Negligence?

[jerardo89]

I had an orthodontist whose treatment was substandard(as judged by the oral surgeon who performed a procedure on my mouth that the orthodontist was supposed to provide follow-up treatment for). The oral surgeon suggested someone else. The ortho repaid the money that I paid them(after a short period of arbitration - 2 weeks - and I signed a disclaimer). At the time I didn't realize that the post-op treatment that was performed by this ortho would lead to malocclusion(a different form of malocclusion from the type that the operation and orthodontic treatment was supposed to correct, which was the only reason that I had the operation in the first place). I wasn't told this by the oral surgeon or the new ortho, but the problem was transparent to another ortho that I went to for a second opinion(that I felt I needed following some discussions with my new orthos were they would not answer my questions). Recently they admitted that the end result will not be "textbook".

My question is this, given that they were deceptive in their answers(over a year long period) and I was not told the extent of the problem caused by the original ortho(assuming that it was a transparent problem, which I can assure you it is) and the end result is a malocclusion which would not have been the case if the first ortho was competent, do I have a case? Also, who is responsible? The oral surgeon or the new orthos?

According to the American Dental Association's guidelines, not giving full information to a patient is called "Benign Neglect." Is this also a relevant term in law?

ANSWER: What might be transparent to one specialist may not be transparent to another one. It is a big leap based on facts given to say that the later doctors were "deceptive". And even if there was deception, that did not cause or make your problem worse or cause you any damage at all except perhaps to cause delays or false hope.  If there is any negligence, it is with the first ortho and the "disclaimer" is probably a Waiver or Release of some type, saying that in consideration for refunding money to you, you agree that this would be the end of any claims you have against first ortho. Bottom line, I don't see a case anywhere. Sorry.

---------- FOLLOW-UP ----------

Some clarifying questions about your answer.

If we assume that the issue is transparent(which it was, and the new orthos don't disagree that it was), then was it their responsibility to tell me when they first saw me?(Your answer appears to assume that the issue was not transparent)

The second question is, given that my case against the first ortho was not something that I considered given that I didn't know there would be long their problem, does the liability transfer to the orthos(or oral surgeon) who did not inform me that there would be a long run problem?

Your answer is based on the fact that the orthos were not withholding information. I can assure you that they were(not imagined, or wishful thinking), could you reassess this issue based on that fact?

Thank you.

[Parkinson]

To the first question, whether the later ortho's saw a "transparent" case of malpractice or not, they did not have a duty to express that to you. Their duty is to diagnose and treat whatever problem you have. They have a right not to indict the first ortho because(1) the later orthos are not lawyers and(2) they are naturally reluctant to express an opinion on the legal issue because that would drag them into any litigation that you start. I think you would agree they have a right not to get involved if they don't want to. On question 2, if you released ortho #1 without knowing the full extent of your damages, that is your problem. In California, our Releases state specifically that you are releasing the person even from damages or which you might not be aware at the time. Don't know what your Release says or law in your state but I think it is a universal truth that you don't release until you know everything. Otherwise, a release would be worthless. An no, the later orthos cannot be assigned the liability of the firth ortho just because they didn't express to you the full extent of the problem. Again, that was not their duty, you have misunderstood what they were saying, and even if you could prove(an impossibility unless you could read their minds and document it) that they purposely underplayed the long term problem just in order to not encourage you to sue ortho #1, that doesn't cause any liability on their part. It might be interesting evidence in a suit against #1 but you can't and won't sue #1 anyhow. I feel quite confidant in this opinion of mine on your question. Sorry it is not what you want to hear. Good luck.