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The “Minimally Competent” Orthodontist Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA

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By Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA

There are several opinions concerning issues in orthodontic diagnosis, treatment planning, treatment and how each relates to the standard of care.¹ The use and interpretation of 3D/cone beam computed tomography (CBCT) is one area.

As with all health care, the baseline legal duty of care for acceptable diagnosis, treatment planning and treatment is practicing at or above the "standard of care." Practicing below the standard of care is considered legally inadequate and as such, is a breach of the duty.

Setting treatment sights at the legal standard of care isn't what most clinicians have as their goal, once they understand what it means. Furthermore, the standard of care is applied retrospectively when something has gone terribly wrong and a lawsuit has been filed. It is the standard against which you will be judged in a court of law.

As developed in court cases and/or by statute in all jurisdictions in the United States, the standard of care is defined as "what the ordinary, prudent, reasonable practitioner would do or should have done under the same or similar circumstances."

Some states vary the specific language saying the "appropriate standard of care in a medical malpractice case is objective and centers around exercising the degree of care, diligence, and skill ordinarily possessed and exercised by a minimally competent and reasonably diligent, skillful, careful and prudent (practitioner) in that field of practice."²

This makes sense if you consider that of those taking state dental boards, approximately 90 percent pass on their first attempt. The criteria for passing the dental board examination reduces to a simple analysis as to who is minimally competent to practice, as described above. The practitioner does not need to be perfect…but should possess a minimal competence. The practitioner should have education, training and some level of skill, and hopefully, will then, through experience, treat patients in their practice conscientiously. By doing so, the practitioner can readily comply with the ethical and legal standard of care.

Although this may be somewhat surprising at first blush, it is easily understood if one considers that a demonstration of "minimal competence" is all that is required to obtain a professional health care license to practice in any state.

From the above, it should be clear to practitioners that their minimum legal goal is to practice according to the standard of care. After speaking with many orthodontists, there exists a misconception that their goal for diagnostic, treatment planning and treatment is to practice to the standard of care. If that is their choice, so be it. However, understanding the real definition of the standard of care, few orthodontists feel that practicing to the standard of care is their professional goal.

If the goal of a practitioner is to offer optimal care orthodontists will strive for more than merely satisfying the legal standard of care, or that of "minimal competence."

CBCT is Becoming the Standard of Care in Orthodontics
As with all new techniques, orthodontists may experience some trepidation in implementing this new technology. It does require additional training and knowledge, but without CBCT, you may not be practicing the highest standard of care.

Orthodontics, as with many other specialties, involves integrating new approaches and a constant commitment to education, skill development and training. Orthodontists are not finished learning once they graduate from school. They should continue to train and develop as a clinician until they retire.

Many clinicians are hesitant to adopt the CBCT since they do not have experience examining the X-rays. CBCT X-rays are after all, more comprehensive. Get trained on how to read them. Don't be afraid to refer if need be. Some things will get overlooked, just as they do with 2D radiographs, but so long as you are practicing the way an "ordinary, prudent practitioner would have observed, diagnosed and referred" under the same or similar circumstances, you are legally in the clear, and by using the CBCT you are giving the patient the advantage of technology. You can use a protocol checklist to avoid missing abnormalities. By denying the existence or refusing to use CBCT, you are denying a patient high standard of care. Can you still practice minimally competent dentistry with 2D radiographs? Yes. Is this the standard of care patients want and deserve? No. Practitioners need to become proficient and skillful. This is no different than their other diagnostic and treatment methodologies. We should all set our goals higher than this low level of adequacy.

There are some in our profession who suggest radiologists, dental or medical, are required in the process. We disagree that CBCT's should be read and interpreted in this manner as a routine measure. However, on occasion, the services of these practitioners may be needed. There are movements in some jurisdictions to require this. A careful analysis of the reason for this may be informative. Practitioners should know what the legal and ethical requirements are in the jurisdictions in which they practice. Further, consulting their dental board(s) and insurance providers is also suggested. Finally, orthodontic practitioners have been carefully reading and interpreting images since radiography was introduced and making referrals when indicated. This will not change.

To suggest that orthodontists are not competent to view images using a newer technology is not accurate. Even if you do not feel competent reading CBCT images now, education and consultation can change this. At first, the prospects may seem daunting. By not pursuing education and help with CBCT and instead continuing with 2D, you are not practicing above the standard of care.

Informed Consent and CBCT
Several respected authors, including a defense lawyer and a plaintiff 's lawyer who is also a periodontist, say patients should be educated about CBCT and should give informed consent prior to a procedure. In all jurisdictions, legally adequate informed consent is required to be provided to the patient. Some jurisdictions differ on the specifics of the presentation; however, the following framework satisfies all jurisdictions:
  • The nature of the diagnostics and/or problem be presented;
  • The practitioner's recommended diagnostics and/or procedures;
  • The alternative diagnostics and/or procedures;
  • The potential material complications of the recommended diagnostics and/or treatments and those of the alternatives; and,
  • The potential material complications if the diagnostics and/or treatment are refused.
At this time, legally adequate informed refusal regarding CBCT when the patient chooses to forego this imaging is a crucial step toward informed consent.

The standard of care requires that all potential material complications be presented and discussed with the patient/ parents. Along with the other aspects discussed above, this is the essence of informed consent. If a patient accuses you of malpractice and you did not obtain informed consent from the patient when CBCT should have been offered or used, you have not covered your bases. Patients/parents have autonomy in health care decisions and are free to choose to have diagnostic testing including imaging, as long as they have had legally and ethically adequate informed consent. In the future, ethically adequate care will likely become an issue under your jurisdiction's Dental Practice Act.

No matter how you choose to proceed, it is suggested that as part of a thorough informed consent protocol, discussion and documentation associated with not having a recommended treatment is needed, also called informed refusal. This is an integral part of informed consent and is required to satisfy the standard of care.

As with all aspects of patient care, it is the patient/parent who makes the decision as to whether to have the CBCT. If the practitioner feels that it would be negligent to proceed without this diagnostic image dataset, they may decline to treat the patient. By following this informed consent framework, the practitioner will comply with the standard of care for informed consent.

Well-respected legal authorities, both for the defense and the plaintiff, when discussing CBCT, believe that at a minimum, in order to comply with the legal standard of care, patients/parents should be given legally adequate informed consent and advised about the potential material complications of not having the CBCT imaging. Although these abnormalities may be infrequent, they do occur with documented frequency.

The advent of the CBCT technology presents the clinician with much to think about and consider when evaluating a patient for care. Fortunately in most instances, overriding the entire process is the safety net of reasonableness. For orthodontic patients without symptoms or indications, is it reasonable to discuss and/or recommend CBCT imaging as part of the diagnostic process, before treatment and/or under specific presenting circumstances? What about patients with TMD? Impacted cuspids? Headaches or other facial pain? How well trained and equipped are clinicians at treating these problems? Should clinicians be ordering CBCTs with such patients? What about other imaging?

What are the reasons for many of the objections? In essence, the comments made by orthodontists relate to CBCT not being the standard of care and also who will read the image data set. Occasionally mentioned is the unwillingness to either purchase the needed equipment and/or to whom to refer for the imaging. These are the most common comments. There are others as well.

If you choose to revise your examination, diagnostic and treatment protocols in light of new technologies, it is suggested that you develop a systematic approach. With regard to effectively and efficiently examining and interpreting the CBCT image dataset, the following protocol is currently being used in an effort to comply with any existing standard of care. As with all new technologies, evolution is a given. Each clinician should not hesitate to use their education, training, skill and experiences and by doing so, add to this framework.

References:
  1. Opinions may differ based on background and experience.
  2. Bickham v. Grant
Author’s Bio
Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA, is the recognized authority on risk management in orthodontic practice having initiated the discipline in the mid- 1980s. He developed, moderated and presented at the AAO's first national risk management telecast to more than 2,600 orthodontists. He has represented orthodontists, dental specialists, general dentists and physicians in malpractice lawsuits and other legal matters as a trial lawyer and currently is a trial court judge in Pennsylvania having served for more than 14 years. He is a board certified orthodontist maintaining a part-time practice and is on the orthodontic faculty of Case Western University Dental School and The University of Pittsburgh School of Dental Medicine. He is also an Adjunct Professor of Law at Duquesne University School of Law where he teaches malpractice litigation. He lectures extensively to orthodontic groups, both large and small, focusing on developing highly effective systems for eliminating lawsuits, optimizing patient care and increasing practice referrals. Machen is the author of Managing Risk in Orthodontic Practice and is managing director of Risk Management Consultants, LLC. He can be contacted at: drmachen@orthormc.com.
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