LITIGATION AND LEGISLATION

He did it.No, he did it

Laurance JerroldJacksonville, Fla

Have you ever shared treatment of a patient withanother colleague? For example,maybe you prac-tice in an office that has several partners and asso-

ciates, and all the doctors treat everyone unless the patienthas specifically requested that only 1 doctor provide his orher treatment. Legally, we are dealing with a scenario inwhich a patient is treated by multiple practitioners.

Suppose that a patient suffers a negative sequela ofsome sort. Assume that it is not the type of injury thatis related to a specific event or visit, such as a slip witha disc or bur during interproximal reduction that canbe attributed to the doctor holding the hand piece.Rather, it is something that occurred over time, suchas an improper treatment plan that all doctors signedon to, or undiagnosed periodontal disease or root re-sorption that occurred under the oversight of the 2doctors (or however many saw the patient) who weretreating this patient. Assuming that there is fault tobe allocated, the question is which doctor or doctorsare at fault.

Cybak v Powell et al, no. 273399, Macomb Cr. Ct.,Mich Ct. App, (2007), has a similar fact pattern. The firstdentist was performing multiple posterior mandibularextractions on a patient, and roots were fractured. An-other doctor in the office was called in, and they bothwere helping each other to remove the remaining roots.Their ministrations not only resulted in removing theroots of the teeth in question but also resulted in the pa-tient's suffering permanent paresthesia.

At the trial, the plaintiff's expert was asked whetherthe injury was caused by faulty application of the ad-ditional local anesthetic that was required, use ofa faulty extraction technique, or both. What followsare the expert's responses to a number of questionsposed. “There could have been one, two, or all threeroots that were improperly manipulated and couldhave caused the injury.”.“[S]ince both doctors hada hand in the socket with instruments in the socket, Iwould say that it would be impossible to assess a per-centage of responsibility.”.“As far as percentages are

President, Orthodontic Consulting Group, LLC, Jacksonville, Fla.Am J Orthod Dentofacial Orthop 2013;143:291-20889-5406/$36.00Copyright � 2013 by the American Association of Orthodontists.http://dx.doi.org/10.1016/j.ajodo.2012.11.010

concerned, I couldn't guess at that” (referring towhether the block or the manipulations caused theparesthesia).“There are some things just unknowableabout certain things, and one of them is forensicevaluation of dental procedures that result in injur-ies.because you had multiple procedures and multipleevents occurring.” The trial court granted summaryjudgment in favor of the defendants because “youcan't have a jury guessing and it is not supported bycompetent evidence to go to the jury.”

On appeal, the plaintiff claimed that the evidencepresented was sufficient to create a question of fact tobe determined by a jury using the doctrines of alternativeliability and concert of action. The definitions of theselegal doctrines is as follows. Under the alternative liabil-ity theory, the tort was committed by

.independent acts by two or more tortfeasors, all ofwhom have acted wrongfully, but only one ofwhom.injured the plaintiff. Rather than deny the in-nocent plaintiff his recovery because he cannot provewhich of the two or more wrongdoers injured him, thecourts impose joint liability on all wrongdoers. In casesof alternative liability, a defendant is free to absolvehimself of blame and cast the entire burden on his fel-lows, even if it be shown that he acted wrongfully, butthat defendant must bear the burden of proving thathis wrongful act was not the cause of plaintiff's injury.(cit. omit.)

On the other hand, the doctrine of concert of action isdefined as “a true joint tort.Even if defendant causedno harm himself, he is liable for the harm caused byhis fellows because all acted jointly.” (cit. omit.)

The case law or legal precedent in Michigan thatapplies to cases of this sort states the following.

It is well established that if two or more persons en-gage negligently in concerted activity, and as a resultplaintiff is injured, all are liable even though only onedirectly caused the injury. Liability is imposed on allbecause all have joined in breaching their duty ofcare to plaintiff, and he was injured as a result ofthat breach.Under the concert of action theory, a plaintiff needonly allege that the defendants were jointly engagedin tortious activity as a result of which the plaintiffwas harmed. (cits. omit.)

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The decision of the appellate court to remand thecase for a new trial noted that the 2 doctors workedtogether to remove the tooth in question, and plaintiff'sexpert testified that both breached the standard of careregarding the surgical techniques used. Therefore, eachcould have been responsible for the plaintiff's injury,even though in all probability only 1 of them actuallycaused the injury. The court noted that “[b]oth dentistsworked together to achieve the tooth extraction andboth breached their duty of care to plaintiff. And plain-tiff was injured as a result of that breach.”

As if that weren't enough, the court stated that, even ifthe 2 doctorswere not concerted in their treatment, the al-ternative liability theory could just as easily apply. Thecourt noted that, because bothdentists breached the stan-dard of care owed to the plaintiff (poor surgical techniqueregarding how the anesthesia was given and how thetooth roots were removed), and that breach by both wasthe cause of the plaintiff's injury, then, as amatter of pub-lic policy, both should beheld liable unless 1 of themcouldprove that the other was in actuality the tortfeasor.

COMMENTARY

In my risk management lectures, I refer to the alter-native liability theory and the concert in action theoryas like the 3 Musketeers: you know, all for one, one forall. This case is a variation of one of the first cases thatevery fledgling law student learns about. Three guysare out hunting, 2 shoot at what they think is their tar-get, and only 1 has the skills to actually hit the target, butit is the third hunter who actually gets shot. The injuredperson, however, is at a loss to prove who actually hithim and who missed. It's almost like what happened toDick Cheney, but that’s another story. At any rate,both shooters are found to be liable, and the burdenof proof shifts to them to prove that his shot didn't de-liver the offending bullet.

In contemporary orthodontic practice, it is not un-usual to see a variety of group practice makeups. Theremay be many orthodontists working in the same officeand treating the same patients. Some practices have or-thodontists working side by side with other orthodon-

February 2013 � Vol 143 � Issue 2 American

tists, oral surgeons, pediatric dentists, and generaldentists, all simultaneously or at least concurrentlytreating the same patients.

One common occurrence is when 1 doctor starts thepatient, who then goes off to college and asks whetheran orthodontist there can treat her while she is away,and you can treat her when she is home for vacations.Or, maybe the patient is going on an exchange programfor 6 months to a year and will need to continue hertreatment with another doctor during that time, ulti-mately returning to your office in the future for the com-pletion of her care. It is an area fraught with the potentialfor joint liability to be assessed.

Specifically, the clinical scenarios that are ripe for theapplication of the 2 legal theories discussed in this articleare, as mentioned, when 2 or more doctors treat thepatient over the course of about 2 years with negativesequelae, as discussed earlier. In addition, there is thescenario in which an oral surgeon and an orthodontistagree on a misdiagnosis or a faulty treatment plan, aswell as the potential for a claim of lack of informed con-sent to be levied against both. When we look at situa-tions involving root resorption and benign periodontalneglect, we might see this occurring in the generalpractice-orthodontic and pedodontic-orthodontic prac-tices. It's easy to imagine a number of potential hypo-thetical clinical situations.

The risk management lesson is to have the fore-sight to recognize that, when you work with others,depending on the relationship between the parties,coupled with an appropriate clinical situation, the pa-tient has a heightened potential to incur an injury andoccasionally cannot point a finger at the person whoactually caused the injury. In those situations, thelaw provides an avenue of redress, which then placesthe burden on the operator to say “it wasn't me, itwas him.”

If there is a moral to this story, it is probably that themore cooks working at the stove, all of them with theirfingers in the pot, the greater the chance that the recipewon't be followed exactly as it should be, resulting in anunpalatable situation for all.

Journal of Orthodontics and Dentofacial Orthopedics