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New Jersey Dental Association lodges complaint against SmileDirect Club

February 08, 2019

By David Burger

Woodbridge, N.J. — An orthodontist and the New Jersey Dental Association have filed a civil complaint in the Superior Court of New Jersey alleging that clear aligner company SmileDirect Club is "engaged in the unlawful practice of dentistry in this state," according to the Jan. 28 complaint.

The complaint, which also names three SmileDirect Club-affiliated dentists as defendants, reads, "This action is brought to protect the rights of plaintiff Scott D. Galkin, D.M.D., and the members of plaintiff New Jersey Dental Association against unlawful and dishonest competition, as well as to assert the public interest in preventing unlawful practices."

The plaintiffs are requesting a "preliminary and permanent injunction restraining defendants and each of them from further engaging in unlawful and dishonest competition," reads the complaint.

According to the complaint, three SmileDirect Club-affiliated dentists — Drs. Danny Leeds, Robert DeRosso and Isaac Perle — reviewed 3-D scans and digital photographs and/or impressions for SmileDirect Club without conducting clinical examinations or reviewing radiographs of consumers looking to purchase clear aligners through SmileDirect Club.

The complaint says, "To determine the suitability of a person to receive orthodontic treatment, the standard of care requires the performance of a clinical examination and the review of radiographs. Among other purposes, in order to diagnose whether or not a person is a suitable candidate for orthodontic treatment, dentists take X-rays to determine if there is sufficient supporting bone of adequate density and to identify cavities that cannot be seen in a visual examination."

The attorney for the plaintiffs is Arthur Meisel, executive director of the New Jersey Dental Association. He declined to comment.

When reached at his office, Dr. Perle said, "I don't think I've done anything inappropriate," before declining further comment. Messages left with SmileDirect Club and Dr. DeRosso were unreturned, and attempts to reach Dr. Leeds were unsuccessful.

The complaint states that there was never an appropriate dentist-patient relationship between the consumer and the three defendants. In addition, it is alleged that the defendants "did not have any direct personal contact to discuss treatment alternatives and risks with the persons whose scans or impressions were furnished to him for review by the SmileDirect Club."

SmileDirect Club, based in Nashville, advertises straighter teeth at a fraction of the cost and time of seeing an orthodontist or dentist in person, according to the complaint. Customers can book 3-D scans at "SmileShops" or can use at-home impression kits. At SmileShops, SmileDirect Club employees take digital photographs of the customer's teeth and gums and then take 3-D scans of the customer's oral cavity. After this procedure, the scans and photographs are sent to SmileDirect Club, which assigns them to dentists in their network to review in order to see if they are good candidates for clear aligners through SmileDirect Club. At-home impressions are also reviewed by the dentists named in the complaint.

Other states have had legal run-ins with SmileDirect Club.

A SmileDirect Club lawsuit against the Michigan Dental Association was dismissed in July 2018. The suit alleged that an article published in the August 2017 MDA Journal defamed the company, in addition to other claims that included conspiracy to restrain trade.

In addition, in October 2018 a dentist and SmileDirectClub lodged an antitrust lawsuit against the Board of Dental Examiners of Alabama. The dentist and SmileDirectClub alleged the board discriminated against them after ruling that he and the company could not practice in the state. SmileDirectClub had a teledentistry platform that lets out-of-state dentists provide aligner treatment.

In 2018, the Georgia Board of Dentistry was subject to a complaint filed in May by SmileDirectClub that alleged that the board is conspiring to destroy its business model. In November the board filed a motion to dismiss. A hearing will be held Feb. 11.

The ADA "strongly discourages" the practice of do-it-yourself orthodontics because of the potential for harm to patients, according to a policy passed by the 2017 ADA House of Delegates through Resolution 50H-2017.

The ADA also "strongly discourages the practice of direct to the consumer (DTC) dental laboratory services because of the potential for irreversible harm to patients," according to a policy adopted by the House of Delegates at ADA 2018 – America's Dental Meeting through Resolution 2H-2018.

For information on the ADA's direct-to-consumer laboratory services policy statement, visit ADA.org.

The American Association of Orthodontists' website states that customers considering direct-to-consumer treatment from companies such as SmileDirect Club should consider that "in some instances direct-to-consumer orthodontic companies do not involve the in-person evaluation and/or in-person supervision of your orthodontic treatment by an orthodontist. An in-person evaluation and in-person supervision throughout treatment can be very important, because there is more to creating a healthy, beautiful smile than moving the visible portions of your teeth."

MouthHealthy.org, the ADA's consumer website, also contains more information of DIY orthodontics at MouthHealthy.org/DIYdentistry.