Anatomy of a dental malpractice action

Kristin Tauras, JD, outlines the complexities of a malpractice claim. Being properly prepared can make a difference.

Kristin Tauras, JD, defines the various complex parts of a malpractice claim

Today’s reality is that most dental and medical providers have a high probability of being sued. Below is a primer on the “anatomy” of a dental malpractice case. Lawsuits are controlled by state and federal law, but the basic anatomy of the lawsuit is the same in each state and follows the same general timeline.

The term used in the lawsuit may be “professional malpractice” or “dental malpractice,” but this article encompasses all professional negligence claims against dental specialists, including dentists, cosmetic dentists, pediatric dentists, prosthodontists, periodontists, endodontists, oral and maxillofacial surgeons, and orthodontists. It also encompasses the liability of the dental specialist(s) staff who assist with the dental treatment and may be named in the dental malpractice lawsuit, including dental hygienists, dental assistants, nurses, anesthesiologists, and other dental care providers.

Parties

There are at least two parties to a lawsuit: the plaintiff and the defendant.

The plaintiff is usually the patient or the parent/guardian of a minor patient. The lawsuit may be brought by the estate of a deceased or incapacitated plaintiff.

The primary defendant is the treating dental specialist, but there may be multiple defendants. Defendants may include any individual involved in the patient’s care and treatment leading up to and through the alleged malpractice event, including consulting dental specialists, nurses, radiologists, surgeons, dental hygienists, and even the medical malpractice insurance companies in some states. The lawsuit may also name the practice group, corporation, or limited liability company that employs the dental specialist(s).

Pleading stage

A dental malpractice lawsuit begins with a pleading or complaint that is filed with the court. It is the story the patient wants to tell the jury of what the dental specialist(s) did wrong and why the jury should award the patient money. The complaint must set forth that there was a patient and dental specialist(s) relationship, the dental specialist owed a duty of care to the patient, the dental specialist(s) violated the duty of care, and that the violation of the dental specialist(s) duty to the patient proximately caused the patient’s injuries, and the patient (or patient’s estate) suffered damages.

Twenty-eight states have the additional requirement to file a certificate of merit for a dental malpractice claim to move forward.

The complaint must be served on each defendant. The date of service of the complaint on the defendant governs the timing of when the defendant must respond to the complaint. The defendant typically has 21 to 28 days to respond to the complaint. The response may either be an answer to the complaint (admitting, denying, or claiming insufficient information with respect to the allegations), or a motion to dismiss the complaint for technical errors or substantive reasons why the dental professional is not liable.

The pleading stage is also where the defendant may want to file a third-party action against another entity to bring them into the suit. While most attorneys will advise against filing a third-party action against another dental treater so that they can bring a unified defense, there may be an occasion to file a third-party suit against the manufacturer of a faulty instrument that caused or contributed to the problem. Most dental malpractice claims do not have third-party actions.

Respondents in discovery

Some states allow for complaints to be filed against an individual, but not name the individual as a defendant. Called a Respondent in Discovery, these individuals are named for discovery purposes only. A Respondent in Discovery may be converted to a direct defendant so long as the plaintiff follows the rules of the state for converting the Respondent in Discovery to a proper party defendant.

Notifying the insurer

The dental specialist(s) must notify their insurance company at the time they know of a claim or are served with a lawsuit. Every insurance policy contains a duty to notify the insurance company upon learning of the potential claim when served with a lawsuit. If the dental specialist(s) fails to notify the insurance company, the insurer may refuse to defend and indemnify the claim.

Notice of the claim allows the insurance company to assign the dental specialist(s) an attorney, direct them on what records to keep, and how they should proceed. Some policies allow the dental specialist(s) to choose their own counsel.

Under most insurance policies, the dental specialist has the ultimate right to make all decisions regarding settlement.

Immediately retain documents and preserve evidence

Upon knowing of a claim and/or being served with a lawsuit, it is imperative that the dental specialist(s) retain all medical and dental records, notes, bills, x-rays or other imaging, correspondence with the patient, and machines used in the treatment of the patient, essentially “preserving” all evidence of the alleged malpractice. Your attorney and/or the insurance company will advise you what they need you to retain and send to them to defend the case as well. If you do not, or if you destroy relevant evidence, some states will allow a “spoliation of evidence” claim to be filed against you, which may include a putative finding of liability with just damages to be assessed.

Discovery stage

After the answer is filed or the motion to dismiss is resolved, the case will enter the discovery phase.

Discovery is broken down into three types: fact written discovery, fact oral discovery, and expert discovery.

Written discovery

All parties may issue written discovery against the other parties. Where there are multiple defendants, each plaintiff may issue discovery against each defendant, and each defendant may issue discovery against the plaintiff, as well as against each of the other defendants.

Written discovery is divided into four types: Interrogatories, Requests to Produce, Third-Party Subpoenas, and Requests to Admit.

Interrogatories are questions submitted to the other parties. The plaintiff’s Interrogatories to the defendant(s) will include requests for information such as the identity of all treaters (both dental and non-dental), dates of treatment, types of treatment, types of tests done prior to the treatment, cost of the treatment, and information regarding the insurance. The defendant(s) Interrogatories will include the basis for the negligence allegations, identify the claimed negligent treatment, damages (including alleged injury, days off work, cost of alleged repair or further treatment, as well as pain and suffering and disfigurement), and identity of witnesses.

The Requests to Produce are written requests for documents. The plaintiff’s Requests to Produce will usually include the patient’s dental records, bills, x-rays or other imaging, correspondence, as well as the office policies and procedures. The defendant’s Request to Produce will usually include the plaintiff’s dental and medical records, bills from additional treatment, and proof of damages such as time off work.

The parties may also issue Subpoenas to other entities not involved in the lawsuit, including other medical and dental treaters who have treated the patient both in the past and with respect to the claimed malpractice.

The parties may also issue Requests to Admit. These are statements that the parties must either admit or deny or set forth a reason they can neither admit nor deny the statements. Depending on the state law, these Requests to Admit may become binding on the parties at the time of trial.

Oral fact discovery

Discovery also includes non-expert testimony from the plaintiff, defendant(s), and any other fact witness.

The patient’s deposition is usually the first deposition taken in a case. If the patient is unable to testify, such as when the patient is a minor or the patient is disabled or deceased, the family members or next of kin who brought the lawsuit may testify about the patient’s treatment and injuries.

The defendant(s) depositions then take place. The defendant(s) include the dental specialist(s) sued in the case, as well as the other individuals in the office that took part in the care. The depositions of the defendant(s) usually center around the issues of informed consent, care provided to the patient, policies and procedures of the office, and the dental specialist(s) training and experience to perform the procedures that form the basis of the lawsuit.

After the defendant(s) depositions are taken, the parties will take the depositions of the other dental and medical treaters who have seen the patient.

Additional fact witness(es) depositions may also be taken. These fact witness(es) may include the office manager(s) to testify regarding bills and the office policies and procedures, and family members that can testify to the condition of the patient before and after the procedure.

Expert discovery

In all states, almost without exception, the plaintiff must have dental specialist(s) testify to the standard of care and whether the care deviated from that standard. While technically the defendant(s) may be qualified to testify to the standard of care and alleged deviation, standard of care experts are usually paid experts who evaluate the patient’s records and testify regarding their expertise. Expert testimony may be excused when it is readily apparent that malpractice occurred (such as inexcusably removing the wrong tooth) and that an expert’s testimony might be redundant. Many trials rise and fall on the strength of the dental specialist(s) expertise.

Other experts may also testify regarding damages, including financial experts who testify about the financial harm the plaintiff suffered because of the sub-standard care.

Dispositive motions

Most states have a mechanism for filing a dispositive motion, such as a motion for summary judgment or summary decision, after the close of discovery. The dispositive motion requests that the judge review the law and the facts to see if there is an issue of fact that requires that the matter be tried. Usually, this motion is filed by the defendant(s), alleging that the plaintiff cannot prove a required element of their case.

Settlement

While settlement discussions can happen at any time during the case, most parties will engage in settlement discussions after the close of discovery or before the trial begins. In dental cases, there is the notion that the case is either in a “settlement posture” or a “trial posture.” Nevertheless, many cases do settle on the eve of trial. Under most insurance policies, the dental specialist(s) has the ultimate right to make all decisions regarding settlement.

Trial

Many dental malpractice cases go to trial. A trial date is usually set between 18 months to 36 months after the date the lawsuit was filed. The dental specialist(s) should sit at counsel’s table through the duration of the trial.

Professional malpractice trials are long, lasting a week or longer. The first day is usually a “pretrial conference.”  The judge will attempt to settle the case and then rule to either admit or exclude evidence from trial (called the motions in limine), and review jury instructions.

Day 2 and Day 3 are spent with jury selection. Jury selection is heavily individualized by the judge who presides over the case. The judge may ask the jury questions or let the attorney ask the questions.

Once the jury is empaneled, the trial begins. The attorneys will give their opening statements, explaining to the jury what they believe the evidence will show. After that, the plaintiff will present their case in chief, and the defendant(s) will then present their case in chief.

At the end of the evidence phase, the judge will instruct the jury on the law, and the deliberation process begins. The jury will deliberate until either they reach a decision, or they inform the court that they are unable to reach a decision.

Motion to overturn the verdict or appeal

After the jury reaches its verdict, the jury foreman will read the verdict. This does not end the proceedings. The parties in all states have the right to file a motion to contest the jury verdict and/or file an appeal from the jury’s verdict.

If the jury verdict is affirmed by the appellate court, and the appellate process is exhausted, the matter ends. If the jury verdict is overturned by the judge and/or the appellate courts, then it is possible the matter will be retried.

Reporting

Some states require that any settlement or an adverse judgment be reported to the state licensing board. In that case, the dental specialist(s) should retain defense counsel to assist with the defense of the dental license.

For more information on how to prepare a risk management plan against a malpractice claim, check out  “Risk management concepts for dentists” at https://orthopracticeus.com/risk-management-concepts-dentists/

Kristin Tauras, JD, is a partner in the law firm of McKenna Storer in Chicago, Illinois. She has a litigation practice in the areas of employment law, insurance coverage, and professional malpractice. McKenna Storer is a full-service law firm providing legal services to individuals and small-to-midsize companies, including defending professional malpractice negligence lawsuits and Illinois Department of Professional Regulation investigations, as well as advising dental and medical professionals regarding business and employment matters.

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