Anatomy of a malpractice claim

Because malpractice litigation is something doctors do not think about routinely, it is important to be knowledgeable about the legal process and practice of malpractice claims.

Most states allow a period of 3 years from the time the patient knew about the injury for a malpractice claim to go forward (referred to as the statute of limitations); this period is extended to 3 years beyond the age of majority for minors. The first notice of a possible malpractice situation will be a document received by the dentist from the plaintiff’s counsel requesting records of treatments, which must be accompanied by a release for medical/dental information, signed by the patient. The doctor is obligated to send copies (never originals) of all requested chart materials: radiographs, models, progress notes, patient history, and operating reports. Records must be released even if the patient has not paid any outstanding office form–related fees. The doctor should never engage the plaintiff’s counsel in conversation about the patient or the case in question. The doctor’s malpractice insurance carrier must be informed in a timely fashion of any request for patient records that may involve a potential malpractice claim.

This request is often followed by the doctor being served with a “summons and complaint,” which is often a document filled with exaggeration and significant hyperbole meant to raise doubts and pangs of guilt in the defendant. The doctor should not doubt him/herself or become overly emotional by this summons document (these feelings are, after all, the effect the plaintiff’s counsel wishes to elicit) but rather, he/she should go about the business of helping to assemble a good defense with his/her counsel.

Following the summons and complaint, the doctor will begin to have conversations with his/her defense counsel, which are privileged and not subject to disclosure with the plaintiff. It is advisable to sequester the patient’s records at this time for safe keeping.

Once litigation has begun, the process of “discovery” ensues. Discovery consists of interrogatories (a series of written questions presented to each side) followed by sworn oral testimony (depositions) by the patient and the doctor. Experts for both sides will evaluate the records and the appropriateness of care delivered to help flush out issues and prepare for trial.

Not all claims wind up in court; some never going forward after the “discovery” phase and others are settled, possibly to avoid open court trials.

Alternatives to litigation

Most states have a “peer review” process sponsored by the state dental society to help resolve disputes between patients and dentists regarding quality-of-care issues and appropriateness of treatment. This procedure is a formal process in which both parties sign an agreement to submit to a review, and in some states, the parties also agree to waive their rights to sue each other for payment or malpractice. In most states, the findings of the peer review committee are privileged and not discoverable should a trial follow, and any payment made by the doctor to the patient is not reported to the national data bank.

Mediation is another form of dispute resolution. A mediator hears opening statements from both involved parties and then hears separate testimony from each. The mediator then attempts to move both parties independently toward an acceptable middle ground for a negotiated settlement.

Arbitration is still another method of dispute resolution. The procedure is similar to a trial, with the arbitrator acting as judge and jury. The parties may accept the decision and settle or move on to a full trial.

Alternatives to litigation

Most states have a “peer review” process sponsored by the state dental society to help resolve disputes between patients and dentists regarding quality-of-care issues and appropriateness of treatment. This procedure is a formal process in which both parties sign an agreement to submit to a review, and in some states, the parties also agree to waive their rights to sue each other for payment or malpractice. In most states, the findings of the peer review committee are privileged and not discoverable should a trial follow, and any payment made by the doctor to the patient is not reported to the national data bank.

Mediation is another form of dispute resolution. A mediator hears opening statements from both involved parties and then hears separate testimony from each. The mediator then attempts to move both parties independently toward an acceptable middle ground for a negotiated settlement.

Arbitration is still another method of dispute resolution. The procedure is similar to a trial, with the arbitrator acting as judge and jury. The parties may accept the decision and settle or move on to a full trial.

Risk-reduction strategies

Malpractice claims focus on three areas of practice: poor communication/rapport, lack of informed consent, and faulty record keeping .

Many dentists/physicians think of excellence in terms of technical expertise and successful outcomes because that is the frame of reference first begun in dental/medical school and carried on into residency training. Patients, however, will often gauge quality of care using other guideposts. They will view quality of care as it relates to

• Staff performance and attitude

• Doctor’s affability, attitude, and willingness to listen to, and consider, all questions

• Cleanliness of the office

• Level of communication

• Accessibility

It is the patient’s perception of the quality of care received that will often tip the scale in favor of the doctors, so careful attention to staff and office policies is vital to maintaining an overall strategy of risk reduction. As part of this strategy, one should not forget to maintain medical/dental equipment in good operational condition and to keep all necessary inventories up to date. Quality radiographs (plain or digital) are vital to good record keeping, along with having all equipment in good operational order.