USPHS Sets Standard/ Determines Amalgam Mercury A Risk To Patients! Now the question becomes: "Are the State Boards of Dentistry fulfilling their statutory obligation to protect the public health, safety and welfare regarding exposure to mercury from amalgam dental fillings?" The answer is derived from awareness of the 1994 United States Public Health Service (USPHS) determination: "Thus, both MRLs are below estimated exposure levels from dental amalgam." [USPHS, ATSDR. Toxicological Profile for Mercury: Update. TP-93/10, page 125.]

In this document, the USPHS established its "Minimal Risk Level (MRL)" for chronic and acute exposure to mercury vapor for the general population (as distinguished from the 40-hours per week exposure for healthy adult workers limitation of the OSHA Workplace Standard). The chronic exposure MRL is 0.014 mcg Hg/m3 air, which the USPHS calculated to equal 0.28 mcg Hg/day intake; while the acute exposure MRL is 0.02 mcg Hg/m3 air, which translated to 0.4 mcg Hg/day intake. The USPHS made their comparison to the conservative dental estimates of daily intake of amalgam mercury, which were found in the 1993 CCEHRP document. The amalgam mercury daily intake determined by medical experts exceeds USPHS MRLs even more.

The USPHS Standard is not an opinion, a "committee consensus," or even open to interpretation! It is a United States Standard for the general population! Thus, the United States Government has determined, and ruled, that the continual exposure to mercury from amalgam fillings is not without risk to patients. It is, therefore, the statutory obligation of State Boards of Dentistry to inform the citizens and dentists of their state of this risk! Further, the previous "consensus reports" from sub-units of USPHS, such as the Food and Drug Administration and the National Institutes of Health/National Institute of Dental Research, have now been superceded and rendered obsolete.

Dental Boards Informed. The International Academy of Oral Medicine and Toxicology (IAOMT) has taken steps to formally record that members of State Boards of Dentistry are aware of the USPHS 1994 determination. Packages were sent to individual members of Boards of Dentistry (BOD) in 39 states (34 by certified mail/return receipt), starting in August of 1995. Besides the USPHS information, BOD members were also provided with; 1) the 1992 American Dental Association (ADA) Court pleading that "the ADA owes no legal duty of care to protect the public from allegedly dangerous products used by dentists", 2) the April 1995 FASEB J. article portraying the published science questioning the safety of dental amalgam and describing the widening gap between medical scientists and the dental profession, 3) the June 1995 letter from the Canadian Dental Association to its members warning of the forthcoming Health Canada report which may call for a limitation of amalgam fillings allowed for its citizens, 4) the 1993 statements of the U.S. Food and Drug Administration (FDA) that they have never evaluated and classified mixed dental amalgam as an accepted Dental Device, and 5) letters from the FDA and ADA that the responsibility for the use of dental amalgam belongs to the practicing dentist, not them. One state responded to the IAOMT by mail, stating that the information has been placed before the Board. That state has now been provided with an IAOMT certified letter (return receipt) pointing out the Board's statutory obligation and requesting that the Board inform the citizens and dentists of the state of the USPHS 1994 determination. A copy was also sent (certified mail/ return receipt) to the Governor and Attorney General of the state.

Constitutional Right Of Freedom Of Speech. As Bio-Probe has previously reported, the American Dental Association (ADA) has taken the position in a court of law that it may make any representations it wishes on the "amalgam" issue without fear of civil liability. In the July 1995 (Vol. 11, Issue 4), Bio-Probe reported that the ADA had successfully argued in court that it owed no legal duty to dental patients who were injured by exposure to mercury from amalgam. The ADA also successfully argued in the same case that representations it had made concerning the alleged safety of amalgam, whether true or false, constituted protected free speech under the First Amendment to the U.S. Constitution. In a letter dated 10 August 1995 from Dr. John Zapp, Executive Director of the ADA, the ADA confirmed its view that representations concerning amalgam were protected by the First Amendment. The letter, which was reprinted in its entirety in the September 1995 issue of "Bio-Probe Newsletter" (Vol. 11, Issue 5), stated: "It is a fundamental tenet of free speech that truth is most likely to be discovered in the free marketplace of competing ideas, rather than in courts of law. The ADA makes no apology for defending the free exchange of scientific information on the safety of dental amalgam." Mercury-free dentists are left to wonder if Dr. Zapp and the ADA are willing to apologize for the persecution of dentists who, after examining the scientific evidence demonstrating the hazards presented by amalgam, have been led to a contrary conclusion. If the ADA's unfounded representations concerning amalgam safety constitute protected speech, then the well-founded representations of mercury-free dentists concerning amalgam dangers must also constitute protected speech.

"Standard Of Care" . Dental board charges are brought on the basis that a defendant dentist has failed to act in conformity with the "standard of care." This standard obligates a dentist to act in a manner consistent with the actions of other dentists in the community. If the board determines that a dentist's actions departed from the standard of care, he or she many be disciplined. In other legal settings, defendants are required to prove that they acted in a manner that is consistent with the actions of a "reasonably prudent person." The legal distinction between these two standards is significant. The "standard of care" subjects an innovative and/or scientifically informed dentist to claims that he/she failed to act in conformity with the practices of other dentists and should therefore be sanctioned. Such claims expose the dentist to sanctions even though he/she acted reasonably and prudently.

It has been said that the clinical practice of dentistry lags at least ten years behind science. Yet, if a dentist utilizes practices that are scientifically advanced or innovative -but not used by other dentists -the dentist can be disciplined for failing to conform to the standard of care. Indeed, this is the situation in the mercury amalgam controversy. Conversely, the "standard of care" protects those dentists who are utilizing scientifically obsolete methods in their practice, even though such methods would not be considered reasonable or prudent in light of recent scientific evidence. For example, it is scientifically well established that the use of metal retention pins or root canal posts encourages root fracture. Yet, the use of these materials is widespread in dental practice, thereby protecting those dentists that utilize them. Another clear example relates to the use of bonded composite restorations in posterior teeth. Again, it has been well established scientifically that the use of "bonding" with composites strengthens and preserves remaining tooth structure and equally well established that the "creep" and "flow" characteristics of amalgam contribute to tooth fracture. Yet the "standard of care" is to use amalgam in posterior teeth, thereby protecting the advocates of this practice, whereas dentists that are mercury-free can be disciplined for using a material and procedure scientifically proven to be beneficial in preserving tooth structure.

As a pronounced roadblock to progress, depriving the public of advances in dental care, the folly of the "standard of care" concept is obvious. It may very well be anticipated that this concept may be challenged in the very near future, with the dental amalgam controversy being the spearhead. If it is scientifically established that mercury exposure from dental amalgam is a health risk to patients, and government standard supports that position, the "standard of care" position becomes extremely tenuous. The use of lead in gasoline, asbestos, DDT and silicone breast implants were all "standard of care (or use)" at one time.

Regarding the conduct of Dental Boards, and mindful of their statutory obligations to the public health, the "standard of care" argument becomes even more hazardous. Can Dental Boards discipline, with impunity, mercury-free dentists on the sole basis of the position and dictates of a dental trade organization? That question may be answered before long.

Also make sure to read these books: Poison in Your Teeth: Mercury Amalgam (Silver) Fillings...Hazardous to Your Health! and Mercury Detoxification by Tom McGuire