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The legal system out of controlWhy do they have so many warnings on a six-foot ladder? Why is so much of the cost of a child’s football helmet going toward the cost of liability insurance? Why are there so many multimillion dollar court awards for irresponsible behavior? Perhaps it was best described in an article that made the cover of U.S. News & World Report January 30, 1995, that described “The death of common sense in America.”
Most of us have heard about the woman who purchased hot coffee at the McDonald’s drive-thru, placed the cup in her lap, got severely burned, and was awarded $2.9 million to compensate her for her injury (compensatory damages – $100,000) and to punish McDonald’s for making coffee so hot (seriously?) (punitive damages – $2.8 million).
What about the case involving the barbeque grill purchased from Sears that blew up? It was a Christmas gift. Someone decided to have an indoor barbeque that December because they couldn’t wait for summer. It appears they couldn’t read the instructions that warned seven times, “Not to be used indoors.” This case never went to trial. I would have to guess that Sears didn’t want to take their chances with a jury trial, so they settled the case by giving this plaintiff $4.8 million.
There are many examples like these, and one seems more outrageous than the next. However, most of us never seem to care enough to do anything about it because we have become numb and complacent. Maybe we have just given up, figuring nothing can be done, or is it because it doesn’t affect us that we just don’t care?The fact is, all of these outrageous claims, court awards, and settlements affect every one of us in many serious ways, especially in the pocketbook. To help wake all of us dentists up, let’s take a look at a case that should scare the gutta-percha out of even the most well-sealed root canal.
A number of years ago, an endodontist gave a patient a mandibular block injection to perform a root canal on a lower molar. It was something that he had done many times before and something that all of us take very much for granted. This time it wasn’t the routine injection. It was his worst nightmare!
Before we explore the details, let’s review the court award – $4 million. That’s not a mistake, or an exaggeration. The plaintiff (that’s what they call the patient when doctors get sued) claimed that she could no longer speak properly and had constant, searing pain ever since the defendant (that’s us – starts with a “d” like in dentist – that should help you to remember who you are in these actions) injected her. On appeal, the award was reduced to $3.29 million. Well, that certainly makes me feel better. Now, they can just take most, if not all of this endodontist’s worldly goods.
In this case, the patient claimed that the endodontist was very busy, and as you might imagine, the appointment book indicated that was the case. Lawyers are very good at detective work, so they subpoena things like your charts, appointment books, telephone records, and they interview you and your staff, if required, at the depositions. This all takes place during the process called discovery. This is why good records are so important. Details like noting each and every time a patient calls regarding postoperative pain or any complaints are mandatory.
All too often we have our front desk handle these calls with our routine recommended remedies like: “Rinse with warm salt water every hour for 5 minutes and call back if there is no change in 24 hours.” There’s nothing wrong with this; however, each call must be recorded in the chart. It looks rather bad when a patient claims he/she called your office seven times, telephone records show this to be true, and your chart has no mention of any calls…but I digress.
Having five patients all booked at the same time doesn’t look good either when things go wrong, and the patient claims you were rushed, because you probably were rushed, and again, there’s documentable proof of that.
The patient stated that the endodontist administered the “Novocain®” in a “hurried fashion, jamming the needle abruptly into the gum” of her lower jaw, causing her to jump forward in the chair. She further claimed that the defendant (the endodontist) pushed her back down into the chair with great force and continued to inject her. According to testimony, he then changed the carpule to add additional Novocain® while the needle remained in her mouth.
The patient’s expert witness testified that the endodontist deviated from the standard of care by “jamming the needle” abruptly, injecting rapidly, failing to withdraw the needle when the patient jumped forward, changing the carpule with the needle remaining lodged in the patient’s jaw, and failing to aspirate. This expert claimed that the endodontist’s negligence was the direct cause of the patient’s permanent damage to the lingual nerve.
In every malpractice claim, the plaintiff needs to prove to the jury of laymen that there was injury and that the injury was directly caused by the negligent act. This means a patient can be injured, and you can have committed an act of negligence, but if the two don’t match up, there is no case. In this case, the patient and her team made a pretty good presentation that caused the jury to enter a verdict against the endodontist for such an exorbitant amount of money.
To get these kinds of verdicts requires that the claimed injury is devastating and that is exactly what the experts testified: The plaintiff sustained severe and permanent damage to the lingual nerve resulting in permanent paresthesia rendering her speech unintelligible. Furthermore, she suffers severe pain in her tongue that is a permanent condition.
Now the “actuary guys” come in on cases like this to determine what it is all worth. Past medical bills totaled around $35,000, in addition to rehabilitation costs of $4,000 per year in future medical expenses (not enough for any respectable attorney to live on one third of that amount). It was claimed that she would need specialized equipment and an interpreter costing between $500,000 and $5 million (now we’re talking). Add to this amount of money the claim of total disability from her previous occupation as a teacher with a $475,000 price tag for lost income.
The endodontist had no recollection of the patient’s claim of events. His medical records indicated that the root canal was routine and that he used two carpules of Lidocaine.
The endodontist appealed (I guess so!) on grounds that the Court didn’t allow all of his dental assistants to testify as to their recollections of the events on the day of the incident. The appeal was allowed, and upon retrial, the verdict was the same, however, the award was lowered to $3.29 million. I guess this jury didn’t buy all of the sob story, but they still did a pretty good job.
The patient also appealed after the second trial requesting the original award be reinstated based upon identical findings of liability against the endodontist by the new jury. She wanted the full $4 million.
In analysis (not of the endodontist, who probably needed it after such an ordeal), the credibility of the patient was critical as it turned out to be a “he said, she said” kind of case. The patient’s testimony/recollection was highly detailed and unwavering, and this appeared to impress the jury. Even more important was the failure to document the patient’s pain and reaction to the injection. It is theorized by legal authorities that if the endodontist is less than candid about recording a significant event, a jury is much less likely to accept the defense put forth.
A complete and accurate record of all untoward occurrences is an absolute necessity, and will boost the credibility of the dentist in the event of a malpractice claim. A jury is much more likely to accept the defense of an acceptable complication if the endodontist is forthright in recording the matter and the patient’s complaints regarding their claim.
We have to ask ourselves, “Do we document well enough?” What is well enough? Stellar documentation is the right answer. Can you remember that you had to perform an inter-pulpal injection 2 months after the patient’s visit when they claim you put a hot poker into his/her tooth? I don’t think you’d remember the incident 2 days later. Write it down!
We all hit the alveolar nerve on occasion. Write it down!
The patient claims his/her bite doesn’t feel right. They can’t open wide. The “Novocain®” didn’t wear off yet. The tooth still hurts. They scream during injection. They cry during injection. They are crying when you walk into the room. Write it down!
Any and all untoward events must be documented. We no longer live in Kansas, Dorothy. The world is no longer reasonable. Everywhere you turn, there may just be someone who would like to take your home, your car, your bank account, and your office. Practice defensive dentistry!
Now for an analysis from this endodontist’s point of view. Upon first review, one might easily feel that the endodontist was horribly negligent. On second thought, did you ever have a needle-phobic patient or a patient with a low tolerance to the slightest pain? We all have the same experiences, and in the past, if a patient appeared to be overreacting to an injection, I would want to get as much anesthetic into the tissues as possible so that they wouldn’t have to feel the original pinch a second time. I would talk them through the difficult part, and for the most part they loved me. It’s called professional judgment and bedside manner.
I would have to make a split-second call as to whether I was impinging upon a nerve, or treating a needle phobic, or if this was an overreaction of the patient with a low tolerance to pain. This was always a reasonable judgment call.
After reading about the case presented here, I realized that professional judgment is no longer allowed. From that point forward, any untoward reaction by the patient saw me withdrawing the needle, having a talk with them, and starting over with another “painful” injection. To me this is sad because I could no longer manage the psychologically impaired patient in a compassionate manner. I had to make the immediate assumption that I was injuring the patient and had to protect them, and me, from catastrophe. Sadly, professional judgment is no longer a reliable defense.
So what can be done? In some states, they have put caps on awards for pain and suffering. That is a first step in fixing a problem that is out of control, but lawyers have figured out ways to claim damages into the multimillions of dollars for compensation and unrelated to pain and suffering, as noted in this case and, so far, there are no caps on compensatory damages. This means the more “creative” the claim, the more money to be awarded. And do keep in mind that when the award is above your liability insurance maximum, you will have to pay the patient out of your bank account. Everything you have worked for all your life can vanish if that one “patient from hell” ends up in your chair.
What about punitive damages, which were designed to punish the evil doers in society? These damages were to send a message to big corporations making them feel the pain for their egregious actions. While the sentiment makes sense, and this is required in certain cases, they, too, have been abused. A patient can claim punitive damages against the dentist with just as much consequence as against the big corporation.
The day you receive papers from a lawyer claiming punitive damages, watch out! You will likely get a letter from your insurance carrier telling you that you may want to retain a second lawyer besides the one they will provide because you now have personal assets at risk if the patient prevails in their punitive damages claim. You see, your insurance doesn’t protect you from punitive damages.
Perhaps punitive damages should be restricted to only the most egregious acts, as they were originally supposed to apply. Perhaps when attorneys use these claims without merit, they should be censured or subject to suit if they lose the case. Then they would think about such tactics before they get carried away trying to scare the people they take to court.
Maybe it’s time for all of us to pay attention to whom we support and vote for in elections to make sure only those candidates supporting tort reform are elected. We need good legislators not held hostage to the trial attorneys’ lobby, who can fix the pendulum that has gotten stuck on stupid, outrageous policies that are destructive to healthcare professions and our society in so many ways.
Robert Fleisher, DMD, graduated from Temple University School of Dental Medicine in 1974 and received his certificate in endodontics from The University of Pennsylvania in 1976. He taught at Temple University and the University of Pennsylvania and is now a member of the Affiliate Attending Staff, Albert Einstein Medical Center, Department of Dental Medicine, Division of Endodontics, Philadelphia, PA. Dr. Fleisher is the founding partner of Endodontics Limited, P.C. After retiring from practice, he now devotes his time to writing about practice management, aging and health issues, and fiction with a medical bent.
This article is an excerpt from:“Defensive Dentistry in a Dangerous World,” a lecture presented at the American Association of Endodontists annual meeting, held in San Antonio, Texas, April 16, 2011. You can read about all of Dr. Fleisher’s methods to improve bedside manner as the book is now available for individual and institutional purchase at www.bedsidemanner.info.
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