Legal

Dental Implant Jurisprudence: Avoiding the Legal Failures

Arthur W. Curley, JD

Copyright 2001 Journal of the California Dental Association.

The law measures the quality of dentistry by the "standard of care" as defined by the courts. The ultimate judges of the facts in a malpractice suit are usually juries made up mostly of lay people. Ignorance of the legal requirements for dentistry, and specifically dental implants, unnecessarily exposes today’s dental health care provider to such suits. However, with a reasonable understanding of the legal issues and requirements surrounding the standard of care, a dentist may avoid becoming embroiled in a malpractice claim.

"After many years on the bench, having presided over numerous jury trials, I have come to the conclusion that the process is not so much about the search for the truth as it is a civil method of resolving differences between people."

-- Honorable Roy Norman, retired judge of the California Superior Court.

Trying to understanding the American legal system can be similar to trying to decipher a foreign language: Its esoteric rules often defy the ordinary logic of most dental practitioners. The law measures the quality of dentistry by the "standard of care" as defined by the courts, not by textbooks or journals. While the judges and attorneys determine the nature of the evidence presented, the ultimate judges of the facts are usually juries made up mostly of lay people with little or no health care training. Ignorance of the legal requirements for dentistry, and specifically dental implants, unnecessarily exposes today’s dental health care provider to malpractice suits that are very costly to defend, both financially and emotionally. In dental malpractice lawsuits, dentists will be confronted with a legal system in which there are seldom any true winners. In addition, many suits result in costly investigations by the California Board of Dental Examiners and/or first party insurance carriers. However, with a reasonable acceptance of the reality of the law of dentistry, an understanding of the legal issues and requirements surrounding the standard of care, and implementation of a modest risk-management program, a dentist may avoid becoming embroiled in a malpractice claim and all the distress that it entails.

No Longer Just an Option

In just two decades, this author, in the representation of dentists, has seen dental implants evolve from being considered cutting edge or even experimental by some dentists testifying as expert witnesses, to their current status as a well-accepted alternative to traditional fixed or removable restorations.^1-5 In fact, the turnaround has been so complete that in the past two years, the author and some of his colleagues have represented dentists being sued for failure to recommend implants; and some insurance carriers have considered adding implants to their lists of covered benefits. Nearly every oral surgery and periodontology text published since 1995 contains some discussion of dental implants. The author has observed that attorneys representing accident victims have embraced implants because they have been accepted by trial judges as a recoverable expense necessitated by an injured party’s loss-of-teeth injuries. To appreciate the legal implications, and indeed the law’s requirements for dental implants, one must first appreciate the nature of the judicial system as it affects dentists.

Nature of the Legal System

The American judicial system encountered and utilized by the general public comprises three basic components: juries, attorneys, and judges. They operate under a system of laws that determine how the results of health (including dental) care delivery will be evaluated in cases involving claims of malpractice. Those laws (known as statutes or codes) are written by either the legislatures or courts of appeal (and are known as case or common law).

In our system, most often the jury, not the judge, determines issues of fact or, in plain terms, whom and/or what evidence to believe. The right to trial by jury can be waived by both sides. If that occurs, a judge would evaluate the evidence instead. In forming the jury, members of the local community are called at random from sources such as the county voter registration records, to serve on a jury.⁶ Initially, the judge questions jury candidates.⁷ They may be excused by the trial judge from serving as members of the jury for reasons such as having personal hardship, admitting to a strong bias toward one party or one side of the case, or acknowledging strong preferences for or against a particular issue before they hear any of the facts.⁸ After those jurors are excused, the attorneys representing the parties are allowed to question remaining prospective jurors.⁹

Uncovering jury biases that might favor one side or the other is the requisite skill and, indeed, art of the good trial lawyer, the second component of the legal system. After questioning, the trial attorneys for each side are allowed to reject and excuse up to six prospective jury members without stating any particular reason. Naturally, a seasoned trial attorney will use the limited number of challenges afforded him or her to excuse prospective members that might have leanings toward the opposing side and may tend to be persuasive with the other members.¹⁰ Generally, the members of the jury who make the final selection, and who will hear the evidence, are of average education, possess little or no health care training, and have not expressed any strong biases or opinions. Therefore, a dentist sued for malpractice will not be judged by a group of dentists or other health care professionals, rather by the lay public.

Attorneys are also the component of the judicial system most responsible for finding and then shaping the evidence that will be presented to the jury. Through a process known as discovery, the attorneys may interrogate witnesses with written questions known as interrogatories¹¹ and verbal questions in a process called a deposition.¹² They then hire experts to explain the dental and medical evidence, terms, and standards to the jury.¹³ Cross-examination of the opposing experts and their evidence is often the determining factor in the outcome of a suit. Indeed, this author has encountered and opposed several dentists who have gone to law school and opened up law practices specializing in suing dentists. They have first-hand knowledge of the issues surrounding dental implants.

The third component of the judicial system is the judge, who determines issues of law and applies the facts as determined by the jury.^14-16 However, the judge is also the one who ultimately determines what evidence offered by the attorneys will or will not be admissible and heard by the jury, based upon his or her interpretation of the laws of evidence.¹⁷

The laws of California do not set forth the specific details of how dentistry is to be performed, rather without specifically defining that standard they charge that the dental care provider must meet or exceed the standard of care. The law is best summarized in the discussion given the jury to help them understand the "standard of care." The jury is told that a dentist, performing professional services for a patient, owes that patient the following duties of care:

"1. The duty to have that degree of learning and skill ordinarily possessed by reputable dentists, practicing in the same or a similar locality and under similar circumstances;

"2. The duty to use the care and skill ordinarily exercised in like cases by reputable members of the profession practicing in the same or a similar locality under similar circumstances; and

"3. The duty to use reasonable diligence and his best judgment in the exercise of skill and the application of learning. A failure to perform any one of these duties is negligence."^18-21

Another way to describe the standard of care is to determine what would be reasonable and prudent conduct under the same or similar circumstances. It is not necessarily what is taught in dental schools or described in dental textbooks. Rather, it is what an expert witness will state is their belief as to the "standard of care," and then it is for the jury to decide which expert’s opinion is most credible.

The same applies for specialists, and the jury is told by the judge that:

"It is the duty of a [dentist] who holds himself out as a specialist in a particular field of [dental], surgical or other healing science, to have the knowledge and skill ordinarily possessed, and to use the care and skill ordinarily used, by reputable specialists practicing in the same field and in the same or a similar locality and under similar circumstances. A failure to fulfill such duty is negligence."^22,23

The jury generally comprises lay individuals, who are told they must rely on expert testimony and not their own knowledge of the science involved when determining whom to believe.

"You must determine the standard of professional learning, skill and care required of the defendant only from the opinions of the dentists who have testified as expert witnesses as to such standard.

"You should consider each such opinion and should weigh the qualifications of the witness and the reasons given for his opinion. Give each opinion the weight to which you deem it entitled.

"You must resolve any conflict in the testimony of the witnesses by weighing each of the opinions expressed against the others, taking into consideration the reasons given for the opinion, the facts relied upon by the witness, and the relative credibility, special knowledge, skill, experience, training and education of the witness."^24,25

With regards to experts, the jurors are told that:

"A witness who has special knowledge, skill, experience, training or education in a particular subject has testified to certain opinions. Any such witness is referred to as an expert witness. In determining what weight to give any such opinion, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion.

"An opinion is only as good as the facts and reasons on which it is based. If you find that any such fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based.

"You are not bound by an opinion. Give each opinion the weight you find it deserves.

However, you may not arbitrarily or unreasonably disregard the dental opinion testimony in this case."^26-29

In the final analysis, the question of whether malpractice has been committed is resolved by a battle of the experts and their individual credibility before a jury rather than some consensus of the sciences at issue.

When dental implants were first used, this author noted that plaintiffs’ attorneys encountered little difficulty finding experts who would state that the care rendered was substandard because the devices were unproven or experimental. Today, it is quite the opposite. This author has found that it is nearly impossible to find any credible expert to challenge the concept that implants are an acceptable form of dental care and therefore the modern practitioner cannot escape giving them some consideration.

Evidence Standard

In a civil case the amount of proof (evidence) required by law that a plaintiff must present against a defendant is much lower than in a criminal case. As a result of the press and other media reporting criminal cases, it is not uncommon for a dentist to mistakenly believe that in order to lose a case there must be evidence "beyond a reasonable doubt." Instead, the jury is told that they need only find that the evidence in favor of the plaintiff is just more than 50 percent, or what is called "a preponderance of the evidence."

"Preponderance of the evidence" means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it."^30,31

This author has noted that judges in California often allow lawyers to tell the jury that the evidence rule means that they must find for the plaintiff even with the slightest tipping of the otherwise evenly balanced scales of justice, even if there is as much as 49 percent of evidence to the contrary of the plaintiff’s case. Once the jury finds that the preponderance is met, the plaintiff is entitled to their full measure of damages, not a reduction based upon the amount of evidence.^32,33 Therefore good records become even more important evidence for the defense to use in tilting the scales toward the side of the doctor.

The New Standard of Care

The wealth of dental literature supports implants as a well-established form of long-term dental restoration, as reliable as bridges and preferable to removable appliances.^1-5 The law holds that experts may rely on well-established and authoritative literature on the subject to support their opinions.³⁴ In doing so, those experts have contributed to a change in the law by way of a modification of the duty of informed consent to include informed refusal.

Informed Consent

A dentist has a duty to obtain the informed consent of a patient before providing or declining to provide treatment. Informed consent is a process of education and communication that enhances the doctor-patient relationship and prepares the patient for the potential of a less-than-ideal outcome. With the exception of the application of general anesthesia, the law in California does not specifically require documentation of the consent process, only that it occur prior to treatment. The jury is told:

"It is the duty of the [dentist] to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment.

"Material information is information which the [dentist] knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure. To be material, a fact must also be one which is not commonly appreciated.

"There is no duty to make disclosure of risks when the patient requests that he not be so informed or where the procedure is simple and the danger remote and commonly understood to be remote.

"Likewise, there is no duty to discuss minor risks inherent in common procedures when such procedures very seldom result in serious ill effects.

"However, when a procedure inherently involves a known risk of death or serious bodily harm, it is the [dentist’s] duty to disclose to the patient the possibility of such outcome and to explain in lay terms the complications that might possibly occur. The [dentist] must also disclose such additional information as would be called for by the standard of skill and care required of the defendant under the same or similar circumstances.

"A [dentist] has no duty of disclosure beyond that called for by the standard of skill and care required of the defendant under circumstances when he relied upon facts which would demonstrate to a reasonable person that the disclosure would so seriously upset the patient that the patient would not have been able to rationally weigh the risks of refusing to undergo the recommended treatment.

"Even though the patient has consented to a proposed treatment or operation, the failure of the [dentist] to inform the patient as stated in this instruction before obtaining such consent is negligence."^35,36

In such a case, the doctor can be liable for a complication, not due to a failure of skill or technique, but merely because the patient was not informed of the potential risks, including such a complication, before consenting. Therefore documentation becomes a way of proving the consent process took place and that the patient consented to treatment with a reasonable appreciation of the risks, benefits, and alternatives.

Informed Refusal

The emergence and growth of managed care in the medical and dental communities has resulted in significant expansion of the laws of informed consent to include the doctrine of informed refusal in all cases, regardless of the method of payment. Put simply, the doctor has an obligation to advise the patient of the ideal treatment plan, not just the ones the patient can afford and to advise of the risks and benefits of the alternatives or those plans. Further, if a patient chooses the less expensive, but alternative, treatment plan, the comparative risks must be explained and the discussion should be documented. Today, a doctor can be liable for problems experienced by a patient who either was not told of a potential alternative treatment or was not told the risks of refusing a recommended treatment.³⁷ The courts have held that:

"The [doctor] who complies without protest, with the limitations imposed by a third party payor [or that of the patient’s own finances], when his medical judgment dictates otherwise, cannot avoid his ultimate responsibility for his patient’s care. He cannot point to the health care payor [or patient finances] as the liability scapegoat when the consequences of his own determinative medical decisions go sour." In other words, the patient must be educated as to the superior alternatives, even if they are more expensive and/or not covered by insurance.

Implants and Informed Refusal

In the past, when a patient lost a tooth due to either trauma or decay, the traditional replacement was a three-unit bridge.^1-5 This required preparing the two abutment teeth with the risk of injury to the root canals, followed by placement of the bridge. Home care then required the use of a floss-threading device, and there was the issue of bone atrophy in the area of the missing tooth. Insurance carriers would pay for crown/bridge replacement every five to 10 years. Each replacement carried the risk of breakage of the remaining tooth structure and root canal damage.^38,39

Today, for about the same price, a patient can have a dental implant with minimal risk to adjacent teeth, and potential bone preservation with improved hygiene.^37,40 However, few, if any, insurance carriers cover such treatment, and most patients will elect to have only the insurance-covered benefit or the cheapest care. In addition, this author, in defending several dental malpractice cases, has encountered many doctors who are either not comfortable or familiar enough with implants to discuss them with their patients.⁴¹ However, as noted above, the law does not allow the doctor to avoid the discussion of implants for those reasons and will make the practitioner liable for failure to conduct an informed-consent discussion that includes the alternatives to treatment in addition to the risks of treatment.

Where appropriate, implants must be offered to the patient, and if the patient declines and chooses a more traditional restoration, the doctor must obtain and document informed refusal, just as one would document informed consent. In doing so, the practitioner becomes entitled to some of the protections under the law. For example, a jury is told:

"A patient has a duty to follow all reasonable and proper advice and instructions regarding care, activities and treatment given by such patient’s doctor.

A doctor is not liable for any injury resulting solely from the negligent failure of the patient to follow such advice and instructions."^42-44

Referral Duties

A dental practitioner, if unable or unwilling to provide dental implant services, such as either implant restoration or surgery, must nevertheless consider making a referral to other dentists who can provide such treatment and discuss the risks and benefits, if implants are a reasonable alternative to traditional treatment. The jury is told:

"It is the duty of a [dentist] who is a general practitioner to [refer a patient to a specialist] [recommend the assistance of a specialist] if under the circumstances a reasonably careful and skillful general practitioner would do so.

If the [dentist] fails to fulfill that duty and undertakes or continues to perform professional services without the aid of a specialist, it is the further duty of the physician to have the knowledge and skill ordinarily possessed and exercise the care and skill ordinarily used by reputable specialists in the same field and in the same or a similar locality and under similar circumstances. A failure to fulfill any such duty is negligence."^45-47

Based upon the law as cited above, the modern practitioner cannot avoid at least mentioning to the appropriate patients the potential for restoration with dental implants and either treatment planning them, making a referral, or obtaining informed refusal if the patient declines treatment.

Documentation

Several studies, including those sponsored by the Harvard Medical School Risk Management Foundation, have found that patients can suffer from genuine amnesia regarding pretreatment discussions, including informed consent.⁴⁸ The conclusion was to get the evidence of informed consent, and now informed refusal, in writing. Technology in the form of computers, word processor programs, and e-mail have made consent forms so easy to obtain and use, that in the eyes of many "experts" they have become the standard of care. However, the consent form is not a practical or legal substitute for the discussion that should take place between the doctor and the patient. That duty cannot be delegated to a form, a movie, an audiotape, or even to staff that are not licensed to perform the treatment at issue.

In 25 years of defending dentists, this author has observed that patients seldom prevail in claims of lack of informed consent where the record of the consent discussion is well-documented and a signed, dated, and witnessed consent form utilized.^49,50 Failure to have such documentation exposes the doctor to a jury system where compliance with the consent process between the practitioner and the patient will be judged by lay people.

Team Strengths

Recently this author has seen a rise in claims involving implant failures that actually represent a breakdown in the communications between dental practitioners. Those problems could have been easily overcome by the establishment of a dental implant team concept and improved communications, with more clearly defined roles and reasonable documentation.

The ideal dental implant team involves the implant surgeon, the restorative dentist, and the soft tissue and implant manager. The team can be three offices and three doctors or one office with one doctor. However the following recommendations apply to all such combinations.

First, roles must be identified. In malpractice litigation it is this author’s experience that it is typical for the patient, via their attorney, to blame everyone involved for the failure of treatment and then demand each doctor or office to define their roles. The goal is to get the defendants to point fingers at each other -- the classic divide-and-conquer strategy. Because the team members may not see each other as team players or they have not clearly defined their respective roles, getting them to blame one another is too often not that difficult, according to the experience of this author.

Good risk management for dental implants suggests that in an ideal setting, implant teams be formed and in place before implant patients are consulted. The general practitioner must recognize his or her boundaries of experience and be prepared to consider referral to a specialist or dentist with more experience and training if the case is beyond that experience. It has been this author’s experience that one of the first inquiries by an attorney representing a patient in a malpractice claim is to question and require evidence of the defendant’s experience with the problems presented by the patient at the initial consultation.

Informed consent should be a process that starts with a consensus of the implant team and results in obtaining a reasonable and well-documented consent via patient education during consultation.⁵¹ The team members should share documentation of the informed consent process used by each member. In that way, the patient will experience consistency in the discussions with various team members.

Prevention is also documenting the treatment plan through a pretreatment letter sent to the patient and copied to each team member. The letter should, based upon the hundreds of cases defended by this author, state the recommendations of the team for treatment, such as implants, the potential alternative treatments, the roles of each member, and the risks of treatment and of the alternatives as well as an agreed-upon treatment schedule, costs and funding considerations, and the obligations of the patient. After treatment, the patient should be sent a post-treatment letter regarding long-term management and again identifying each team member’s roles and their expectations of the patient.

The team system also prevents a recently seen issue brought up in cases defended by this author in which implants have been placed without first consulting the restorative doctor who may have had other plans for reconstruction or minimal implant experience and therefore has a limited comfort zone or experience to deal with postsurgical issues. In such cases, the patient readily finds adversaries, rather than team members who should have been advocates.

Conclusion

Today, dental implants have matured to the level of having become a standard of care alternative to traditional fixed prosthodontics. Attorneys, and thus the courts, will evaluate claims of malpractice by examining the pretreatment alternatives and potential referrals given to patients before treatment is initiated. Documentation therefore becomes essential, including a record of informed refusal as well as informed consent, as to the risks, benefits and alternatives to any treatment.

The prudent practitioner can no longer allow presumed patient finances to dictate the nature of the treatment plans offered. Rather, implants must be offered as another accepted alternative for replacement of dentition. Failure to consider these obligations and to document the patient’s selection and reasons therefore creates vulnerability to claims of a violation of the "standards of care."

However, with a reasonable pretreatment planning and documentation, the careful dental care provider can avoid such claims, expand the alternatives offered to patients, and enjoy the best benefit of all -- not having to retain the services of malpractice defense attorney.

Author

Arthur W. Curley, JD, is the managing shareholder and senior trial attorney of Bradley, Curley, Asiano & McCarthy PC, a California law firm specializing in defense of the dental community. He has represented dentists and tried cases throughout the state and is an assistant professor of dental jurisprudence at the University of the Pacific in San Francisco.

Reference

1. Babbush, Dental Implants: Principles and Practice. WB Saunders Co, 1991, p 1, cites 1-11.

2. Block, Kent, Endosseous Implants for Maxillofacial Reconstruction. WB Saunders Co, 1995, pp xi, 2-3, 10-12.

3. Acceptance program for endosseous implants: a service benefit of ADA membership. Int J Oral Maxillofac Impl 6:15, 1991.

4. Curriculum guidelines for predoctoral implant dentistry. J Dent Educ 55:751-3, 1991.

5. Rizzo A, ed, Proceedings Consensus Development Conference on Dental Implants. J Dent Educ 52:680-831, 1988.

6. California Code of Civil Procedure (CCP) Section 197.

7. CCP Section 222.5.

8. CCP Section 225-230.

9. CCP Section 231-231.5.

10. CCP Section 231 (c).

11. CCP Section 2030.

12. CCP Section 2025-2025.

13. CCP Section 2034.

14. BAJI (California Book of Approved Jury Instructions) Section 1.00.

15. CCP Sections 591-592.

16. California Code of Evidence (CCE) Sections 310, 312.

17. CCE Sections 350-352.

18. BAJI section 6.00.1.

19. Keen v. Prisinzano (1972) 23 CA 3rd 275, 279.

20. Sinz v. Owens (1949) 33 C 2nd 749, 753.

21. Rainer v. Buena Community Memorial Hospital (1971) 18 CA 3rd 240, 259.

22. BAJI section 6.01.

23. Quintal v. Laurel Grove Hospital (1964) 62 C 2nd 154, 159.

24. BAJI section 6.30.

25. Engelking v. Carlson (1939) 13 C 2nd 216, 220.

26. BAJI section 2.40.

27. California Code of Evidence Section (CCE) 720(a).

28. Brown v. Colm (1974) 11 Cal 3rd 639, 646-647.

29. Cobbs v. Grant (1972) 8 C 3rd 229, 236-239.

30. BAJI section 2.60.

31. CCE Section 502, 550

32. BAJI Section 14.00.

33. California Civil Code Sections 3283, 3333, 3359

34. CCE Section 721(b)

35. BAJI section 6.11.

36. Cobbs v. Grant (1972) 8 C 3rd 229, 243

37. Wickline v. State of California (1986) 192 CA 3rd 1542.

38. Peterson LJ, Principles of Oral and Maxillofacial Surgery. JB Lippincott Co, 1992, pp 1097-8.

39. Blomberg S, Lingquist LW, Psychological reactions to edentulousness and treatment with jawbone-anchored bridges. Acta Psychiatr Scand 68:251, 1983.

40. Adell R, Lekholm U, et al, A 15 year study of osseointegrated implants in the treatment of the edentulous jaw. Int J Oral Surg 10:387, 1981.

41. Block, Kent, Endosseous Implants for Maxillofacial Reconstruction. WB Saunders Co, 1995.

42. BAJI section 6.28.

43. Barton v. Owen (1977) 71 CA 3rd 484, 506.

44. LeMons v. Regents of University of California (1978) 21 C 3rd 869, 875

45. BAJI section 6.04.

46. Horne v. Peckham (1979) 97 CA 3rd 404, 414.

47. Sinz v. Owens (1949) 33 C 2nd 749, 758

48. Robinson G, Reality of consent. Ann Thorac Surg 22(3):9, 1976.

49. Jury Verdicts Weekly, P.O. Box 2468, Santa Rosa, CA 95405-0468.

50. Medical Malpractice Verdicts, Settlements & Experts, 901 Church St., Nashville, TN 37203-3411.

51. Sterling VJ, Informed consent through the consent consultation (1995). Oral Max Surg Clin of N Am 7:(4)665-70.

To request a printed copy of this article, please contact/Arthur W. Curley, JD, 1100 Larkspur Landing Circle, Suite 200, Larkspur, CA 94939 or at acurley@bcamlaw.com.