- Dentala material
- Politik
Trying to buy a mercury thermometer at the local pharmacy these days will result in a deluge of information regarding the risks of mercury and the proper disposal protocol for mercury thermometers as hazardous waste. Yet, inquiring about the risks of placing mercury in one’s mouth, in the form of a dental filling, is likely to meet with resounding assurances of safety from the dental profession. According to the American Dental Association, “ dental amalgam has been studied and reviewed extensively, and has established an extensively reviewed record of safety and effectiveness.“1 While such comforting disclaimers are meant to ease patient concerns, many continue to worry about the safety of dental mercury. Thus, “there are a growing number of scientific studies that document pathophysiologic effects associated with amalgam mercury.“2 Today, according to a survey of 1000 people, nearly 50% of Americans believe that mercury fillings cause health problems.3
Considering these widely disparate points of view and growing public concern, the delay in litigation involving mercury amalgam fillings may come as somewhat of a surprise. What is even more surprising is that the mercury amalgam debate began over 150 years ago. In the 1830s and ’40s, the American Society of Dental Surgeons (“ASDS”) caused an uproar when it demanded that its dentists sign a pledge not to use mercury fillings.4 By the 1850s, however, the ASDS’s membership had declined to the point that it was forced to disband.5 In its place arose the American Dental Association (“ADA”), composed largely of mercury amalgam advocates.6
Despite this long and contentious history, there has been very little case law or clinical research dealing directly with mercury amalgams. As indicated by even those groups that support mercury fillings, it remains unclear exactly how much mercury enters the body from fillings, as well as at exactly what levels mercury becomes harmful to humans.7 While the debate over the scientific validity of mercury’s perceived health risks continues, patient concerns about amalgams are quite genuine. And, because such patients view mercury risks as material to their decisions regarding treatment options, the doctrine of informed consent should apply. Nevertheless, the dental profession has basically ignored its duty to disclose material risks and has taken overt measures to ban its members from discussing potential risks with patients.
This article will begin by describing the many safety concerns that surround the use of dental amalgam. It will briefly overview how other nations and even the U.S. Food and Drug Administration (“FDA”) have taken preliminary steps to safeguard patient safety. It will then examine the dental industry’s use of professional discipline and malpractice litigation to prevent and even punish full disclosure of amalgam risks. This discussion will also examine how, given such bans on information, patients have sought recourse through litigation, but face numerous obstacles to recovery, including serious evidentiary hurdles regarding admissibility and causation.8 For these reasons, the article will conclude by showing how legislation at the state level appears to offer the best strategy for insuring that dental patients are adequately informed of the risks associated with mercury fillings. Nevertheless, it will explain why and how state laws must be carefully crafted in order to survive preemption by federal regulations. Sadly, patients who should be able to rely upon their dentists for complete and accurate information regarding the risks and benefits of amalgam, cannot expect such a disclosure.
Moreover, while a patient’s legal right to information concerning the risks and benefits of amalgams should be straightforward, the interplay of professional regulation with state statutory and tort law, FDA regulations, and the shadow of federal preemption add to the uncertainties and worries of dental patients. Only by disentangling conflicting concerns and competing strategies can a dental patient’s right to informed and autonomous decision-making be effectuated. This article endeavors to begin that process.
