An Overview of Today’s Climate in Dental Malpractice Actions

Mark E. Perry, Esq.Hall, Booth, Smith & Slover, P.C. Atlanta, GA (404) 954-5000; mep@hbss.net

Hall, Booth, Smith & Slover, P.C. At HBSS, our mission is to ethically and

professionally serve our clients by providing the highest quality legal representation in a personally satisfying firm environment.

Over half of our practice is focused on defense of Professional Negligence.

Medical Malpractice Jury Awards The median jury award for medical malpractice lawsuits

in 2002 was $1,010,858. Plaintiffs who sued and won claiming moderate to severe

brain injuries received a jury award of at least $1 million more than half the time.

In cases where the injury is classified as “severe mental deficiency”, the median jury verdict in 2001 was over $8,000,000.

In 2002, plaintiffs won 42% of all medical malpractices cases, and 60% of cases alleging negligent childbirth.

Source: Jury Verdict Research

Facts About Tort Liability and the Impact on Consumers

Overall Impact on US Economy The cost of the US tort system for 2001 was

$205 billion, or $721 per citizen. US tort costs increased by 14.3% in 2001, the

highest percentage increase in over a decade. US tort costs are 2.04% of Total Gross

Domestic Product (GDP).

WHAT DOES ALL OF THIS MEAN?

TORT REFORM Now, even with the best system in place, rates are

going to increase, even if simply to reflect inflation.

Moreover, caps and limitations DO NOT completely prevent lawyers from filing frivolous claims that generate additional costs to defend. (80% of all malpractice claims are found to be unmeritorious and thus no payment of indemnity)

Caps don’t prevent large jury verdicts for economic losses.

TORT REFORM WHAT TORT REFORM DOES

GUARANTEE:

Rates for practitioners will be lower than in those states which do not have fundamental reform legislation.

GEORGIA’S COMPREHENSIVE TORT

REFORM

SENATE BILL 3

FEBRUARY 16, 2005

KEY PROVISIONS: Venue: County where you can be sued. Affidavits: What Plaintiff must have to sue. Authorizations: Medical release. Offer of Settlement Apology/Statement of Benevolence Expert Qualifications Reporting and Investigation Emergency Services Agency Apportionment Caps

VENUE SECTION 2 (9-10-31; 9-10-31.1)

(i) gives a nonresident defendant the right to require the case be transferred when all the resident defendants are discharged from liability and authorizes the plaintiff to elect from among the counties where venue would be proper;

(ii) in an action involving a medical malpractice claim, a nonresident defendant is permitted to request the case be transferred to the county of his/her residence if the act occurred in the county of the defendant’s residence; and, (HAS BEEN RULED UNCONSTITUTIONAL)

(iii) authorizes the court to transfer a claim to another state or county if it determines another forum would be more convenient for the parties.

AFFIDAVITS SECTION 3 (9-11-9.1)

Always been that an expert affidavit is required to file a Complaint for medical negligence.

This section removes the 45 day extension which gave Plaintiffs the opportunity to correct their procedural defect.

Extension of time frame where Defendant can file his Motion to Dismiss. (Close of Discovery)

AUTHORIZATION SECTION 4 (9-11-9.2)

Medical Authorization Form has been found to be Unconstitutional and will not be upheld.

Two 2006 cases say that HIPAA preempts this statute. You can still obtain records from Plaintiff’s treating

practitioners, but this makes it difficult for attorneys to speak with them candidly without deposition.

Also, there is no longer a potential for Dismissal when Plaintiff fails to file along with Complaint.

OFFER OF SETTLEMENT SECTION 5 (9-11-68)

(b) (1) If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the defendant's behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

(b) (2) If a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the plaintiff or on the plaintiff's behalf from the date of the rejection of the offer of settlement through the entry of judgment.

Very confusing. Chances that this will remain the law are slim.

It has been argued as “Unconstitutional” on a number of occassions.

APOLOGY SECTION 6 (24-3-37.1)

STATEMENTS OF APOLOGY AND BENEVOLENCE

Prohibits statements by a healthcare provider which constitute offers of benevolence, regret, mistake, error, sympathy, or apology from being admitted into evidence as an admission of liability.

This section is intended to encourage health care providers to communicate openly with the patients and their families when unexpected outcomes occur.

EXPERT QUALIFICATIONS SECTION 6 (24-9-67.1)

This section established qualification requirements for experts in medical malpractice cases by requiring such experts to have either practiced or taught in the area of practice or specialty at issue for three of the five years preceding the alleged negligence.

The judge is required to determine whether the proffered expert has practiced or taught with sufficient frequency to establish an appropriate level of knowledge regarding how to perform the procedure, diagnose the condition, or render the treatment at issue in the case at hand.

These requirements apply both to experts at trial and to experts testifying by means of a pre-trial affidavit.

REPORTING AND INVESTIGATION BY THE

COMPOSITE STATE BOARD

Georgia Board of Dentistry

REPORTING SECTION 8 (33-3-27)

All payments to a Plaintiff must be reported to the Georgia Board of Dentistry within 30 days.

Settlements, Judgments, and all other agreements Eliminated the exception for payments that were

less than $10,000.

INVESTIGATION BY THE BOARD SECTION 9 (43-34-37)

The Board is now required to investigate if the dental provider has been disciplined three times within the last 10 years.

The Board must also investigate the dental provider if a payment of $100,000 or more has been made.

The Board is also required to investigate the dental provider if it has been notified of two or more payments for dental malpractice.

The Board must conduct an assessment of fitness to practice medicine. This includes a one day on site visit which must be completed within 6 months of the third complaint.

EMERGENCY LIABILITY Applies strictly to Emergency Room

Physicians. Legislature actually changed the standard for

proving negligence from “deviation from the ordinary standard of care” to “gross negligence.”

This is under consideration for revision as we speak in the legislature.

APPORTIONMENT SECTION 12 (51-12-31; 51-12-33)

“Joint and several liability” is a legal doctrine which holds each defendant in an action responsible for the entire amount of damages a plaintiff is seeking, regardless of their relative degree of responsibility for causing those damages.

As you can imagine, this rule prompted plaintiffs to bring into the action as many possible lucrative defendants as they could.

This Section has replaced “joint and several liability” with proportionate share liability.

Under this system, a defendant is only responsible for their relative share of the damages in question, as determined by a jury.

The jury will allocate responsibility among all parties, including settling parties and non-parties.

CAPS SECTION 13 (51-13-1)

Limitations on Non-Economic Damages Limits the awards for “pain and suffering”

damages to $350,000 for individual physicians/dentists and individual facilities.

Limits the awards for “pain and suffering” damages to a total of $700,000 for all facilities combined.

Limits awards to $1,050,000 total.

Constitutional Challenges Many of these new reforms have been challenged

just in the last 2 years. Venue – Part of this Section has already been overruled.

(Forum Non Conveniens has been challenged.) Medical Authorization – Found preempted by HIPAA. Offer of Settlement – Muddled and likely to be changed

or completely re-written. Emergency Liability – Revisions being considered this

session of Legislature. Caps – Also, a subject of intense scrutiny by Plaintiff’s

bar.

Nevertheless, This is certainly a step in the right direction for

Georgia.

HOT TOPICS IN DENTAL MALPRACTICE

LITIGATION

Ways to Help Prevent Legal Action and to Better Defend if Lawsuit Should Arise.

Why Do Lawsuits Generally Arise?

Patient Unhappy with the Results of Treatment.

Patient Unhappy with the Costs Associated with Treatment.

3 MAJOR WAYS TO HELP AVOID LEGAL ACTIONS

1. GOOD DOCUMENTATION!

2. GETTING INFORMED CONSENT!

3. GOOD CHAIRSIDE MANNERS!

DOCUMENTATION It cannot be stressed enough how important it

is to keep good dental records in your practice.

It is the one thing you can do everyday in your practice to best insulate you from a lawsuit.

2 cases to illustrate its importance.

Orthodontist Defendant (Example) Familiar with the family and children. 6 months into treatment with the child to level and

align his bite, realized that because of unusually small teeth, there was going to be spaces between the incisors when braces came off.

Documented as soon as realized. More important, documented that he informed the

mother of the boy’s condition.

Orthodontist Defendant (Example) Braces came off 4 months later and the spaces were

indeed there. Orthodontist recommended veneers and the mother

became irate and said that she had never been informed of this problem, etc.

Fortunately, our Orthodontist documented each conversation with the mother.

Messages to urge follow-up were documented. The record clearly showed that the mother was kept

apprised of the situation.

Orthodontist Defendant (Example) This case was filed in Magistrate Court

(Small Claims) by the Plaintiff herself. No attorney would take it probably due to the

documentation. The case was eventually dismissed.

Dentist Defendant (Example) Dentist began a root canal in January.

(Debridement of canal, get working lengths) Patient had abscess in the tooth. Dentist Rx antibiotic to suppress the infection

until the root canal was complete 2 weeks later.

Patient failed to appear for the follow-up visit.

Dentist Defendant (Example) Patient calls in a number of times for medications

due to pain in the area of the root canal. Dentist Rx the pain meds and antibiotics without

seeing the patient. Patient continues to miss scheduled appointments to

complete root canal. 7 months later, Dentist finally completes procedure. 2 days later, Patient presents to Emergency Room

with presumptive osteomyelitis and a diagnosis of blood poisoning.

Dentist Defendant (Example) Dentist did not document all of his

conversations with the patient about the necessity for her to come in to the office.

Failed to document some of his prescriptions. Failed to document what his rationale was for

prescribing meds on a continuous basis without seeing patient.

Dentist Defendant (Example) Very Difficult Patient should have been noted all over the

chart. Now, it appears that Dentist did not appropriately follow the

patient and a serious infection process resulted. It is his word against the patient’s. We are having a difficult time finding an expert that will even

support the case, because the documentation casts such a poor light on dentist’s care.

Dentist had a definite plan for treating this difficult patient. However, without good documentation, a jury may see this

defendant’s claims of phone calls and explanations to the patient as only being conjured up in defense of the lawsuit.

DOCUMENTATION Poor documentation is not negligence, in and

of itself, but it can put you in a bad position. Good documentation can secure a solid

defense if you get sued. Good documentation erases the thought of

creating reasons only once in litigation.

WHAT SHOULD YOU DOCUMENT?

SIMPLE ANSWER: AS MUCH AS POSSIBLE. Adequate description of treatment. (Not one word!) Explanation to patient of complications. All non-compliance of patients. (Important) When follow-up is necessary and you explain to the

patient why it is necessary. Calls to a patient. Explanation of risks and that you obtained informed

consent. No-shows.

OTHER ASPECTS OF DOCUMENTATION

Supplements and Corrections are OK.

Initial, date, and draw line through a correction.

No white out or eraser.

No appearance of trying to hide anything.

Always best to be open and honest.

DOCUMENTATION

IT CAN PREVENT A LAWSUIT FROM HAPPENING.

IT CAN LOWER SETTLEMENT DEMANDS.

IT CAN WIN TRIALS!

REMEMBER: IF NOT IN THE RECORD, IT WASN’T DONE!

INFORMED CONSENT GEORGIA LAW REQUIRES:

Tell the patient the general nature of the treatment.

Advise patient of all the “material risks” of the proposed treatment or procedure.

Tell the patient what the alternative treatments are.

Good Practice: DOCUMENT ALL OF THIS!

INFORMED CONSENT ADVISING OF GENERAL NATURE OF

TREATMENT Doesn’t have to be a lengthy discussion. Don’t have to use technical dental terms. Just need to make patient aware of what you

proposing to do and why. It is better to use “laymen’s terms” to the extent

that you can.

INFORMED CONSENT INFORMING OF “MATERIAL RISKS”

So, what is a “Material Risk?”

The courts have struggled with this one. New Standard: “What would a reasonable person

consider to be significant in coming to a decision as to whether or not to undergo the proposed treatment.”

Ambiguous, vague, and confusing. Error on the side of inclusive when informing patient.

INFORMED CONSENT EXAMPLE CASE

Dentist was extracting impacted #17 third molar. Dentist went through explanation of why he was doing it. Even showed patient the tooth and the general procedure

on the x-ray. However, he did not explain all the risks involved. Lingual nerve injury resulted. No signed consent, No mention of lingual nerve injury. What would have been a very defensible case, becomes

much more difficult because the patient didn’t give informed consent.

INFORMED CONSENT CAN OPEN UP A CLAIM FOR BATTERY

You DO NOT want a battery claim being decided against you.

This opens the door for punitive damages because it is viewed as an intentional act.

Don’t sell yourself short…Get it in writing.

INFORMED CONSENT FORMS WHAT PROCEDURES SHOUD I USE THESE

FOR?

Any extraction. Any root canal. Any bridgework. Other invasive procedures.

(An actual form is not required, but it is certainly the very best policy).

RULES OF THUMB FOR INFORMED CONSENT

Always have the conversation with the patient. Get informed consent sheet signed by patient. Write directly in the chart that you had the

conversation. Advise of risks. Advise of alternatives. Great idea to have standard forms printed up for

each of the different procedures you do in the office.

CHAIRSIDE MANNERS Communication with your patient can many times

determine whether or not a patient brings suit. Be pleasant and courteous. (Far more difficult to sue

someone that you like.) Perception from Plaintiffs is that they overpay and

aren’t given enough attention by the dentist. Try to be considerate to each and every patient. Seems logical, but it can potentially keep you out of

lawsuits.

OTHER PRACTICES WHICH CAN LEAD TO LITIGATON

REFILLING AND CALLING IN PRESCRIPTIONS Document everytime! Good practice to see patient each time you write or refill.

(sometimes you don’t have a chance to see them, and that is okay.)

After 2 weeks, request that patient come into office. Document that patient called for refill and that you asked

patient to come in. Document what patient is complaining of when you refill

or write. Example with root canal patient.

DENTAL PROCEDURES OCGA § 43-11-17(a)(4) defines dentistry as,

“any dental operation whatsoever on the human oral cavity, teeth, gingiva, alveolar process, maxilla, mandible or associated contiguous masticatory structures.” Plastic Surgery is outside this scope. Many procedures should be left to specialists,

though the general dentist can legally perform.

Example of Third Molar Extraction There is no question that general dentist can perform the most

difficult third molar extractions. However, if suit arises, the jury will decide whether the

general dentist was competent, based upon skill, training, and experience.

Jury may determine that it should have been done by the oral surgeon.

Case where a general dentist took out 2 vertically impacted third molars.

Mandible was fractured. Plaintiff is suggesting that Dentist was not competent. Bottomline: If you don’t feel comfortable to do certain

procedures, you need to refer out.

BOARD COMPLAINTS A patient can make a complaint to the Georgia

Board of Dentistry by simply downloading a form off of the website and filling it out.

Board will investigate internally and determine whether an investigation should even be warranted.

Dentist will write a statement letter indicating his/her rationale for treatment and essentially his/her “side of the story.”

If the Board feels that an investigation is warranted, they will conduct this through a peer review format.

IF IT HAPPENS WHAT IS REPORTED TO WHO?

REPORTING TO NATIONAL PRACTIONERS DATA BANK

When Must You Report? Malpractice Payments are made.

Payments in settlement of a claim. (whole or partial) Payments in settlement of a judgment.

A “waiver of an outstanding debt” will not be construed as a “payment” and is not to be reported.

A payment in settlement of a malpractice action or claim shall not be construed as an admission of negligence on the part of the practioner.

REPORTING TO NATIONAL PRACTIONERS DATA BANK

What You Must Report Specifics about the basis for the action. Description and the amount of the judgment or

settlement. Personal information of the dentist.

Again, this is usually going to be investigated by the Board of Dentistry unless repeat offenses occur.

A Few More Specific Examples: Nerve Injuries:

I see a lot of this in my practice. Probably because it is worthwhile for a lawyer to take a

case with these types of damages. If you see the signs of paresthesia (numbness or tingling),

immediately refer to the oral surgeon or proper physician. If caught in time, you can typically have good recovery

from this injury. If not, it can prove to be a lasting and nagging injury to

patients which often times leads to legal actions. Also, make sure to acknowledge this as a “material risk”

for certain procedures.

A Few More Specific Examples: Prepare for your reaction to the worst scenarios:

Dentist putting in a routine crown. Trying in the crown, reached away from the patient for

the articulating paper. Patient swallowed and aspirated the crown in 5 seconds

dentist turned his head. ER docs couldn’t get the crown out, so lung surgery was

required. Dentist is being sued on a claim that his crown was not

retentive enough. Fortunately, dentist retained his molds which show that

the crown was adequately retentive.

A Few More Specific Examples Fractured Mandible Following Extraction.

Dentist extracted lower left third molar. Patient returned for follow-up a few days later with

general pain. X-ray taken which showed nothing. Diagnosed as dry

socket. 1 week later, patient returned with general pain adjacent

to the extraction site. X-ray was negative and patient was given pain meds. Patient returned again almost 3 weeks later with

intensified pain. X-ray showed a clear fracture of the mandible.

A Few More Specific Examples Patient was immediately referred to Oral Surgeon

and fracture was repaired.

Good records described the whole treatment plan very well.

X-rays were taken each time to better support dentist’s treatment and decisions.

This is very defensible case because of great documentation.

FINALLY JUST REMEMBER:

Good Documentation. Good Informed Consent Practice. Good Chairside Manners.

Will Decrease Your Likelihood of Ever Seeing Me Again!!

THE END