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RISK MANAGEMENT—AN OVERVIEW

Risk management in medical and dental practice begins with the golden rule. Treat patients the way you would want to be treated or the way you would want your spouse, parents, or children to be treated. We all want to receive the highest quality of care in medicine and dentistry. We want our physicians and dentists to listen to our symptoms and concerns, evaluate us appropriately through a complete examination and appropriate diagnostic tests, obtain outside consultation when appropriate, consider treatment options, and then discuss those options with us objectively so that we can choose our course of treatment. We want to understand the risks, benefits, and possible complications of our treatment options, including no treatment. We want the process to be legibly documented in our medical and dental records so that it can be reviewed to possibly help with additional challenges that we might face. The concept certainly sounds good and seems to be attainable. Why are so many malpractice claims filed against physicians and dentists? How does the oral and maxillofacial surgeon accomplish the task of minimizing risk?

OMS National Insurance Company (OMSNIC) insures approximately 83% of the practicing oral and maxillofacial surgeons in the United States. OMSNIC’s statistics show that 15% to 17% of oral and maxillofacial surgeons have at least one claim filed against them every year. Every 7 years the practicing oral and maxillofacial surgeon can expect to have one of his or her patients make a written request for compensation or actually file a lawsuit for an injury or a perceived injury. The good news is that the frequency of claims has drifted downward over the past few years. Unfortunately, the bad news is that the severity of verdict awards and settlements is continuing to escalate. Million dollar verdicts are commonplace, which affects the amounts paid in settlements by increasing them. Some very sobering news is that plaintiff’s attorneys are winning more often than they did in the past. This has happened as a result of legislation favorable to their efforts, the ongoing education of plaintiff’s attorneys on how to successfully sue physicians, and a decrease in the number of frivolous lawsuits being filed.

By far the most common claims are related to the procedures performed in the oral and maxillofacial surgeon’s office on a daily basis. These are the extractions, removal of impacted teeth, placement of dental implants, biopsies, etc. Of OMSNIC’s 6346 closed claims through 2005, 78% stem from these “routine” procedures. The costs of defense and indemnity payments of these claims accounts for 68% of all expenditures through 2005. More than $9 million has been paid in wrong tooth extraction claims alone.

Many of the factors involved in a patient bringing a lawsuit against an oral and maxillofacial surgeon are under the control of the surgeon. Modifying behavior and establishing office systems to protect against a claim are the primary tools available to reduce the risks of a lawsuit. Unfortunately, oral and maxillofacial surgeons are hesitant to accept their responsibility to help protect themselves from a patient’s claim of negligence. Minimal improvements in loss prevention could prevent many potential claims from being brought.

The records of physicians and dentists are one of the biggest problems in the defense of claims. Surgeons seem to be far more interested in treating the next patient than taking the time to clearly document the current patient’s chart. Millions of dollars are needlessly paid on defensible claims that are settled or lost in court as a result of inadequate records.

Physicians and dentists in this country practice in a litigious climate. They are no longer looked upon as community leaders, and the medical and dental professions have been changed politically. Medicine and dentistry are looked upon as businesses more than learned professions. In the environment of managed care (i.e., more patient visits per day and less face-to-face physician-patient time), patients frequently fear that physicians are more interested in making money than providing good patient care. There are many factors that have led to changes in patients’ attitudes toward instituting legal action against physicians and dentists.

A second major problem leading to claims and lawsuits is the lack of rapport. Not infrequently, patients begin legal proceedings against their health care providers because their physician did not take the time to talk to them to give them a reasonable explanation or any information about their situation and their perceived injury. A plaintiff’s attorney can supply them with a simple explanation using understandable medical and dental science, leading the patient to believe that their physician treated them in a negligent manner. The physician will likely come too late to the conclusion that a few more minutes spent with the patient answering their questions honestly and compassionately could have prevented a claim, but that opportunity has been lost.

We also live in a society with increasing personal debt and decreasing personal savings. Monetary demands on individuals are an ever-increasing concern. Instant gratification and more sophisticated marketing efforts encourage us all to have the latest and most sophisticated personal items. This has brought more people to the brink of personal bankruptcy. These same monetary demands affect the oral and maxillofacial surgeon and their patients. What happens when the patient has an infection or prolonged recovery from a procedure and unexpectedly misses work or has unanticipated additional medical or dental expenses? They often become angry toward the health care provider. The chances of winning a lawsuit are much better than winning the lottery, and, in a situation like the earlier one, a patient may be much more willing to take such a chance.

Taking risk management issues seriously before being sued can make an oral surgeon’s practice life easier. Unfortunately, many will not take the simple necessary steps to help limit the chances of litigation until after experiencing an emotionally painful, time-consuming lawsuit.

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BACKGROUND INFORMATION

State legislatures develop laws—medical and dental practice acts—that define how physicians and dentists may practice. They also make the laws governing how patients may bring lawsuits against physicians. State departments of public regulation and state boards of dentistry and medicine also disseminate rules and regulations that further dictate and control how physicians must practice.

Malpractice claims are usually filed under state tort systems. These are civil actions that allow a patient with an alleged injury to seek monetary damages from the caregiver who allegedly caused the injury. Malpractice is defined as the failure to meet the duty of care and/or a breach of accepted standards of care as established by the profession. Lawsuits can occur when the failure or breach results in injury and damage to the patient.

The patient is labeled the plaintiff , and the physician is labeled the defendant in a legal action. Each is usually represented by an attorney. In most cases, the plaintiff’s attorney will only recover expenses and receive a financial reward if the plaintiff “wins.” Their financial reward is known as a contingency fee , a percentage of the indemnity payment (usually 30% to 40%). The indemnity payment is the settlement amount or verdict amount. The defense attorney usually is paid on an hourly basis by the defendant’s malpractice liability insurance carrier or, if uninsured, the defendant.

“Standards of care” are usually national and are based upon the duty of the physician to use the care and skill ordinarily used by reputable members of the profession practicing under similar circumstances. In most jurisdictions, the plaintiff must have an expert witness substantiate the failure to meet the standard of care. The defense will also use expert witness review to demonstrate that the care received by the patient was within the standard of care. In a case that goes to trial, the jury will use the expert witness’s testimony to decide if there was a breach of the standard of care.

To “win” in a malpractice case, the plaintiff must prove what is known as the A, B, C, Ds of litigation.

• A.

  A physician-patient relationship must exist between the patient and the physician . This is defined by state law. Acceptance implies a duty of care. The plaintiff must prove the physician-patient relationship. The physician must have accepted the patient as a patient of record in the practice. Every patient is not accepted for treatment—this is a decision made by the physician. Once past the examination and consultation phase, the court will likely determine that a physician-patient relationship was established.

• B.

  The physician must have breached the standard of care . Expert witnesses on both sides will testify as to whether the defendant has met the standard of care. Posttrial jury interviews have established that jurors evaluate defendant physicians to decide whether they would receive appropriate care if they were the physician’s patient. Expert witnesses that come from many states away or from the “ivory tower” of the university centers are not as believable to jurors as a “wet-fingered” oral and maxillofacial surgeon from the local community. Jurors wonder why the plaintiff or defendant could not find a local oral and maxillofacial surgeon to testify about the care rendered to the plaintiff.

• Some states require that an expert witness be from the same specialty as the defendant. This is the most level playing field. Unfortunately, there are still states where the tort laws have not been updated, and the experts can be from another specialty, such as a general dentist or a physician.

• Occasionally, the plaintiff is able to avoid proving that the defendant’s care breached the standard of care by the use of res ipsa loquitur (the thing speaks for itself). Negligence is inferred in the absence of actual proof. The defendant must explain the alleged injury instead of the plaintiff proving the negligence. Such cases include foreign bodies left in a patient without the patient’s knowledge (e.g., broken instruments, burs, or packing material). Three conditions must exist for the plaintiff to apply res ipsa loquitur:

  • 1.

    The defendant was the only health care provider that could have caused the injury to the plaintiff.

  • 2.

    The patient was not responsible and did not contribute to the injury.

  • 3.

    The injury would not have occurred unless the defendant was careless or negligent.

• C.

  The patient’s injury must have been caused by the defendant’s breach of the standard of care . No other intervening causes or events contributed to the injury. The plaintiff’s expert witness testimony will attempt to show that the defendant’s actions were the proximate cause of the injury. Actions by staff contributing to the injury are often assigned to the defendant physician. Certain states have a legal “captain of the ship” doctrine, where all subsequent injuries or complications occurring to the patient, caused by others, after the initial event are assigned to the defendant.

• D.

  The patient must have suffered damages associated with the defendant’s actions . If damages are proved, the plaintiff is compensated with a monetary award. There are three types of damages that plaintiff’s attorneys can claim:

  • 1.

    General damages are related to the pain and suffering caused by the injury to the patient. These can be both physical and emotional. Loss of consortium claims is general damages.

  • 2.

    Special damages are the actual monetary costs that the patient has paid for treatment or care of the alleged injury. These are both current and future monetary losses to the patient for physician’s bills, hospital costs, loss of income, psychological counseling, rehabilitation, etc.

  • 3.

    Punitive damages can be assigned if the plaintiff’s attorney can prove that the patient’s damages were caused by the defendant’s deliberate actions that were substantially below the standard of care. Attempting to do such things as hiding the cause of the injury from the patient, concealing facts about the case, altering the patient’s records, or providing care while intoxicated could result in punitive damages. Such damages are meant to punish the physician for the substandard care or illegal acts. Once these types of circumstances are discovered by the defendant’s malpractice insurance company, the case is usually settled rather than risk the defendant’s personal assets in a court case. Punitive damages are usually not covered under a professional liability insurance policy.

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BACKGROUND INFORMATION

State legislatures develop laws—medical and dental practice acts—that define how physicians and dentists may practice. They also make the laws governing how patients may bring lawsuits against physicians. State departments of public regulation and state boards of dentistry and medicine also disseminate rules and regulations that further dictate and control how physicians must practice.

Malpractice claims are usually filed under state tort systems. These are civil actions that allow a patient with an alleged injury to seek monetary damages from the caregiver who allegedly caused the injury. Malpractice is defined as the failure to meet the duty of care and/or a breach of accepted standards of care as established by the profession. Lawsuits can occur when the failure or breach results in injury and damage to the patient.

The patient is labeled the plaintiff , and the physician is labeled the defendant in a legal action. Each is usually represented by an attorney. In most cases, the plaintiff’s attorney will only recover expenses and receive a financial reward if the plaintiff “wins.” Their financial reward is known as a contingency fee , a percentage of the indemnity payment (usually 30% to 40%). The indemnity payment is the settlement amount or verdict amount. The defense attorney usually is paid on an hourly basis by the defendant’s malpractice liability insurance carrier or, if uninsured, the defendant.

“Standards of care” are usually national and are based upon the duty of the physician to use the care and skill ordinarily used by reputable members of the profession practicing under similar circumstances. In most jurisdictions, the plaintiff must have an expert witness substantiate the failure to meet the standard of care. The defense will also use expert witness review to demonstrate that the care received by the patient was within the standard of care. In a case that goes to trial, the jury will use the expert witness’s testimony to decide if there was a breach of the standard of care.

To “win” in a malpractice case, the plaintiff must prove what is known as the A, B, C, Ds of litigation.

• A.

  A physician-patient relationship must exist between the patient and the physician . This is defined by state law. Acceptance implies a duty of care. The plaintiff must prove the physician-patient relationship. The physician must have accepted the patient as a patient of record in the practice. Every patient is not accepted for treatment—this is a decision made by the physician. Once past the examination and consultation phase, the court will likely determine that a physician-patient relationship was established.

• B.

  The physician must have breached the standard of care . Expert witnesses on both sides will testify as to whether the defendant has met the standard of care. Posttrial jury interviews have established that jurors evaluate defendant physicians to decide whether they would receive appropriate care if they were the physician’s patient. Expert witnesses that come from many states away or from the “ivory tower” of the university centers are not as believable to jurors as a “wet-fingered” oral and maxillofacial surgeon from the local community. Jurors wonder why the plaintiff or defendant could not find a local oral and maxillofacial surgeon to testify about the care rendered to the plaintiff.

• Some states require that an expert witness be from the same specialty as the defendant. This is the most level playing field. Unfortunately, there are still states where the tort laws have not been updated, and the experts can be from another specialty, such as a general dentist or a physician.

• Occasionally, the plaintiff is able to avoid proving that the defendant’s care breached the standard of care by the use of res ipsa loquitur (the thing speaks for itself). Negligence is inferred in the absence of actual proof. The defendant must explain the alleged injury instead of the plaintiff proving the negligence. Such cases include foreign bodies left in a patient without the patient’s knowledge (e.g., broken instruments, burs, or packing material). Three conditions must exist for the plaintiff to apply res ipsa loquitur:

  • 1.

    The defendant was the only health care provider that could have caused the injury to the plaintiff.

  • 2.

    The patient was not responsible and did not contribute to the injury.

  • 3.

    The injury would not have occurred unless the defendant was careless or negligent.

• C.

  The patient’s injury must have been caused by the defendant’s breach of the standard of care . No other intervening causes or events contributed to the injury. The plaintiff’s expert witness testimony will attempt to show that the defendant’s actions were the proximate cause of the injury. Actions by staff contributing to the injury are often assigned to the defendant physician. Certain states have a legal “captain of the ship” doctrine, where all subsequent injuries or complications occurring to the patient, caused by others, after the initial event are assigned to the defendant.

• D.

  The patient must have suffered damages associated with the defendant’s actions . If damages are proved, the plaintiff is compensated with a monetary award. There are three types of damages that plaintiff’s attorneys can claim:

  • 1.

    General damages are related to the pain and suffering caused by the injury to the patient. These can be both physical and emotional. Loss of consortium claims is general damages.

  • 2.

    Special damages are the actual monetary costs that the patient has paid for treatment or care of the alleged injury. These are both current and future monetary losses to the patient for physician’s bills, hospital costs, loss of income, psychological counseling, rehabilitation, etc.

  • 3.

    Punitive damages can be assigned if the plaintiff’s attorney can prove that the patient’s damages were caused by the defendant’s deliberate actions that were substantially below the standard of care. Attempting to do such things as hiding the cause of the injury from the patient, concealing facts about the case, altering the patient’s records, or providing care while intoxicated could result in punitive damages. Such damages are meant to punish the physician for the substandard care or illegal acts. Once these types of circumstances are discovered by the defendant’s malpractice insurance company, the case is usually settled rather than risk the defendant’s personal assets in a court case. Punitive damages are usually not covered under a professional liability insurance policy.

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INCIDENTS AND CLAIMS

An incident is any injury or untoward event that occurs to a patient that may cause a patient to seek compensation from the physician. Included in liability insurance contracts is the provision that the physician has the obligation to report any and all incidents in a timely manner to the insurance company. A lower molar extraction patient with a significant paresthesia, an anesthesia following removal of a lower third molar tooth, a bur guard burn to a lip, an infection following an elective surgery requiring hospitalization and loss of income to the patient, or a fracture following removal of a lower third molar are all examples of incidents that could lead to a lawsuit. Any event causing a patient to be transported to an emergency room or hospital for evaluation or care is a reportable event. Significant incidents often require a self-report be filed with the state’s department of professional regulation (DPR), medical board, and/or dental board.

Incident reporting allows the insurance company’s claims handlers to help the physician manage the potential risk involved with the incident. Liability carriers have extensive experience with these injuries and can offer a vast amount of help and support to the insured physician. Incidents do not affect the underwriting of the insured, nor do they change the premium charged for future insurance policies.

Each state has a statute of limitations that specifies how long a patient has to file a lawsuit after the incident occurs. These laws vary by state, but are generally 2 or 3 years from when a reasonable patient knew or should have known about the injury. The time in which a minor can file a lawsuit often begins when the minor has reached the age of majority, but this also varies by state.

The determination of whether a patient has filed a claim within the statute of limitations is one instance in which documentation of the clinical chart is particularly important. If the chart clearly reflects the discussions with the patient about the injury, it limits the patient’s ability to claim that he or she did not know about the injury to potentially extend the statute. In addition, the oral and maxillofacial surgeon who does not document in the patient’s record mapping and testing for an alleged paresthesia may be surprised by the size of the affected area alleged by the patient, once an attorney is involved on the plaintiff’s side.

It should be recognized that statutes of limitation are frequently tolled or waived by plaintiff-oriented judges. This occurs frequently in cases of fraud or retained foreign bodies that were not disclosed to the patient. The retained root tip, broken instrument, or end of a broken bur must be disclosed to the patient and the disclosure documented clearly in the patient’s record.

Claims arise from a specific action by the patient or when a serious event affecting the patient has occurred. These must be reported to the liability insurance carrier immediately.

• 1.

  A written request for compensation from the patient or their attorney. This can range from a request to cover expenses to repair an accidentally chipped tooth during an extraction procedure to a request for $1 million to compensate for the pain and suffering associated with hospitalization and surgery for treatment of an infection following surgery.

• 2.

  A lawsuit can be filed against the physician. The first notice of this action may be the receipt of a summons and complaint. This legal document requires prompt action to defend the physician.

• 3.

  Savvy plaintiff’s attorneys or an angry patient can file a complaint with the DPR and/or board of dentistry or medicine about a physician. These DPR claims allege a violation of the state dental or medical practice act. Oral and maxillofacial surgeons should be aware of their state practice acts. A portion of state licensure procedures involves passing a test concerning these requirements. The board’s duty is to protect the public, and certain states have very aggressive boards that investigate physicians with a passion. The results of investigations by state boards may be admissible in a malpractice lawsuit. Therefore most liability insurance companies find it appropriate to defend their insured physicians in these cases.

The lack of clarity and detail in the patient’s record is often the reason these claims are filed by the plaintiff’s attorney. Plaintiff’s attorneys will do anything to annoy the physician and hopefully influence him or her to pressure their insurance company to settle a claim. Not having patient prescriptions listed in the patient’s record in the “legal” manner prescribed by the law is a common violation that triggers a DPR complaint. This will require hours of the physician’s time to defend and expenses for the insurance carrier. A patient who believes that he or she was wronged by the physician and cannot find an attorney to sue the physician will often turn to the DPR with an inadequate care complaint to attack the physician.

• 4.

  If the insurance company believes that the potential liability associated with a reported incident is very serious, they will begin an open investigation claim. Cases involving very serious situations, such as a patient who suffers a stroke or MI during or after an office or hospital surgery leading to death or a debilitated state of life, will likely be seen as serious enough to begin an investigation of the facts of the case. Insurance companies will do this to allow them to set aside money (reserves) for a potential payment on the claim and report the claim to their reinsurer. Gathering early information can often prevent claims or lessen the cost of the resulting claim.

Every practicing oral and maxillofacial surgeon will receive an occasional request for records from an attorney. This is usually the first written document, indicating that a patient is attempting to find an attorney to file a lawsuit against the physician. It is crucial that an oral and maxillofacial surgeon resist the temptation to review the patient’s records and add additional comments or clarification to existing notes before forwarding the copies to the attorney. Any alteration of the records, once discovered, will automatically cause settlement of the case, no matter how defensible it is.

The plaintiff’s attorney will conduct an investigation to see if the case has merit.

The patient must sign a release , which will accompany the request for records. Upon receiving a request for records and the signed release, the physician must contact his or her liability carrier immediately. Copies of the requested records must be released to the attorney in a timely manner. Reasonable copying fees can be charged for the production of the copies of the patient’s chart, radiographs, and any other records. Frequently, state law dictates the amount that can be charged for the copies. Original records should never be released to anyone. You are under no obligation to provide anything to the plaintiff’s attorney other than true copies of the patient’s records.

If the plaintiff’s attorney requests anything else (e.g., a treatment summary), the request should be reported to your claims handler, and you will likely be advised not to honor the request. If your handwriting is illegible, providing a verbatim transcript of your records without any additional comment is appropriate. The copies of the patient’s records must be forwarded to the patient’s attorney, even if the patient’s account is not paid in full.

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THE LAWSUIT PROCESS

Certain states, in an effort to limit frivolous lawsuits, now require that the plaintiff’s attorney submit an affidavit or certificate of merit before an actual lawsuit can be filed. The affidavit or certificate is a statement by a similar specialist licensed to practice in the state who: (1) provides similar patient services, (2) has reviewed the available patient records and other pertinent information (the patient’s unsworn statement about the negligent care), and (3) attests to the negligent care provided by the defendant physician or dentist. The physician providing the affidavit or certificate of merit is paid by the plaintiff’s attorney to review the records and to sign and provide the document. In states not requiring an affidavit or certificate of merit, the first notice of a lawsuit received by the defendant physician will be a summons and complaint .

There is a very short time period for the defendant to respond once a defendant receives an affidavit, certificate, or the summons and complaint. This is usually 30 days, but can vary by state. When either of these documents is the first notification received by the physician about a patient’s alleged injury, the physician must contact their insurance company immediately. To not report receipt of these documents can actually jeopardize coverage.

The clock is ticking. A copy of all of the patient’s records must be forwarded to the insurance carrier immediately. The insurance company will assign counsel to respond to the allegations within the required time period. The court requires a formal response to the affidavit, certificate, or summons and complaint by the defense attorney within the specified period of time, or there are severe consequences.

If the court does not receive a response within the required time period, a default judgment