Written by Don Morse, DDS, PhD Saturday, 31 January 2004 19:00
Dr. Rosner walked into the reception room.
The burly man spoke, “Are you Dr. Rosner?”
“Yes, I am.”
“Here’s something for you.”
The man handed Artie Rosner a large envelope, walked out, and slammed the door behind him.
“Wait a minute! What’s this all about?” Dr. Rosner asked as he ran to the door. By the time he got there, it was too late. The man had gone. A late model Volkswagen pulled out of the parking lot.
Hearing the commotion, Phyllis, Mark, Julie, and Ginny entered the reception room. Artie closed the door, shook his head, and opened the envelope. He took a deep breath and began to read the enclosed letter, which began with “You are hereby summoned to appear…”
He couldn’t finish the sentence.
There are many stressors in dentistry—finding a good location to practice, paying for expensive equipment, working on fearful patients, worrying about contracting and transmitting AIDS, dealing with the mercury toxicity issue and fears about fluoride, fighting the managed care issue, getting an IRS audit, trying to keep up with the mounting cost of new equipment—but undoubtedly the worst dental stressor is receiving a malpractice summons. That is what Dr. Artie Rosner had the misfortune to have so ungraciously handed to him. (Note: The above scenario is excerpted from the book Malpractice by Don Morse, Baltimore, PublishAmerica; 2003: p. 50.)
The number of malpractice claims against dentists more than doubled between 1988 and 1992, during which time 7 of every 100 dentists had a formal malpractice claim filed against them.1 No official studies have been done since then, but it is obvious that more dentists are being sued in the years 2003 and 2004 than were in 1992. The question is this: what can be done about it? There are excellent books that relate to dental malpractice,2,3 but I would like to give suggestions based on my experience. First, I will present 2 personal cases. Second, an alarming and true recent case study is given. Then, the discussion turns to the steps to take after being sued. We’ll examine decision-making with regard to fighting a suit all the way to trial or settling out of court. Next, we’ll discuss malpractice-related terms, such as interrogatories and depositions, followed by courtroom protocol. Finally, we’ll consider the outcomes and what to do if you win or lose a case. In part 2 of this article, we will consider how best to prevent being sued.
I was in dental practice from 1959 until 1999. From 1959 to 1963, I was in the general practice of dentistry. From 1964 to 1999, I was an endodontist.
First Malpractice Case
I received my first malpractice summons in 1963. I was real proud of myself, having just completed a 10-unit upper fixed bridge from premolar to premolar for a 40-year-old woman. When I first saw Mrs. G, she had a severe overjet (a typical Bugs Bunny look). She told me that she wanted to change her dental appearance. After completing the diagnosis, it was apparent that Mrs. G had periodontal disease in several of the involved teeth. Although I originally thought that orthodontic therapy might be the best way to improve her anterior aesthetics, the periodontal complications made me consider that extraction of the periodontally untreatable teeth followed by a fixed bridge would be the treatment of choice. Nevertheless, I first referred Mrs. G for an orthodontic consultation. When the report came back from the orthodontist agreeing with my treatment plan, we began the surgical fixed prosthesis regimen. During treatment, I did not change Mrs. G’s bite and she was thrilled with the final result. When she returned a week later for a checkup, she told me that all of her friends told her that she looked beautiful and appeared many years younger. She also stated that she had no trouble eating or talking and had no discomfort.
That’s why I was shocked to the core when several weeks later I was handed a malpractice summons and was sued for $75,000. (My malpractice policy limit was $50,000 per occurrence.) It was alleged that I changed her bite so that she was in pain while eating, talking, and even when doing nothing orally. For the next few weeks, I suffered from worry, anxiety, and doubt. What did I do wrong? Or was it just a ploy on Mrs. G’s part to make money? After going over my dental records with my insurance carrier and the assigned defense attorney, it was agreed that I had done nothing wrong. Fortunately, I had written on Mrs. G’s chart her comments about being pain-free and being very pleased with the outcome of her treatment. In this case, the defense won out. The plaintiff’s attorney eventually dropped the case, and I heard nothing further from Mrs. G. However, a few months later, a patient of mine, who was also a friend of Mrs. G, told me in confidence that Mrs. G had been extremely pleased with the dental result. However, her husband was upset for 2 reasons. First, he said that he liked her much better the way he always knew her. This was not the woman he loved. Second, he heard that other men became attracted to her new appearance, and he became jealous and furious. Mrs. G was afraid of her husband and acquiesced to his desire to take it out on me. Hence, the result was my first malpractice summons.
Second Malpractice Case
My second malpractice summons occurred 33 years later, in 1995. I was now working part-time as an endodontist in a large multipractitioner office. In addition to myself, there was an examining dentist, several general dentists, a periodontist, a pediatric dentist, an oral surgeon, and a prosthodontist. This case involved a 50-year-old woman. Prior to my contact with Mrs. A, she had been seen by the examining dentist, who did a complete examination and treatment plan. She was then seen by the periodontist, who did full mouth periodontal treatment. Following that, Mrs. A was seen by a general dentist, who restored several teeth. Finally, she was referred to me for endodontic therapy on an upper left second molar.
When I saw the patient, on her chart it was stated that she had TMJ discomfort. After doing an examination, including a periapical radiograph, I explained to the patient that the dental pulp in the involved tooth was vital and that the endodontic therapy could be completed in one visit. I told her, however, if she had a problem keeping her mouth open for the approximately 1-hour time period, I would take 2 visits to complete the therapy. During the visit, Mrs. A was able to keep her mouth open and did not complain of jaw pain. A few months later, I received a malpractice summons stating that I had aggravated her TMJ condition. There was never any allegation that I did anything wrong with respect to the endodontic therapy. Mrs. A was seen by the examining dentist twice, the periodontist 4 times, the general dentist 12 times, and the endodontist (myself) once. All of us were involved in the lawsuit. My malpractice carrier agreed with me that this was nothing more than a “deep pockets” suit, and I was included for the sake of trying to get the most possible money for the plaintiff’s client. I was originally sued for $50,000. After many months, the plaintiff’s attorney agreed to settle for $2,000 for my case. I did not want to settle because I had done nothing wrong. However, my malpractice carrier told me that it would cost them twice as much if they had to go to court for attorney’s fees, irrespective of whether or not we won the case. Since I was close to retirement and didn’t realize that I could disagree with my carrier, I accepted the settlement, which stated that I did not admit fault.
Nevertheless, my name was subsequently placed on a list, available to future patients, stating that I was involved in a malpractice case. Since I was near retirement, it was not too much of a problem, but for a young practitioner it would have been a serious outcome.
Now, an alarming case study is presented.
CASE STUDY: A HORRENDOUS RESULT FROM A SIMPLE PROCEDURE
A $5 million malpractice award was levied against a Durham, NC, dentist who performed what appeared to be simple third molar extractions. According to the verdict, the extractions resulted in the patient receiving lifelong pain and serious medical complications. Lawyers Weekly’s 2003 survey of high jury verdicts and settlements4 reported that this was the highest verdict in North Carolina in 2002. The state’s juries awarded more than $1 million in 6 cases that year, but the largest payout was in this dental case.
Since the verdict, the parties Rissolo v. Sloop have reached a confidential settlement, according to an attorney for the plaintiff. The verdict was primarily based on the establishment of a direct link between the relatively simple extractions of third molars and a series of serious medical complications. The plaintiff’s attorneys contended that while extracting the teeth, the dentist used excessive pressure for a prolonged time. It was further alleged that this resulted in nerve and TMJ damage, which led to severe, unrelenting pain. The patient was then seen by a physician, who gave her a strong narcotic analgesic for the extreme pain. One of the plaintiff’s attorneys stated that had not the patient received the powerful narcotic analgesic for the pain, she would have committed suicide.
The real crux of the case was that as a result of taking the narcotics for a prolonged time, the patient came down with a “narcotic bowel.” That condition caused her intestines to be so severely impacted that a surgeon had to remove slightly more than two thirds of her colon, a large portion of her small intestine, and her reproductive organs. With all of that, the patient was still in constant pain. It was contended that she would have that chronic pain as long as she lived.
According to one of the plaintiff’s attorneys, the major problem in winning the case was to find a dental expert witness who would be willing to testify. However, they did find one, and the jury believed the plaintiff’s case, which resulted in the $5 million award.
This outcome shows that even what appears to be simple third molar extractions can result in a horrendous outcome. It is obvious that in performing extractions, a dentist must use the least amount of force required and perform the procedure well and expeditiously. A general dentist should only extract wisdom teeth if he or she is qualified. If in doubt, refer the case to an oral surgeon.
THINGS TO DO AND NOT TO DO ONCE YOU RECEIVE A SUMMONS
If you receive a summons, quickly find someone to help you with your grief. Remember this maxim: a shared joy increases; a shared grief lessens.
Immediately call your malpractice carrier. Only discuss the details of the case with your malpractice carrier and its attorneys. Of course, you can informally discuss it with your significant other, friends, or colleagues. However, never talk to anyone on the other side without either the knowledge of your attorney or your attorney being present.
TO GO TO TRIAL OR NOT
Generally speaking, your attorney is more knowledgeable than you about malpractice cases and the degree of liability you may or may not have incurred. So, listen to your attorney. If he or she believes that the case has little or no merit and is worth fighting, then go along with that. As discussed in my second personal case, you should seriously consider whether or not to settle out of court, especially if you did nothing wrong and it is just a nonsense suit. Your malpractice carrier might tell you that it would cost them much more money if they have to go to court rather than settle out of court. Going to court would entail much higher attorney’s fees–irrespective of whether or not you win the case–than if they settle out of court for a small fee. Even though the settlement agreement does not admit fault, your name will subsequently be placed on a list, available to future patients, stating that you were involved in a malpractice case. If you have many potential years of practice ahead of you, this could be a serious problem. So think about it carefully. Remember, you can disagree with your malpractice carrier but weigh the consequences. For example, will they continue to present your case vigorously in court?
If you have been sued, you should familiarize yourself with the terminology and protocol. If you are sued for an amount that is greater than your malpractice limits, then you have to hire a private attorney who will coordinate the defense with the malpractice carrier’s attorney. In order to prevent this additional expense, you should get the maximum coverage that you can afford (usually $1 million/$3 million), but for practices in which the chance of lawsuits are high (for example, when using general anesthesia in the dental office), you should opt for the maximum that the carrier will give (that is, if you still want to practice that kind of dentistry).
The following are some terms you should know:
•Statute of limitations. There is a time limit after which a patient cannot sue a dentist. The time period varies with the state.
•Malpractice. Malpractice is a negligent act committed by a professional healthcare worker—a physician, dentist, nurse, technician, or hospital worker—whose performance of duties departs from a standard of practice of those with similar training and experience (usually considered to be a national rather than a regional standard), resulting in harm or injury to a patient. In dentistry, if you are a general practitioner, the similar training is that of other similarly trained and experienced dentists. If you are a specialist, the comparison is with specialists who are similarly trained and experienced. Recent rulings have stated that a general practitioner who performs work usually done by a specialist is held to the standard of practice of the specialist. For example, if you do molar endodontics, you are expected to perform as well as an endodontist.
•Plaintiff. This is an individual who initiates a lawsuit against another person (the defendant, which would be the dentist in a dental malpractice case) in a civil court.
•Civil court verdict. This requires a majority vote of the jury for or against to come to a decision. This is unlike the situation in a criminal case in which a unanimous vote is required for a decision.
•Bailiff. This is a court official whose tasks include supervising the accused and keeping order in a court during a trial. He also calls the court to order and introduces the judge.
•Interrogatory. This is a series of written questions asked of several individuals involved in the case by the opposing attorney.
•Deposition. This is a written testimony that is given under oath. It is generally given by a witness and is read in court in the witness’s absence. An expert witness can also be deposed. Always have your attorney present when you or your expert witness is answering a deposition.
•Punitive damages. These are damages that are awarded by the court in order to punish the defendant over and above the amounts given for the malpractice-related injuries. In the book Malpractice,5 physically restraining the patient could have been construed as a reason to give punitive damages.
•Pain and Suffering. These are monetary awards given beyond those of the malpractice-related injuries and the punitive damages that have caused unusual amounts of pain and suffering. This might be applied in a case in which a patient develops permanent paresthesia as the result of an overfilled root canal into the inferior alveolar canal.
•Discovery. This is the stage of a legal proceeding during which each side must provide documents and data to the other side.
WHAT TO DO WHILE YOU’RE WAITING
It is usually a few months between receipt of a malpractice summons and your appearance in court. It is important that you are prepared for your defense, but it is also important that you don’t dwell on the case. You can lose yourself in your work, but even better, if you have an associate or practitioners who can take care of your patients, you should get away for a relaxing vacation. (In Malpractice,5 Dr. Rosner had a great vacation in Costa Rica before he had to face the court proceedings.)
You are now ready for your courtroom appearance. Make sure you are completely familiar with all the details of the case. Be dressed conservatively in either a gray or dark blue suit and be well groomed. If you are apprehensive, you can meditate, use relaxation self-hypnosis, or use brain wave synchronizers about an hour before the appointed time.6-8 If you are not familiar with any of those techniques, it might be helpful for you to get a prescription for a benzodiazepine such as lorazepam (Ativan) from your physician.9 For example, you could take 0.5 mg or 1.0 mg the night before and repeat that dose about an hour before the appointed time. Have someone else drive you to court. If you have never taken a benzodiazepine before, you might try it a few days prior to your court appearance to see how you react to the drug. Most people find that it calms them down but doesn’t interfere with cognition. If you are only mildly anxious or not anxious at all, then just take a few deep breaths and walk into court.
In court, let your attorney speak for you. Even if you believe the patient is lying, hold your tongue. Outbursts in court can only harm your case.
When you are on the stand, look at the attorney. Don’t look down, up, or sideways. These actions may give the jurors the feeling that you are trying to hide something. Only answer the question you are asked. Don’t volunteer information. If you don’t know an answer, say so.
When it is time for the jury foreman to read the verdict, make sure you have family, friends, or colleagues in the courtroom to give you support if you lose. If you win, an understated reaction is appropriate. A thankful smile is enough.
AFTER THE CASE IS OVER
If you won the case, the world is your oyster. Enjoy your practice and your life outside of practice, but make sure that you follow all the malpractice prevention tips that will be described in part 2 of this article. Of course, that will not ensure that you will never be sued again, but it should greatly lessen the chances of it recurring.
If you lost the case, at least you should have learned something from the case. Unless you are financially ruined, do everything possible to prevent another malpractice suit. Depending upon your personality makeup, you may need psychiatric counseling or training in relaxation techniques (eg, meditation, self-hypnosis, biofeedback, brain wave synchronizer goggles). Here, also, a relaxing vacation can be helpful.
The bottom line is that we can all get sued, and sometimes even if we did everything right, we can still lose a case. So, don’t blame yourself. Get help, learn from your mistakes, if you’ve made any, and never, never give up.
1. Conrad DA, Milgrom P, Whitney C, et al. The incentive effects of malpractice liability rules on dental practice behavior. Med Care. 1998;36:706-719.
2. Schafler NL. Dental Malpractice: Legal and Medical Handbook. 3rd ed. Vol 3. New York, NY: Wiley & Sons; 1996.
3. Tonner JJ. Malpractice: What They Don’t Teach You in Dental School. Tulsa, Okla: Pennwell Corp; 1996.
4. Berry E. Top verdicts and settlements of 2002 for North Carolina: six jury verdicts topped $1 million mark in survey. North Carolina Lawyers Weekly. 2003. Available at: http://www.nclawyersweekly.com. Accesses: Jan 13, 2003.
5. Morse DR. Malpractice. Baltimore, Md: PublishAmerica; 2003.
6. Morse DR. Clinical Endodontology: A Comprehensive Guide to Diagnosis, Treatment, and Prevention. Springfield, Ill: CC Thomas; 1974:417-428.
7. Morse DR. Stress and Relaxation: Application to Dentistry. Springfield, Ill: CC Thomas; 1978:141-152.
8. Morse DR. Brain wave synchronizers: a potential tool for reducing dental stress and anxiety. Dent Today. 2000;19:118-125.
9. Morse DR. Anxiety and its control. Int J Psychosom. 1995;42:54-64.
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