Five Pillars – Malpractice Insurance Claims Review Mario T. Catalano, DDS, MAGD, FACD

Five Pillars – Malpractice Insurance Claims Review

Mario T. Catalano, DDS, MAGD, FACD

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1.National Carrier2.Financial Strength3.Policy Limits4.Occurrence or Claims-

Made5.Consent to Settle Clause

Five Pillars of Quality

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1. National Carrier

Overview:• Freedom of movement – now have

licensure by credentials in 46 states• Relocation – Seamless transition process

when moving to another state• Claims experience in all jurisdictions• Stable pricing – not subject to sporadic

pricing fluctuations because of increase in frequency/severity in one or two states

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Overview:• www.A.M.Best.com- unbiased rating

agency for all insurance companies: o Highest rating possible is A++

• At least 16 companies have left the dental market in the last 15 years:o Quality of defense is directly

proportional to the financial status of a company

• Specialty companies tend to be isolated from external forces

2. Financial Strength

http://www.a.m.best.com-/

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Per claim / Per policy year

Industry Standard Trending Standard$1 million / $3 million $2 million / $4 million

Other Options$3 million / $5 million$4 million / $6 million$5 million / $7 million

3. Policy Limits

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Overview:• CA dentist enrolls in program teaching

sophisticated full mouth rehabilitation• Treatment modalities seem very obvious• Dentist begins to have many implant and

cosmetic failures• Abandons the program and is unsuccessful

in completing the cases• 14 malpractice cases are filed against the

doctor in one year

3. Policy Limits – Case 1

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Result:• The dentist has a $1M/$3M claims-made

policy• The dentist has $3M in total coverage for

the 14 cases • First three cases settle in excess of $1M:o Cases of multiple implant failureso Require additional surgical procedureso Plaintiff friendly jurisdiction (Los

Angeles) • Limits possibly exhausted – doctor may

have to pay indemnity out of own pocket


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Overview:• 63 y/o disabled male presents with chief

complaint of chipped porcelain on tooth number 9, a bridge pontic, and requires replacement of mandibular posterior teeth• Patient is seen and evaluated by a dental

assistant/treatment coordinator• She recommends replacement of maxillary

bridge for a cost of $21,000


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• Patient returns 1 month later - meets with dentist:o Informs patient that he has TMD and

requires treatment (appliance and TENS) - Cost of $8000

• Patient’s wife balks at treatment plan/cost - dentist embarrasses spouse into accepting:o Exaggerates need for TMD treatment:o Questions husband’s future ability to

eat


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• Dentist provides Neuromuscular therapy and replaces bridge from 3 to 14 - “decay and abfractions”• Root canal therapy required on 3, 4 & 13• 7 months later – fixed bridge on 12 to 14

shears off at gumline:o Bridge removed - graft and immediate

implants placed in 12, 13 & 14


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• 1 month later- upper bridge breaks, number 4 is removed, and the bridge is recemented

• Patient seen by associate - crowns placed on 21, 22 & 23

• Dentist places crowns on 12, 13 & 14• Implant supported crowns crack the new

crowns on 21 & 22• Price Tag - $43,000


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• Patient sees another dentist who removes Neuromuscular orthotic because there are no signs or symptoms of TMD • Upper right bridge fails:o Upper anterior bridge has decay noted

on all abutmentso Both are removed and replaced with an

upper removable appliance


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• Patient referred to an OMFS for failing implants:o Implants removedo Extensive bone grafting of maxilla is

accomplished and additional treatments are planned for implants

• Patient institutes a malpractice action• State Board for Dentistry removes

dentists license• 13 additional cases ensue after

information is made public


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Result:• $43,000 – Total spent by patient• $46,000 - Corrective grafting and implant

placement cost• $23,000 - Maxilla restoration cost• $5,000 - Cost to restore mandibular arch• $115,000 – Estimated cost of rework • Sympathetic Jury - Patient is disabled and

has income of $1500/month • $348,000 – Cost of settlement in case 1

of 14


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Overview:• New dentist buys practice from retiring

dentist• Patient of retiring dentist presents with a

potential implant infection of a mandibular overdenture supported by 4 implants• Young dentist removes the overdenture to

evaluate• During overdenture removal, the patient

coughs, and the young dentist drops the hex tool into the patient’s throat


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Overview Continued:• Patient is raised in the chair:• Patient swallows the tool after

unsuccessful removal• Ambulance called and patient is taken to

hospital


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• X-ray taken at ER - Implant tool in patient’s stomach

• Gastroenterologist consulted and recommends removal of the tool

• During the removal procedure, the patient’s esophagus is perforated

• A trauma surgeon is called, and he performs surgery to repair the tear

• Patient loses significant portion of voice• Patient develops swallowing problems


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• Patient’s health deteriorates:o 10 months later she suffers a stroke:o Requires a feeding tube

• Surgery performed to recover patient’s voice:o 1 month later, patient suffers second

stroke:o Partial paralysis

o 6 weeks later, while the husband is mouth feeding the patient sans feeding tube, the patient aspirates a bolus of food and dies


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Result:• Husband files a malpractice lawsuit on

behalf of deceased wife• Plaintiff attorney’s expert witness

concludes that the dentist should have taken precautions to prevent the swallowing of the implant instrument

• $ 3,500,000 – Demand in wrongful death lawsuit

• $1,000,000 – Final settlement


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Considerations:• Nature of practice and specialty• Location of practice:o Rural, urban, or suburban

• Scope of services provided:o Extractions, Implants, IV Sedation?

• Personal risk tolerance

3. Policy Limits - Review

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Occurrence and Claims-Made• Most quality insurers offer both• Companies prefer the risk associated

with the claims-made policy• Insured’s are better covered with an

occurrence policy

4. Coverage Options

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Coverage options:Occurrence or Claims-Made

4. Coverage Options

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Overview:• Dentist performs extractions of teeth 15

& 16• Patient has a difficult post-op healing

period, which includes post-op swelling and pain

• 1 month after the event, the dentist has a disciplinary hearing regarding a substance abuse charge - License is suspended

4. Coverage Options – Case 4

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• Dentist enters into rehab and hires a Locum Tenens (LT) dentist to cover his practice while he is gone

• The LT dentist sees the patient 2 months after the original procedure:o Diagnoses the problem as possible

sinusitis and refers patient to her PCP: o PCP prescribes a regimen of Cipro


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• 1 month later – Patient still having problems and presents to the practice with swelling in the 14 area and sees a different LT dentist who performs root planning

• 3 days later – Patient has pain and swelling, prescribed clindamycin


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• 4 days after the last appointment - Patient still in pain, LT dentist extracts tooth 14 due to a periodontal infection

• 2 days later - Patient has overt drainage, and is referred to an OMFS

• OMFS examines patient and removes tooth 13, debrides the tooth 14 area, and adds Z-pak to the clindamycin regimen


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• 4 days later - Patient discontinues medication, because they were making her nauseous

• OMFS tries to see the patient for a follow-up appointment:o Patient was feeling so poorly that she

cancelled the appointment • 13 days later – Patient presents to the ER

with a diagnosis of sepsis and septic shock


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• Patient’s husband is very angry - Notifies both the original dentist and the OMFS that he intends to sue them all

• The LT dentists are both notified of the potential claim


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How does coverage type impact these Locum Tenens dentists?• The first LT dentist had intentions of

moving back to the west coast, which is why she was working as a LT

• When she contacted a west coast carrier, she was obligated to discuss the potential claim


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Coverage and Locum Tenens:• If she has a claims-made policy, this

could be a problem• If she has Occurrence coverage, no

problem at all• If she has a national carrier, again no

problem


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Considerations:• Point in career • Possibility of returning for additional

training• Possibility of family leave• Possibility of career change• Possibility of changing mode of practice• Possibility of retirement

4. Coverage - Review

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What is consent to settle?

Your rights, duties, and obligations regarding settlement of a malpractice claim

5. Consent to Settle

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Pure Consent:• “ We will not settle a claim without your

consent”• Some companies say they would never

settle without your consent, but pure consent is not written into their policyo Ask them to put it in writing

• Just as with a dental record…if it isn’t in writing, then it doesn’t exist

5. Consent to Settle5. Consent to Settle

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Overview:• 29 y/o male patient presents to a young

dentist who is an associate in a general practice• The tooth, which had a previous root

canal treatment, was diagnosed with a fractured root - extraction recommended• Patient filled out a general informed

consent form prior to anesthetization and tooth removal

5. Consent to Settle – Case 5

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Overview Continued:• Due to the difficult nature of the

extraction, a small piece of the mesial buccal root became separated:o Removed using rotary instruments

• A post-op X-ray was taken and the young doctor was satisfied that the entire tooth had been removed


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Post-op Complications:• The patient did not experience an unusual

amount of bleeding or discomfort• 3 days post-op, the patient experienced a

yellow brown discharge from his right nostril• He contacted the dentist, because he also

thought he was having an odor from the extraction site


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Post-op Complications Continued:• The dentist, suspecting a sinus

perforation, referred the patient to an OMFS• The OMFS instituted treatment and

repaired the sinus - the healing was unremarkable


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Considerations:• Future mobility• Future insurability• Peace of mind• State board actions• You pay for it

5. Consent to Settle – Review

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Thank you!

Mario T Catalano DDS MAGD FACD

[email protected]

Five Pillars of Quality

Documents

Five Pillars – Malpractice Insurance Claims Review Mario T. Catalano, DDS, MAGD, FACD