Exceptional circumstances

Once again, I have received a communique from 1 of our readers. He got it from a friend, who got it off a Facebook page, posted by whomever; it doesn't matter. Here goes:

Larry: Let's say this whole corona virus shutdown continues for who know how long. Now it's mid-May, and I've been shut down for about 2 months. If I was seeing my patients at 6- to 10-week intervals as many of us do, maybe I haven't seen some of them for 3 to 4 months. I'm really concerned about a certain number of my patients; particularly those in whom I have placed recurved arches, compressed open coil springs, maxillary molar distalization appliances, or any number of other forms of continuous active mechanics. I consider these patients to be at significant risk for some type of damage, injury, or negative sequelae if treatment continues unsupervised. Given this, suppose I decide to suit up with the best PPE [personal protective equipment] I can come up with and go into the office to check their status and convert their treatment to passive mechanotherapy if need be. I believe that there is some language that has been put out by organized dentistry that allows me to do this.

But here's my dilemma. Under this scenario, I'm the one calling the patients, they have not called me with an emergency. I think that they may incur potential injury if the mechanics in their mouths continues unsupervised. I am willing to risk my health to go in to and make sure they are okay. But, suppose the patient then comes down with COVID-19 and claims that I am responsible as a result of their coming to the office at my request. Now what? If I don't see them, there is a real risk of potential danger; if I do see them, there is the obvious transmission risk. What is the standard of care in this situation? I feel like I'm damned if I do and damned if I don't. Advice?

Normally, at this point, I would tell you that these are essentially the facts of the case and then proceed with the court's analysis and decision, after which I would write a commentary. Well, the words above are, with some artistic and grammatical license taken, the text I received. We all understand what this practitioner is saying, and we all feel for our colleague, and most of us have probably considered or discussed this issue in one form or another. However, before I start my commentary, I want to state in no uncertain terms that whatever you see written below does not reflect the position of the American Association of Orthodontists (AAO), the American Journal of Orthodontics and Dentofacial Orthopedics, or Elsevier Publishing. It does not endorse or disapprove of anything that organized dentistry has sought to put forward as guidance regarding the COVID-19 pandemic, and it does not advocate going against any State or Federal mandates related to engaging in one's occupation. It is merely an attempt on my part to address rationally the questions and concerns expressed by 1 of our colleagues and to try and balance the ethical, clinical, and risk management considerations at play.

Commentary

At any given point in time, patients are either in a relatively passive or relatively active phase of treatment. I know, all archwires are active or have the potential to become so if they get distorted, but that's not what I'm talking about. What I'm referring to are mechanics that have the potential to result in an orthodontic horrendoma if left unsupervised. During the second half of my career, I've been the program director at 4 different institutions and have supervised more than 50 faculty members. All of them practiced differently and used different mechanics as they went about teaching hundreds of residents who were engaged in learning our art and science, and yes, some clinical errors occurred along the way. Let me offer a few examples, and for Pete's sake, don't judge the mechanics. It is what it is, we all practice differently, we all do different things, and to date, our specialty hasn't littered the streets with bodies.

I don't know how many of you have seen what can happen when a recurved nickel-titanium archwire is placed upside down in an attempt to close an open bite. One of the side effects, if it is left in for too long, is for the molars to dump mesially under the anteriorly adjacent tooth. If left unchecked, the resulting malposition of the molar can be significant—no, make that really significant—resulting in a number of problems. How many of you have seen a torquing auxiliary or a reverse curve nickel-titanium archwire cause the apices of the anterior teeth, either maxillary or mandibular, to move through the lingual or palatal cortical plates? I have, and it's not good. How many of you have seen a canine being retracted with active mechanics that, if left unchecked, resulted in the apex completely perforating the buccal plate? It's not a pretty sight. What about a power chain that had been left in for too long because the patient didn't show up for months and now you had to deal with the rotational and axial negative sequelae on the terminal teeth? There's more I could say, and I'm sure the people reading this have seen their share of these mishaps, whether perpetrated by themselves or someone else. There's a word for this—iatrogenicity. Sure, very often, these things happen because the patient never came back for the follow-up visit, but guess who placed the mechanics that allowed this to happen—we did. All of the mechanics described above are defensible up to a point, and that point is as long as they are being supervised, because we then have the ability to make timely changes as clinical necessity dictates. However, the circumstances that allow for defense dictate that there be supervision of the treatment. Time to segue.

Look at this problem from a dentolegal perspective. Is there a standard of care that would apply to this situation? Should a doctor who knows that he has placed his patient in a position of potential jeopardy be required to monitor that patient's progress to prevent the negative sequelae from occurring? The answer is, certainly. I suppose, in the name of fairness, we should have added that we are in the midst of a highly virulent virus that has resulted in a worldwide pandemic from which people are dying—doctors and patients. Moreover, transmission occurs primarily through breathing and talking, if one is within a certain distance, and through aerosolization via sneezing and coughing, if within a further distance, as well as through other less direct modes. In addition, we have been told to shelter in place, not interact with others, and go to the dentist only for emergencies. Finally, to be even more fair, one would have to add the fact that transmission can be virtually negated through the use of appropriate PPE. However, the answer to the question is yes, there is a standard of care that applies. It varies slightly from state to state, but a fair understanding of the standard of care can be found in West's Encyclopedia of American Law. ¹ In essence, doctors are to be judged according to how a “…reasonable doctor would have acted under the circumstances presented…”

How one acts is a 3-pronged test, first articulated over a century ago in Pike v Honsinger. ² Those 3 elements are that a practitioner has a duty to possess a requisite amount of skill, knowledge, expertise, education, experience, etc.; let's call that SKEEEE. The second prong is that one must exercise the appropriate SKEEEE in a reasonable and diligent manner. The last prong is that one is required to exercise his or her best judgment when treating a patient.

I don't want to dwell on the degree of SKEEEE we possess. We all graduated from accredited training programs, we all have access to the current literature and evidence-based data, and we all have to take a given amount of continuing education to keep our licenses current. We can assume that everyone possesses a requisite amount of SKEEEE. Let's move on to the other 2. How one exercises the requisite amount of SKEEEE is, by its very nature, contextual. It takes into consideration the treatment rendered to date, the patient's original as well as current clinical presentation, the patient's level of cooperation, access issues, resource allocation and availability, financial considerations, the patient's ability to question and respond, what's going on environmentally at that moment, and many other factors. Basically, it all gets rolled into the concept that we do whatever we have to do given the circumstances that we find ourselves in at a certain point in time, and we recognize that on any given day with any patient, these circumstances are ever-changing. Finally, using one's best judgment has to do with recognizing these factors and then balancing them, given the needs of the patient, your ability to meet those needs, and in our current pandemic environment, the needs of the community at large.

The AAO recommends³ that “…its members follow all applicable federal, state and local authorities' guidance concerning closure recommendations.” However, consistent with guidance issued by the American Dental Association (ADA), dentists should use their professional judgment in determining a patient's need for urgent or emergency care. The AAO goes on to state that “…emergency orthodontic care includes care that will relieve pain and/or infection, is trauma-related, or is critically necessary to prevent harm to the patient” (emphasis added, not in the original document). The obvious question is, what constitutes “…a patient's need for urgent care…” as well as what type of intervention is “…necessary to prevent harm to the patient?”

The ADA notes in its COVID-19 advisory guidelines⁴ that “Dentists should use their professional judgment in determining a patient's need for urgent or emergency care.” It goes on to define urgent dental care as care that “…focuses on the management of conditions that require immediate attention to relieve severe pain and/or risk of infection and to alleviate the burden on hospital emergency departments. These should be treated as minimally invasively as possible.” The policy statement then provides examples of other urgent care, one of which is “Snipping or adjustment of an orthodontic wire or appliances piercing or ulcerating the oral mucosa.” This is followed by exemplars of non-emergency care, one of which is “Orthodontic procedures other than those to address acute issues (eg, pain, infection, trauma) or other issues critically necessary to prevent harm to the patient.” (Emphasis added, not in the original document).

The New York State Dental Association recently issued an email blast to its membership⁵ stating that the New York Dental Association and the New York State Department of Health “…leave the determination of urgent care up to the professional, clinical judgment of each dentist" and references the ADA as a source of information on these clinical judgments.

What all of this has in common is that the professional judgment of the practitioner should determine what defines urgent treatment needs and all of the guidance indicates that urgent need incorporates the concept of preventing harm to the patient. I know, preventing harm takes on many faces when trying to decipher its meaning, but that is what is being discussed here exactly. You, as a licensed healthcare professional, need to determine potential harm for each patient, given the mechanics that were placed in their mouths. Potential for harm takes into account SKEEEE and judgment and really comes down to 2 considerations. The first is determining, to the best extent possible, the chance of occurence of whatever negative sequelae you are concerned about. The second is, if it occurs, how bad the harm or injury will be, given the time frame applicable to the situation in terms of the range of appliance activity vs when the patient can return for mitigation or correction. It is only after this exercise that one can determine whether the patient will benefit from a non-emergency but an urgent visit to your office. The bottom line is that each case is situational and based on the circumstances surrounding it.

You know what wires you put in, what forces you placed on the teeth, and when it was done. You know for how long the appliance will be active. You know how fast teeth move in response to force. You know the risks, the dangers, the facts, the patient, and all you need to know to decide whether the circumstances are such that an urgent visit will prevent a critical degree of harm from befalling your patient. You also know what PPE you have and how to use it and that nothing you do to convert a patient from active to passive therapy requires aerosolization to come into play. We have used PPE to protect ourselves and our patients from H1N1, SARS, MERS, Ebola, Zika, West Nile, and AIDS diseases. We can do the same regarding COVID-19.

Finally, we need to address the 800-pound gorilla—the potential lawsuit our colleague was worried about if he or she transmitted COVID-19 to the patient, and, of course, the injuries suffered, all as a result of the judgment call made asking the patient come in for the “prophylactic visit.” Some would advocate that the doctor should give the patient a release of some sort to sign before the appointment. If that makes you feel better, fine, but it won't protect you if your exercise of SKEEEE was negligent or if your judgment concerning the situation was imprudent. What you need is good documentation of what the circumstances were and why you believed the patient's oral status was at risk (because of the circumstances surrounding unsupervised treatment) and the potential negative sequelae you hoped to obviate.

The law takes into account the conditions you were faced with, given the circumstances you were operating under. The jury would be tasked with determining whether your actions were prudent under the totality of these circumstances and making this finding irrespective of any injuries suffered, as that is a determination that only comes after it was shown that you acted injudiciously. The jury would be tasked to answer the following question:

Was your recall of the patient reasonable given the stage of treatment the patient was in, the mechanics that were in play and would continue for an extended period of time, the extended period of time being a result of the “lockdown” without fault on anyone's part, and the injuries that could have resulted had your mitigation efforts not been done?

All of this would be balanced against the risk of contracting a virus for which preventive measures for transmission were used. In other words, what would a reasonable healthcare provider do under these particular circumstances? The judicial process takes into account that atypical circumstances often call for atypical responses, provided the actions and judgments used were prudently based.

So, what should our colleague do? The first thing is to do an in-depth analysis of every patient of record. Those on recall, in retention, or relatively passive mechanics (merely leveling and aligning or maybe finishing) can wait. Those that are in active mechanics go into 1 of 2 categories. A good deal of our active mechanics is self-limiting; in other words, the forces employed can only move the teeth a certain amount. All of these patients, too, can wait. However, there are those mechanics that have the potential to continue to move the teeth past where we would like them to be or in directions that we don't want them to go, and it is this group that needs conversion to passive therapy. They are the ones that need to be recalled to prevent harm from occurring.

Our colleague must consider the status of the patient, the risk associated with continuing active treatment unsupervised, the severity of the injury that may occur, the potential benefit to the patient, and his or her ability to take proper precautions to mitigate the risks to self. Our colleague must look at the totality of the circumstances and then make a considered, rational, and prudent decision. I like the definition of circumstance, as stated in Dictionary.com. It is “a condition, detail, part, or attribute, with respect to time, place, manner, agent, etc., that accompanies, determines, or modifies a fact or event; a modifying or influencing factor.” Under the circumstances, as described, I would be less concerned about a parent claiming that I was responsible for her daughter contracting COVID-19 than I would be about being accused of placing a patient in jeopardy because of the mechanotherapy I used, then not recognizing the danger that I created, and finally, not following-up to mitigate against any potential injury.

In his breakthrough role in the 1939 movie, Stagecoach, John Wayne states, “a man's gotta do what a man's gotta do.” Our colleague does too. Be safe, everyone.