As a dentist, the chances of being named in a medical negligence lawsuit are approximately 1 : 200 per year depending upon your jurisdiction, and to some extent, your specialty.1 According to recent data from the National Practitioner Data Bank (NPDP), 11% of medical malpractice cases involved the practice of dentistry. NPDP studies show that approximately 8500 dentists in the United States are named as defendants each year in dental malpractice suits, with an average payout of approximately $68,000.2 Over 97% of these payments are from out-of-court settlements prior to trial.3 As the cost of modern dental care rises, it is likely these numbers will only grow because it becomes more economically worthwhile to pursue dental malpractice claims. On the other hand, risk is something that can and should be managed and avoided. However, in reality, even with the best planning and care, oral implantology complications may predispose the practitioner to legal action (Box 19.1).
The prevalence and type of complications in implant dentistry are increasing and evolving over time. This is most likely due to three factors. First, there is an increase in the number of implants being placed every year. Secondly, more complex and difficult procedures with higher morbidity are being performed. And lastly, more dentists with limited training are providing implant treatment, including practitioners with a lack of experience and knowledge in the prevention and treatment of complications. The standard of care in oral implantology is not precise in part because there is an absence of a recognized specialty of oral implantology. Yet the standard of care in oral implantology is an ever-rising bar due to the increasing complexity of cases and the expertise demanded by patients.
Unfortunately, complications do occur in implant dentistry, and they are sometimes unavoidable. In the early days of oral implantology, complications were merely termed “risks” of the procedure. In today’s litigious society, patients often equate complications with “malpractice” or a deviation from the standard of care by the practitioner. Many patients have invested substantial amounts of time, energy, and money in their appearance and dental care. When complications arise or expectations are not met, patients often demand answers and seek a legal course of action. Strategically and correctly managing complications is paramount in the prevention of medical negligence liability claims.
Implant dentistry is an acquired skill requiring extensive training, continuous practice, and refinement of skills and technique. Some dentists will take a 2-day weekend course sponsored by a dental implant manufacturer and assume they have the knowledge and skills necessary to treat even the most difficult cases and complications. However, they are mistaken, and this has been substantiated through various studies. Lambert et al, in a landmark study evaluating inexperienced surgeons (<50 implants placed), found that doctors early on their learning curve were twice as likely to have failed implants in comparison to experienced surgeons.4
The authors have noticed a trend in dental malpractice litigation termed the “500–4000 syndrome.” Dental implant litigation seems to spike in the first 500 implants placed by a dentist simply because dentists on the front end of the learning curve are more likely to experience complications. The good news is that, with additional experience, the number of litigation cases levels out in the range of 500–4000 implant placements. However, a second spike of litigation occurs after the placement of approximately 4000 implants. Clinicians often become complacent, and there is a greater chance to “take shortcuts” in the treatment of implant patients. They tend to be lax with their preoperative assessment (clinical and radiographic evaluation), do not keep current with the literature, and fail to attend appropriate continuing education programs while managing their busy practices.
The malpractice litigation process is embarrassing, time consuming, and financially and psychologically draining on the practitioner. This long, drawn-out malpractice process has been shown to have an average time from injury to resolution of 5 years, with 33% of cases lasting over 6 years.5 However, dental implant practitioners can take proactive steps to decrease their risk liability and to minimize their exposure. In this chapter we will examine the best ways to avoid lawsuits and also review the litigation process, including presuit, the discovery process, and malpractice trial (Fig. 19.2).
Litigation Process Part 1
When a patient enters into a civil lawsuit, they will initiate a process termed litigation. Litigation is governed by various rules of civil procedure (i.e., the court’s rules and standards during a lawsuit) in the state and federal courts. The first part of the litigation is called the “presuit period.” The presuit period is very important because the clinician will usually receive notice of commencement of a legal action, and they must react promptly. Most doctors are not taken by surprise when a patient initiates legal action against them because there are often subtle signs. These include the patient not returning for scheduled appointments, failure to return phone calls from the doctor or the office, or refusing to pay their bill. More significant indications that are consistent with a patient bringing a legal action include a formal notice or a request for their dental chart by the patient, another practitioner, or a patient’s lawyer. Most often in such situations verbal communication between the dentist and patient has deteriorated or may have become nonexistent.
The initiation of a lawsuit usually starts with a request for records. When presented with a records request from a patient, it is imperative that the practitioner not ignore the request no matter how unfounded the potential claim may be. In most states, there is a statute (law) that governs the time period that the dental provider has to comply with the request. Refusing to fulfill a patient’s request for a copy of their treatment record in a timely manner will only complicate and exacerbate the situation and may prejudice the dentist’s position in future litigation. This will also cast the doctor in a negative light from the outset of the litigation in the eyes of the court and also with the state dental board. Although the doctor owns the actual dental record, the patient owns the diagnostic images, and they are entitled to a copy of both parts of their dental records. When a patient is denied access to their records by a dentist, their only recourse may be to file a complaint with the state board of dentistry. Under those circumstances, it is unlikely the state board will be sympathetic to the claims or concerns of the practitioner and may expose the dentist to discipline (Fig. 19.3).
Time to respond.
The time to respond to a request by a patient for their records is dictated specifically by individual state law, with the average deadline to provide records being approximately 30 days. Some states do not have associated time periods (e.g., Alaska) or use terminology such as “a reasonable time” (e.g., Alabama).6 A records request does have to be accompanied by a HIPAA-compliant medical authorization form.
Documentation of records request.
As a matter of office policy, no records should be provided by a dental office or its personnel to a patient either “in person” or via written request without the treating doctor’s prior approval. In doing so, the doctor will be able to ensure the patient is provided with the exact information requested. The patient chart should be documented accordingly, including notations documenting the exact records provided (i.e., make an additional copy), the date the records are delivered, and the manner in which the records were provided (e.g., US mail, fax, wire, or email). It is best to keep records establishing the exact date such materials were provided (example, “certified mail/return receipt requested”). Documenting the date the record request was made by the patient is especially important where the statute of limitations (i.e., maximum time after the alleged negligent event to initiate legal action to pursue a claim relating to it or otherwise it may be deemed “time barred” by law) may become an issue with respect to the filing of the lawsuit. The term time-bar refers to a legal claim that is barred by the passage of time under a statute of limitations.
Official Notice Letter.
The dentist may also receive a letter from the patient’s attorney informing them of their intent to initiate a legal action on behalf of a patient and that the attorney is investigating the matter. Some states require that the patient provide a “Presuit Notice” prior to the formal filing of a lawsuit. This will initiate the presuit period, which allows the patient and doctor the ability to obtain records and provides both sides an opportunity to settle the matter prior to litigation. The form and method of the notice of commencing a presuit is usually dictated by state statute or rule. For example, the state of Florida requires that notice be provided by certified US mail or return receipt requested (Fig. 19.4).
Requirements After Receiving Notice
The first step or action that an insured dentist should take after receiving notice is to inform their dental malpractice insurance carrier of the possibility of a malpractice suit. By placing the dental malpractice insurance carrier on notice, the dentist will have access to immediate guidance and legal advice from the carrier or an appointed attorney for all aspects of the ensuing process. In general, by informing the carrier, no adverse consequences will result, such as losing coverage or increased premiums.
Responsibility of the Insured Dentist
If the doctor receives a request for dental records from the patient or their attorney, a proactive response to inform the insurance carrier is mandatory. To preserve malpractice coverage, most policies require the insured to inform the carrier with prompt notice of any potential claims. An insured dentist’s failure to provide notice in a timely manner could potentially jeopardize the carrier’s obligations both to defend and to indemnify (pay for the damage or loss allegedly suffered by the patient) in the potential lawsuit. The dental malpractice insurance carrier requires immediate notice to become involved as early possible in the matter of a dental malpractice claim.
Most dental malpractice insurance policies contain a “cooperation clause,” which requires the insured (dentist) to cooperate in the defense of a legal claim. If the insured dentist fails to cooperate with the defense of the suit, the malpractice carrier may refuse to indemnify for a lawsuit. No matter how much of a nuisance or how frivolous a dentist may feel a lawsuit may be, it is important to take the time to cooperate in defending it.
Responsibility of Insurance Carrier
The insurance carrier has two main obligations to the insured with respect to malpractice policies. The “duty to defend” will require the insurance carrier to retain legal counsel for the insured in the defense against any legal claims brought against the dentist. There also exists the “duty to indemnify,” which requires the insurance carrier to pay for any settlement or judgment on claims within the policy limits.
Assignment of counsel.
An insurance carrier has an obligation to retain legal counsel when a legal action is brought against a dentist. Typically, the insurance carrier will assign an attorney who has had past experience with the type of malpractice suit filed. All attorneys’ fees will be paid by the carrier; however, a dental malpractice insurance carrier will not pay for personal counsel hired by a dentist. Most insurance carriers will take into consideration a dentist’s recommendation for legal council, as long as the attorney has experience in dental litigation cases.
Consent to settle.
With most dental malpractice insurance policies, a “consent clause” is contained within the contract. This requires the insurance carrier to obtain the dentist’s consent in order to settle a case. If the dentist does give the carrier consent, the dentist will surrender his or her right to the insurance company on the decision to settle the case. However, for the insurance carrier to protect their interests, they will include a “Hammer Clause” in the malpractice policy. This clause will stipulate that if the dentist refuses to consent to an out-of-court settlement recommended by the insurer, the insurer’s liability for the claim will not exceed the amount for which the claim could have been settled. Therefore, the dentist may be responsible for any additional defense costs incurred and any excess amount above the recommended settlement amount.
Appointment of Legal Council
The dentist should inquire relative to the assigned attorney’s dental knowledge, how many dental implant malpractice cases the lawyer has settled or tried to a jury, and the results obtained in such proceedings. If the doctor is not comfortable with their appointed attorney, they may request new counsel from their insurance carrier. This request should be made early in the litigation process. In most cases, a dentist may request a particular defense attorney, if the attorney has the necessary qualifications or experience, and in some cases, if counsel is on the carrier’s “approved” list, the dental malpractice insurance provider will most likely approve the doctor’s request.
The defense attorney will handle all matters with respect to the presuit period and subsequent litigation. Counsel will provide guidance concerning the discovery process. The defense attorney will be responsible for filing the appropriate responsive pleadings and ensuring the dentist’s legal rights are protected. Presuit time periods and requirements are dictated by the applicable state law and vary greatly.
Depending on the significance of the potential claim or issues relating to insurance coverage, the dentist should consider retaining independent personal counsel to assist and serve as the doctor’s liaison with counsel hired by the dental malpractice insurance company. The hiring of personal counsel is particularly important if the claim exposes the doctor to a potential judgment in excess of their policy limits or if the insurance carrier has indicated it may not indemnify the doctor against the claims asserted by the patient. Personal counsel may be particularly helpful in cases where the doctor’s insurance carrier has the right to settle a claim without the doctor’s consent (i.e., no consent to settle clause). However, a personal council should have a background and experience with dental malpractice cases.
If the dentist’s malpractice insurance policy does not contain a deductible, all legal fees and litigation expenses (except legal fees paid to personal counsel) will be paid for by the dental malpractice insurance carrier. Despite this fee arrangement, the defense attorney has a fiduciary duty to the dentist, not the dental malpractice insurance carrier. The attorney retained on behalf of the insured has an obligation to preserve the doctor’s confidences and may not allow the dental malpractice insurance carrier to interfere with the attorney’s professional judgment and recommendations (e.g., settlement of a case because it would be in the best interests of the insurance carrier).
Plaintiff’s Requirements for the Filing of a Lawsuit
Prior to initiating a lawsuit against a doctor, the following four elements must be proven by the patient/plaintiff by a preponderance (greater than 50%) of the evidence.7
1. Existence of Duty: The patient must prove there exists a patient-doctor relationship, and the doctor had a duty to treat the patient. First, a professional relationship must be established, which usually involves the doctor initiating treatment.
2. Breach of Duty: The patient must demonstrate the doctor breached or deviated from the standard of care (i.e., was negligent). This would include treatment that is outside the scope of what a prudent practitioner would do in a similar circumstance. Standard of care is typically determined by the individual experts retained by each side to give their opinions concerning the circumstances involving the case.
3. Causation Directly Related to the Treatment: There exists a connection between the treatment rendered, or failure to render treatment, that failed to meet the standard of care and as a result caused or contributed to cause injury.
4. Occurrence of Related Damages: The patient must demonstrate there are damages that have resulted from the doctor’s deviation from the standard of care. Damages may include physical and/or mental claims.
Affidavit of Merit.
In many states a medical or dental malpractice suit may not be filed until an expert witness signs an affidavit of merit. To obtain an affidavit of merit, the plaintiff’s council will need to send the pertinent records to a potential expert witness for evaluation of negligence and proximate cause issues. The expert witness does have to be familiar with the appropriate standard of care with regards to the case and be willing to sign an affidavit of merit, which is usually filed with the complaint. The affidavit of merit in simple terms must state that in the opinion of the expert witness, the dentist in question deviated from the standard of care. The reviewing expert does not necessarily have to agree to testify as an expert witness. This affidavit of merit is a relatively recent requirement intended to minimize the filing of frivolous malpractice actions clogging an otherwise overloaded court system (Fig. 19.5).
Statute of Limitations.
In most states a patient must bring a medical malpractice claim fairly quickly—often between 6 months and 2 years, depending on the state. Generally, this time period within which to file a lawsuit is termed the statute of limitations. A failure on the part of the patient to initiate a claim within the applicable statutory time limit will lead to the claim being “time-barred” or past the deadline to file a lawsuit (Table 19.1). However, in special circumstances, the statute of limitations may be extended by three possible situations:
1. Failure to Discover the Basis of the Lawsuit: When a patient has been unable to discover the “basis” (cause of injury) of the lawsuit, the patient may be allowed to file within a “reasonable time” after the discovery of the issue in question. This may result from “fraudulent concealment by the dentist.” Most notably, this occurs when the dentist does not inform the patient of a complication (e.g., broken file or bur, retained cement). In such instances, the time for calculating the statute of limitations does not begin until the patient could have reasonably known they were the victim of negligence, and most often this is when a subsequent doctor is consulted who informs them of the circumstances.
2. Notice Letter: in most states, the sending of a notice letter will extend the statute of limitations (e.g., Texas will extend the statute of limitations by 75 days after filing notice). In Pennsylvania, it is the Writ of Summons, which is filed with the courts to toll the statute of limitations, and this informs the doctor they are about to be named in a lawsuit. Counsel for the doctor may then file a Rule to File Complaint, which gives the patient or their lawyer 2 weeks, within which a suit must be filed.
3. Minor Plaintiff: The statute of limitations does not begin to run until the minor plaintiff is 18 years old. In certain states, this will allow for the delay of the filing of the lawsuit to the age of 20 (i.e., 18 years of age + 2 years) for a minor patient and guardian to initiate a legal action.
Statute of Limitations by State
|State||Statute of Limitation|
|Alabama*||2 or 4 years|
|California*||1 or 3 years|
|Connecticut*||2 or 3 years|
|Florida*||2 or 4 years|
|Hawaii*||2 or 6 years|
|Maryland*||3 or 5 years|
|Mississippi*||2 or 7 years|
|Missouri*||2 or 10 years|
|Nevada*||2 or 4 years|
|New Hampshire||3 years|
|New Jersey||2 years|
|New Mexico||3 years|
|New York||2 and a half years|
|North Carolina*||3 to 10 years|
|North Dakota||2 years|
|Ohio*||1 or 4 years|
|Rhode Island||3 years|
|South Carolina||3 years|
|South Dakota||2 years|
|Virginia*||2 to 10 years|
|West Virginia||2 years|
Filing of the Lawsuit
A malpractice suit will formally begin with the filing of a petition with the court and service (i.e., delivery to the doctor/defendant or his/her authorized representative) of the initiating legal pleading.
Once the matter has proceeded through the presuit period, a formal legal complaint is filed. A “complaint” is a legal document that initiates a lawsuit and serves to inform the doctor, referred to as the “defendant,” of the jurisdiction of the court and basis for the requested relief (i.e., negligence). The complaint includes a concise statement of the claim, the relief (compensation) and remedies (damages and restitution) requested by the patient (referred to as the “plaintiff”), and a demand for judgment. The complaint usually will contain allegations of facts, which, if proven, entitle the patient/plaintiff to the damages they are seeking. Often the allegations within the complaint are very brief and generalized and may omit important, pertinent information (Fig. 19.6).
Service of Process.
If a lawsuit is filed, the doctor/defendant should notify their counsel and request that their attorney contact the lawyer for the patient/plaintiff and arrange for acceptance of service of process (usually by receipt of a summons and complaint). Defense counsel should offer to accept service on behalf of doctor/defendant or offer to schedule a time for service. This alleviates the stress and embarrassment of a sheriff or process server appearing in the doctor’s waiting room to serve papers in the presence of the doctor’s patients. Most plaintiff attorney firms will comply with this request.
The doctor/defendant, or in the alternative, their counsel, will be served with the complaint together with a legal document called a summons. The summons is the document that notifies the doctor/defendant a legal action has been filed. The summons will include the name of the case, location of the court, and the name and address of the attorney for the patient/plaintiff. It will also inform the doctor/defendant of the deadline for responding to the complaint.
It is imperative that upon receipt of the summons and complaint, the doctor/defendant immediately contact their defense attorney and provide their attorney with a copy of the summons and complaint, along with any attached exhibits. In the event the doctor/defendant has had no prior notice of the impending legal action or has not been appointed insurance defense counsel, they should immediately contact the professional liability carrier and provide the insurance carrier with copies of the documents provided. The fact that counsel has not been appointed by the insurance carrier does not change the time for responding to the complaint (Fig. 19.7).
Response to the Complaint.
The doctor/defendant’s counsel will need to file a response to the complaint. This response may take a number of forms depending on the legal sufficiency of the complaint. A typical response is in the form of a pleading (i.e., formal statement presenting legal documents or arguments) known as the answer. The answer filed on behalf of the doctor/defendant serves three functions:
1. It is a response to each of the individual allegations of the complaint. Each allegation will be either admitted or denied or will state that the doctor/defendant is without knowledge of the specific assertion.
2. It will contain any affirmative defenses that the doctor/defendant is interposing to any cause of action alleged in the complaint. An affirmative defense is a legal reason why doctor/defendant should not be held liable for the events alleged in the complaint. For example, a cause of action may be barred by the applicable statute of limitations. This affirmative defense claims that the lawsuit has not been filed within the time limit provided by state law.
3. The answer may seek relief against the patient/plaintiff by asserting what is referred to as a counterclaim. A counterclaim is a claim being redirected back against the patient/plaintiff. Typically, this occurs when the patient has failed to pay for their services and has in turn sued for malpractice.
The doctor/defendant should always be consulted by their attorney before filing of an answer. Any allegations admitted in the answer are established as a matter of law (i.e., the information may be used at trial). As a consequence, the doctor/defendant should specifically approve the proposed answer before it is served on the patient/plaintiff’s attorney and carefully review any proposed admissions. In general, these admissions may not be withdrawn during the litigation process or trial and are binding on the doctor/defendant.
In the event that a response is not filed on behalf of the doctor/defendant in a timely fashion, a default may be entered by the plaintiff’s counsel. The effect of a default is the doctor/defendant admits to the allegations in the complaint and agrees to the relief (financial claim) requested by the patient/plaintiff. Unless the default is set aside by the court (reversed), the only issue at trial will be to determine the amount of the patient/plaintiff’s damages.
Miscellaneous Presuit Recommendations
Upon receiving a notice letter, a doctor/defendant may attempt to discuss the situation with other colleagues to obtain their opinions. If a lawsuit is initiated, the doctor/defendant may be asked to recount the conversations, even if they are unfavorable to the defense of the case. It is highly recommended that the doctor/defendant have no discussion of the case with anyone other than their attorney or insurance carrier.
Do Not Attempt to Communicate With Patient/Plaintiff Lawyer.
Attempting to contact the patient/plaintiff or their attorney is not recommended. Often, the doctor/defendant may feel the need to plead their case and dissuade a disgruntled patient or attorney from continuing legal action. However, this is almost always futile and may have significant negative ramifications. Another common error made by the doctor/defendant is to offer the patient a refund in lieu of the filing of the lawsuit. Although generally inadmissible (i.e., cannot be used against the doctor/defendant in court) in any subsequent court proceeding, at the very least it creates the appearance that the doctor/defendant may be guilty of wrongdoing.
Calling Subsequent Providers.
Similarly, contacting subsequent treating doctors is not recommended. If a case is brought against a doctor, records of all subsequent treating providers will be easily obtained through the discovery process. Calling the subsequent treating provider may potentially result in an uncomfortable situation wherein the subsequent treating doctor may request that the implant clinician take financial responsibility for the patient’s subsequent medical needs, no matter how open ended. In turn, the subsequent treating provider may promise to encourage the patient to drop any legal claims. However, the payment of remedial medical/dental expenses is rarely successful in persuading a patient to drop their legal claims.
Secure All Records.
The original chart, radiographs, study casts, surgical templates, laboratory prescriptions, pharmacy prescriptions, appointment logs, and any other documents or materials relating to the patient’s care should be secured and copies placed in a safe location (e.g., doctor’s home or safe deposit box). Although only a remote possibility, computer failures do occur (sometimes without effective backup), as well as fires, floods, or other catastrophes, resulting in the permanent loss the patient’s records.
In most states, medical practitioners are required to secure active malpractice insurance. The fact that a doctor does not have malpractice insurance to cover a specific claim does not mean that the doctor cannot be sued. If doctor/defendant is not insured, it is imperative they retain counsel to represent their interests. The old adage is “a person who acts as their own lawyer has a fool for a client” applies with equal force to health care professionals, including doctors. Having no, or inadequate, legal counsel may be devastating to the defense of an otherwise defensible lawsuit.
Litigation Process Part 2
The second phase of the litigation process is known as the discovery phase. In this part of the case, each side is afforded the opportunity to acquire information about the other’s case. The defendant/doctor, through the discovery process, is able to determine the exact nature of the claims of the patient, the damages allegedly suffered, the names of subsequent treating practitioners, and names of any supporting witnesses, including experts. The plaintiff/patient is likewise given the opportunity to obtain information concerning the case rendered, including access to the records, radiographs, study casts, photographs, and defenses asserted by the defendant/doctor.
Forms of Discovery
The methods, means, and timing of the various forms of discovery are governed by the rules of civil procedure (i.e., the body of law that sets the rules and standards the courts must follow in civil lawsuits) of the particular state.8
Interrogatories are written questions that are formally asked by one side to the other. Answers to interrogatories are usually drafted by the attorney in consultation with their client. Similar to admissions made in response to the complaint, interrogatory answers may not be withdrawn during the litigation process or trial and are binding (i.e., cannot be withdrawn) by the defendant/doctor.
Interrogatories are most effectively directed to the issue of damages, including any expenses (i.e., medical and dental bills) the plaintiff/patient contends were incurred as a result of the alleged negligence by the doctor/defendant (Fig. 19.8).
Requests for Disclosure.
Requests for disclosure are statutorily (i.e., governed by law) predetermined requests for information that must be produced without objection by either plaintiff or defendant. Disclosures cover basic information that is involved in a lawsuit, which includes witnesses, experts, contentions of the parties, damages incurred, and the identity of any health care providers that treated the plaintiff.
Production of Documents and Things.
This form of discovery allows either party the opportunity to obtain for evaluation and/or copying documents, records, bills and other materials. The production of these documents is not without limitation. The materials requested must be somehow relevant to the case or potentially applicable to the pending action (Fig. 19.9).
Request for Admissions.
In a request for admission, the party served is required to admit or deny or state that the party lacks sufficient information to respond, concerning certain facts and contentions of the case. If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made and that the information known or readily obtainable is insufficient to enable that party to admit the matter. The purpose of requests for admissions is to eliminate unnecessary proof of undisputed facts at trial. Extreme care must be taken in responding to requests for admissions. A request that has been admitted may be presented (i.e., read) by the opposing attorney to the jury during trial and may establish the matter(s) admitted. These requests are usually time sensitive, and failure to respond in a timely manner will result in admissions being deemed against the party served (Fig. 19.10).
An expert report is a report written by either side’s medical expert stating their facts and findings within the case. The use of expert reports varies greatly among states. In some states, either party may request the expert’s opinion and the basis for their opinions. However, in some states, written expert reports are not required for the filing of a lawsuit (Fig. 19.11).
The last and possibly the most important form of discovery is the deposition. A deposition is a formal question-and-answer session in which the attorney is given the opportunity to ask questions of the opposing party under oath. The deposition will also serve as a road map for the trial testimony. Once a question is answered in a deposition, it is difficult to contradict the testimony at a later date. A seasoned attorney will readily identify the contradiction and “impeach” (i.e., discredit the witness) the testimony. Therefore, whatever is stated in deposition cannot be easily amended or changed during trial. Preparation for a deposition should occur in the days or weeks prior to the date of the actual deposition.
Preparation for the Deposition
The doctor/defendant should meet with their counsel and discuss the case in its entirety prior to the deposition. They should be fully aware of the allegations of the claim, the alleged damages, specific dates, and the issues of potential liability.
At the predeposition conference, the doctor/defendant should be intimately familiar with their care and treatment of the patient, their justification for the treatment provided, as well all written dental charting, and the billing ledger. The doctor/defendant should ensure that the dental charting matches the billing ledger or be prepared to explain any discrepancies. The chart should be organized in such a fashion as to allow the doctor/defendant to easily find the various items contained therein.
The objective of the conference is to prepare the doctor/defendant to testify at deposition. The deposition is under oath, and the doctor will be expected to tell the truth. In some jurisdictions the deposition may be videotaped. Often it is not what is said but how it is said that matters most.
If the radiographs are digital, photographic quality prints should be made available to the attorney for use during the deposition, if necessary. Poor-quality or copied radiographs often result in possible incorrect testimony and will often be confusing to the jury (Box 19.2).
The doctor/defendant should ask their attorney to provide them with a copy of any depositions taken by the patient’s attorney. This is particularly important if the doctor has never been deposed before. Although it would be advantageous to have a transcript from a similar case, it is not imperative. The purpose of reviewing such a transcript is for the doctor/defendant to become familiar with the process and to obtain an idea of the attorney’s general deposition procedure. Trial attorneys are generally creatures of habit, and the roadmap they follow in deposition is the same or similar from case to case. Additionally, this will give the doctor an idea of the dental acuity of their opponent. Many plaintiff attorneys have limited knowledge with respect to dental procedures and complications. Do not, however, sell your adversary short; most jurisdictions now have lawyers who are very seasoned in handling dental malpractice actions.
Doctor/Defendant Testimony at Deposition.
On the day of the deposition the defendant should dress professionally, arrive promptly, and be cooperative. Although the doctor may believe strongly in their position, arguing and fighting the process will accomplish nothing more that lengthening the duration of the deposition. In some cases the patient may appear in person to witness the doctor’s testimony; however, there should be no communication with the patient. The patient may not ask questions and is not permitted to interfere with the doctor’s testimony. The doctor/defendant cannot charge for their time at deposition, and expenses (e.g., court reporter, videographer) are usually covered by the patient/plaintiff’s attorney.
Patient/Plaintiff Testimony at Deposition.
Just as the patient/plaintiff is entitled to take the doctor’s deposition, the doctor/defendant counsel has the right to depose the patient. As with all depositions the doctor/defendant has the legal right to appear at the deposition. The doctor may provide questions to their counsel and may discuss the testimony but may not interfere with or disrupt the process. All expenses for the patient/plaintiff’s deposition are covered by the doctor/defendant’s malpractice carrier.
If the doctor/defendant elects to attend a treating doctor or expert’s deposition, they should do the following:
3. Do not interfere in any way with counsel’s questioning. If you believe information needs to be addressed by your attorney, write the information on a notepad and wait till a break occurs to discuss.