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The Definition of “Standard of Care”

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With the introduction of new, game-changing technologies like 3D CBCT into the orthodontic profession, the term "standard of care" is evolving – and fast. Orthotown Magazine spoke with standard-of-care authority, Arthur W. Curley, Esq., JD, a senior trial attorney in the San Francisco-based health-care defense firm of Bradley, Curley, Asiano, Barrabee & Crawford, P.C., to obtain his thoughts on this subject.

Is "standard of care" a legal term and what does it mean?
Curley: Yes. It is defined as what a reasonable and prudent practitioner would or should do, or avoid, under that same or similar circumstances, at the same time and at a similar location.

What is the relationship of negligence to standard of care?
Curley: Negligence is failure to meet the standard of care.

Is standard of care defined differently from state to state?
Curley: There are some minor differences. For example in New York, the standard of care for a referring dentist is to be sure the specialist to whom a patient is referred, obtains appropriate informed consent before providing specialty treatment. No other state has this rule. Most other states say that the duty to obtain informed consent rests with the dentist providing the actual treatment.

Does the State Dental Practice Act define or influence the standard of care?
Curley: It can. Generally the SDPA doesn't define the standard of care, but it will often make specific mandates by code. Such requirements become standard of care. Example: In California, informed consent for IV sedation must be in writing. Therefore failure to get written (versus oral) consent is below the standard of care. In contrast, for routine care, like fillings, oral consent is all that is required. However, risk managers recommend written informed consent to prevent "he said, she said" arguments.

Is diagnosing orthodontic problems without using 3D CBCT (cone beam computed tomography) considered practicing below the standard of care?
Curley: Not for me to say as an attorney. We don't set the standard of care. There are experts who say yes, others who say no. It is a judgment call. I have cases right now where an expert hired for the patient/plaintiff has testified that CBCT was required and would have prevented a complication, when clearly it was not and the complication would have occurred anyway.

The criteria for passing a dental board examination determines who possesses minimal competence to receive a license. Is a licensed orthodontist practicing without CBCT as part of his diagnosis considered to be less than "minimally competent"?
Curley: Not yet, but that may change in the not too distant future with the increasing number of orthodontists relying on CBCT. Dental Boards hire experts to review cases. As soon as the Boards begin to use orthodontists who state that CBCT should have been used and failure to do so was substandard care, they will de facto create that standard.

In your opinion, is there a point in the future where CBCT will become part of the definition of "minimal competency" in orthodontics?
Curley: Dental equipment alone will never define "minimal competency." Rather on a case by case, patient by patient basis, utilizing it may be considered a protocol for dentists to comply with the standard of care, just like using a perio probe has been called the standard of care for evaluating periodontal health.

If an orthodontist uses CBCT scans, what degree of liability is placed on his training and understanding of the content of the scan?
Curley: It would be the same as if he were looking at a Pano, FMX and Ceph.

Since CBCT is new to orthodontics – only five to 10 percent of orthodontists use it routinely – can "not using" CBCT be defended in court?
Curley: Yes, since there are no definitive studies that say it is the standard of care for all orthodontics. Some experts will say it is, others will say it isn't. That makes it what most states describe as a "judgment" call. In this case, where there are two schools of thought and neither is the standard of care, it is not negligent to use one not favored by all dentists.

Are there judgments against orthodontists who have been directly influenced by the CBCT scan issue?
Curley: Not that I know of, but not all 50 states report their verdicts to the service I use. There are however, claims for a complication and the allegation is that the orthodontist failed to take or get appropriate imaging to track a risk, such as root resorption. I have seen cases where CBCT solved the mystery of a persistent problem but they didn't result in lawsuits.

Relative to using or not using CBCT scans for the diagnosis of orthodontic problems, what is the greatest risk for the orthodontist?
Curley: It has been my experience that in the area of a dentist not taking a CBCT, they fear the liability because they could miss some unusual finding or medical condition due to the large scope of data available on the scan. However, in my experience and from what I have been told by insurance carriers, the dentist is much more likely to get sued for not taking a CBCT and having an "avoidable" complication, than missing some distant medical condition. It is the same in ortho.

Do you have any final comments for our readers?
Curley: Technology like CBCT is rapidly evolving and expanding its capabilities. With increasing availability, the prudent dentist must stay up to date with the capabilities of technology, such as CBCT applications, and their potential to predict and therefore reduce complications while at the same time enhancing outcomes.

Mr. Curley, thank you so much for taking time away from your busy schedule to respond to our questions. This information is critical to understanding exactly where we stand, as a profession, in all the areas of concern that are associated with this revolutionary technology.
Orthotown Magazine
September 2025
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