Our Day in Court

Jan. 13, 1999, was a rather significant day in the history of the dental profession. On that day, dentistry found itself center stage on two matters with national reach. While the outcome in both cases is yet to be written, at this point we can be reasonably optimistic that the negative outcomes we often expect when something about dentistry reaches the public sector will not be realized in either of these situations.

One of those matters, the "60 Minutes II" report discussed in this space last month, has yet to raise significant discussion or inquiry. The considerable efforts by the California and American dental associations to prepare potential spokespeople to answer questions of concern were probably helpful in diffusing the negative fallout that frequently follows an emotionally charged report such as this one, which centered on the death during dental procedures of children under anesthesia.

But a more significant event occurred earlier that same day. The time was 11 in the morning, and the place was the chamber of the U.S. Supreme Court in Washington, D.C. The event was the hearing of oral arguments in the case of the California Dental Association vs. the Federal Trade Commission. At the time of this writing, the court's decision had not been announced, the expectation being that it would take from 60 days to six months for a ruling to be made. Significant in this long-standing dispute is the fact that the Supreme Court selected the matter for hearing. That, in a sense, was a victory for the profession in light of a long series of legal setbacks in this case dating back to the early 1980s.

A favorable decision would have great importance to CDA members for two major reasons. The first is the broad issue of whether the FTC has authority over nonprofit professional associations as it clearly has over for-profit corporations. Also, the FTC has continued to contend that CDA guidelines on advertising restrictions violate antitrust laws despite an administrative law decision that CDA didn't do anything anticompetitive. Despite the string of defeats on the antitrust issue, there is guarded optimism that the Supreme Court could come forward with a ruling on the broad issue that would give nonprofit professional associations some relief from an FTC that has appeared to venture beyond the authority granted it in the original legislation creating the commission.

Many longtime CDA members have been of the belief that some of the "negative" changes in the profession over the past few decades have come about as a result of regulations and decisions by outside agencies, such as the FTC. A positive decision would be a welcome relief from what many believe has been an all too familiar trend. Certainly, other professional nonprofit associations would also benefit from a decision that is favorable to CDA and organized dentistry.

The second reason a favorable decision would be of great importance to CDA members is a matter that has not been as frequent a topic for discussion as it was two decades ago. We refer to the responsibilities of self governance of the profession, articulated by standards established in codes of ethics and other professional guidelines. Since the early 1980s, members or potential members of organized dentistry have instead been regularly reminded of the benefits and services available through membership. The actions of an entity such as the FTC on advertising standards have seemed to discourage pursuit of professional standards development or enforcement at previous levels of activity. We have seen membership become benefits-driven. The dentist facing increasing costs of operation who is not particularly interested in insurance or other benefits offered by the association often makes a decision on continuing membership without considering support for the profession and its efforts on behalf of the members and the public.

Interestingly, a generally strong public image of the profession, enhanced by initiatives in the public interest such as fluoridation, may well be key to showing the court the difference between organized dentistry and trade associations that come under the jurisdiction of the FTC, leading to a favorable decision in the FTC matter. It is important that members recognize that public relations and self-governance efforts by our professional organizations are ongoing, and that despite their seeming invisibility, they do have a very important and direct effect on dentists and their continuing ability to conduct a successful business enterprise and valuable service to the public.

If our day in court results in a favorable decision, maybe we will see the need for professional standards embraced with renewed energy. It is a new era -- almost a new millennium -- and many things have changed. We cannot go back to where the profession has been, but we can strengthen where we are to prepare for the future. Dentistry would not be the fine profession it is today without the standards put in place by many who preceded us. A favorable court decision could fuel a proactive attitude that moves the profession to deal with pending issues such as continuing competency before others, who are already at work developing guidelines, prevail.

No longer should the refrain "What has CDA or ADA done for me lately" be heard at membership renewal time. Our professional organization is continuously at work supporting our best interests, a prime example being this 14-year, often invisible, legal effort.

There is guarded optimism that the Supreme Court could come forward with a ruling that would give nonprofit professional associations some relief.

Interestingly, a generally strong public image of the profession may well be the key to showing the court the difference between organized dentistry and trade associations.