The Legal Position of the American Dental Association on Mercury in Dental
Fillings

The legal position of the American Dental Association (ADA) on the safety of
mercury containing dental amalgam and the use of the material by dentists in
the United States was recently stated as follows:

"The ADA owes no legal duty of care to protect the public from allegedly
dangerous products used by dentists. The ADA did not manufacture, design,
supply or install the mercury-containing amalgams. The ADA does not control
those who do. The ADA's only alleged involvement in the product was to provide
information regarding its use. Dissemination of information relating to the
practice of dentistry does not create a duty of care to protect the public from
potential injury".
Source: Legal brief filed in 1995 by attorneys for the ADA in W.H. Tolhurst vs.
Johnson and Johnson Consumer Products, Inc.; Engelhard Corporation; ABE Dental,
Inc.; the American Dental Association, et al., in the Superior Court of the
State of California, in and for the County of Santa Clara, CA, Case No. 718228.

This legal position adopted by the ADA seems to contradict the organization's
publicly stated mission. According to their own website (www.ada.org):

"The ADA is the professional association of dentists dedicated to serving both
the public and the profession of dentistry. The ADA promotes the public's
health through commitment of member dentists to provide quality oral health
care, accessible to everyone. The ADA promotes the profession of dentistry by
enhancing the integrity and ethics of the profession, strengthening the
patient/dentist relationship and making membership the foundation of successful
practice. The ADA fulfills its public and professional mission by providing
services and through its initiatives in education, research, advocacy and the
development of standards."
Somehow the ADA's stated mission of promoting public health does not require
the organization to protect the public even when their own member dentists are
following ADA guidelines and standards of care for the use of mercury
containing dental amalgams. (For the uninformed public, most dental amalgam
contains approximately 50% elemental mercury by weight (see
http://www.caulk.com) )

To find out what the ADA "really meant" by its statements regarding the use and
safety of dental amalgam in the Tolhust case see
http://www.ada.org/prac/position/bioprobe.htm The following is extracted from
the ADA’s website: Does it sound like the ADA is protecting the public or
protecting its own financial interests?

The following information was prepared by the ADA Divisions of Legal Affairs,
Scientific Affairs and Communications.

Background

The July 1995 issue of the Bio-Probe Newsletter (published by Mr. Sam Ziff, who
has been a participant in numerous anti-amalgam activities) contained an
article entitled, "ADA Bails Out on Dental Amalgam - Leaves Dentists Hanging."
The article concerned a lawsuit filed against the ADA and others in 1992 in
Santa Clara, California, by a patient who claimed that he was injured by
exposure to the mercury in his dental amalgams (Tolhurst v. Johnson and Johnson
Consumer Products, Inc., et al.). The ADA response to the article was printed
in the September 1995 issue of Bio-Probe.

The ADA moved to be dismissed from the lawsuit on grounds that the plaintiff
had failed to state a legal cause of action against the Association. The court
agreed and granted the ADA's motion in January 1993. The suit against the other
parties is still pending; trial is scheduled for November 1996.

The Bio-Probe article implies that by asking to be dismissed from the lawsuit,
the ADA refused to stand behind the safety of dental amalgam. This charge has
been widely disseminated by anti-amalgam publications and speakers, provoking a
number of inquiries from members.

The facts in the case are somewhat confusing and have never been proven. The
following information is based solely on allegations contained in the patient's
complaint. The complaint alleges that the patient was exposed to mercury as a
result of an occlusal equilibration procedure performed by the
dentist-defendant. Following the appointment, the patient allegedly developed
flu-like symptoms and an inflammatory response of his peripheral nerves,
accompanied by a strong metallic taste in his mouth. He returned to the dentist
who allegedly diagnosed these symptoms as the result of mercury toxicity and
removed all of the patient's dental amalgams, allegedly exposing the patient to
more mercury in the process.

The complaint contained five causes of action. The first three were for strict
products liability, breach of warranty and negligence against various
manufacturers and distributors of mercury and amalgam alloys. The fourth cause
of action was for malpractice against the plaintiff's dentist. The fifth cause
of action, for negligent misrepresentation, was the only claim alleged against
the ADA.

The complaint alleged that the ADA negligently misrepresented to member
dentists that dental amalgam is safe for tooth restorations. These
representations were allegedly made by means of ADA publications,
ADA-accredited dental schools and other communications to the membership.

Summary Points

The ADA's actions in Tolhurst in no way represent a change in ADA policy on the
safety of dental amalgam. The ADA continues to believe, as does the U.S. Public
Health Service and the National Institute of Dental Research, that amalgam is
safe and is a durable and cost-effective filling material.
The ADA further believes that specific treatment decisions involving dental
patients are within the professional judgment of the individual practitioner.
The Association does not require dentists to use dental amalgam, nor does it
prohibit dentists from removing dental amalgam in appropriate cases. The
Association does take the position that it is unethical for a dentist to remove
serviceable dental amalgams from the non-allergic patient for the alleged
purpose of removing toxic substances from the body, when such treatment is
performed solely at the recommendation or suggestion of the dentist.
There exists no credible scientific evidence that dental amalgam, when used in
restorations in the non-allergic patient, constitutes either a general health
hazard or is in any way related to the cause or cure of any specific disease.
Neither the Alzheimer's Association nor the Multiple Sclerosis Society is aware
of any scientific evidence that has shown a credible link between use of
amalgam fillings and either disease.
In stating that the ADA "owes no legal duty of care to protect the public from
allegedly dangerous products used by dentists," the Association was only
articulating the legal principle that liability for negligence against a third
party in a case like this is limited to those who guarantee the product at
issue or help to market it. The Association does not fall into this category.
Its only alleged involvement in the plaintiff's injury was providing
information about amalgam to the dental profession.
The plaintiff in Tolhurst was essentially asking the court to create new law
that would have made the ADA potentially liable for every dental related injury
suffered by any person in the United States.
The ADA takes very seriously its responsibility to advance the art and science
of dentistry by disseminating scientific information about the safety and
efficacy of dental products and therapeutic agents. This does not mean that the
Association is willing to allow itself to be wrongfully sued where no legal
liability exists or to pay needless attorneys' fees and court costs.
The ADA believes that the art and science of dentistry are best served by the
free flow of scientific information and debate. The court agreed. In granting
the ADA's motion, the court stated: "To subject Defendant Association to
liability would be, in this Court's opinion, contrary to public policy which
the Court perceives to be the promotion rather than suppression of the free
flow of scientific information directed to the practicing membership of the
professional community to which the Defendants' publications are directed,
i.e., professional dentists."
In the class-action lawsuit recently brought by 500,000 smokers in Florida
against the tobacco industry, Robert Heim, the lead attorney for Philip Morris,
stated the tobacco industry could not be held accountable for the health
consequences caused by cigarettes because of the following:

"The basic common sense of the American people for the most part is: You knew
the risk, you took the choice and you should be responsible".*
*Source: Associated Press article, dated 10/20/98, written by Tracy Fields.

Maybe someone should ask the American people these same three questions
concerning the health consequences resulting from the mercury released from
dental amalgam fillings.
=================
Did you know there was a risk?

Were you given a choice?

Who should be held responsible?