How Domestic Conditions Play a Role in Dental Treatment

Background Facts

Dr. U has been a general dental practitioner for more than 2 decades, with her office located in a thriving “bedroom community” suburb of a large metropolitan area. Among her patients were K, a 12-year-old boy, whom she had treated since he first began seeing a dentist at age 4, and his mother (M) and father (F). Because of the close relationship that Dr. U and the family members had developed over the years, she had been aware, for some time, that M and F had been in counseling due to marital problems and that they had been separated for nearly 2 years. Both M and F confided to Dr. U at their own recent dental visits that they were in the process of a contentious divorce process, with allegations on both sides of inappropriate conduct toward K. The divorce was subsequently finalized.

K presented for a dental appointment, accompanied by F, which F had scheduled in association with the planned start of K’s orthodontic treatment. The orthodontist, Dr. B, planned for a full-banded case with the extraction of both upper fist bicuspid teeth, so he handed a referral card to F, requesting the extraction of teeth #5 and 12. With the written consent of F, Dr. U routinely extracted both teeth and the areas healed well.

What Dr. U was unaware of was that M did not agree with the approach of Dr. B, so she took her son to see a second orthodontist, Dr. R, who proposed a non-extraction orthodontic treatment plan, with which M agreed and planned to proceed. What Dr. U was also not apprised of, or aware of, was that the divorce decree vested full authority of healthcare decision-making with M, based upon what the Court saw as several “questionable” decisions F had made in the past regarding K.

When M learned what happened, she immediately called Dr. U and confronted her as to why she performed extractions on her son without her authority. She told Dr. U that she had no idea about the planned extractions and would not have permitted them had she known. Dr. U said that she had no reason to know or believe that F did not have the legal right to provide consent on behalf of K and that she had a written referral form from Dr. B, which seemed to her an appropriate part of an orthodontic treatment plan.

With the option for non-extraction orthodontics no longer a possibility, M took her son back to Dr. R, who said he would orthodontically treat K, but he would expect the result to be compromised, as compared with a non-extraction approach.

Legal Action

M retained an experienced dental malpractice attorney, who evaluated the case in conjunction with a dental expert and a colleague attorney who handled divorce matters regularly. The dental expert reviewed the matter and concluded that differences in opinion as to whether an orthodontic case should be managed with or without extraction of bicuspids are very common, so he did not see any clear negligence in either approach.

The divorce attorney was of the view that vesting healthcare decisions in only one of the divorced parents is far from uncommon and that the Court’s order in that regard was quite clear.

Without a basis to pursue a dental malpractice case, M’s attorney initiated a case against Dr. U for lack of informed consent and advised his client to seek redress against F for overstepping his Court-permitted authority, which she did through her own divorce attorney, and which is beyond the boundaries of this case study. Simultaneous with the action seeking damages against Dr. U for treating K without informed consent, M filed a complaint with the local Dental Board, claiming that Dr. U breached her duties.

After Dr. U notified her malpractice carrier, she was assigned defense counsel who immediately addressed the legal action by filing a motion to dismiss the case. Counsel argued to the Court that Dr. U had gone through an exhaustive discussion with F, regarding the carrying out of a treatment plan which was completely reasonable, with F giving his written permission for her to go forward. Additionally, most importantly, Dr. U had no reason to presume that F no longer had consent authority for his minor child. M’s attorney argued in opposition that Dr. U was fully aware that M and F had been separated, well before the treatment at issue was rendered, and then divorced, so the burden was on her, prior to treating K and particularly when that treatment was irreversible and quite significant, to assure that the consenting parent did, in fact, have the authority to act on behalf of his child.

The Court acknowledged in its determination that these were “muddy waters” to wade through, so the decision was not an easy one, but ultimately found that there are realistic limits as to what a healthcare practitioner can be expected to inquire about during an informed consent process, and marital status and child custody are beyond those limits; the responsibility of a legal change of circumstances – as compared with, for example, a medical change of circumstances – lies in a situation like this with the parents, especially because both parents had, for many years, individually and together accompanied K for dental visits and approved his dental treatment. On that basis, the legal action was dismissed.

The Dental Board concluded that it was not an arbiter of domestic relations matters, but rather only of dental matters, and determined that Dr. U’s actions, both dentally and in conjunction with the informed consent process, fell squarely in line with what a reasonable dentist would have done. It declined to take any action against Dr. U.

Takeaways

It is not hard to imagine that a different judge or a different Dental Board might have come down with different results. So, while this case demonstrates that a reasonable dentist need not delve into family personal matters, even if they might be aware of problems going on in the background, there could be circumstances when a simple clarifying question – such as “Do you have authority to consent on this child’s behalf?” – will save litigation and disciplinary woes down the line. There is nothing rare about treating children whose parents are divorced, so the issue is one to at least consider, especially when the propriety of a particular dental procedure might be up for debate.

As we have discussed in prior case studies, a claim of lack of informed consent is one which, depending upon state-specific rules, can stand alone as a close relative of negligence-based malpractice and successfully lead to a result in favor of plaintiff-patients, even when there is no negligence in the performance of the associated dental treatment. The importance of informed consent is often put to the side in today’s dental practice environment, but it is a valid basis for suit, and it can lead to a finding against a dentist either on its own or teamed with a claim of negligence.

This case raises, at least tangentially, the concept we refer to as “jousting”, or the criticizing to a patient by one dentist of the work of another dentist. Whereas those types of criticisms are, unfortunately, sometimes blatant and aggressive, Dr. R’s statement that, given the extractions that had taken place, the orthodontic result was expected to be compromised, was much more subtle. But the end product was arguably the same: it sent a message that the treatment which preceded his involvement was improper, and that might well have been the ultimate driving force that sent M to an attorney.

Finally, we note that the dental expert who reviewed the situation for M’s malpractice attorney provided a well-reasoned conclusion, based upon sound principles which guide dental practice. That is not always the case, and that sometimes leads to dental malpractice litigation, which is not warranted, causing great personal stress to dentist-defendants.

Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.