Recently, this question has come up repeatedly: What is the orthodontist’s liability for misreading or not fully reading in-office cone-beam computed-tomography (CB-CT) scans? Today, more practitioners are purchasing cone-beam technology for their offices. These devices have fabulous potential and in certain cases can be of tremendous benefit; however, as with most new technology, when it comes out on the market, it is often ahead of both the learning curve and the potential liability exposure curve.
I was asked to address this issue by our editor. I contacted several dual-degree people with the following backgrounds: general practice dentist-attorney (1), orthodontist-attorney (5), and periodontist-attorney (2). I received responses from 3 of the dually trained orthodontists and both dually trained periodontists. Although the composite answer is by no means meant to be legal advice, it shares with you their insight and thought processes concerning this issue. This issue will get bigger and more muddied before it is cleared up and resolved definitively. These doctors were asked the following.
What are the responsibilities, and therefore the potential liabilities, for an orthodontist who purchases a CB-CT unit for in-office use? Say the doctor is using the unit to replace taking a ceph, both lateral and PA, and models. In addition, the doctor plans to use the unit to facilitate site selection for implant placement of temporary anchorage devices. He or she can also use it to check specific teeth for root resorption that might have been affected by the ectopic eruption of adjacent teeth, or when the positions of impacted teeth need to be definitively identified. Although there are certainly other uses for this diagnostic aid, at the present time, these are arguably the most common. The orthodontist might use only a few scans of the hundred or so that can be viewed. Is the orthodontist required to read all scans, even those he or she is not using for diagnostic or treatment-planning purposes, and, if so, what degree of skill—that of the average radiologist or the average orthodontist—is required when using this technology?
One periodontist opined that the doctor would be responsible only for looking at the limited number of scans that he was using for diagnostic or therapeutic purposes. However, the responsibility is absolute and is exactly the same as the duty that one must exercise when reading panoramic or cephalometric films. If there is pathology on the film, you have the duty to recognize it and either treat it or refer it for further diagnosis or treatment, including follow-up.
The other periodontist said essentially the same thing except that he believes that the practitioner must look at all scans, and he broadened the scope of recognition to include any pathologies, abnormalities, malformations, malpositions, and anatomic variations that might have clinical significance. He also agreed that the doctor would be responsible not only for recognition, but also for treatment or referral.
The general practice dentist did not respond, so our 2 other orthodontists and I rounded out the responses. One respondent stated that a practitioner’s duty is to possess and exercise the same degrees of skill and knowledge as the average practitioner in good standing in the community performing the “same or similar procedure.” His opinion is that our duty is more related to what we are doing than to what our particular degree happens to be. In other words, if a physician needed to order a CAT scan for a patient, would he contact a dentist to perform the service or refer the patient to a radiologist for the film, based on the potential for diagnostic specificity? As he said, a ceph shows the cervical spine, the individual vertebrae, the maxilla, and the mandible and so on, but merely because something is visible on a film does not necessarily make it diagnostic. A neurosurgeon would not use a cone-beam CAT scan to assess spinal pathology. This rationale allowed him to conclude that the practitioner would be responsible only for identifying pathologies, in the global sense, that are indigenous to orthodontic practice regardless of the type of film used to evaluate them. The implication, though not directly stated, is that one would be liable to interpret the images that were being used for diagnostic and therapeutic purposes and that, once again, the practitioner would be fully responsible for identifying and managing any abnormal or negative findings.
The other respondent started out by addressing a different issue all together. He noted that many doctors, to offset the costs of the machine, are setting up separate corporations to own and operate the “imaging center” that houses the unit. In other words, the orthodontist would send his patient’s “there,” even if it is in his office, and let the local dental community know that CB-CT services are available to aid them in the treatment of their patients. He was concerned about federal antikickback statutes coming in to play regarding any referral patterns and financial splits, depending on how things were set up, because the doctor might be exposing himself to liability in this area.
As far as the original questions were concerned, he echoed what has already been discussed: all cuts viewed must be evaluated in the same manner and to the same level as a pan or a ceph. If there is something there and you miss it, you will be liable for any damages resulting from your error. He noted that the safe way to minimize one’s exposure is to have a radiologist read the entire scan and give you a report on both the specific areas under scrutiny and any other pathology discovered in more distant areas. The cost for this service would, of course, be passed on to the patient. He believes that, if we read the cuts, then we would be held to the same standard as a radiologist reading the film. He also doubted that an informed consent disclaimer would protect the doctor because a patient cannot consent to negligent treatment. He closed with the thought that a few pioneers will take the initial arrows for all of us until the law catches up with the technology.
I agree with most of my colleagues. I believe that the standard of care requires us to be competent enough to recognize pathologies, abnormalities, and other problems on any film we take. If we can’t read it and differentiate normal from abnormal, we shouldn’t take it. In that case, we should refer the patient out for the film and get a report from whomever took it and read it. There is also no question that, if we see a problem on the film, we have an obligation to manage it appropriately. This means that we must treat it or refer it out. I am also concerned about the potential for administrative sanctions about kickbacks if a group of doctors purchases a unit together, and all refer patients to it, and then they cross-refer to each other.
Our panel of “experts” seems to be of the collective opinion that an orthodontist who uses CB-CT is, at a minimum, liable for failure to recognize any pathologies, irregularities, or abnormalities on any cuts used for the purpose intended, and they have mixed opinions as to whether that responsibility holds for the entire scan. In addition, if something is discovered, it must be either treated or referred out appropriately. There is no question that, at a minimum, this is our responsibility. To put it in the vernacular, if you can’t take the heat, stay out of the kitchen.
I want to thank my colleagues who responded: Eric Ploumis, Malcolm Meister, Milton Palat, and Edwin Zinman. Only time will tell whether our beliefs will come to fruition. We all believe that the lawsuits are coming. There is no question that somebody will miss something and a patient will suffer an injury as a result of that mistake. What it will be, when, and where, no one can tell, but it will surely happen.
Braving new worlds calls for people to go where no one has gone before. This is how progress is made. Let’s divorce ourselves from the hype and think about this for a second. Obviously, we have different skill sets. I don’t believe for a minute that an orthodontist right out of school will see the same things on a film that one in practice for 30 years will see, and the same thing applies to radiologists, but that is not the point. The point is that a certain minimum degree of competency or expertise is required to be in practice, and it is this level at which we must operate as far as the law is concerned relative to this discussion.
The average orthodontist in his or her mid to late 40s has been practicing about 20 years and averages over 200 case starts a year. That’s 4000 cephs and pans taken and read at a minimum. Add to that mid-treatment records, completed records, films seen at meetings and courses we attend, and so on, and you can probably double that figure, yielding a good foundation for saying that we are competent to read these films. We all took anatomy in dental school and concentrated on the head and neck. We all took another head and neck course during our postgraduate training. We all took radiology, and we look at and evaluate these images day in and day out. I believe that all orthodontists should be able to read a ceph and spot the pathologies, abnormalities, and irregularities—all of the “ies” sisters that we are discussing. I feel the same way about a panorex. I know that you also feel the same way because, if not, you wouldn’t be reading these films because you wouldn’t be providing your patients with the minimum level of competency they deserve. If this is the case, what is the big deal with reading cuts from a total scan? If anything, each cut is arguably easier to read.
Remember, you don’t have to know what you are looking at when you see something suspicious. You only need to think “it doesn’t look right” or “what is that?” or “check that out,” or “why doesn’t the left side look like the right?” Once you see it, send the patient for a referral; you would do it if the film in question were a ceph or a pan. If nothing else, CB-CT technology will provide more opportunities for continuing education because, I gotta tell ya, and many of my colleagues agree, things are getting pretty dull and repetitive out there on the CDE circuit.
We need each doctor out there to ask himself or herself the following question. Knowing what I know about anatomy, radiology, cephalometrics, and oral pathology, what is the level of expertise that one needs to read and evaluate a CB-CT cut? If the answer is that my training and experience give me the skills to do this, then orthodontists should feel comfortable shelling out $200,000 and taking, reading, and using these films. On the other hand, if the answer is that we do not possess the skills necessary to protect our patients and treat them at a minimally acceptable level of expertise, then we have no business buying and using these machines, and we should refer our patients out. You—the rank and file practitioner—should be the ones to determine the standard of care in your particular community, and you had better be ready to shoulder that responsibility.
So what is the bottom line? If you are going to take a scan, be competent to read all of it and to recognize normal from abnormal. If you do not feel competent, don’t take the film, and refer the patient out to have it taken and interpreted by someone who is competent. If you are competent to distinguish what is normal from what is not, be prepared to manage the abnormal findings. If you are prepared to manage them, be prepared to make an error eventually. To be prepared to do all of the above means that you must maintain your skills by taking continuing education courses and keeping up with your journal reading, take your time to examine films in an orderly manner, pay attention, pay your malpractice premiums, and, above all, stop worrying. You can do this; you’re a well-educated orthodontist.