Does a judge have to instruct the jury that a bad result, in and of itself, is not evidence of malpractice? This was the question that the court had to answer in Schuessler v Wolter,310 P.3d 151 (Colo. App., 2012). The plaintiff suffered from degenerative disc disease and a lumbar herniation. The defendant recommended 2 methods of treatment: the first, steroid injections, and the second, surgical intervention. The plaintiff ultimately chose the second option—surgical discectomy with subsequent fusion. Although the surgery itself was successful, the plaintiff postsurgically experienced chronic hypersensitivity and numbness of his right side, symptoms that were not present presurgically.

The plaintiff claimed that the defendant damaged his spinal cord during the surgery. The defendant claimed that the injury the plaintiff suffered was a known risk of undergoing the procedure even when reasonable care was used and can also occur even with an absence of negligence. The defendant requested that the court issue the following jury instruction. As to Plaintiff's negligence claim, a physician does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient. An unsuccessful outcome does not, by itself, mean that a physician was negligent.

The court refused to issue the instruction, and the jury found for the plaintiff after a 9-day trial, awarding the plaintiff just under 1 million dollars. This appeal then ensued. The appellate court noted at the outset that determining whether a trial court abused its discretion regarding not giving a requested jury instruction could only be found if (1) the court based its decision on an erroneous view of the law; (2) the court acted on an erroneous assessment of the evidence; or (3) the decision not to give a requested jury instruction, on review of the record, shows that the jury might have reached a different conclusion resulting in a different verdict.

Looking at prior case law on this issue, the appellate court noted that “a physician does not undertake to warrant a cure and is not responsible for want of success unless it results from a failure to exercise ordinary care” (Cit. Omit.). The reason that the law takes this position is, first, because the jury must be informed that a bad result, in and of itself, is not an indication that negligent treatment was rendered. Second, they must be made to understand that a bad outcome alone cannot be considered in determining whether a doctor has met or fell below a given standard of care. Citing another case to support this contention, the court noted that “a plaintiff may not rely solely on a bad outcome to prove liability, but must provide evidence that the physician failed to exercise reasonable care” (Cit. Omit.). The appellate court reversed the trial court's decision and remanded the case for a new trial.

Commentary

Clinical orthodontics is the perfect petri dish in which to examine this legal principle. The realities of clinical practice denote the fact that any number of our completed cases are finished with a less than successful outcome; some would call them bad results. On the other side, many would posit that orthodontics deals with making the abnormal normal; and normal is a range, not a point. We don't, and sometimes we can't, nail every case perfectly, and therefore, realistically, orthodontics doesn't deal with correction; rather, our strong suit is improvement. We make many things better, like smiles, bites, functionality, self-image, and the like. But hitting a home run every time we come up to the box, well, that's just not realistic.

At the end of the day, we may not have achieved a solid Class I molar relationship, and I know some, no make that more than some, who would call that a bad result. The same goes if a few marginal ridges are not in perfect juxtaposition. Likewise, for a 3-4 mm overbite instead of a 1-2 mm vertical relationship. How sad to think of these as poor results.

Come to think of it, do we as a specialty really have a consensus as to what is and what is not a good result? We should, but we don't. The American Board of Orthodontics is on the right track as one can still pass on a given case with less than a perfect score. But because we want to nail every case, we often make excuses for our less than desirable outcomes, such as poor growth or a lack of patient cooperation. Therefore, if there are excuses, the results can be excused. If they can be excused, they can't be bad. Nope, no bad results for us. At this point, you should be asking, “C'mon Larry, what are you talking about?”

A good example is our current penchant for deluding ourselves that nonextraction therapy is a goal. It is not! Nonextraction therapy is merely a means to achieve a goal. Methodologically, we should first determine where we want the teeth, what angulation, proclination, articulation, inter- and intraocclusal relationship, A-P position, verticality, whatever. Once you decide where you want them, then you decide how to put them there. Maybe the way to get there is nonextraction via expansion, distalization, reproximation, what have you. Maybe the method might involve the extraction of any number of teeth using a symmetrical or asymmetrical pattern. Maybe it involves a multidisciplinary approach enlisting orthognathics, prosthetics, or orthopedics. The point is that these treatment modalities are the means to a desired and well-planned goal. No, many of us have deluded ourselves into drinking the nonextraction Kool-Aid. But hey, that's okay because 30 years from now, we'll have a built-in patient base of patients we have to re-treat. No big deal, as a specialty, we've done this once before.

Another example is the importance placed on obtaining a Class I molar relationship. Many of us have bought into the proposition that if the molars are not Class I, then our treatment has failed. Sorry, can't buy it. Many practitioners have decided that it’s okay to increase both treatment costs and time to themselves and their patients by using the multitudes of molar distalization appliances available on the market to push molars back into Class I; when instead, premolars could have been extracted, resulting in the same anterior segment positioning. If the goal is to obtain a mutually protected occlusion, one should be analyzing the safest, most expedient ways to achieve this end goal instead of maintaining a blind allegiance to a questionable anatomic tenet. If it's okay to substitute canines for lateral incisors, it's okay to take out maxillary premolars instead of distalizing everything.

I know, you have to compete with the guy down the block who genuflects to the misinformed helicopter parent or the guru de jour who is being compensated to tout the latest and greatest gizmo or widget. I get it. Sure, we're in a specialty, but it's also a business, and want it or not, we are in competition with our colleague down the block. Yet, it's sad to have to recognize one of our frailties; our relative inability to educate not only our patients but our referral base as well. Some would say we are on the verge of forgetting our own education in that we have traded a number of our principal principles all because we are afraid to lose a patient to a colleague.

What we need is some standardized means to evaluate our results, some type of outcomes assessment mechanism. We need a tool developed by our specialty not only for use by our rank and file but also for use by those who would seek to describe and evaluate our ministrations as successes or as unsuccessful outcomes. At the end of the day, it's important to remember that most of our treatment is very successful; it's just not perfect.