The standard of care and its relationship to risk management is one of the most discussed and least understood topics among dentists. Everyone thinks they are treating their patients within the standard of care, because they are either 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.
The standard of care continually evolves with the advent of new materials, new procedures and new court rulings.
With all the new techniques and materials, as well as the dental gurus’ proclamations that their way is the best, it is time to revisit the honorable, time-tested doctrine of the standard of care. Every time I read a dental publication, I perceive confusion regarding the standard of care as it relates to the community-based general dentist. Of course, we all try to keep abreast of the changes in dentistry to improve our patient care. By doing so, we think we will be within the standard of care, and will not have to worry much about it when we treat patients. We believe we are up to date in regard to the latest and greatest methods and materials. However, many of my students, residents and colleagues still ask me, "What exactly is the standard of care?" Some have attempted to define it as follows:
- – what the normal, average dentist does;
- – what the dentist was taught in dental school;
- – what is taught in dental schools now;
- – the best he or she can do under the circumstances;
- – what the majority of dentists are doing in their practices;
- – what the specialist would do under the same circumstances.
However, these definitions do not define the standard of care completely. The definition of the standard of care has not changed. Dental practitioners and how they practice have changed, however, and, as a result, the level of care that dentists provide to patients also has changed. The manner in which the standard of care is applied has evolved with the development of new materials and new treatment modalities. It is made malleable by practitioners who perform successful new techniques, as well as by the treatment failures that find their way into the trial courts. So what is the standard of care?
The standard of care actually is found in the definition of negligence, which is said to have four elements, all of which must be met to allow negligence to be found in a malpractice lawsuit. Those four elements are as follows:
- – 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.1(p9)
The plaintiff must show all four elements to fulfill his or her burden to prove negligence. The second element carries with it the concept of standard of care. The plaintiff must show that the standard of care has not been met in a cause of action against a dentist for negligence. It is whether the dentist provided treatment above or below the standard of care that usually is the biggest stumbling block for the plaintiff in his or her pursuit of a malpractice case.
The definition of the standard of care was best stated in Blair v. Eblen2: "[A dentist is] under a duty to use that degree of care and skill which is expected of a reasonably competent [dentist] acting in the same or similar circumstances."
The plaintiff must show that the standard of care has not been met in a cause of action against a dentist for negligence.
I should point out that each state may have a somewhat different interpretation of the definition of the standard of care. Moreover, the standard of care may vary somewhat depending on the facts of local cases (see the sidebar on page 1454 for more information). Dentists should consult with an attorney for applicable state law.
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ORIGINS OF THE STANDARD OF CARE
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Where did the concept of "standard of care" come from? The first mention, to my knowledge, of a "reasonable man of ordinary prudence" was made in the case of Vaughan v. Menlove in 1837.3 The theory then gravitated to the health care professions. When applied to dentistry, the objective criteria judging the conduct of the defendant (dentist) needed to be changed from "a reasonable man of ordinary prudence" to a higher level for two reasons. First, as members of a learned profession, dentists are expected to possess and exercise skill and knowledge beyond that of average people. Second, in regard to matters involving professional skill and knowledge, the conduct of a dentist should be evaluated in terms of professional dental standards determined by the dental profession; hence, the need for expert witnesses.
In the late 1800s, professionals and others who undertook any work that called for special skill needed not only to exercise reasonable care in their work, but also to possess a minimum standard of special knowledge and ability. Thus, it might not have been sufficient for the dentist to provide the best treatment he or she could—even with the utmost of good faith—if that treatment was below a minimum standard. In 1898, the case of Pike v. Honsinger4 clearly stated the elements of the standard of care, which I have summarized as follows:
- – possess a "reasonable degree of learning and skill that is ordinarily possessed by physicians [dentists] and surgeons in the locality where he [or she] practices";
- – "use reasonable care and diligence in the exercise of his [or her] skill and the application of his [or her] learning";
- – "use his [or her] best judgment in exercising skill and applying his [or her] knowledge";
- – "in relation to learning and skill [it] does not require the surgeon [dentist] to possess that extraordinary learning and skill which belong only to a few men of rare endowments, but such as possessed by the average member of the medical [dental] profession and [in] good standing";
- – "he [or she] is bound to keep abreast of the times";
- – use "approved methods in general use";
- – "does not require the exercise of the highest possible degree of care [to be liable], but there must be a want of ordinary and reasonable care, leading to a bad result";
- – "give proper instructions to his [or her] patient in relation to conduct, exercise and use of an injured limb [jaw or tooth]";
- – The physician [dentist] does not "guaranty [sic] a good result but he [or she] promises by implication to use the skill and learning of the average physician [dentist] to exercise reasonable care and to exert his [or her] best judgment in the effort to bring about a good result";
- – The physician [dentist] is not liable for a "mere error of judgment, provided he [or she] does what he [or she] thinks best after careful examination."
Each of these elements has developed and evolved to its current general understanding.
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THE LOCALITY RULE
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The locality rule—or community standard—states that the dentist will be held to the same level of treatment that other dentists are providing in their local communities.5(p72) This rule is slowly becoming watered down or replaced with the "reasonably prudent standard."5(p71)
With the increased availability of professional information through continuing education programs, which many states now require, and the relative ease of keeping up to date with technical advancements through journals and the Internet, the local community rule has been found to be too narrow in scope.6(p164) However, it still may be used in remote areas where the dentist does not have the level of accessibility to specialists or to advancements in dentistry that most dentists have, or it may take longer for those advancements to become commonplace in the remote area.
Another reason we have moved away from the locality rule is because of concerns that have arisen regarding the reluctance of doctors to testify against one another, especially if they know the defendant and live or work in the same community. This poses the possibility of insulating and perpetuating pockets of substandard practice because of the limited availability of local expert witnesses, which would be unfair to claimants. It also creates a possible conflict of interest for an expert witness when he or she knows the defendant. For the most part, the dentist from New York, the dentist from Kansas and the dentist from Washington all have equal access to recent advancements in dentistry. Hence, the locality rule has evolved into a wider scope termed the "reasonably prudent standard."
The reasonably prudent standard states that the dentist will be held to the level of care that a reasonably prudent practitioner would have provided under a certain set of circumstances.
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REASONABLE CARE AND DILIGENCE
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The reasonably prudent standard states that the dentist will be held to the level of care that a reasonably prudent practitioner would have provided under a certain set of circumstances.5(p71) What is reasonably prudent? A 1974 case found that the nonuse of a simple procedure (a glaucoma test), although not typically used in that community for patients younger than 40 years, was below the standard of care.7
This decision was based on the conclusion that if a simple procedure could show early signs of disease, and thereby allow an early, more successful treatment or even prevention of disease, it should have been used. Thus, the nonuse of such a procedure—because its use is not standard within the professional community—is not a reason to limit liability.
This 1974 case clearly stated that the standards for a procedure or treatment, as set forth by a profession, may be found to be unreasonable if the procedure or treatment is basically pain-free, easy, inexpensive, takes little time and was not performed.7 When a procedure might have avoided the devastating result of disease or injury, a reasonable and diligent professional should have used it. This is true regardless of whether it is or is not a standard procedure or treatment within the professional community.
The use of a periodontal probe is a good example. Using a periodontal probe routinely during examinations is a painless, quick, easy and inexpensive method of checking for periodontal disease. More likely than not, the probe will detect early signs of periodontal disease, which allows for early treatment and possible prevention of tooth loss. Even if all dentists in the community do not use a periodontal probe in all examinations, a dentist’s nonuse of the probe probably would be considered below the standard of care.
This concept was stated again in Vassos v. Raussalis8: "The skill, diligence, knowledge, means and methods are not those ‘ordinarily’ or ‘generally’ or ‘customarily’ exercised or applied, but are those that are ‘reasonably’ exercised or applied. Negligence cannot be excused on the grounds that others practice the same kind of negligence."
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THE EXPERT WITNESS
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Because of the technical aspect of dentistry, the judge and jury need to rely on an expert to explain what is expected of a "reasonably prudent" dentist. It is the expert’s duty to review and explain what the treatment in question would have been had a "reasonably prudent dentist" performed the treatment. What the expert witness actually does in his or her office is not relevant, although many times what he or she does may be the same. He or she is to make the questioned treatment comprehensible to the judge and jury. For a dentist to qualify as an expert, the courts look to his or her skill, training and experience.
In Fitzgerald v. Flynn,9 the court stated, "It is the scope of the expert witness’ knowledge and not the artificial classification by title that should govern the threshold of admissibility." In other words, just because someone considers himself or herself a dental specialist does not make that person an expert witness. The relevant criteria are the individual’s knowledge of and familiarity with the procedure in question.
Therefore, a general dentist with knowledge of and familiarity with a procedure may be found competent to testify as an expert witness against a specialist. For example, if a specialist fails to secure informed consent from a patient before providing treatment, a general dentist with experience in such treatment may be found to be an expert witness for or against the specialist. So does that create one standard for both or two standards? Is the standard for the specialist different from that for the general dentist? To date, no distinction has been made between an ordinary skilled general dentist and a specialist of superior skill. According to Prosser,6(p163) the courts have held that the standard may be modified if the practitioner holds himself or herself out as having greater skill and knowledge than does the general practitioner. In that case, such a practitioner probably will be held to a higher standard.10,11
The best judgment rule requires the dentist to use his or her best judgment when the prevailing practice is unreasonably dangerous for a particular patient.
However, consider the case of a patient who, despite receiving a referral, opts not to see a specialist, but wants the general dentist to perform a procedure for whatever reason (for example, distance or cost). If the general dentist performs the procedure and it ends in a bad result, he or she might be held to a standard that is lower than that for a specialist (depending on state law and the specifics of the case), but not below a minimum level that the patient is entitled to receive (that is, the level a reasonably prudent dentist would provide in the same or a similar situation).
In Cummins v. Donley,12 the court held that if the defendant (a dentist) represents himself (or herself) as having greater skill (or less skill) than the minimum common skill of a reasonably prudent defendant (a dentist), and the patient accepts treatment with that understanding, the standard of care will be modified. The duty still remains for the dentist to be reasonably prudent and inform the patient of the opportunity to be referred for treatment to another practitioner of greater skill.
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THE BEST JUDGMENT RULE
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The best judgment rule, instituted in 1968, added the concept that the dentist must use his or her best judgment when the prevailing practice is unreasonably dangerous for a particular patient.1(p72) An example of the best judgment rule is the use of cantilever bridges when a removable partial denture would be the more conventional treatment of choice. Although cantilever bridges are acceptable in limited circumstances, they have been found to be unreasonably dangerous when used improperly.
Another example is that of patching a hole in a crown or filling in a void at the margin of a crown rather than replacing the crown. If there is no added appreciable risk to the patient by treating him or her with a cantilever bridge or by patching the crown, then the dentist probably will not be held liable if the treatment is unsuccessful, because he or she used his or her best judgment. This rule coincides with the "Last Clear Chance Doctrine,"13 which states that if the dentist knew or should have known that the information from, or treatment by, a patient’s previous health care provider (specialist or not) is incorrect and he or she still proceeds with the treatment on the basis of the incorrect information, which results in damage to the patient, the dentist probably will be held liable.
A good example is when a patient’s physician states to the dentist or patient that premedication is not needed for a heart murmur, but the treating dentist knew or should have known that premedication was needed. The dentist cannot hide behind the physician’s wrong information or course of action, because he or she had the last clear chance to prevent harm to the patient.
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WHAT IS AVERAGE?
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The term "average" in this context loosely means that one-half of the dentists are practicing below the standard of care and one-half are practicing above it. This, however, is not the case, because more than one-half of all dentists practice within the standard of care. In the place of "average," "reasonably competent" has been slowly accepted by the courts.14
The Restatement of Torts stated the following: "The fallacy in the ‘average’ formulation has been explained as follows: [The standard of care] is not that of the most highly skilled, nor is it that of the average members of the profession ... since those who have less than ... average skill may still be competent and qualified. Half of the physicians [dentists] of America do not automatically become negligent in practicing medicine [dentistry] ... merely because their skill is less than the professional average. ... [The standard] is that which is common to those who are recognized in the profession ... itself as qualified, and competent to engage in it" (Restatement of Torts, 299A, comment e).1(p75) (The Restatement of Torts is a series of volumes written by the American Law Institute that explain the law in a general area, how it is changing and what direction the authors think this change should take.) Hence, having a license to practice dentistry makes one qualified and competent to practice within the standard of care.
When adopting new techniques, dentists must be reasonably prudent and competent in their use.
A more practical way of looking at this element of "average" or "reasonably competent" in regard to the standard of care is to think of an egg that is divided into fourths. The top three-fourths more likely than not fall within the standard of care. There is no line above which one practices within the standard of care or below which one does not practice within the standard of care.
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KEEPING ABREAST OF PROFESSIONAL DEVELOPMENTS
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Keeping up with current developments in dentistry is partially the reason why most states now require that dentists earn continuing education credits. However, this does not mean that dentists must perform every new technique (or that which is being promoted by the latest self-professed dental guru). However, when adopting new techniques, dentists must be reasonably prudent and competent in their use. Being aware of any advancements in the field and informing patients of these advancements (even if the dentist chooses not to perform them himself or herself) should be considered to be "keeping abreast of the times." For instance, although a dentist may not perform implant procedures—a newer procedure for some—he or she should inform a patient of the possibility of being an implant candidate and refer him or her to the proper dentist if the patient opts to receive implants.
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APPROVED METHODS
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With the advent of adhesive restorative materials, implants and other advances in dentistry during what I refer to as the current "platinum age" of dentistry, dentists face many choices with regard to materials, techniques and procedures. By selecting a less popular method or material, a dentist probably will not be held liable if there is a "respectable minority" using the same method or material. The respectable minority rule holds that "a physician [dentist] does not incur liability merely by electing to pursue one of several recognized courses of treatment.15 However, what constitutes an acceptable level of support for a particular technique has yet to be determined.
I believe that practitioners should follow a dual approach to help guide them in following this rule. On the one hand, if progress is to be made, standards should be broad enough to allow innovation and advancement in treatment modalities. On the other hand, patients should be protected from ill-considered and untested procedures. The courts should consider the following factors when determining whether the respectable minority rule should be applied on a wider basis: the availability, effectiveness and safety of more traditional treatments; the patient’s having given the dentist fully informed, written consent for the procedure; and consideration of the technical support and research available for the treatment in question.1(p67) Also, the dentist should be properly trained in the new procedures and be reasonably competent in their use.
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ORDINARY AND REASONABLE CARE
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The standard of care does not require that the dentist provide the highest possible level of care, although dentists should strive continually to improve patient care. Dentists must only provide ordinary and reasonable care in a prudent and competent manner to be practicing within the standard of care. They may not perform below the minimum level of care that patients are entitled to. As mentioned above, if a dentist holds himself or herself out as providing a higher-than-ordinary level of care, he or she may be held to a higher level of standard of care.
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PROPER INSTRUCTIONS
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The standard of care extends to the information that dentists give patients regarding how they need to care for themselves after treatment. Dentists must provide postoperative instructions because patient care continues after they leave the dental office. Without proper instructions, patients may be harmed.
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DO NOT OFFER GUARANTEES
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Simply because a dentist tells a patient that he or she can save a tooth with endodontic therapy or periodontal surgery, it is not a guarantee that the tooth will be saved. Thus, clinicians must be careful in what they say. I use the term "setup" to refer to many of the statements I hear dentists make. Statements such as "I can save that tooth," "your smile will be perfect when I’m done" and "this will be an easy extraction" are no-win situations for dentists. Building up the patient’s expectations beyond those that the dentist is capable of providing or building up expectations to an unattainable degree can set up the practitioner to become a defendant in a lawsuit. However, when dentists reassure patients about planned procedures, there is an implication that the dentist will act competently and prudently to bring about a good result through ordinary and reasonable care.
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ERRORS OF JUDGMENT
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If the treatment ends in a bad result, that alone will not be a successful cause of action because of the "error in judgment" doctrine.1(p69) This doctrine has three related malpractice concepts. First, it supports the basic requirement that before a dentist can be held liable, the patient-plaintiff must prove that the dentist’s conduct was negligent. Second, it re-emphasizes that without evidence of the dentist’s negligence, he or she will not be held liable merely because of an unfavorable result from the therapy. Third, it reaffirms the respectable minority rule, which protects the dentist’s right to choose among reasonably acceptable therapeutic approaches, even though, in retrospect, the choice may have turned out to be less beneficial than other options.
The standard of care is the manner in which a dentist must practice.
The error in judgment doctrine is not a solely determining or ruling doctrine that decides the fate of a malpractice case. In Fall v. White,16 the court concluded that "a doctor will not be negligent if he exercises such reasonable care and ordinary skill even though he mistakes a diagnosis, makes an error in judgment or fails to appreciate the seriousness of the patient’s problem. There cannot be a total disregard for the patient’s problem." Minimum requirements of skill and knowledge must be met regarding the diagnosis and treatment of the patient. The dentist must proceed as a reasonably prudent and competent practitioner, providing, at the very least, ordinary and reasonable care.
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CONCLUSION
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The standard of care has evolved and will continue to evolve by way of various rulings of trial and appellate courts, advances in dental research, better continuing education programs and the normal progression of the daily practice of dentistry. The standard of care is not a line that dentists fall above or below. It is the manner in which a dentist must practice. A bad result is not necessarily outside the standard of care, if the dentist has provided the minimum level of care that the patient is entitled to receive. This includes proper referral to another dentist or a physician when the level of care that the patient is entitled to is beyond the dentist’s capability.
If dentists provide ordinary and reasonable care in a prudent and competent manner, they will find themselves performing within the standard of care and will receive much satisfaction from dentistry and caring for their patients.
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Consult with counsel regarding standard of care
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The ADA’s Division of Legal Affairs wishes to emphasize the importance of consulting with local counsel regarding standard of care, given that state law can vary, and a different standard can apply even within a given state based on the facts of a particular case. As further background on this topic, the Division is pleased to share the following excerpt from our new publication, "Frequently Asked Legal Questions: A Guide for Dentists and the Dental Team," which answers more than 150 questions that member-dentists have asked us frequently during the past decade:
Question 150. Did I Commit Malpractice? What Is the Standard of Care?
Let’s first describe what is meant by the phrase "standard of care." The typical malpractice case alleges that the dentist, through acts or omissions, failed to provide appropriate quality care, or take reasonable precautions when doing so, thereby causing harm to the patient, usually during dental treatment. Implicit in this formulation is a failure to treat in accordance with the standard of care.
Since a malpractice case goes to the heart of the question of whether a defendant-dentist followed the standard of care, it is perfectly reasonable for a dentist to want to know what the standard is. Unfortunately, there is no simple, one-size-fits-all answer. This all becomes fact specific, dependent on the procedures involved, the norm in the community, etc. In fact, in a lawsuit each side has the opportunity to present expert testimony regarding what it believes the standard of care to be. It is then up to the judge or jury hearing the facts of the case to decide what the standard is, and whether it has been violated.
Worthy of note is that while ADA positions and recommendations may be cited as evidence of the standard of care, the ADA does not actually set the standard. Indeed, ADA’s patient care information, including our dental parameters, are always clear that treatment recommendations are always and ultimately left to the professional judgment of the dentist.
"Frequently Asked Legal Questions" can be ordered through the ADA Catalog by calling 1-800-947-4746 or visiting "www.adacatalog.org". The publication also includes a variety of sample contracts and checklists that dentists can tailor to fit their specific practice and state law requirements.
—ADA Division of Legal Affairs
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ABSTRACT
ORIGINS OF THE STANDARD...
