing a thorough clinical examination, obtaining thorough medical and dental histories, preparing a thorough diagnosis and 91
92
Legal aspects
treatment plan, and conducting thorough informed consent procedures requires additional time. In fact, incorporation of these suggested protocols requires little, if any, additional time, once developed, and can afford the practitioner the opportunity to save hundreds of hours required to properly defend a lawsuit or preferably, through their use, to avoid the lawsuit entirely. In evaluating this case, several factors appear to have been deemed important by the jury in determining that the practitioner fulfilled his obligations to the patient. First, the practitioner performed a complete evaluation and suggested a course of treatment designed to correct the patient's problem. Second, an alternative plan was made available that was clearly identified as a compromise. Third, the potential risks and compli-
Am. J. Orthod. Dentofac. Orthop. January 1991
cations associated with the alternative treatment were presented to, discussed with, and acknowledged by the patient. And, finally, a paper trail existed confirming each of the above-mentioned steps. The reflective practitioner can derive several useful lessons for protocol development from this case. With their incorporation into daily practice, these protocols can serve to aid the practitioner in enhancing patient care and reducing the likelihood of involvement in litigation, if not eliminating the potential for litigation altogether. To better address the needs of practicing orthodontists, I welcome suggestions for future columns. In addition, specific questions may be submitted.
Alternative treatment plans
A recent case emphasizes the importance of thorough diagnosis and treatment planning on individual patient care. Only in this way can effective informed consent be offered, thereby permitting the patient to choose the treatment alternatives desired, and for which he or she will have assumed the associated risks or complications. FACTUAL BACKGROUND
In this case, a woman in her 40s presented for orthodontic evaluation. After careful clinical examination, medical and dental histories, and diagnostic records, the practitioner prepared a diagnosis and a treatment plan, which he presented to the patient. This plan included an initial period of orthodontic appliance care followed by orthognathic surgery. The patient requested an alternative approach, preferring to delete the orthognathic surgery. The practitioner developed a purely orthodontic treatment plan as an alternative, carefully documenting that this alternative plan would produce a compromise result and, more significantly, might expose the patient to an increased risk of developing signs and symptoms of temporomandibular joint dysfunction (TMJ). A second treatment conference was held, and an appropriate chart entry was made. The conference highlights were reduced to a letter that was sent to the patient for review and signature. On several occasions during orthodontic care, the patient complained that the results were not satisfactory and that, unless orthodontics alone could provide better results, she would change her mind and elect orthognathic surgery. The practitioner advised the patient that,
aside from some minor improvements, the treatment was essentially completed. At this time, the patient consented to undergo a revision in the treatment plan, in essence opting for the original treatment plan that included orthodontics and orthognathic surgery. Unfortunately, the alternative treatment plan involved orthodontic tooth movements, that required time-consuming reversal, once the decision was made to undergo orthognathic surgery. With this understanding, the practitioner modified the treatment plan and proceeded to prepare the patient for orthognathic surgery. Although progress was documented, the patient became impatient with the practitioner's treatment and consulted another provider. During her treatment by the subsequent orthodontist, the patient developed myofacial pain and TMJ dysfunction. In her complaint, the patient alleged that the initial practitioner's diagnosis and treatment of her problem had been improper. Specifically, she asserted that she should have been more fully advised of the potential complications associated with selecting an alternative treatment plan, including but not limited to development of a TMJ dysfunction. At trial, the jury returned a verdict in favor of the practitioner, accepting his version of the scenario that was totally supported by the records, correspondence, and documentation, much of which was signed by the patient. DISCUSSION
Many orthodontists believe that performing a thorough clinical examination, obtaining thorough medical and dental histories, preparing a thorough diagnosis and 91
92
Legal aspects
treatment plan, and conducting thorough informed consent procedures requires additional time. In fact, incorporation of these suggested protocols requires little, if any, additional time, once developed, and can afford the practitioner the opportunity to save hundreds of hours required to properly defend a lawsuit or preferably, through their use, to avoid the lawsuit entirely. In evaluating this case, several factors appear to have been deemed important by the jury in determining that the practitioner fulfilled his obligations to the patient. First, the practitioner performed a complete evaluation and suggested a course of treatment designed to correct the patient's problem. Second, an alternative plan was made available that was clearly identified as a compromise. Third, the potential risks and compli-
Am. J. Orthod. Dentofac. Orthop. January 1991
cations associated with the alternative treatment were presented to, discussed with, and acknowledged by the patient. And, finally, a paper trail existed confirming each of the above-mentioned steps. The reflective practitioner can derive several useful lessons for protocol development from this case. With their incorporation into daily practice, these protocols can serve to aid the practitioner in enhancing patient care and reducing the likelihood of involvement in litigation, if not eliminating the potential for litigation altogether. To better address the needs of practicing orthodontists, I welcome suggestions for future columns. In addition, specific questions may be submitted.