|Year : 2012 | Volume
| Issue : 2 | Page : 100-102
Standard of care in dentistry
Gokul Sridharan1, Prithviraj Kallahalla Jagadish2
1 Department of Oral Pathology and Microbiology, YMT Dental College and Hospital, Institutional Area, Sector 4, Kharghar, Navi Mumbai, Maharashtra, India
2 Department of Conservative Dentistry and Endodontics, Yenepoya Dental College, Deralakatte, Mangalore, India
|Date of Web Publication||17-Jan-2013|
Department of Oral Pathology and Microbiology, YMT Dental College and Hospital, Institutional Area, Sector 4, Kharghar, Navi Mumbai - 410 210
Source of Support: None, Conflict of Interest: None
Medical ethics is primarily a field of applied ethics, the study of moral values and judgments as applicable to medicine. Dental practitioners constitute a group of health professionals who deal with human health care on a regular basis. Various ethical principles govern their conduct and their approach toward the patients. Ethical code of conduct prescribes a minimum standard of care which is applicable to all dental professionals. Substandard dental care is unacceptable and mounts to negligence on the part of the professional. Knowledge on what constitutes standard of care is a pre-requisite for dental professionals in providing quality health care. This paper presents a brief overview on standard of care as applicable to dentist and its practical implications with a note on the legal issues pertaining to medical negligence as applicable in India.
Keywords: Dentistry, expert witness, medical negligence, standard of care
|How to cite this article:|
Sridharan G, Jagadish PK. Standard of care in dentistry. J Orofac Sci 2012;4:100-2
| Introduction|| |
Dental practitioners belong to a profession dealing with human rights and situations requiring behavior and judgment based on ethics, thereby guided by a professional ethical code of conduct.  Current trends in dentistry suggest that dental ethics as a field of study and as a sub-discipline within the study of moral theories and principles of professional ethics is underdeveloped and analysis of dentally related ethical problems and applications of ethical theories is still a young field. 
Standard of care is an ethical obligation and is at the core and key to quality care and excellence in dentistry.  Determining the standard of care is a constantly changing proposition, in that each case is unique and the science, treatment, and technologies are constantly evolving. 
What is standard of care?
The term "standard of care" is a legal term of art defined as "that care which a reasonable and prudent practitioner would do under the same or similar circumstances."  The meaning of standard of care is actually found in the definition of negligence which consists of four elements, namely, that the duty of care was owed by the dentist to the patient, that the dentist violated the applicable standard of care, that the plaintiff suffered a compensable injury, and that the injury was caused in fact and proximately caused by sub-standard conduct. The second element of care is related with the concept of standard of care.  The petitioner has to prove that the standard of care has not been met in order to file a judicial action against the dentist for negligence. In other words, if a breach of standard of care cannot be shown to have occurred negligence, suit will fail.
It is presently unclear on what constitutes breach of standard of care for initiating action against dental professional for negligence. Standard of care is dynamic as it evolves from time to time and the term could be aptly substituted with minimum standard of care which is described as "reasonable degree of skill learning and skill that is ordinarily possessed by dentists and surgeons in the locality where he/she practices." 
Who sets standard of care?
Previously, the reasonable degree or the minimum degree is established by the community standard that is formulated in a particular locality where the dentist is practicing. Alternatively it can be stated that the dentist of a particular locality will be held to the same level of standard as other dentists in that locality. Currently, standard of care is determined by uniform standard established by national regulatory bodies.  It is thus prudent that every dental professional is aware of the guidelines prescribed by their parent body that aids in providing quality treatment to the patients. It is also mandatory that the dental professionals keep themselves updated of the recent developments in their specialty owing to the changing dynamics in various aspects of dental health care. Knowledge of the latest developments does not warrant its compulsory use; rather it is necessary that the dentists are reasonably prudent and competent when adopting these methods.
Another issue is in regard to the application of minimum standard of care to a specialist dental health professional. A general dental practitioner will not be held to the same standard of care as a specialist. In such cases, the minimum standard of care would be modified to accommodate the skills of the specialists. The specialist will be judged based on the community standard of care for an ordinarily skilled specialist. The duty, however, remains with the general dentist to inform the patient regarding the availability of a dentist with additional skills than oneself, thereby allowing the patient to take a decision.
Medical negligence and error of judgment
As described previously, the meaning of standard of care lies within the four elements of medical negligence, which makes understanding medical negligence necessary. Medical negligence is considered as an act of omission or commission, which means a doctor can be held liable for medical negligence if he fails to do something a reasonably competent medical man, guided by such medical knowledge and practice current at that time and place, would do (omission) or if he does something (commission) which a competent man would not do. For a dentist to be held negligible, the four elements of negligence have to be proved by the patient. If the treatment was performed in good faith and as per the acceptable standard of the medical community prevalent at that time, but did not achieve the desired results, the medical professional cannot be held negligible.  The complainant must prove the allegation against the doctor using the best possible evidence and by presenting expert opinion. An error of judgment in treating a patient need not always amount to negligence in the part of the dentist. An error of judgment constitutes negligence only if a reasonably competent professional with the standard skill that the defendant professes to have and acting with ordinary care would not have made the same error. 
Medical negligence and legal issues in India
Medical treatment was included under the purview of Consumer Protection Act in 1995, thereby making health professionals liable for negligent acts. Medical negligence is broadly divided into civil negligence and criminal negligence. Civil negligence includes cases exhibiting simple absence of care/skill, is usually tried in civil courts, and is liable to pay compensation, while criminal negligence involves gross absence of care or skill, is tried in criminal courts, and includes fine and/or imprisonment. In India, Section 304-A of Indian Penal Code (IPC) is the provision under which a patient can register a case of criminal medical negligence. According to this, whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment up to 2 years, or with fine, or both. Sections such as IPC 336 deal with acts done rashly or negligently as to endanger human life or personal safety of others; 337 and 338 deal with causing hurt or grievous hurt by doing a rash or negligent act, respectively. These sections may be more applicable to dentistry as death due to negligence is unlikely to occur in dental practice. However, only a simple lack of care attracts only civil liability and may not hold good for criminal liability.  IPC also contains sections in defenses for doctors accused of criminal liability. Under Section 80 (accident in doing a lawful act), nothing is an offence that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. According to Section 88, a person cannot be accused of an offence if she/he performs an act in good faith for the other's benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.  Overall, the current legal position is that where a patient dies due to the negligent medical treatment by the doctor, the doctor can be made liable in civil law for paying compensation and damages, and at the same time, if the degree of negligence is so gross and his act was reckless as to endanger the life of the patient, he would also be made criminally liable for offence under Section 304-A of the IPC. 
One of the important landmark judgments regarding medical negligence in India was described by the Supreme Court in Jacob Martin vs. State of Ludhiana.  The court held that the negligence has to be gross negligence or recklessness for fixing criminal liability on a doctor. The standard of negligence was much higher than that for civil liability cases. The court also observed that in order to prosecute a doctor under criminal law, it must be shown that the accused did something or failed to do something, which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. In another case of Martin F D'Souza vs. Mohd. Ishfaq, the judgment ruled that for civil liability, only damages can be imposed by the court, but for criminal liability the doctor can also be sent to jail (apart from damages which may be imposed on him in a civil suit or by the Consumer Fora). However, what is simple negligence and what is gross negligence may be a matter of dispute even among experts. The court observed that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 
The role of expert witness
As a general rule, any complaints of medical negligence have to be supported by expert testimony. In the Indian context, expert witness needs to be produced by the complainant as the burden of proof lies only with the complainant in cases of medical negligence. The defendant needs to bring expert witness only if confronted with an overwhelming body of evidence against him which needs to be contested on technicality. Expert witness is a person who, by reason of education, training, or experience possesses specialized knowledge not held by the average person and whose knowledge and opinion is valuable to the trier of fact in reaching a conclusion. Expert opinion is an opinion of a witness who possesses special skill of knowledge in a science, profession, or business that is not common to the average person. The opinion is based on scientific factors of the case using reasonable probability after an examination of the case facts. 
Under common law, there are two basic standards for the opinion testimony of an expert witness to be admissible. First, the subject must be of such nature that the average person or juror is incapable of reaching reasonable conclusions from the evidence introduced without expert explanation. Second, the witness must be qualified as an expert in the field or subject. Courts have a great deal of discretion in qualifying medical expert witnesses. According to the judges, the mere possession of a medical or dental degree qualifies one for expert witness status even though he may not be a specialist in the field in question.  Although the qualifications of an expert witness are not defined specifically, a dental expert must be able to present his or her academic credentials, training, experience, membership in associations, publications, and other pertinent information that may specifically relate to a given case.  It is also important to recognize that the law does not require expert witnesses to be exclusively trained in the same field of defendant. Other health care providers can also frequently testify against defendants. 
| Conclusion|| |
Standard of care is an ever-evolving and a dynamic process which needs to be updated from time to time. Dental professionals need to understand and recognize the minimum standard of care as applicable to their profession, prescribed by the respective governing bodies. This is necessary to provide quality care as well as protect themselves from legal issues against medical negligence. Dentists are also required to keep up with advances in dental health care which is progressing at a rapid rate through continuing dental education programs. In addition, knowledge of the Indian judicial system regulations governing health care professionals is mandatory to protect oneself from liabilities arising either through their acts or from fraudulent claims of the patients.
| References|| |
|1.||Francu LL, Calin DL, Paduraru D, Francu D. Legal and ethical problems in dental medicine. Rom J Bioeth 2009;7:157-62. |
|2.||Jessri M, Fatemitabar SA. Implication of ethical principles in chair-side dentistry. Iran J Allergy Asthma Immunol 2007;6:53-9. |
|3.||Hartshorne J. Contaminated dentistry and infection control standards of care. Int Dent SA 2010; 12:46-50. |
|4.||Minnesota board of dentistry- Updates 2011;26:1-10. |
|5.||Selbst AG. Standard of care: So who decides? Oral Surg Oral Med Oral Path Oral Radiol Endod 1997;83:637. |
|6.||Graskemper JP. The standard of care in dentistry: Where did it come from? How has it evolved? J Am Dent Assoc 2004;135:1449-55. |
|7.||Standard of care. In Medical Malpractice- Understanding the law, managing the risk. World scientific publishing Co. Pte. Ltd. Available from: http://www.worldscibooks.com/medsci/6034.html. [Last Accessed on 2012 Oct 4]. |
|8.||Murthy KK. Medical Negligence and the law. Ind J Med Ethics 2007;4:116-8. |
|9.||Nayak RK. Medical negligence, patients′ safety and the law. Reg Health Forum 2004;8:15-24. |
|10.||Acharya AB, Savitha JK, Nadagoudar SV. Professional negligence in dental practice: Potential for civil and criminal liability in India. J Forensic Dent Sci 2009;1:2-7. |
|11.||Jacob Mathew v State of Punjab, Supreme court of India, August 5, 2005, Citation: 2005 (6), SCC 1=AIR 2005 SC 3180. |
|12.||Martin F. D′Souza vs. Mohd. Ishfaq, Supreme Court of India, 17 Feb 2009; Bench: Markandeya Katju and G. S. Singhvi, JJ.; The judgement was delivered by Katju J.; citation: AIR 2009 SC 2049. |
|13.||Bryne RP. Medicolegal issues. The expert witness. Dent Clin North Am 1995;7:647-58. |
|14.||Masella RS, Meister M. The ethics of health care professionals′ opinions for hire. J Am Dent Assoc 2001;132:361-7. |
|15.||Curley AW. Medicolegal issues. The deposition: Preparing for the inevitable Dent Clin North Am 1995;7:639-46. |