Dental malpractice: An enormous and growing problem Henry A. Collett, D.D.S., J.D. Jacksonville, Fla.
W e do not have to go any further than the news media and popular periodicals to observe the problems the medical profession is having with malpractice claims and insurance protection?' 2 The prohibitive cost of insurance premiums in certain parts of the country not only is a problem for the medical profession, it also is a problem for the rest of society. Hospitals have closed (at least temporarily), causing unemployment. Some physicians will change professions or specialties. Others will move to parts of the country where, at least for the present, the premiums are less expensive. Some might move to foreign countries where the problem is minimal, and others will seek early retirement. At the present time the problem is not as acute for the dental profession. Because of the nature o f the profession the damages are not likely to be as great. However, malpractice claims are increasing rapidly in dentistry--perhaps more rapidly than in medicine. 3 A few years ago insurance carriers were competitively attempting to sell malpractice coverage to the dental profession. This is no longer true, and malpractice insurance is becoming increasingly more difficult and expensive to obtain. T h e insurance brokers frequently tie it to other insurance in package deals containing unwanted and unnecessary "protection," These packages eliminate the possibility of obtaining other necessary types of insurance on the competitive market. This increases their cost. If members of the medical profession solve some of their malpractice problems in the immediate future with legislation that will partially eliminate the services of attorneys, and if dentistry is not included in the solution, dentistry might seem very attractive to the negligence lawyer. The substantive law with respect to medical liability, which includes dentistry, has not changed materially for several hundred years. Recently, however,
0022-3913/78/0239-0217500.90/0 9 1978 The C. V. Mosby Co.
attorneys have become more astute in the procedural aspects, and damages have increased materially. We see a number of million-dollar judgments annually. From the turn of the century to perhaps 10 years ago there were probably about 50 dental malpractice cases in the law reports. T o d a y there is a n u m b e r in excess of 1500. 4 This does not sound like many, but most cases are settled without ever going to court, and the ones that are decided in the trial courts are not published in the reporters. The cases in the reporters are the ones that have been appealed to higher courts for legal technical reasons. A T T O R N E Y ' S FEES Most negligence cases are taken on a contingent fee basis by the attorney. If he loses he gets nothing; If he wins he gets perhaps a third to one half of the damages, depending on his contract with the client. The portion of the costs that must be borne by the plaintiff are often subtracted from the client's share, and while it is legally and ethically questionable, attorneys seldom try to collect the court costs from the client if they lose the case. This has an advantage to the healing professions in that it discourages attorneys from taking frivolous cases. Most attorneys are honest, but a law suit is an adversay proceeding, and the attorney is obligated to present the case in a light most favorable to his client. He is also obligated to obtain the highest appropriate damages. If he did not he would be negligent and subject to a malpractice claim himself. The defense attorney is obligated to show that there is no claim or to keep the damages to a minimum. It is true that there are some dishonest and unethical attorneys who resort to devious means of obtaining malpractice cases. Some have a g e n t s among hospital staffs who refer potential clients or alert the attorney when an incident in the hospital
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gives rise to a possible claim. There are also some who attempt to litigate frivolous claims. These practices are both illegal and unethical. They are grounds for disbarment. If there is sufficient evidence of these practices, they should be reported immediately to the bar association. The contingent fee system is probably necessary under our present laws because without it m a n y clients, unable to pay expensive attorney's fees or retainers, would have no remedy. The plaintiff's attorney, working on a contingent fee, seems to be better motivated than the defense attorney who is working on a more modest retainer for the insurance carrier. This is more apt to be true when the claim is modest. It often seems that when there is not a substantial amount involved, the defense attorney is not very well prepared. While defense attorneys in negligence cases make a good living, they generally must handle a greater volume because of the lower fees received for each case. The weak part of the contingent fee system is that many people with valid claims where the damages are minimal still have little or no remedy because it is not profitable for an attorney to take the case. PROFESSIONAL NEGLIGENCE Few days go by without someone in a busy dental office being negligent. As long as no one is injured as a result there is no liability. The elements of the law of negligence m a y be stated in a few words. The explanation of interpretation and application would take many volumes. Doctor-patient relationship. In order for there to be a claim of professional negligence, a doctorpatient relationship must first have been established. A dentist is not obligated to take anyone as a patient. He does not need a reason for taking or not taking a patient. However, there is a gray area, and there are possibly some exceptions to this general rule. The gray area concerns civil rights. Several cases have been decided in favor of the doctor on this issue 5, 6 but none, to the best of the author's knowledge, has been decided by the Supreme Court of the United States. One recent New Jersey case was decided against a barber. 7 The court said that since he was licensed by the state and had a license which excluded others from barbering, his trade was performed in the public interest, and therefore he could not refuse to take anyone for racial reasons. It would seem that this decision could be applied to the healing professions. However, the case was limited to discrimination for civil rights reasons. Perhaps this
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would not prohibit discrimination for personal reasons. State statutes could also prohibit discrimination for civil rights reasons. In the absence of a statute however, there remains a gray area, and to the best of the author's knowledge this question has not been resolved. There might be another exception for the right to refuse to treat a patient. That is when the local dental society has set up emergency assignments to specific dentists who have agreed to the plan. Duties of the dentist. Once there is a doctorpatient relationship, certain duties arise out of the relationship. If these duties are not carried out, whether through omission or commission, and someone is injured as a proximate cause of the breach of duty, the dentist becomes liable. The required duties are simple. The dentist is required to have the knowledge and skill of dentists in the area in which he practices, and he is required to use the knowledge and skill a s a reasonably prudent dentist would under the same circumstances. This knowledge and skill must be contemporary. The dentist has one thing going for him. There is a presumption that he does have the necessary knowledge and skill and that he uses it. The burden of proof to show that he did not have the skill or did not use it is on the one who alleges it. There is a legally precarious inference that perhaps the dentist does not have the necessary knowledge and skill in jurisdictions that require continuing education for dental society membership or relicensure. The question arises that if a professional man should be a continuous student, why is he coerced? It would seem that an astute attorney might inquire into the particular courses taken by the dentist. Without the coercion it is not likely that the issue would arise. It is generally easier to prove that the dentist did not use the knowledge and skill that he is presumed to have, rather than to attempt to prove that he did not have it. Generally, cases are tried on this former assumption.
EXPERT WITNESSES The general rule is that an expert witness is necessary to prove professional negligence. If an expert has not testified the judge will direct the jury to find for the defendant dentist on the grounds that there is insufficient evidence to show negligence. This is true because generally no one but another dentist in the area knows the standard of care for the
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practice of dentistry, and the case rests on his opinion as to whether the treatment meets that standard, s In some recent cases physicians have been permitted to testify as experts in dental cases. 9 The courts have rationalized that in some particular cases (for instance an anesthesia case) the standard of care is the Same for both professions. In a New Jersey case 9 a death was alleged to have been caused by the action of epinepherine in a local anesthetic administered to a hypertensive patient. The patient died of cerebral hemorrhage shortly after the administration. A physician testified as the expert. The dentist had not taken a history or the patient's blood pressure. Not too long ago it was extremely difficult for a patient to obtain an expert witness from the area where the dentist practiced, as is required by law. The local dentists were reluctant to testify against their colleagues. This was spoken of by attorneys as the conspiracy among doctors. M a n y patients with just claims were unable to prove their cases. Consequently they had no remedy. This of course was an obvious injustice, so the "conspiracy" broke down. Some courts started to recognize the injustice and allowed experts to be brought in from distant areas, rationalizing that because of modern methods of communication, standardization of education through accreditation programs, etc., the local area became expanded materially, and perhaps could be considered as the entire United States. Even some of the older cases started to speak of "similar or like localities, m~ 1~ This led to the professional expert witness, who can be available if there is sufficient money involved. In dealing with adversary proceedings there are plaintiff-oriented experts and defendent-oriented experts. This does not necessarily mean that the experts are dishonest. Because the healing arts are not exact sciences honest differences of opinion can exist. In the battle of the experts the jury has the prerogative of believing the expert that it thinks is correct. There are other reasons for further breakdown of the conspiracy. For instance, the development of the peer review system may provide tailor-made experts. They might be required under subpoena to testify to the facts of the case. This would not entirely solve the problem, since experts deal with opinions rather than facts. The new canons of ethics of the American Dental Association might be construed as requiring expert witnesses as a duty owed to a justified client.12
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Exceptions to the expert rule. There are exceptions to the general rule that a n expert witness is required. For instance, there are cases where a layman could, with his own knowledge, determine whether or not there has been negligence? 3, 14 The doctrine res ipsa loquitor is often spoken of as the doctors dilemma. No expert witness is required if the accident would not occur in the absence of someone's negligence. The apparent cause of the accident is such that the defendant would be responsible for any negligence connected with it. The possibility of contributing conduct which would make the plaintiff responsible is eliminated? 5 It is often applied in cases involving general anesthesia, when the patient wakes up with an injury in an area remote from the field of operation or when instruments or foreign materials are left in the field of the operation. It might also be applied to injuries from faulty equipment, such as an x-ray machine falling on a patient in the dental chair? 7 A rather strange case occurred some years ago when oral surgeons were routinely using inhalation anesthetics with well-defined excitment stages. A female patient, while recovering from general anesthesia went into the excitement stage and grabbed the surgeon by the testicles; he broke her fingers getting free? 8 Precedents establishing duties. Precedents are particularly precarious legally, because they may be considered common knowledge eliminating the necessity of the expert witness, or they may limit the flexibility of the expert witness' testimony. If the subject matter of the issue is common knowledge an expert witness is not required. 13' ~4 A precedent might also require a practitioner to carry out certain technical procedures in a particular manner. Failure to do this might make the practitioner negligent per se.
The precedent might not necessarily be the best treatment in every case, but it could lead to certain defensive procedures that would increase the cost of delivery of the professional service. For instance, should extensive diagnostic procedures, such as a complete radiographic examination, accompany the examination of every patient? There has been considerable recent publicity (not without criticism) that every dentist should take the blood pressure of every patient? 9-22 No one can question that this might be desirable for the purpose of discovering hypertension. However, if a dentist has a broad duty to take the blood pressure of all patients and fails to do so, in a case such as when a patient is provided a prophylaxis by a hygienist and subsequently has a
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laeart attack or a cerebral hemorrhage, the dentist might be held liable. If it could be shown that the patient had the hypertension at the time of his visit to the dentist, it might not be material how long it took the complication to develop. This m a y be establishing a medical duty in excess of what might be expected of certain medical specialists such as dermatologists, psychiatrists, pediatricians, and others. Other legal precedents that might be established could involve time of monitoring of plaque, cut-anddried requirements for periodontal surgery, etc. From a legal standpoint it would seem that diagnosis, treatment planning, and treatment might be better left to the individual dentist based on his training, and that specific procedures should not be publicized as duties. The recent overt stand of the American Dental Association on implants could create precedent problems. 23 If the research in this field were published in professional articles and the American Dental Association did not take an overt stand on nonacceptance, there might be less danger of successful legal claims in this area. K N O W L E D G E A N D SKILL The duty to have the necessary knowledge and skill is well established. The license to practice is prima facie evidence that the professional person has such knowledge and skill. The fact that he or she might not have it is seldom questioned because it is diffficult to prove. This is an area, however, that has great possibilities for developing legal theories that to the best of the author's knowledge have not been tried yet. If the injuries were great enough so that they would not be covered by insurance, the creative attorney might Overcome the procedural difficulties of proof. In a 19 16.case a wheel came off an automobile and injured a bystander. T h e automobile manufacturer was held liable to the injured party because of defective manufacture of the automobile. 24 This was the first time that someone not in privity with the injured party was held to have a duty to him. This theory has possibilities of extending to professional liability for the purpose of including more parties from whom to collect extensive damages. Licensing. It is required that dentists be graduated from an accredited school and pass a state board examination to be licensed to practice. When the dentist is given a license it is an endorsement by the school and the state board that he has the required knowledge and skill. It would seem that both the
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school and the state board have a duty to the public to see that the practitioner has the necessary knowledge and skill. If they have that ~luty they should be legally liable for it. This liability might include individuals such as teachers, state board examiners, accrediting bodies, and others. This theory has never been applied to a lawsuit, and perhaps the theory might not be accepted by the court, but it is a possibility. There would be jurisdictional and venue problems if the professional m a n were practicing in an area remote from the school. These problems would not be insurmountable. The practitioner would not be relieved of his liability. There would be more pockets to reach into for the damages. The more defendants we have, the more possibility there is of their helping to develop the plaintiffs case by blaming each other. Accreditation sounds impressive and is certainly necessary, but perhaps it does not go far enough. It seems that the accrediting bodies are interested primarily in the physical facilities and the n u m b e r of full-time faculty with dental and various basic science degrees. By these standards a schoOl could be staffed with full-time recent graduates having the experience of perhaps one procedure more than the senior student. T h e accreditation commission seems to overlook the quality and quantity o f the knowledge of the teachers or the graduates. The commis: sion does not even require in=service training of teachers, this is left to the discretion of the school and the state board of dentistry. Federal government policies. Government policies to produce a greater n u m b e r of dentists and a greater volume of dentistry from each individual dentist have had a marked influence on school curricula and school policies. Dental schools are not financially, self sustaining, and consequently they a!ways have a problem of obtaining sufficient funds to operate. The government has taken advantage of this problem by influencing curricula with conditional grants, often for socioeconomically oriented courses such as community dentistry, dental auxiliary utilization, etc. These courses have to occupy t i m e taken from clinical and preclinical training. 2~ T h e government rationalizes that these courses will make the new dentist's point of view more adaptable to socialization, will increase delivery, and will reduce the cost of dentistry for which they ultimately plan to pay. The government capitation grants often seem to overburden facilities by requiring increased enrollment. Capitation grants also make schools reluctant to weed out students who otherwise might not
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graduate. Add to this the fact that some schools have attempted to compress the conventional 4 year course into 3 years; such a schedule permits no time in the summer to make up deficiencies. In some schools important bread-and-butter clinical disciplines such as prosthodontics are being downgraded. A decade ago some of these policies would have been grounds for questioning a school's accreditation. Concerted action on the part of students has also influenced teaching. Whole classes of both medical and dental students have refused to take prescribed examinations in anatomy and physiology. Preclinical disciplines have been modified because of student action. Required courses for senior dental students have been modified in some schools to the extent that the lecturer is not permitted to take roll call or give examinations. The result is that as few as one third of the students attend the lectures. In elective courses many students are given credit without having attended class or taken an examination. Hopefully this is not happening in all schools. Dental state boards. State board examinations are necessary as a check and balance on dental education. However, the practical examinations are extremely cursory. Only a few procedures are examined, and the candidate knows what they will be in advance. He can supply his own patients and is often primed on the specific procedures by mock boards conducted in his school in preparation for the local state boards. The state boards are under pressure from the federal government, which is constantly threatening to preempt the licensing of professionals. If a state board were to fail more than 10% of recent graduates from a local school it might find itself censured or even terminated. Many state boards have laymen as members to protect the consumer. Others are under the supervision of superboards which do not contain members of the dental profession. TECHNICAL BATTERY One person is liable to another for unpermitted, unprivileged contacts with his person c a u s e d b y acts intended to result in such contacts. 26 The personal integrity of a person is entitled to protection. The theory of a malpractice action for a technical battery is based upon the absence of consent. If dental treatment is performed without the consent of the patient there is a technical battery. The consent can be expressed or implied. For instance, if a patient comes to the dentist, sits in the chair, and opens his
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mouth, there is an implied consent to dental treatment. The issue is what he wants treated and how much treatment he wants. Since the patient does not have to have anything done without his consent, he has an undisputed right to decide what will be done. This is true even if what he wants is not in his best interest. The only recourse the practitiofier has is to refuse to do something against his better judgment. The theory of technical battery goes e v e n further, The patient's consent must be informed consent. The courts have difficulty in defining informed consent. Does it mean that a patient must be given a complete course in dentistry so that he understands what he is consenting to? Is it necessary to tell a patient before administering local anesthesia all the possible complications, including the percentage of those who die from anesthetic reactions? These questions have not been fully answered. Some cases indicate affirmative answers. One court says patients should be shown all the risks so they can consent intelligently. The d u t y to disclose all risks is one imposed by law because of the fiduciary relationship between doctor and patient. ~7 Another case says that the duty of the physician to disclose is limited to those disclosures which a reasonable medical practitioner would make. unde r the circumstances. It would involve medical judgment. All circumstances must show that the physician was motivated by the patient's best interest. 28 The rule is a strict one. Let us look at a hypothetical case. Suppose a surgeon decided it was necessary to remove a kidney to save a patient's life and obtained an informed consent to remove the right kidney. While the patient is under general anesthesia the surgeon discovers that he has made a mistake; the left kidney is the bad one. He removes the patient's left kidney and saves the patient's life. He is liable for malpractice on the theory of technical battery. He did not have the patient's consent tO remove the left kidney. If he had removed the good kidney he would have been guilty of professional negligence. This type of case arises in dentistry from extracting teeth without the consent of the patient. Either the wrong tooth is extracted Or a mistake in diagnosis is made which is discovered later; the proper tooth is extracted, but it is not the one for which the dentist obtained permission. It has been estimated that as many as 3;000,000 medical operations are performed each year unneces-
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sarily. I f this happens, and the patient is not fully informed of the fact before the surgery, i t is obviously a case of malpractice. This m a y n o t be so if the operation was performed as a result of a mistake in diagnosis. If the diagnosis were erroneous and the average prudent doctor in the area would have been likely to have made the same mistake under the same circumstances, then there would be no liability, because there is no implied warranty that a diagnosis is correct as long as reasonable care was exercised in arriving at it. However, if an unnecessary operation were performed intentionally without informed consent, then there might be punitive damages in addition to the liquidated damages. Punitive damages are usually based on gross negligence or intentional wrongs, and generally they are not covered by insurance. O n third-party payment (especially by the government), civil rights issues might arise. This might be so if a patient is coerced into a certain type of treatment on the basis ofacceptlng it or receiving no treatment at all. Since a fiduciary relationship exists with the doctor, not 0nly is the consent examined, but the surrounding circumstances at the time of the consent are questioned. If there is misrepresentation, duress, or undue influence, the consent would not be adequate. BREACH OF W A R R A N T Y The last theory of malpractice to be discussed is breach of warranty. There is no implied guarantee of the results of treatment. However, there can be an expressed guarantee or even an inferred guarantee that a treatment will be successful or will accomplish certain results. This type of warranty is binding, and the practitioner can be held to it. For instance, if a dentist promises that a patient will be able to eat corn on the cob with his new dentures, the dentist could be held to this promise. PROSTHETIC RESTORATIONS Some courts seem to have difficulty deciding the status of prosthetic restorations. Some cases seem to speak of them as personal property. 29 If this were their status, then they would be subject to liens and could be mortgaged and repossesSed. T h e y might als0 be subject to sales tax where personal property is taxed. If prosthetic restorations are considered a treatment, then repossessing them might be a technical battery. This would have significance of akin to that involved in the withholding of medication from a patient dying of pneumonia. Once the treatment is
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undertaken it must be carried to completion within a reasonable time, whether or not a fee is collected. The patient cannot be abandoned. T h e only recourse for the practitioner is to sue for the fee. DIAGNOSTIC AIDS AND RECORDS M a n y dentists will' give a patient who is moving from the area radiographs or will send radiographs to another dentist upon request. This leaves the dentist who sends the records with little to show what he based his treatment on; He therefore is in a very vulnerable legal position. Radiographs are part of an examination and therefore the p r o p e r t y of the dentist making the examination? ~ T h e y should be retained with other records. There is no liability for failure to make radiographs unless it can be shown that postoperative problems or injuries were the result of failure to make t h e m ? 1 Failure to use diagnostic aids such as radiographs always requires a causal connection to the injury. V I C A R I O U S LIABILITY Generally speaking, everyone is liable for t h e actions of their employees, agents, and others who are acting within the scope of the empl0yment or agency. This is based upon the principle that they are under the control of the employer or principal; therefore the employer should be liable for their actions. This of course does not relieve the wrongdoing individual of his liability. H e is also liable. T h e question then arises: Who is an agent or an employee, and by whom is he employed? For instance, suppose a dentist lends one of his employees to another dentist. The general rule is that the one in control of the employee at the time of the negligence would be liable. It would not make any difference who was paying the salary. As a practica ! matter, from a procedural standpoint, if there were any doubt the plaintiff would probably sue both of the employers and let them prove who was not liable, possibly by a motion to dismiss the case against the one who was not in control. This involves the innocent party in litigation. Partners are both principals and agents for each other, so they are both liable for the acts o f the other within the scope of the partnership. The difficulty arises when two or more dentists are sharing the same suite of offices but are not actually partners; The patient has a right to rely on what the situation appears to be. I f the dentists sharing the suite use the same receptionist, have the same telephone, share
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the same reception room, etc., the patient might have a right to rely on the appearance that they are partners even though they are not partners in fact. In the eyes of the law they are ostensible partners, and as such might be liable for the acts of each other within the scope of the ostensible partnership. The question also arises as to whether a dentist is liable for treatment performed by another dentist to whom he refers a patient. The general rule is that he is not liable; however, the rule is not without exceptions. For instance, if the dentist were negligent in his referral to a dentist who perhaps was not competent to perform the procedure for which the patient was referred, then the referring dentist could be liable. Another instance would be if the referring dentist controlled the treatment. In all these exceptions everyone involved might be brought in as defendants. STATUTES OF L I M I T A T I O N S If a patient does not bring his suit within a specified period of time, he has lost his right to do so. The threat d o e s not hang over the head of the wrongdoer indefinitely. This is important to a dentist, because many malpractice suits are started as counterclaims when attempts are made to collect unpaid fees. If the statute of limitations is shorter for malpractice than it is for the contract entered into with the patient, it would seem to be safe to let the statute of limitations run on the m a l p r a c t i c e action, then sue for the fee. This presents some difficulty, because statutes of limitation are very technical. Any time a statute limits a right or liability established by common law it is subject to strict construction by the courts. Under certain circumstances the statutes of limitations do not start to run until many years after the alleged malpractice. The issue generally is not how long the statute of limitations is. This is specifically stated in the statute. For example, the statute of limitations for malpractice is from one to eight years, depending on the particular state. There are several important questions. Which theory of malpractice is covered under the statute and when does the statute begin to run? Does a technical battery or a breach of warranty come under the same statute of limitations as professional negligence? If the wrongdoer moves to a n o t h e r state the statute of limitations might stop running until he returned to +he state where the wrong occurred. A dentist is in a fiduciary relationship, a relationship of complete trust, with his patients. Therefore
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he has a duty to inform the patient if something has gone wrong, such as failure to remove a root after extraction or a broach that has broken off during an endodontic procedure. If he does not inform the patient, it is considered fraudulent and the statute of limitations begins to run when the patient finds out about the situation, even if it is 20 years later. In this situation the patient would have 22 years to sue if the statute of limitations were 2 years. Another technicality is whether or not the patient is legally competent at the time of the wrong. The statute of limitations would start for a minor or one who is mentally imcompetent after he became legally competent. A 3-year-old child in a state where the age of legal competency is 21 years of age and the statute of limitations is 2 years would have 20 years to bring suit. Another question that arises: Does the statute of limitations start to run when the negligence occurs or after the treatment is completed? The answer would depend on the precedents of the particular state. INSURANCE
CARRIERS
It is almost common knowledge that many insurance carriers will deny liability if there is any technicality upon which they can justify their decision. It is important to read insurance policies, even then they do not necessarily mean what they say. The insurance industry is affected with the public interest and is regulated. Therefore the policy has to be read together with the insurance laws for its full interpretation. Reading is important because a p o l i c y might cover one type of malpractice but not necessarily all theories. It might cover professional negligence but not necessarily technical battery or breach of warranties made under the treatment agreement. DAMAGES The patient can claim damages only once. The damages he receives must cover the past, present, and future. He cannot return later no matter what the complications or sequelae. The jury determines the amount to be paid if the plaintiff demanded a jury trial. If the amount is unreasonably high or low the judge can order a new trial; his threat to do this might lead to a settlement different from the jury determination. Damages will vary according to the theory of the case. The greatest damages will be from professional negligence, because the elements of pain and suffering are included. Damages for pain and
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suffering can be nebulous. Gus Grissom, the astronaut, probably died in 15 seconds from the fire in his spaceship. The suit was brought on the theory of negligenc e after the statute of limitations had run on wrongful death. The damages were $250,000 for 15 seconds of pain and suffering. Pain and suffering can also include mental suffering from embarrassment, etc. If the injury is permanent it will be based on the life expectancy of the patient. All expenses and past, present, and future loss of function and earnings are also added. Wrongful death acts apply when a patient has died. Here, everything that the decedent would have contributed to his dependents in his normal life expectancy based on actuary tables might be added to the negligence damages. In a case where a mother died from receiving the wrong type of blood in a transfusion the damages were $250,000. This case was decided without a jury against the federal government about 10 years ago. In other theories, for instance in a technical battery where the wrong tooth is extracted, the cost of replacement of the tooth for the rest of the patient's life would be included. If it could be shown that there were loss of chewing efficiency the patient would be compensated for it. If it would cause the loss of additional teeth over a n u m b e r of years with reasonable medical probability, the patient would be entitled to replacement of these for the rest Of his life, with everything paid for in a lump sum at the time of the suit. P S Y C H O L O G Y OF MALPRACTICE Any agreement with the patient to relieve the practitioner of negligence before it occurs would not be legally binding. The professional m a n cannot require the patient to agree not to sue for malpractice as a condition for taking him as a patient. This would be tantamount to getting permission to be negligent. It would be contrary to public policy and unenforceable. The patient who has been injured because of negligence on the part of the practitioner is entitled to damages. Justice requires this. There are m a n y technicalities. For instance, no one is liable for an unavoidable accident. Likewise it does not matter how negligent one is if no one is injured; the claimant is not entitled to anything. Admissions should not b e made without legal advice. Admissions are admissible in evidence and might result in liability where it otherwise might not have existed.
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A certain small n u m b e r of deadbeats or professional plaintiffs plan on a lawsuit before coming for professional services. With this type of patient it is practically impossible to avoid the lawsuit. A good defense with good preparation on the part of the defense attorney, especially in his discovery procedures, might show that this type of claim is a course of conduct with the plaintiff. M a l p r a c t i c e catalysts. M a n y malpractice cases do not happen spontaneousIy. T h e y are brought about by mistakes professional persons make in dealing with patients. The doctor's professional competence m a y have little to do with triggering the suit. Errors in conducting the interpersonal relationship are often responsible. Some cases are brought to avoid paying a fee, which the patient for some reason has rationalized in court that he does not owe. When a formal claim is made for the collection of the fee the patient counterclaims for malpractice. If his claim is strong enough he not only is often relieved from paying the fee, he might very well realize substantial damages. M a n y of these cases would not occur if the patient was not pressed for the fee. The revenge motive is also discernible in some cases. The patient feels that he has been unfairly treated, or because of the volume of patients he believes that he was treated too impersonally. The patient arrives at the conclusion that the dentist is more interested in the fee than in his welfare. This often happens when the result of the treatment is not what the patient had expected. An unrealistic settlement offered by an insurance adjuster when a patient has a just claim is also an important cause for malpractice litigation. An attorney can usually get five or six times what is offered by an adjuster without ever going to court. POSSIBLE S O L U T I O N S T O T H E PROBLEM Legislation could be a partial solution. A patient who has been injured because of negligence has a legal right to damages. This right under the law could be modified by legislation controlling the m a x i m u m amount of damages for a particular condition. No-fault coverage taking care of everyone injured for a limited amount, such as workman's compensation, might be another solution. Compulsory arbitration seems to work in some jurisdictions. This type of legislation is usually passed as a result of lobbying by special interest groups. Trial attorneys in all probability would be against limitations
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on malpractice actions. Other professionals such as physicians and dentists would be for it. Attorneys have the largest representation in most state legislatures, so it might require the pressure of strong public opinion to obtain an equitable solution.
8. 9. 10. 11. 12.
CONCLUSION
13. 14. 15.
Today many law schools have courses in medical jurisprudence. Some of the courses are conducted by men with both medical and legal degrees. There are medical institutes for attorneys, 32 and they have encyclopedias of legal medicine and legal medical journals. The malpractice lawyer not only is most proficient in his use of legal procedure, he probably has as good or better of a theoretical knowledge of the medical condition for which he has filed a suit as the doctor who treated the case. The creative attorney probably not only will use all the legal theories available to him but will make every effort to expand them to broaden the scope of the malpractice section of the law. This can only increase the risk and cost of claims and erode delivery of dental care. The only feasible remedy is legislative restraint. REFERENCES 1. Newsweek, February 10, 1975, p 41; June 2, 1975, p 63; June 9, 1975, pp 58-65. ~ 2. Bloom, M. T.: Malpractice, the mess that must be ended. Readers Digest 106:77, 1975. 3. Morris, W. O.: Dental Litigation. Charlottsville, Virginia, 1972, The Miehie Company, p 1. 4. Milgrom, P.: Quality control of end results: Identifying avoidable adverse events in dentistry. J Am Dent Assoe 90:1282, 1975. 5. Rice v. Rinaldo, 119 N. E. 2d 657 (1951). 6. Coleman v. Middlestaff, 305 P. 2d 1020 (i957). 7. Sellers v. Phillip's Barber Shop, 217 A. 2d 121 (1966).
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16. 17. 18. 19.
Lindloff v. Ross, 243 N. W. 408 (1932). Sanzari v. Rosenfeld, 167 A. 2d 625 (1961). Mitchell v. Pool, 68 S. W. 2d 833 (1934). T a n n e r v. Sanders, 56 S. W. 2d 718 (1933). Council on Judicial Procedures: Constitution and Bylaws. American Dental Association Principles of Ethics, Section 8. J A m Dent Assoc 90:185, 1975. Walter v. England, 24 P. 2d 930 (1933) Parrish v. Spink, 224 S. 2d 621 (1969). Prosser, W. L.: Law of Torts. St. Paul, 1955, West Publishing Company, p 199. Ybarra v. Spangard, 208 P. 2d 445 (1949). Bence v. Denbe, 183 N. E. 326 (1932). Wolf v. Feldman, 286 N.Y.S. 118 (1936).
High blood pressure is a killer. The Magazine of Fairleigh
Dickinson University 2:7, April 1975. 20. Is dentist obligated to check blood pressure (editorial). Dent Survey 50:48, 1974. 21. Resnick, N. A.: Dentists alerted to hypertension detection. J A m Dent Assoc 89:1262, i974. 22. Statement issued on hypertension testing by nonphysicians. A m Dent Assoc News, May 19, 1975, p 6. 23. Council on Materials and Devices: Council reaffirms position on endosseous implants. J A m Dent Assoc 90:670, 1975. 24. MacPherson v. Buick Motor Co., 111 N. E. 1050 (1916). 25. Editorial, Dental Education: Is the pendulum swinging back. J A m Dent Assoc 90:897, 1975. 26. Prosser, W. L.: Law Torts: St. Paul, 1955, West Publishing Company, p 199. 27. Watkins v. Parapala, 469 P. 2d 974 (1970). 28. Nathanson v. Kline, 350 P. 2d 1093 (1960). 29. Matins v. Strang, 124 S. 2d 891 (1960). 30. McGarry v. Mercier, 262 N. W. 296 (1935). 31. Mastro v. Kennedy, 131 P. 2d 865 (1943). 32. Beckham, W. H.: The medical institute for attorneys. The Barrister 33:14, 1975.
Reprint requests to: DR. HENRY A. COLLETT 2231 POST ST. JACKSONVILLE, FLA. 32204
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W e do not have to go any further than the news media and popular periodicals to observe the problems the medical profession is having with malpractice claims and insurance protection?' 2 The prohibitive cost of insurance premiums in certain parts of the country not only is a problem for the medical profession, it also is a problem for the rest of society. Hospitals have closed (at least temporarily), causing unemployment. Some physicians will change professions or specialties. Others will move to parts of the country where, at least for the present, the premiums are less expensive. Some might move to foreign countries where the problem is minimal, and others will seek early retirement. At the present time the problem is not as acute for the dental profession. Because of the nature o f the profession the damages are not likely to be as great. However, malpractice claims are increasing rapidly in dentistry--perhaps more rapidly than in medicine. 3 A few years ago insurance carriers were competitively attempting to sell malpractice coverage to the dental profession. This is no longer true, and malpractice insurance is becoming increasingly more difficult and expensive to obtain. T h e insurance brokers frequently tie it to other insurance in package deals containing unwanted and unnecessary "protection," These packages eliminate the possibility of obtaining other necessary types of insurance on the competitive market. This increases their cost. If members of the medical profession solve some of their malpractice problems in the immediate future with legislation that will partially eliminate the services of attorneys, and if dentistry is not included in the solution, dentistry might seem very attractive to the negligence lawyer. The substantive law with respect to medical liability, which includes dentistry, has not changed materially for several hundred years. Recently, however,
0022-3913/78/0239-0217500.90/0 9 1978 The C. V. Mosby Co.
attorneys have become more astute in the procedural aspects, and damages have increased materially. We see a number of million-dollar judgments annually. From the turn of the century to perhaps 10 years ago there were probably about 50 dental malpractice cases in the law reports. T o d a y there is a n u m b e r in excess of 1500. 4 This does not sound like many, but most cases are settled without ever going to court, and the ones that are decided in the trial courts are not published in the reporters. The cases in the reporters are the ones that have been appealed to higher courts for legal technical reasons. A T T O R N E Y ' S FEES Most negligence cases are taken on a contingent fee basis by the attorney. If he loses he gets nothing; If he wins he gets perhaps a third to one half of the damages, depending on his contract with the client. The portion of the costs that must be borne by the plaintiff are often subtracted from the client's share, and while it is legally and ethically questionable, attorneys seldom try to collect the court costs from the client if they lose the case. This has an advantage to the healing professions in that it discourages attorneys from taking frivolous cases. Most attorneys are honest, but a law suit is an adversay proceeding, and the attorney is obligated to present the case in a light most favorable to his client. He is also obligated to obtain the highest appropriate damages. If he did not he would be negligent and subject to a malpractice claim himself. The defense attorney is obligated to show that there is no claim or to keep the damages to a minimum. It is true that there are some dishonest and unethical attorneys who resort to devious means of obtaining malpractice cases. Some have a g e n t s among hospital staffs who refer potential clients or alert the attorney when an incident in the hospital
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gives rise to a possible claim. There are also some who attempt to litigate frivolous claims. These practices are both illegal and unethical. They are grounds for disbarment. If there is sufficient evidence of these practices, they should be reported immediately to the bar association. The contingent fee system is probably necessary under our present laws because without it m a n y clients, unable to pay expensive attorney's fees or retainers, would have no remedy. The plaintiff's attorney, working on a contingent fee, seems to be better motivated than the defense attorney who is working on a more modest retainer for the insurance carrier. This is more apt to be true when the claim is modest. It often seems that when there is not a substantial amount involved, the defense attorney is not very well prepared. While defense attorneys in negligence cases make a good living, they generally must handle a greater volume because of the lower fees received for each case. The weak part of the contingent fee system is that many people with valid claims where the damages are minimal still have little or no remedy because it is not profitable for an attorney to take the case. PROFESSIONAL NEGLIGENCE Few days go by without someone in a busy dental office being negligent. As long as no one is injured as a result there is no liability. The elements of the law of negligence m a y be stated in a few words. The explanation of interpretation and application would take many volumes. Doctor-patient relationship. In order for there to be a claim of professional negligence, a doctorpatient relationship must first have been established. A dentist is not obligated to take anyone as a patient. He does not need a reason for taking or not taking a patient. However, there is a gray area, and there are possibly some exceptions to this general rule. The gray area concerns civil rights. Several cases have been decided in favor of the doctor on this issue 5, 6 but none, to the best of the author's knowledge, has been decided by the Supreme Court of the United States. One recent New Jersey case was decided against a barber. 7 The court said that since he was licensed by the state and had a license which excluded others from barbering, his trade was performed in the public interest, and therefore he could not refuse to take anyone for racial reasons. It would seem that this decision could be applied to the healing professions. However, the case was limited to discrimination for civil rights reasons. Perhaps this
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would not prohibit discrimination for personal reasons. State statutes could also prohibit discrimination for civil rights reasons. In the absence of a statute however, there remains a gray area, and to the best of the author's knowledge this question has not been resolved. There might be another exception for the right to refuse to treat a patient. That is when the local dental society has set up emergency assignments to specific dentists who have agreed to the plan. Duties of the dentist. Once there is a doctorpatient relationship, certain duties arise out of the relationship. If these duties are not carried out, whether through omission or commission, and someone is injured as a proximate cause of the breach of duty, the dentist becomes liable. The required duties are simple. The dentist is required to have the knowledge and skill of dentists in the area in which he practices, and he is required to use the knowledge and skill a s a reasonably prudent dentist would under the same circumstances. This knowledge and skill must be contemporary. The dentist has one thing going for him. There is a presumption that he does have the necessary knowledge and skill and that he uses it. The burden of proof to show that he did not have the skill or did not use it is on the one who alleges it. There is a legally precarious inference that perhaps the dentist does not have the necessary knowledge and skill in jurisdictions that require continuing education for dental society membership or relicensure. The question arises that if a professional man should be a continuous student, why is he coerced? It would seem that an astute attorney might inquire into the particular courses taken by the dentist. Without the coercion it is not likely that the issue would arise. It is generally easier to prove that the dentist did not use the knowledge and skill that he is presumed to have, rather than to attempt to prove that he did not have it. Generally, cases are tried on this former assumption.
EXPERT WITNESSES The general rule is that an expert witness is necessary to prove professional negligence. If an expert has not testified the judge will direct the jury to find for the defendant dentist on the grounds that there is insufficient evidence to show negligence. This is true because generally no one but another dentist in the area knows the standard of care for the
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practice of dentistry, and the case rests on his opinion as to whether the treatment meets that standard, s In some recent cases physicians have been permitted to testify as experts in dental cases. 9 The courts have rationalized that in some particular cases (for instance an anesthesia case) the standard of care is the Same for both professions. In a New Jersey case 9 a death was alleged to have been caused by the action of epinepherine in a local anesthetic administered to a hypertensive patient. The patient died of cerebral hemorrhage shortly after the administration. A physician testified as the expert. The dentist had not taken a history or the patient's blood pressure. Not too long ago it was extremely difficult for a patient to obtain an expert witness from the area where the dentist practiced, as is required by law. The local dentists were reluctant to testify against their colleagues. This was spoken of by attorneys as the conspiracy among doctors. M a n y patients with just claims were unable to prove their cases. Consequently they had no remedy. This of course was an obvious injustice, so the "conspiracy" broke down. Some courts started to recognize the injustice and allowed experts to be brought in from distant areas, rationalizing that because of modern methods of communication, standardization of education through accreditation programs, etc., the local area became expanded materially, and perhaps could be considered as the entire United States. Even some of the older cases started to speak of "similar or like localities, m~ 1~ This led to the professional expert witness, who can be available if there is sufficient money involved. In dealing with adversary proceedings there are plaintiff-oriented experts and defendent-oriented experts. This does not necessarily mean that the experts are dishonest. Because the healing arts are not exact sciences honest differences of opinion can exist. In the battle of the experts the jury has the prerogative of believing the expert that it thinks is correct. There are other reasons for further breakdown of the conspiracy. For instance, the development of the peer review system may provide tailor-made experts. They might be required under subpoena to testify to the facts of the case. This would not entirely solve the problem, since experts deal with opinions rather than facts. The new canons of ethics of the American Dental Association might be construed as requiring expert witnesses as a duty owed to a justified client.12
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Exceptions to the expert rule. There are exceptions to the general rule that a n expert witness is required. For instance, there are cases where a layman could, with his own knowledge, determine whether or not there has been negligence? 3, 14 The doctrine res ipsa loquitor is often spoken of as the doctors dilemma. No expert witness is required if the accident would not occur in the absence of someone's negligence. The apparent cause of the accident is such that the defendant would be responsible for any negligence connected with it. The possibility of contributing conduct which would make the plaintiff responsible is eliminated? 5 It is often applied in cases involving general anesthesia, when the patient wakes up with an injury in an area remote from the field of operation or when instruments or foreign materials are left in the field of the operation. It might also be applied to injuries from faulty equipment, such as an x-ray machine falling on a patient in the dental chair? 7 A rather strange case occurred some years ago when oral surgeons were routinely using inhalation anesthetics with well-defined excitment stages. A female patient, while recovering from general anesthesia went into the excitement stage and grabbed the surgeon by the testicles; he broke her fingers getting free? 8 Precedents establishing duties. Precedents are particularly precarious legally, because they may be considered common knowledge eliminating the necessity of the expert witness, or they may limit the flexibility of the expert witness' testimony. If the subject matter of the issue is common knowledge an expert witness is not required. 13' ~4 A precedent might also require a practitioner to carry out certain technical procedures in a particular manner. Failure to do this might make the practitioner negligent per se.
The precedent might not necessarily be the best treatment in every case, but it could lead to certain defensive procedures that would increase the cost of delivery of the professional service. For instance, should extensive diagnostic procedures, such as a complete radiographic examination, accompany the examination of every patient? There has been considerable recent publicity (not without criticism) that every dentist should take the blood pressure of every patient? 9-22 No one can question that this might be desirable for the purpose of discovering hypertension. However, if a dentist has a broad duty to take the blood pressure of all patients and fails to do so, in a case such as when a patient is provided a prophylaxis by a hygienist and subsequently has a
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laeart attack or a cerebral hemorrhage, the dentist might be held liable. If it could be shown that the patient had the hypertension at the time of his visit to the dentist, it might not be material how long it took the complication to develop. This m a y be establishing a medical duty in excess of what might be expected of certain medical specialists such as dermatologists, psychiatrists, pediatricians, and others. Other legal precedents that might be established could involve time of monitoring of plaque, cut-anddried requirements for periodontal surgery, etc. From a legal standpoint it would seem that diagnosis, treatment planning, and treatment might be better left to the individual dentist based on his training, and that specific procedures should not be publicized as duties. The recent overt stand of the American Dental Association on implants could create precedent problems. 23 If the research in this field were published in professional articles and the American Dental Association did not take an overt stand on nonacceptance, there might be less danger of successful legal claims in this area. K N O W L E D G E A N D SKILL The duty to have the necessary knowledge and skill is well established. The license to practice is prima facie evidence that the professional person has such knowledge and skill. The fact that he or she might not have it is seldom questioned because it is diffficult to prove. This is an area, however, that has great possibilities for developing legal theories that to the best of the author's knowledge have not been tried yet. If the injuries were great enough so that they would not be covered by insurance, the creative attorney might Overcome the procedural difficulties of proof. In a 19 16.case a wheel came off an automobile and injured a bystander. T h e automobile manufacturer was held liable to the injured party because of defective manufacture of the automobile. 24 This was the first time that someone not in privity with the injured party was held to have a duty to him. This theory has possibilities of extending to professional liability for the purpose of including more parties from whom to collect extensive damages. Licensing. It is required that dentists be graduated from an accredited school and pass a state board examination to be licensed to practice. When the dentist is given a license it is an endorsement by the school and the state board that he has the required knowledge and skill. It would seem that both the
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school and the state board have a duty to the public to see that the practitioner has the necessary knowledge and skill. If they have that ~luty they should be legally liable for it. This liability might include individuals such as teachers, state board examiners, accrediting bodies, and others. This theory has never been applied to a lawsuit, and perhaps the theory might not be accepted by the court, but it is a possibility. There would be jurisdictional and venue problems if the professional m a n were practicing in an area remote from the school. These problems would not be insurmountable. The practitioner would not be relieved of his liability. There would be more pockets to reach into for the damages. The more defendants we have, the more possibility there is of their helping to develop the plaintiffs case by blaming each other. Accreditation sounds impressive and is certainly necessary, but perhaps it does not go far enough. It seems that the accrediting bodies are interested primarily in the physical facilities and the n u m b e r of full-time faculty with dental and various basic science degrees. By these standards a schoOl could be staffed with full-time recent graduates having the experience of perhaps one procedure more than the senior student. T h e accreditation commission seems to overlook the quality and quantity o f the knowledge of the teachers or the graduates. The commis: sion does not even require in=service training of teachers, this is left to the discretion of the school and the state board of dentistry. Federal government policies. Government policies to produce a greater n u m b e r of dentists and a greater volume of dentistry from each individual dentist have had a marked influence on school curricula and school policies. Dental schools are not financially, self sustaining, and consequently they a!ways have a problem of obtaining sufficient funds to operate. The government has taken advantage of this problem by influencing curricula with conditional grants, often for socioeconomically oriented courses such as community dentistry, dental auxiliary utilization, etc. These courses have to occupy t i m e taken from clinical and preclinical training. 2~ T h e government rationalizes that these courses will make the new dentist's point of view more adaptable to socialization, will increase delivery, and will reduce the cost of dentistry for which they ultimately plan to pay. The government capitation grants often seem to overburden facilities by requiring increased enrollment. Capitation grants also make schools reluctant to weed out students who otherwise might not
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graduate. Add to this the fact that some schools have attempted to compress the conventional 4 year course into 3 years; such a schedule permits no time in the summer to make up deficiencies. In some schools important bread-and-butter clinical disciplines such as prosthodontics are being downgraded. A decade ago some of these policies would have been grounds for questioning a school's accreditation. Concerted action on the part of students has also influenced teaching. Whole classes of both medical and dental students have refused to take prescribed examinations in anatomy and physiology. Preclinical disciplines have been modified because of student action. Required courses for senior dental students have been modified in some schools to the extent that the lecturer is not permitted to take roll call or give examinations. The result is that as few as one third of the students attend the lectures. In elective courses many students are given credit without having attended class or taken an examination. Hopefully this is not happening in all schools. Dental state boards. State board examinations are necessary as a check and balance on dental education. However, the practical examinations are extremely cursory. Only a few procedures are examined, and the candidate knows what they will be in advance. He can supply his own patients and is often primed on the specific procedures by mock boards conducted in his school in preparation for the local state boards. The state boards are under pressure from the federal government, which is constantly threatening to preempt the licensing of professionals. If a state board were to fail more than 10% of recent graduates from a local school it might find itself censured or even terminated. Many state boards have laymen as members to protect the consumer. Others are under the supervision of superboards which do not contain members of the dental profession. TECHNICAL BATTERY One person is liable to another for unpermitted, unprivileged contacts with his person c a u s e d b y acts intended to result in such contacts. 26 The personal integrity of a person is entitled to protection. The theory of a malpractice action for a technical battery is based upon the absence of consent. If dental treatment is performed without the consent of the patient there is a technical battery. The consent can be expressed or implied. For instance, if a patient comes to the dentist, sits in the chair, and opens his
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mouth, there is an implied consent to dental treatment. The issue is what he wants treated and how much treatment he wants. Since the patient does not have to have anything done without his consent, he has an undisputed right to decide what will be done. This is true even if what he wants is not in his best interest. The only recourse the practitiofier has is to refuse to do something against his better judgment. The theory of technical battery goes e v e n further, The patient's consent must be informed consent. The courts have difficulty in defining informed consent. Does it mean that a patient must be given a complete course in dentistry so that he understands what he is consenting to? Is it necessary to tell a patient before administering local anesthesia all the possible complications, including the percentage of those who die from anesthetic reactions? These questions have not been fully answered. Some cases indicate affirmative answers. One court says patients should be shown all the risks so they can consent intelligently. The d u t y to disclose all risks is one imposed by law because of the fiduciary relationship between doctor and patient. ~7 Another case says that the duty of the physician to disclose is limited to those disclosures which a reasonable medical practitioner would make. unde r the circumstances. It would involve medical judgment. All circumstances must show that the physician was motivated by the patient's best interest. 28 The rule is a strict one. Let us look at a hypothetical case. Suppose a surgeon decided it was necessary to remove a kidney to save a patient's life and obtained an informed consent to remove the right kidney. While the patient is under general anesthesia the surgeon discovers that he has made a mistake; the left kidney is the bad one. He removes the patient's left kidney and saves the patient's life. He is liable for malpractice on the theory of technical battery. He did not have the patient's consent tO remove the left kidney. If he had removed the good kidney he would have been guilty of professional negligence. This type of case arises in dentistry from extracting teeth without the consent of the patient. Either the wrong tooth is extracted Or a mistake in diagnosis is made which is discovered later; the proper tooth is extracted, but it is not the one for which the dentist obtained permission. It has been estimated that as many as 3;000,000 medical operations are performed each year unneces-
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sarily. I f this happens, and the patient is not fully informed of the fact before the surgery, i t is obviously a case of malpractice. This m a y n o t be so if the operation was performed as a result of a mistake in diagnosis. If the diagnosis were erroneous and the average prudent doctor in the area would have been likely to have made the same mistake under the same circumstances, then there would be no liability, because there is no implied warranty that a diagnosis is correct as long as reasonable care was exercised in arriving at it. However, if an unnecessary operation were performed intentionally without informed consent, then there might be punitive damages in addition to the liquidated damages. Punitive damages are usually based on gross negligence or intentional wrongs, and generally they are not covered by insurance. O n third-party payment (especially by the government), civil rights issues might arise. This might be so if a patient is coerced into a certain type of treatment on the basis ofacceptlng it or receiving no treatment at all. Since a fiduciary relationship exists with the doctor, not 0nly is the consent examined, but the surrounding circumstances at the time of the consent are questioned. If there is misrepresentation, duress, or undue influence, the consent would not be adequate. BREACH OF W A R R A N T Y The last theory of malpractice to be discussed is breach of warranty. There is no implied guarantee of the results of treatment. However, there can be an expressed guarantee or even an inferred guarantee that a treatment will be successful or will accomplish certain results. This type of warranty is binding, and the practitioner can be held to it. For instance, if a dentist promises that a patient will be able to eat corn on the cob with his new dentures, the dentist could be held to this promise. PROSTHETIC RESTORATIONS Some courts seem to have difficulty deciding the status of prosthetic restorations. Some cases seem to speak of them as personal property. 29 If this were their status, then they would be subject to liens and could be mortgaged and repossesSed. T h e y might als0 be subject to sales tax where personal property is taxed. If prosthetic restorations are considered a treatment, then repossessing them might be a technical battery. This would have significance of akin to that involved in the withholding of medication from a patient dying of pneumonia. Once the treatment is
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undertaken it must be carried to completion within a reasonable time, whether or not a fee is collected. The patient cannot be abandoned. T h e only recourse for the practitioner is to sue for the fee. DIAGNOSTIC AIDS AND RECORDS M a n y dentists will' give a patient who is moving from the area radiographs or will send radiographs to another dentist upon request. This leaves the dentist who sends the records with little to show what he based his treatment on; He therefore is in a very vulnerable legal position. Radiographs are part of an examination and therefore the p r o p e r t y of the dentist making the examination? ~ T h e y should be retained with other records. There is no liability for failure to make radiographs unless it can be shown that postoperative problems or injuries were the result of failure to make t h e m ? 1 Failure to use diagnostic aids such as radiographs always requires a causal connection to the injury. V I C A R I O U S LIABILITY Generally speaking, everyone is liable for t h e actions of their employees, agents, and others who are acting within the scope of the empl0yment or agency. This is based upon the principle that they are under the control of the employer or principal; therefore the employer should be liable for their actions. This of course does not relieve the wrongdoing individual of his liability. H e is also liable. T h e question then arises: Who is an agent or an employee, and by whom is he employed? For instance, suppose a dentist lends one of his employees to another dentist. The general rule is that the one in control of the employee at the time of the negligence would be liable. It would not make any difference who was paying the salary. As a practica ! matter, from a procedural standpoint, if there were any doubt the plaintiff would probably sue both of the employers and let them prove who was not liable, possibly by a motion to dismiss the case against the one who was not in control. This involves the innocent party in litigation. Partners are both principals and agents for each other, so they are both liable for the acts o f the other within the scope of the partnership. The difficulty arises when two or more dentists are sharing the same suite of offices but are not actually partners; The patient has a right to rely on what the situation appears to be. I f the dentists sharing the suite use the same receptionist, have the same telephone, share
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the same reception room, etc., the patient might have a right to rely on the appearance that they are partners even though they are not partners in fact. In the eyes of the law they are ostensible partners, and as such might be liable for the acts of each other within the scope of the ostensible partnership. The question also arises as to whether a dentist is liable for treatment performed by another dentist to whom he refers a patient. The general rule is that he is not liable; however, the rule is not without exceptions. For instance, if the dentist were negligent in his referral to a dentist who perhaps was not competent to perform the procedure for which the patient was referred, then the referring dentist could be liable. Another instance would be if the referring dentist controlled the treatment. In all these exceptions everyone involved might be brought in as defendants. STATUTES OF L I M I T A T I O N S If a patient does not bring his suit within a specified period of time, he has lost his right to do so. The threat d o e s not hang over the head of the wrongdoer indefinitely. This is important to a dentist, because many malpractice suits are started as counterclaims when attempts are made to collect unpaid fees. If the statute of limitations is shorter for malpractice than it is for the contract entered into with the patient, it would seem to be safe to let the statute of limitations run on the m a l p r a c t i c e action, then sue for the fee. This presents some difficulty, because statutes of limitation are very technical. Any time a statute limits a right or liability established by common law it is subject to strict construction by the courts. Under certain circumstances the statutes of limitations do not start to run until many years after the alleged malpractice. The issue generally is not how long the statute of limitations is. This is specifically stated in the statute. For example, the statute of limitations for malpractice is from one to eight years, depending on the particular state. There are several important questions. Which theory of malpractice is covered under the statute and when does the statute begin to run? Does a technical battery or a breach of warranty come under the same statute of limitations as professional negligence? If the wrongdoer moves to a n o t h e r state the statute of limitations might stop running until he returned to +he state where the wrong occurred. A dentist is in a fiduciary relationship, a relationship of complete trust, with his patients. Therefore
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he has a duty to inform the patient if something has gone wrong, such as failure to remove a root after extraction or a broach that has broken off during an endodontic procedure. If he does not inform the patient, it is considered fraudulent and the statute of limitations begins to run when the patient finds out about the situation, even if it is 20 years later. In this situation the patient would have 22 years to sue if the statute of limitations were 2 years. Another technicality is whether or not the patient is legally competent at the time of the wrong. The statute of limitations would start for a minor or one who is mentally imcompetent after he became legally competent. A 3-year-old child in a state where the age of legal competency is 21 years of age and the statute of limitations is 2 years would have 20 years to bring suit. Another question that arises: Does the statute of limitations start to run when the negligence occurs or after the treatment is completed? The answer would depend on the precedents of the particular state. INSURANCE
CARRIERS
It is almost common knowledge that many insurance carriers will deny liability if there is any technicality upon which they can justify their decision. It is important to read insurance policies, even then they do not necessarily mean what they say. The insurance industry is affected with the public interest and is regulated. Therefore the policy has to be read together with the insurance laws for its full interpretation. Reading is important because a p o l i c y might cover one type of malpractice but not necessarily all theories. It might cover professional negligence but not necessarily technical battery or breach of warranties made under the treatment agreement. DAMAGES The patient can claim damages only once. The damages he receives must cover the past, present, and future. He cannot return later no matter what the complications or sequelae. The jury determines the amount to be paid if the plaintiff demanded a jury trial. If the amount is unreasonably high or low the judge can order a new trial; his threat to do this might lead to a settlement different from the jury determination. Damages will vary according to the theory of the case. The greatest damages will be from professional negligence, because the elements of pain and suffering are included. Damages for pain and
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suffering can be nebulous. Gus Grissom, the astronaut, probably died in 15 seconds from the fire in his spaceship. The suit was brought on the theory of negligenc e after the statute of limitations had run on wrongful death. The damages were $250,000 for 15 seconds of pain and suffering. Pain and suffering can also include mental suffering from embarrassment, etc. If the injury is permanent it will be based on the life expectancy of the patient. All expenses and past, present, and future loss of function and earnings are also added. Wrongful death acts apply when a patient has died. Here, everything that the decedent would have contributed to his dependents in his normal life expectancy based on actuary tables might be added to the negligence damages. In a case where a mother died from receiving the wrong type of blood in a transfusion the damages were $250,000. This case was decided without a jury against the federal government about 10 years ago. In other theories, for instance in a technical battery where the wrong tooth is extracted, the cost of replacement of the tooth for the rest of the patient's life would be included. If it could be shown that there were loss of chewing efficiency the patient would be compensated for it. If it would cause the loss of additional teeth over a n u m b e r of years with reasonable medical probability, the patient would be entitled to replacement of these for the rest Of his life, with everything paid for in a lump sum at the time of the suit. P S Y C H O L O G Y OF MALPRACTICE Any agreement with the patient to relieve the practitioner of negligence before it occurs would not be legally binding. The professional m a n cannot require the patient to agree not to sue for malpractice as a condition for taking him as a patient. This would be tantamount to getting permission to be negligent. It would be contrary to public policy and unenforceable. The patient who has been injured because of negligence on the part of the practitioner is entitled to damages. Justice requires this. There are m a n y technicalities. For instance, no one is liable for an unavoidable accident. Likewise it does not matter how negligent one is if no one is injured; the claimant is not entitled to anything. Admissions should not b e made without legal advice. Admissions are admissible in evidence and might result in liability where it otherwise might not have existed.
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A certain small n u m b e r of deadbeats or professional plaintiffs plan on a lawsuit before coming for professional services. With this type of patient it is practically impossible to avoid the lawsuit. A good defense with good preparation on the part of the defense attorney, especially in his discovery procedures, might show that this type of claim is a course of conduct with the plaintiff. M a l p r a c t i c e catalysts. M a n y malpractice cases do not happen spontaneousIy. T h e y are brought about by mistakes professional persons make in dealing with patients. The doctor's professional competence m a y have little to do with triggering the suit. Errors in conducting the interpersonal relationship are often responsible. Some cases are brought to avoid paying a fee, which the patient for some reason has rationalized in court that he does not owe. When a formal claim is made for the collection of the fee the patient counterclaims for malpractice. If his claim is strong enough he not only is often relieved from paying the fee, he might very well realize substantial damages. M a n y of these cases would not occur if the patient was not pressed for the fee. The revenge motive is also discernible in some cases. The patient feels that he has been unfairly treated, or because of the volume of patients he believes that he was treated too impersonally. The patient arrives at the conclusion that the dentist is more interested in the fee than in his welfare. This often happens when the result of the treatment is not what the patient had expected. An unrealistic settlement offered by an insurance adjuster when a patient has a just claim is also an important cause for malpractice litigation. An attorney can usually get five or six times what is offered by an adjuster without ever going to court. POSSIBLE S O L U T I O N S T O T H E PROBLEM Legislation could be a partial solution. A patient who has been injured because of negligence has a legal right to damages. This right under the law could be modified by legislation controlling the m a x i m u m amount of damages for a particular condition. No-fault coverage taking care of everyone injured for a limited amount, such as workman's compensation, might be another solution. Compulsory arbitration seems to work in some jurisdictions. This type of legislation is usually passed as a result of lobbying by special interest groups. Trial attorneys in all probability would be against limitations
FEBRUARY 1978
VOLUME 39
NUMBER 2
DENTAL MALPRACTICE
on malpractice actions. Other professionals such as physicians and dentists would be for it. Attorneys have the largest representation in most state legislatures, so it might require the pressure of strong public opinion to obtain an equitable solution.
8. 9. 10. 11. 12.
CONCLUSION
13. 14. 15.
Today many law schools have courses in medical jurisprudence. Some of the courses are conducted by men with both medical and legal degrees. There are medical institutes for attorneys, 32 and they have encyclopedias of legal medicine and legal medical journals. The malpractice lawyer not only is most proficient in his use of legal procedure, he probably has as good or better of a theoretical knowledge of the medical condition for which he has filed a suit as the doctor who treated the case. The creative attorney probably not only will use all the legal theories available to him but will make every effort to expand them to broaden the scope of the malpractice section of the law. This can only increase the risk and cost of claims and erode delivery of dental care. The only feasible remedy is legislative restraint. REFERENCES 1. Newsweek, February 10, 1975, p 41; June 2, 1975, p 63; June 9, 1975, pp 58-65. ~ 2. Bloom, M. T.: Malpractice, the mess that must be ended. Readers Digest 106:77, 1975. 3. Morris, W. O.: Dental Litigation. Charlottsville, Virginia, 1972, The Miehie Company, p 1. 4. Milgrom, P.: Quality control of end results: Identifying avoidable adverse events in dentistry. J Am Dent Assoe 90:1282, 1975. 5. Rice v. Rinaldo, 119 N. E. 2d 657 (1951). 6. Coleman v. Middlestaff, 305 P. 2d 1020 (i957). 7. Sellers v. Phillip's Barber Shop, 217 A. 2d 121 (1966).
THE JOURNAL OF PROSTHETIC DENTISTRY
16. 17. 18. 19.
Lindloff v. Ross, 243 N. W. 408 (1932). Sanzari v. Rosenfeld, 167 A. 2d 625 (1961). Mitchell v. Pool, 68 S. W. 2d 833 (1934). T a n n e r v. Sanders, 56 S. W. 2d 718 (1933). Council on Judicial Procedures: Constitution and Bylaws. American Dental Association Principles of Ethics, Section 8. J A m Dent Assoc 90:185, 1975. Walter v. England, 24 P. 2d 930 (1933) Parrish v. Spink, 224 S. 2d 621 (1969). Prosser, W. L.: Law of Torts. St. Paul, 1955, West Publishing Company, p 199. Ybarra v. Spangard, 208 P. 2d 445 (1949). Bence v. Denbe, 183 N. E. 326 (1932). Wolf v. Feldman, 286 N.Y.S. 118 (1936).
High blood pressure is a killer. The Magazine of Fairleigh
Dickinson University 2:7, April 1975. 20. Is dentist obligated to check blood pressure (editorial). Dent Survey 50:48, 1974. 21. Resnick, N. A.: Dentists alerted to hypertension detection. J A m Dent Assoc 89:1262, i974. 22. Statement issued on hypertension testing by nonphysicians. A m Dent Assoc News, May 19, 1975, p 6. 23. Council on Materials and Devices: Council reaffirms position on endosseous implants. J A m Dent Assoc 90:670, 1975. 24. MacPherson v. Buick Motor Co., 111 N. E. 1050 (1916). 25. Editorial, Dental Education: Is the pendulum swinging back. J A m Dent Assoc 90:897, 1975. 26. Prosser, W. L.: Law Torts: St. Paul, 1955, West Publishing Company, p 199. 27. Watkins v. Parapala, 469 P. 2d 974 (1970). 28. Nathanson v. Kline, 350 P. 2d 1093 (1960). 29. Matins v. Strang, 124 S. 2d 891 (1960). 30. McGarry v. Mercier, 262 N. W. 296 (1935). 31. Mastro v. Kennedy, 131 P. 2d 865 (1943). 32. Beckham, W. H.: The medical institute for attorneys. The Barrister 33:14, 1975.
Reprint requests to: DR. HENRY A. COLLETT 2231 POST ST. JACKSONVILLE, FLA. 32204
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