LITIGATION AND LEGISLATION
Crazy 8’s
Laurance Jerrold
Woodbury, NY
O
ne of our readers called me the other day and
posed an interesting question. He opined that
it might be of interest to the rest of you, so I
decided to share both his query and my response.
Larry: The other day I interviewed for the clinical di-
rector’s position of a large multi-office practice (201
offices). The owner told me that none of the doctors
were permitted to order the extraction of third molars
because if something went wrong regarding the ex-
tractions, then the orthodontist who made the
referral as well as he, the owner/employer, could
potentially incur some degree of liability; something
he did not wish to expose himself to.
In my practice I often order out the extraction of wis-
dom teeth post-treatment. Am I missing something?
What are the legal considerations regarding referral
liability? Thanks. Dr. L.
Let’s look at this issue from a global perspective; we
can talk about third molars later. There are lots of rea-
sons that we refer patients to other practitioners. Some
of the more common ones are based on restorative
needs, periodontal considerations, skeletal and dentofa-
cial deformity abnormalities, and dental eruption and
exfoliation disturbances. These and other clinical condi-
tions create a duty to refer. This 4-pronged duty to refer
is grounded on established legal tenets, risk manage-
ment considerations, ethical concerns, and patient man-
agement practicalities.
From the legal perspective, we have a duty to refer if a
reasonably prudent practitioner would have done so un-
der the same or similar circumstances; or if a reasonable
chance for successfully completing the patient without
the referral was beyond the treating doctor’s skill set,
knowledge base, or clinical expertise. Prudent risk man-
agement considerations dictate that we make appro-
priate referrals when the patient is becoming
compromised or not working out, either to our or the pa-
tient’s satisfaction. Ethically, with the patient’s best in-
terests taking priority, we are bound to refer to a
Associate Editor for Litigation and Legislation, Orthodontic Practice, Woodbury,
NY.
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doctor who can more competently treat whatever the sit-
uation is. Last but not least, patient management expe-
riences tell us that patients expect a better result when
they are referred to a specialist or subspecialist, which
is why most risk management educators and practice
management gurus will tell us to do all we can, and
that includes making appropriate referrals, to ensure
that our patients are as happy as possible.
Returning to our 4-pronged approach to referrals,
the main duty encountered in making referrals is that
first, one must use reasonable care and skill in selecting
the doctor to whom one is referring the patient. This
concept has been legally codified through black letter
law, a tenet defined by West’s Encyclopedia of American
Law, second edition; 2008 as “a term used to describe
basic principles of law accepted by a majority of judges
in most states.” Court decisions have noted:
A physician who. is unable or unwilling to assume
or continue treatment of a case, and recommends or
sends in [refers to] another physician, is not liable
for injuries resulting from the latter’s want of skill
or care, unless the recommended physician is in the
referring doctor’s employ or is definitely his agent,
or is his partner, or unless due care is not exercised
in making the recommendation or substitution.
Steering a patient to a doctor who commits malprac-
tice is not itself malpractice or otherwise tortious un-
less the steerer believes or should realize that the
doctor is substandard. (Cits. Omit.)
What the courts were saying is that for a referral to be
recognized as negligent on its face, the referring doctor
must know or should have known that the referred to
doctor is incompetent because of a lack of skill, knowl-
edge, experience, expertise, and so on; or, that the
referred to doctor was mentally, physically, or psycho-
logically impaired in some fashion to the extent that it
affects the referred to doctor’s ability to practice safely
and prudently.
The second prong of the how’s and why’s of referrals
concerns risk management considerations that encom-
pass documenting that the referral was recommended,
to whom, for what, and when. It also encompasses
following up with the patient to ensure they heeded
the referral. The referring doctor should have requested
135
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or been given, from the referred to a doctor, a status or
outcome report of his findings, treatment, or recom-
mendations. These communiques must be memorialized
in some fashion in the patient’s chart. Finally, when
possible, the referral should not specify that a particular
test or procedure be performed, nor should the referring
doctor actively participate in any way with the referred to
doctor’s treatment of the patient. To this point, various
courts have held:
A patient’s.physician bears the responsibility to
assure the welfare of his patients in all phases of
the patient’ treatment. Such treatment must, of ne-
cessity, include diagnosis and the prescription of a
course of treatment by others, such as specialists.
.If the treating physician refers his patient to
another physician and retains a degree of participa-
tion, by way of control, consultation, or otherwise,
his responsibility continues to properly advise his
patients with respect to the treatment to be performed
by the referred to physician.
Although the mere referral by one physician to
another does not generally render the referring physi-
cian liable for the negligence of the treating physi-
cian, joint liability may be imposed where the
referring doctor was involved in decisions regarding
diagnosis and treatment to such an extent as to
make them his or her own negligent acts.
.A jury .may impose liability on both the referring
physician and the physician to whom the referral is
made, based on each one’s relative responsibility
and fault. (Cits. Omit.)
However, suppose that the patient refuses the referral
or asks the referring doctor to perform the procedure.
Enter the world of defensive medicine. The first thing
you need to do is tell the patient the probable conse-
quences of their decision to refuse the recommended
treatment or the referral. Second, document the refusal
and, just as importantly, the reason if the patient dis-
closes it. Next, don’t continue to treat the patient and
potentially compromise their overall oral health status
by allowing them to refuse the recommended treatment
but simultaneously providing potentially harmful treat-
ment because they refused the referral. Think initiating
ortho after the patient refuses to have their periodontal
issues brought under control or treating the skeletal
discrepancy via extraction therapy, compromising the
ability to have orthognathic surgery done in the future.
Finally, serious consideration should be given to the
risk/benefit ratio of nontreatment. As one court noted:
When a doctor makes a .referral to another
specialist, but the patient refuses to follow the
July 2022  Vol 162  Issue 1
Litigation and Legislation
referral, the patient cannot complain later of the
[referring] doctor’s lack of skill and may only
complain if the doctor negligently performs the treat-
ment. (Cit. Omit.)
The next prong contains ethical connotations in that
if you disagree with what the referred to doctor tells or
recommends to the patient, your duty runs to the pa-
tient, not the referred doctor. Clinically, we encounter
this issue regarding clearance letters, extraction re-
quests, and orthognathic consultations. If need be,
your duty requires a tete a tete with the referred to doctor
or recommending a referral for a second opinion. One
example of this can be seen in the following decision.
In spite of the consultation the [referring practi-
tioner] still owes to the patient the duty to exercise
his powers of observation and that degree of skill
and learning possessed and exercised under similar
circumstances by competent .practitioners.
The case must be rare indeed in which the advice of a
consultant will be an absolute defense to a doctor who
closes his eyes completely and shelves that skill and
caution which even [referring doctors] must use.
.Reasonable care would extend to recognizing defi-
ciencies in the care provided by the specialist if such
recognition is within the skill and knowledge of the
[referring] practitioner. (Cit. Omit.)
Finally, educate the patient regarding why the
referral is in their best interest, why you deem it impor-
tant, and how it will impact their treatment if they follow
or conversely choose not to follow up on your recom-
mendation. We see evidence of these requisites in 2 other
decisions, as noted below.
When treatment is ineffective, the [referring] doctor
must know it first and recommend other action. The
doctor should not have discharged his patient by
sending him home without arranging for any other
medical attention, or different treatment, or even
suggesting the advisability therefore.
The [referring doctor’s] duty must always be
measured in relation to the facts in the particular
case. In determining a course of action, he may and
should consider such elements as the patient's
mental and emotional condition, his known financial
situation, and the many other variants which a
physician meets in treating human ailments. (Cits.
Omit.)
Another issue that occasionally arises within referral li-
ability concerns whether or not the referring doctor needs
to obtain the patient’s informed consent for whatever
treatment is being performed by the referred practitioner.
This duty arises if there is some agency relationship
American Journal of Orthodontics and Dentofacial Orthopedics
Litigation and Legislation
between the referring doctor and the referred to doctor; if
there was negligence in making the referral (the referred to
doctor was incompetent or impaired, thus creating doubt
as to whether that doctor adequately informed the pa-
tient); or if there was some degree of participation or con-
trol exercised by the referring doctor.
Armed with this information, we should be able to
address our colleague’s concerns.
COMMENTARY
We all should know what the evidence says. We also
know what our clinical experiences, vicarious or per-
sonal, tell us. We also know that every practitioner har-
bors a different risk tolerance level. We know what our
patient’s believe. In addition, we now have legal and
ethical information, all of which need to be amalgam-
ated if we, on an individual basis, are to determine a
course of action.
Correct me if I’m wrong (I’m sure somebody will), but
it is my understanding that the evidence is very strong
and that there is no proof of a direct cause-and-effect
relationship between third molars and lower anterior
instability. I’m pretty sure that the evidence is weaker
and mixed as to how strong a statistical relationship ex-
ists between third molars and lower anterior imbrication
posttreatment.
I believe that the correct way to look at this begs us to
ask the following question: Is there an orthodontic
reason to recommend the removal of the third molars?
If you can justify the need to do so, for instance, you
are planning to distalize or upright mesially tipped
mandibular first and second molars, then an orthodontic
reason exists. If there are other dental but nonorthodon-
tic reasons that can be justified for recommending the
referral, then that referral should be made by the person
holding the justification(s). I know, slippery slope and
American Journal of Orthodontics and Dentofacial Orthopedics
137
ambiguous at best. The point is that this is a risk man-
agement column, and I’m attempting to provide some
advice to help you manage risk. If you don’t have a really
good reason to recommend extraction of the mandibular
third molars, a procedure that in and of itself carries a
well-defined set of potential negative consequences,
then don’t do it. Leave it up to the person who has deter-
mined that this recommendation is in the best interests
of the patient’s overall dental health for whatever rea-
sons and beliefs they harbor.
The other issue in our fact pattern that needs to be
addressed is the practice owner’s control over the clinical
autonomy of an employee or independent contractor
orthodontist. Whoever is treating the patient carries
the responsibilities associated with rendering that treat-
ment. Sure, through the legal doctrines of vicarious lia-
bility and respondeat superior, the owner and or
employer may incur some degree of potential liability
exposure; an employee doctor should not allow him or
herself to be placed in that position. Suppose you work
for a doctor who says, “In my office all cases get treated
with expansion as opposed to extraction.” Yes, this sce-
nario exists. Suppose the owner says, “We don’t do or-
thognathics in this office; take out teeth and get the
best result possible.” Or, how about offices in which pol-
icy dictates that when the insurance payments are over,
so is the treatment; conversely, the patient treatment is
finished, but you are told to leave the hardware on until
the insurance payments run out. These environments
also exist. If you as a practitioner can accept these edicts,
and others, and the risks that go along with them, then,
by all means, continue with the employment relation-
ship. Just make sure you continue to pay all of your
malpractice insurance premiums.
As for those lower 8’s, look, you’re gonna do what
you’re gonna do. Just don’t go crazy doing it.
July 2022  Vol 162  Issue 1