Transcript An Overview of Today’s Climate in Dental Malpractice Actions

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; [email protected]
Hall, Booth, Smith & Slover, P.C.
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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.
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Over half of our practice is focused on defense
of Professional Negligence.
Medical Malpractice Jury Awards
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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
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Overall Impact on US Economy
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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
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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
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WHAT TORT REFORM DOES
GUARANTEE:
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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:
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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
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SECTION 2 (9-10-31; 9-10-31.1)
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(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;
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(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)
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(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
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SECTION 3 (9-11-9.1)
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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
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SECTION 4 (9-11-9.2)
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Medical Authorization Form has been found to be
Unconstitutional and will not be upheld.
Two 2006 cases say that HIPAA preempts this
statute.
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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
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SECTION 5 (9-11-68)
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(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.
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(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.
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Very confusing. Chances that this will remain the law are slim.
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It has been argued as “Unconstitutional” on a number of occassions.
APOLOGY
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SECTION 6 (24-3-37.1)
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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
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SECTION 6 (24-9-67.1)
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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
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SECTION 8 (33-3-27)
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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
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SECTION 9 (43-34-37)
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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
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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
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SECTION 12 (51-12-31; 51-12-33)
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“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
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SECTION 13 (51-13-1)
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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
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Many of these new reforms have been challenged
just in the last 2 years.
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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?
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Patient Unhappy with the Results of
Treatment.
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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
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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)
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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)
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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)
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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)
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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)
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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)
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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)
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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
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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?
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SIMPLE ANSWER: AS MUCH AS POSSIBLE.
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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
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Supplements and Corrections are OK.
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Initial, date, and draw line through a correction.
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No white out or eraser.
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No appearance of trying to hide anything.
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Always best to be open and honest.
DOCUMENTATION
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IT CAN PREVENT A LAWSUIT FROM HAPPENING.
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IT CAN LOWER SETTLEMENT DEMANDS.
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IT CAN WIN TRIALS!
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REMEMBER: IF NOT IN THE RECORD, IT WASN’T
DONE!
INFORMED CONSENT
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GEORGIA LAW REQUIRES:
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Tell the patient the general nature of the treatment.
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Advise patient of all the “material risks” of the proposed
treatment or procedure.
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Tell the patient what the alternative treatments are.
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Good Practice: DOCUMENT ALL OF THIS!
INFORMED CONSENT
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ADVISING OF GENERAL NATURE OF
TREATMENT
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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
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INFORMING OF “MATERIAL RISKS”
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So, what is a “Material Risk?”
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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
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EXAMPLE CASE
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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
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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
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WHAT PROCEDURES SHOUD I USE THESE
FOR?
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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
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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
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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
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REFILLING AND CALLING IN
PRESCRIPTIONS
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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
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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.”
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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
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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
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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
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When Must You Report?
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Malpractice Payments are made.
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Payments in settlement of a claim. (whole or partial)
Payments in settlement of a judgment.
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A “waiver of an outstanding debt” will not be construed as a
“payment” and is not to be reported.
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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
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What You Must Report
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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:
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Nerve Injuries:
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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:
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Prepare for your reaction to the worst scenarios:
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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
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Fractured Mandible Following Extraction.
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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
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Patient was immediately referred to Oral Surgeon
and fracture was repaired.
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Good records described the whole treatment plan
very well.
X-rays were taken each time to better support
dentist’s treatment and decisions.
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This is very defensible case because of great
documentation.
FINALLY
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JUST REMEMBER:
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Good Documentation.
Good Informed Consent Practice.
Good Chairside Manners.
Will Decrease Your Likelihood of Ever Seeing
Me Again!!
THE END