Dental Litigation
Everything That You Need To Know To
Protect Yourself, Your Practice, Your
Wealth,Your License, Your Freedom
Your Mental Health and Your Wife
Incentives to Stay Until the End
You will learn a lot
You will make changes in how you conduct your
professional practice
You will be eligible to the Full Color Ceremonial
Football Contract between Marshall and West
Virginia Contract
Pop Quiz—Do You Know the
Answers to These Questions?
How much insurance have you bought?
True or false-- dental malpractice verdicts are small?
Can a malpractice case affect licensure?
Can you be sued for conduct that is not
insured or insurable?
Can you go to jail based on your interactions with a
patient?
Is Little Shop of Horrors your favorite dental movie?
Verdicts & Settlements—A Good
Reason to Delay Your Tee Time
The next series of slides are presented to allow
you to participate in being a jury of your peers.
While the summary information is limited, do
your best to form an opinion regarding what
amount of money, if any, you would award the
respective plaintiffs.
Case No. 1
A retail clerk/singer went to the dentist for work on a
back molar. She also had a front crown redone on tooth
# 7. She sued for breach of contract claiming that she
and the dentist had an oral contract that she would
have a “better looking tooth. She sued because the
“color of the new crown did not match her adjacent
teeth” She also claimed that a male lab technician
sexually touched her and made suggestive comments.
Verdict: $ 0—Complete Defense Verdict (California,
2005)
Case No. 2
Patient sought treatment for her wisdom teeth from a
dentist. Plaintiff claimed that dentist had trouble
removing a wisdom tooth and that she complained of
severe chronic jaw pain that continued after the
extraction. Her lawyers offered expert testimony that her
ingestion of significant amounts of pain medications had
damaged multiple organs.
Theories: No consent, excessive force & no referral.
Verdict: $5,000,000 (Durham County, N.C. 2002)
Case No. 3
A 42 year old New York bartender/singer sued
following a five year (1995-’00) series of
infection and alleged bone which he attributed to
the use of an outdated blade and subperiosteal
implants in the lower jaw. Dentist pioneered the
blade implant in 1967 and blamed other
consultant dentists for failure to intervene.
Verdict: $2,000,000
Case No. 4
An 19 year Californian sued his orthodontist
based on the contention that, after the braces
were in place for a year, a cavity developed on a
front tooth. Settlement Demand: $150,000.
Case settled on the morning of trial. How much?
Settlement Amount: $9,900
Case No. 5
A 30 year old beer production assistant died 30 days after
presenting to the dentist with complaints of an abscess on tooth
#17. The dentist examined the tooth, prescribed an antibiotic
and recommended that the man find a periodontist to treat him.
Four days later the man returned for treatment of an indurated
dental infection and swelling on the angle of the mandible. The
dentist performed an incision and drainage. The drainage was
not cultured and the antibiotic was not changed. After another
four days, #17 tooth was extracted. Two days later, the patient
reported a severe headache and trismus. Nausea, vomiting,
night sweats and swelling of face, neck and jaw followed.
Verdict: $1,450,000
Seminar Format
Participatory Process
Ask Questions At Any Time
Share Your Experiences If Appropriate
If You Disagree, Challenge Me
If You Do Not Understand, Tell Me
If the Presentation Scares You . . .
Then Thank Keith Hildebrand For Inviting Me
Seminar Objectives
Explain the Litigation System
Identify Malpractice Litigation Causes, Theories &
Defenses
Identify Non-Malpractice Litigation Exposures
Review Insurance Coverage Issues
Identify Grounds For Adverse Licensure Actions
Identify Criminal Law Violation Exposures
Review Basic Employment Law
Why Do Patients Want to Sue
Angry
Vindictive
Disappointed
Insulted
Failure to Communicate
Bad and/or Unexpected Result
Physical/Emotional Abandonment
The Internet
Lottery Syndrome
Collection Action
Malpractice Occurred
Why Do Lawyers Pursue A
Dental Malpractice Claim
$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
Inadequate Documentation in Patient’s Chart
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Failure to record S.O.A.P.
Illegible
Failure to retain testing and external documents
Failure to include telephonic and other communications
Permanent Injury
Significant Economic Loss
Sympathetic Plaintiff
Unsympathetic Dentist
$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
Failure to Communicate
Educational deficits, cultural differences and fear create
communication barriers
Time, money, fatigue and personality differences can
impede effective communications with the patient
Patients have (unstated) outcome expectations
Dentists, their staff and marketing materials can create
unrealistic outcome expectations
Respect the “Communication Triangle”
– Doctor
– Patient
– Family
Physical and/or Emotional
Abandonment
Formal termination of relationship
Refusal to complete treatment
Refusal to acknowledge incomplete treatment
Refusal to refer to another dentist
Referral to another dentist
Refusal to believe patient’s symptoms
Refusal to prescribe pain medications
Presentation Available
http://f3.farrell3.com
The Internet
Dental health information
Google for “Dental Malpractice”
Google for “Dental Malpractice Lawyer”
Access to adverse licensure data
Access to news stories about verdicts and
settlements
Access to Dental Malpractice insurance
information
Lottery Syndrome
Contingent Fee for Plaintiff’s Lawyer
Lawyer can finance entire case with no
monetary investment by the patient
American Rule: If a plaintiff loses case, no
responsibility for defense lawyer’s fees
Ready availability of adverse experts makes
even the most frivolous case a jury issue
Collection Action
Ask yourself why the patient did not pay the fee before
you file suit
Review your chart before making decision to sue
Personally ask the patient why the fee has not been
paid before you file suit
Ask yourself whether the patient has the financial
capacity to pay the outstanding balance
If the answer is no, then understand that a
Counterclaim for malpractice(or worse) can be the
response
Malpractice Occurred
Be forthright with your insurer if you believe that
malpractice occurred
Your belief may be right or wrong
Your insurer has experience in evaluating
claims
The capacity of plaintiff’s counsel to
recognize and quantify the value of a meritorious
case varies considerably
The Litigation System
State Court versus Federal Court
Trial Court versus Appellate Court
Plaintiff(s) versus Defendant(s)
Role of the Judge
Plaintiff’s Counsel versus Defense Counsel
Notice of Claim
Complaint
Discovery
Expert Witness Requirement
Mediation
Jury
Warning Signs for Dentist of
Impending Jeopardy
Patient requests copy of the chart
Dissatisfied patient refuses to pay statement
Lawyer requests copy of chart
Former employee threatens to be a whistle blower
If the Police show up, call your lawyer
Beware if you are noticed for a deposition in injury
case
– Defense counsel may try to set up Third Party Malpractice
Claim against you for contribution
Sources of W. Va. Law
Medical Professional Liability Act (“MPLA”)
Common Law (W. Va. Supreme Court of
Appeals)
W. Va. Statutes
– Health Care Statutes
– Licensure Statutes
– Criminal Law Statutes
W. Va. State Regulations
Sources of Federal Law
Statutes—United States Code
Code of Federal Regulations
Four Predicates for a Lawsuit
Duty
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Statutory
Regulatory
Common Law
Contractual
Breach of Duty
Causation—a proximate cause, not the proximate
cause
Damages
– Economic
– Non-economic
Professor Jim Aldridge
Will discuss and define the standard of care for a
dentist in New York City
Will identify the book that prescribes the
standard of care
Will leave the room if I persist in putting the
spotlight on him
Professor Jack Eblin
Will discuss how to communicate with a patient
who is fearful of dental treatment
Will discuss when and how a dentist handles a
patient who comes in with a request for remedial
treatment to correct a condition allegedly caused
by another’s malpractice
Will give putting lessons at 12:15 today
Malpractice Theories of Liability
Based on Negligence
Commission or omission—What a reasonable dentist
would or would not do under the same or similar
circumstances
Mechanical/Manipulation issues
Diagnostic issues
Medication issues
Instrument issues
Scope and/or necessity of treatment issues
Referral Issues
Anesthesia issues
Defenses to Negligence Action
No duty
No breach of duty
No proximate causation
– Define the injury precisely
– Preexisting condition
– E.g. failure to diagnose cancer
No damages
Contributory negligence by a patient
Informed Consent
Standard: Disclosures a reasonable patient would
expect to receive
Not what a reasonable dentist would provide
Elements
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Diagnosis
Proposed treatment
Alternative treatments
Risks
Possible outcomes if left untreated
Informed Consent Considerations
Record reliance on medical and dental history
Obtain before every invasive procedure
Obtain before every anesthesia or conscious
sedation
Disclose all foreseeable material risks, e.g.
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Bleeding
Infection
Nerve damage
Death
Non-Malpractice
Litigation Exposures
False Claims Act—Qui Tam
Premises liability
HIPAA
Intentional act
Suits by employees: W. Va. Code 23-4-2
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Silica exposure
Beryllium exposure
Waste Anesthetic Gas exposure
Blood Borne Pathogen exposure
Infectious disease exposure
Radiation exposure
Insurance Issues
How did you buy your insurance policy?
Have you read your insurance policy?
Do you understand your policy?
Is your policy an occurrence or claims made?
What is your “prior acts” or “retro date”?
Do you have an entitlement to an extended reporting
endorsement upon death, disability or retirement?
What exclusions in your policy are material to you?
Insurance Coverage Issues
What does coverage of $1,000,000 per claim mean?
What does coverage of $3,000,000 aggregate mean?
Understand the difference between
employment practices and employer’s liability coverage
Review the Declarations Page, the Policy and the
Endorsements
Keep all of your policies
Keep all correspondence with an insurer
Grounds For Adverse Licensure
Action Even in Absence of Injury
Incompetence
Negligence
Willful
Misconduct
Fraud
Deception
Moral Turpitude
Conviction
Alcohol or Drug
Abuse
Employing Unlicensed
Dental Staff
Unprofessional Conduct
ADA Ethics Code
Disclosing a
Professional Secret
Painless Dentistry
Advertising
Being Grossly
Immoral
Use of “Cappers”
or “Steerers”
Professional Superiority
Advertising
False Advertising
Scope of Adverse Penalties
Regarding Your License
Refuse to issue
Refuse to renew
Limit
Suspend
Revoke
Disciplinary Action
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Reprimand
Censure
Probation
$1,000 per day fine per violation
Mandatory Continuing Professional Education
Lack of Consent to a
Sexual Touching
Lack of consent results from forcible compulsion
Lack of consent results from incapacity to
consent
A person under 16 cannot consent
A mentally defective person cannot consent
>W. Va. Code 61-8B-2
Criminal Law Definition of
Sexual Intercourse
“Sexual intercourse means any act between
persons involving penetration, however slight,
of the female sex organ by the male sex
organ or involving contact between the sex
organs of one person and the mouth or anus
of another person.”
W. Va. Code 61-8B-1((7)
Criminal Law Definition of
Sexual Intrusion
“Sexual intrusion means any act between
persons involving penetration, however slight,
of the female sex organ or of the anus of any
person by an object for the purpose of
degrading or humiliating the person so
penetrated or for gratifying the sexual desire of
either party.”
W. Va. Code 61-8B-1(8)
Jail Time
Sexual intercourse or sexual intrusion that
does result in serious bodily injury:
Minimum Jail Time: 15 years
Maximum Jail Time: 35 years
W. Va. Code 61-8B-3
Jail Time
Sexual intercourse or sexual intrusion that
does not result in serious bodily injury:
Minimum Jail Time: 10 years
Maximum Jail Time: 25 years
W. Va. Code 61-8B-4
Criminal Law Definition of
Sexual Contact
“Sexual contact means any intentional touching,
either directly or through clothing, of the anus or
any part of the sex organs of another person, or
the breasts of a female…where the victim is not
married to the actor and the touching is done for
the purpose of gratifying the sexual desire of
either party.”
W. Va. Code 61-8B-1(6)
Jail Time
“Sexual contact” without consent:
Minimum Time: 1 year
Maximum Time: 5 years
W. Va. Code 61-8B-7
Basic Employment Law
Employee at will
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Can discharge with or without cause
Employee Handbook exception
Retaliatory Discharge--Public policy exception
Worker’s Compensation Exception
Beware with Unemployment Comp submissions
Employee for a fixed duration of time
Constructive discharge
Hostile Work Environment and Sexual Harassment
Conclusions
Protect yourself
Trust your instincts
Get consults when indicated
Make referrals when appropriate
Document, Document, Document & Document
Trust but verify with your staff
May you never be sued
