Dental Litigation

1. 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

2. 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

3. 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?

4. 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.

5. 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)

6. 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)

7. 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sued following a five year (1995-’00) series of infection and alleged bone which he attributed to the use of an outdated blade and subperiosteal implants in the lower jaw.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

8. 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

9. 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

10. 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

11. 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

12. 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

13. Why Do Lawyers Pursue A Dental Malpractice Claim • $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ • Inadequate Documentation in Patient’s Chart • Failure to record S.O.A.P. • Illegible • Failure to retain testing and external documents • Failure to include telephonic and other communications • Permanent Injury • Significant Economic Loss • Sympathetic Plaintiff • Unsympathetic Dentist • $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

14. 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

15. 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

16. Presentation Available http://f3.farrell3.com

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. Sources of Federal Law • Statutes—United States Code • Code of Federal Regulations

25. Four Predicates for a Lawsuit • Duty • Statutory • Regulatory • Common Law • Contractual • Breach of Duty • Causation—a proximate cause, not the proximate cause • Damages • Economic • Non-economic

26. 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

27. 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

28. 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

29. 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

30. Informed Consent • Standard: Disclosures a reasonable patient would expect to receive • Not what a reasonable dentist would provide • Elements • Diagnosis • Proposed treatment • Alternative treatments • Risks • Possible outcomes if left untreated

31. 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. • Bleeding • Infection • Nerve damage • Death

32. Non-Malpractice Litigation Exposures • False Claims Act—Qui Tam • Premises liability • HIPAA • Intentional act • Suits by employees: W. Va. Code 23-4-2 • Silica exposure • Beryllium exposure • Waste Anesthetic Gas exposure • Blood Borne Pathogen exposure • Infectious disease exposure • Radiation exposure • Unsafe instrument/machine injury

33. 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?

34. 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

35. Grounds For Adverse Licensure Action Even in Absence of Injury

36. Scope of Adverse Penalties Regarding Your License • Refuse to issue • Refuse to renew • Limit • Suspend • Revoke • Disciplinary Action • Reprimand • Censure • Probation • $1,000 per day fine per violation • Mandatory Continuing Professional Education

37. 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

38. 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)

39. Criminal Law Definition ofSexual 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)

40. 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

41. 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

42. Criminal Law Definition ofSexual 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)

43. Jail Time • “Sexual contact” without consent: • Minimum Time: 1 year • Maximum Time: 5 years W. Va. Code 61-8B-7

44. Basic Employment Law • Employee at will • 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

45. 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