A lawsuit starts when you receive a complaint letter from the patient or the attorney that states that you are being sued. But before discussing this we must examine why patients sue. I have found that there are basically two reasons: (1) the patient has allegedly been harmed in some manner as a result of your treatment or nontreatment, and (2) the patient wants money. The problem the patient may have may not even pertain to dentistry.
TRUE CASE 1: Miscarriage due to endodontics
The patient came into the dental office with pain. The patient, a healthy, pregnant woman in her 30s, was in the beginning of her second trimester with no complications. She was referred to a board-certified endodontist who practiced part-time in the dental practice. A therapeutic pulpotomy was preformed. The patient was still having pain and went to another dentist, who reopened the tooth, relieving the pain. The patient then had a miscarriage. The owner of the original dental office and the endodontist were sued for malpractice, causing the miscarriage and emotional stress. The case was settled out of court at an arbitration hearing in favor of the defendant dentists.
The complaint letter will state many things that you have allegedly done to harm the patient. As seen from the case above, the patient and her attorney, who happened to be her uncle, blamed the dentists for the miscarriage. An attorney’s letter will not only state your failure to follow a procedure’s protocol and the standard of care but can also include complaints about a failure to refer, a failure to diagnose, or emotional distress. Remember, anyone can sue anybody at any time for anything for any amount. It does not mean the defendant did anything wrong or that the plaintiff will automatically win.
Once the complaint letter has been received, what should you do? You should notify your malpractice carrier. However, before you notify them, be sure to recognize the difference between an incident and a claim. An “incident” is often called a “near miss”; for example, two airplanes passing each other closely. A “claim” is a hit: a collision. If the letter is from a disgruntled patient, try to decide if it is a manageable situation (see Chapter 14). If not, you should contact your insurance company. The insurance company would prefer that you always contact them so they may assist you and keep track of your troubled patient relations. Every time you contact your insurance company it is placed in your record. If you contact them too many times, it indicates to the insurance company that you have problems within the office with patient communications, patient finances, and/or treatment protocols. Depending on the number and severity of your “incidents,” the insurance company may either increase your premium or drop you because you have troubled patient relations or questionable treatment outcomes. If the letter is from an attorney’s office, you must call your insurance company.
Once you receive the complaint letter, retrieve the record from the main office filing system. As soon as possible, write down in your own words what happened on a separate piece of paper and keep it separate from the patient file. This is your work product and is not part of the patient’s treatment record. Do not change anything in the record.