Caught but released

Several months ago, you finished treatment on Susie, age 15. She wears her retainer like most kids do—or don’t. She is still under your care and comes in for routine scheduled retainer checks. One day, her mom bursts into the office, Susie in tow, with a bloody towel over her mouth. Susie was just in a car accident a few blocks away. Mom was close and picked up Susie from the accident site and brought her directly to your office. All of this happened within the last 30 to 45 minutes. You examine Susie and see that 3 maxillary anterior teeth have been subluxated and are partially avulsed. You are able to manually reposition the teeth and get them in pretty good alignment. You splint them with rigid fixation. Mom and Susie are thrilled, and you feel pretty good about yourself; so far so good.

You continue to follow Susie clinically. The gingiva has healed well. The teeth fortunately have appeared to maintain their vitality, and radiographically there is no internal or external resorption. So from where you sit, everything looks great. You leave the splint on for several months until you are sure that there is no excessive mobility. Then you remove the original splint, and just to be safe, you bond a maxillary lingual retainer to replace the Hawley you originally gave her. Over the next 15 to 18 months, you notice a slight height discrepancy between the teeth you fixated and the other adjacent teeth. You conclude that the teeth became ankylosed as a result of the trauma. Mom, now a little upset, got a different opinion, of course. This doctor opined that the teeth ankylosed because of the rigid splinting you used. According to that doctor, semirigid fixation is the standard of care, and it should have been removed sooner. A lawsuit followed. And now the rest of the story.

In Gores v Miller , #27438, #27446-a-SLZ 2016 S.D. 9 (decided 02/03/2016), the facts are almost identical. Okay, not quite identical but pretty close. The girl was 15 years old. She was involved in a car accident; actually, a van overturned. She was treated in the hospital for an arm injury that required several debridements and laceration repairs. After 3 months of follow up, the doctor said that she was healed, and she was dismissed. Pretty close, right? Well, about 18 months later, mom, on behalf of Susie, sued the doctor and the hospital for malpractice claiming that the treatment was substandard; if a skin graft had been done, Susie would have healed faster and better. The defendants—the doctor and the hospital—moved for dismissal on the ground that Susie’s mom had executed a release with the driver of the van for the driver’s negligence, and that this release also applied to them. The Gores had settled for an amount which they were happy with at the time, and which the conservator court had signed off on, but later they believed it to be insufficient. This was why they were suing the defendants. At the trial level, the Gores claimed that the intent of the release was never supposed to apply to anyone other than the driver of the van. They wanted to extend discovery and offer additional proof that this was so. The defendant doctor claimed that the release applied to him as well as the driver of the van, even though his treatment, negligent or not, occurred after the accident. The trial court ruled in favor of the doctor, stating that even though the doctor was not named or referred to in the release, it applied to him also because the release, as written, was unambiguous. I know, you all want to see the release; so here it is.

The undersigned hereby releases, and forever discharges Lori Smith and her heirs, executors, administrators, agents, insurers, and assigns and all other persons, firms or corporations liable or who might be claimed to be liable , none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever , and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an incident which occurred on or about the 28th Day of July, 2010 , at or near Springfield, South Dakota.

The undersigned hereby represents that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims , disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident . (emphasis added in original)

The supreme court heard the appeal. It began by noting that a release is a type of contract, and if it is unambiguous then interpretively one can rely on the language contained therein, and no extraneous evidence should be allowed to determine its meaning. Finding the terms of the release to be plain and clear, the court noted that the Gores released “any and all claims… of any kind or nature whatsoever”; that they did this against “all other persons”; and they intended this to apply to “all injuries… which have resulted or may in the future develop from [the] incident”: the van accident. This is why the defendant doctor claimed that he was also released from liability, even though he was not a party to the accident.

The plaintiffs, however, countered with the argument that the doctor was an “independent tortfeasor” and as such caused the plaintiff’s injuries that were totally separate from and not related to the accident. The court said that this argument failed because the law states that if malpractice was committed during the treatment of someone who was only being treated because of the injuries sustained as a result of the acts of a prior wrongdoer, that act of the prior wrongdoer is responsible, since the negligent treatment stemmed or flowed from the original negligent act that caused the injured party to be there in the first place. I know, it’s a little convoluted. The court turned to the Restatement (Second) of Torts , Sec. 457 (AM. Law Inst. 1965), which is a legal bible of sorts for the following illustration of the legal principle involved, followed by the comment, an explanation, that accompanies the illustration.


A’s negligence causes B serious harm. B is taken to a hospital. The surgeon improperly diagnoses his case and performs an unnecessary operation, or, after proper diagnosis, performs a necessary operation carelessly. A’s negligence is a legal cause of the additional harm which B sustains.


The situation to which the rule stated in this Section is usually applicable is where the actor’s negligence is the legal cause of bodily harm for which, even if nothing more were suffered, the other could recover damages. These injuries require the other to submit to medical, surgical, and hospital services. The services are so rendered as to increase the harm or even to cause harm which is entirely different from that which the other had previously sustained . In such a case, the damages assessable against the actor include not only the injury originally caused by the actor’s negligence but also the harm resulting from the manner in which the medical, surgical, or hospital services are rendered, irrespective of whether they are rendered in a mistaken or negligent manner, so long as the mistake or negligence is of the sort which is recognized as one of the risks which is inherent in the human fallibility of those who render such services. (emphasis added in original)

Regardless, the court noted that even if the doctor could be found to be an independent tortfeasor, he would still be protected by the release since not to do so would defeat the point of the release given to the driver of the van because “the defendant who originally procures the release gains nothing if the plaintiff can [still] sue other joint or concurrent tortfeasors. In such a case, the original defendant is left open to claims for contribution and/or indemnity and may wind up having to litigate the case anyway.” The court upheld the lower court’s ruling and dismissed the case.


There are a few risk management aspects relating to this case that need to be discussed. First, handling trauma. We are taught how to deal with partial and full avulsion scenarios in our residency program. We are taught about the type of stabilization to use, how long to leave it on, how to monitor for signs of negative sequelae, and the time frames during which all of these factors must be dealt with. It is among the required reading on the American Board of Orthodontics article list. Great, how many of you have actually dealt with the scenario proposed above? Even if you believe yourself to be competent, from a risk management perspective, the smart money says that you should refer the patient to someone who has more experience dealing with this type of clinical presentation, ideally before stabilization but, if not, as soon afterward as possible. Why? Because this is not the kind of thing you do all the time, not daily, weekly, monthly, or even yearly. You should “spread the risk” and decrease your potential exposure to liability. But, if you are comfortable and you have kept up with the literature and the technique and you feel secure in providing the required service, go for it.

Second, although you didn’t secure a release, there will be times when you may need to secure one for whatever reason. Do yourself a favor, before you need one, have your attorney develop one for you. Just yesterday, I was talking to an orthodontist who related the following story. His assistant was using rotary instrumentation on a patient doing whatever with a green stone. I’m not even going to discuss whether that was within his state’s dental practice act, but let’s say it was. She slips, and the stone runs across the patient’s cheek causing a slight abrasion type of burn. Mom is upset, the doctor is upset, the attorney mom called was not upset, and he sent the doctor a letter. In the meantime, the doctor told mom that it would all heal, the plastic surgeon to whom mom took the patient to said it would heal and guess what? It did heal and you couldn’t see any residual injury. It turns out that both mom and daughter were patients, and during routine follow-up visits, with the attorney’s letter still hanging in the air—no, he didn’t want to call his insurance company for valid reasons I’m not going to discuss—he says to mom, “look, you have an outstanding balance on the daughter of just under $1000; how about I waive it, and we’ll put this behind us?” Mom said yes. She was thrilled, the doctor was thrilled, but the lawyer? Well, who cares. The doctor had a release at the ready, and the problem was solved. This is why you want to have one handy.

Did you catch the caveat? A release signed by parents, guardians, and so on is not binding on a minor unless a court of competent jurisdiction signs off on it to make sure the rights and best interests of the child are protected, just as was done in the Gores case. Sure, you can use them; they work well for adult patients, and they certainly can make problems disappear when the patient is a minor. Just be aware of the limitations, since these problems can reappear later.

Third, you should appreciate the long tendrils of responsibility that attach to various acts. Here the driver of the van was responsible for the negligence of the doctor because it was his act that sent the plaintiff to the doctor, and it is foreseeable that doctors will sometimes make mistakes. But for the initial tort—the negligent driving—the subsequent injury would never had occurred. There are way too many scenarios we can make up to illustrate how this concept can apply to our daily activities and encounters, but this is 1 reason that you want to ensure that you are insured up the wazoo.

This is what risk management is all about. On a daily basis, we encounter problems, scenarios, what ifs, coulda and shoulda types of situations, and so on, all of which carry various degrees of potential exposure to legal liability. How we choose to manage these exposures is what it is all about. We all have a greater or lesser tolerance for exposure to risk based on a multitude of factors. Regardless, the task at hand is to educate ourselves to the extent that we can discern the variety of potential quagmires we may encounter as we go about our daily ministrations. The more we learn, the more we see, and the more we can extrapolate, the higher the ground we stand on from a risk management perspective.

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Dec 19, 2018 | Posted by in Orthodontics | Comments Off on Caught but released
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