- Email: [email protected]
Why orthodontists get sued
Why Orthodontists Get Sued Elizabeth Franklin The question, Why do orthodontists get sued?, is a vexing one for most orthodontists. The circumstances that evolve to make one person challenge, verbally attack, or sue another is a very individual issue that involves multiple aspects of the interpersonal relationship. Doctor-patient relationships are not infallible. They involve the personalities of each of the participants, the activity on which the relationship is founded, the relative success or failure of the treatment, communication or the lack thereof, and possibly psychological issues. The bottom line is that orthodontic lawsuits can and do happen. This article describes a number of orthodontic lawsuits, the basis for each suit, and the risk management lessons that one should take home today and put into use tomorrow. (Semin Orthod 2002;8:210-215.)
Copyright 2002, Elsevier Science (USA). All rights reserved.
S claims m a n a g e r for the American Association of Orthodontists Insurance C o m p a n y (a Risk Retention G r o u p ) , which writes professional liability insurance, I have h a d a detailed view into the lawsuits that are filed against orthodontists. During the handling of those lawsuits, I have b e e n able to look into the practices of the involved doctors and have m a d e some general observations a b o u t the causes and effects that most frequently a p p e a r to have contributed to the filing of the actions. Often, these patterns repeat themselves, notwithstanding major variations in a patient's diagnoses and treatment, the locations of the practices, and the doctors involved. W h a t are some of the major issues that I see? C o m m u n i c a t i o n breakdown is an i m p o r t a n t one. I am referring to listening and speaking skills, providing critical information to the patient, and the coordination, or lack thereof, with other health care practitioners. Secondly, g o o d initial records are obviously n e e d e d to formulate appropriate diagnoses and t r e a t m e n t planning; they are also the front line in the defense of a
A
From the American Association of Orthodontists Insurance Company, St Louis, MO. Address correspondence to Elizabeth Franklin, AAO1C, 401 North Lindbergh Blvd, St Louis, MO 63141. Copyright 2002, Elsevier Science (USA). All rights reserved. 1073-8746/02/0804-0005535.00/0 doi:l O.1053/sodo.2002.12786 7
210
lawsuit. Next is the securing of detailed inf o r m e d consent consultations with the patient a n d / o r family, followed by placing a signed ack n o w l e d g m e n t of this act in the patient's record. Finally, being able to empathize with the patient and focus on their t r e a t m e n t needs are also critical in this analysis. To illustrate these general observations, I will summarize the details of several actual lawsuits h a n d l e d through o u r office, minus, of course, any identifying information to protect confidentiality. The summaries will examine the nature of the patient's complaint. What did the doctor say a n d / o r do p r e c e d i n g the filing of a complaint? Were office staff m e m b e r s or office procedures involved and in what way? What treatm e n t was p e r f o r m e d , and what was the outcome? Was the o u t c o m e a surprise to the patient or family; was it a surprise to the doctor? What was the d e m e a n o r of the patient during the course of treatment? Were there signs of dissention, such as arguments with the doctor or staff, requests for records, or c o n c e r n s a b o u t fees? O n e d o c t o r told m e that o r t h o d o n t i s t s love to work o n teeth; the p r o b l e m is, he said, the teeth have h u m a n s attached. It is the b r e a k d o w n o f the h u m a n i t y i n h e r e n t within the r e l a t i o n s h i p that results in lawsuits. Let's look at s o m e r o u t i n e h u m a n p r o b l e m s to see if they can be t e m p e r e d e n o u g h to m i n i m i z e potential exposure.
Seminars in Orthodontics, Vol 8, No 4 (December), 2002: pp 210-215
Why Orthodontists Get Sued
Case O n e Facts The first claim involved inadequate t r e a t m e n t progress a n d exacerbation of periodontal disease in a 40-year-old professional woman. H e r t r e a t m e n t lasted 3 years. T h e initial problems included a ~ m m skeletal o p e n bite, with protrusion of the u p p e r central incisors. T h e orthodontist prescribed orthognathic surgery. T h e orthodontist's chart contained a referral to an oral surgeon, and there was also a letter to the surgeon in the records. T h e r e was no i n f o r m e d consent d o c u m e n t a t i o n present in the records; the doctor and the patient dispute w h e t h e r it was actually given. T h e patient declined the surgical option, and brackets were placed. R u b b e r bands and elastomeric chains were used to correct the malocclusion. As t r e a t m e n t progressed, the o p e n bite closed but then relapsed. T h e patient's gums b e c a m e inflamed and bled. T h e patient's general dentist sent her to a periodontist who diagnosed periodontal disease, and he r e c o m m e n d e d termination of the orthodontic treatment. T h e patient then sought a second opinion f r o m a n o t h e r orthodontist. T h e second doctor d e t e r m i n e d that, despite 27 m o n t h s of treatment, the patient was only biting on her molars. H e f o u n d the u p p e r central incisors to be "rabbited in," the u p p e r right canine and p r e m o l a r depressed, and an o p e n bite o f 4 m m e x t e n d i n g f r o m the u p p e r right central incisor to the u p p e r right first molar. H e observed that the patient h a d experienced serious root resorption, significant b o n e loss, and periodontal disease. Two years after these observations, the patient filed a lawsuit against the first orthodontist, asking for damages of $500,000. She alleged she would lose eight teeth because of root resorption and b o n e loss. She also alleged that the extraction of the left first bicuspid during the course of t r e a t m e n t was inappropriate, and the loss of that tooth was, therefore, also part of the damages. In addition, because a n u m b e r of teeth were no longer in contact, she n e e d e d multiple units of prosthefics to correct h e r occlusion. By the time the lawsuit was filed, the insured orthodontist had passed away. His office had closed; all employees had taken o t h e r jobs, and n o n e were available to testify on behalf of the
211
doctor. His estate was, therefore, unable to defend h i m during the p r o c e e d i n g beyond what was written in his records. T h e case went to trial. After 2 days of testimony, the jury returned a verdict in excess of $300,000 in favor of the plaintiff. Obviously, this was an adverse result. T h e plaintiff p r e s e n t e d evidence that root resorption was visible in the initial p r e t r e a t m e n t radiographs. This should have b e e n an indication to the doctor to m o n i t o r the teeth carefully during the t r e a t m e n t a n d carefully assess the forces used during treatment. During her deposition, the patient testified that given her periodontal problems, she believed she was not a good candidate for orthodontic t r e a t m e n t and that the doctor should have advised her of this fact. In addition, the patient's testimony indicated that the orthodontist's listening and e m p a t h y skills were lacking. T h e plaintiff indicated she continually c o m p l a i n e d of pain and discomfort, but the orthodontist did not seem to listen. She testified that the doctor was unsympathetic, unconcerned, a n d unduly critical of her because of her complaining. In addition to missing the root resorption on the initial radiographs, he was also accused of overlooking signs of b o n e loss and exacerbating periodontal disease as the treatm e n t progressed, and he missed the opportunity to m a k e an a p p r o p r i a t e referral to a periodontal specialist. T h e subsequent treating orthodontist testified that the power chains used by the insured were inappropriate and caused the unnecessary pain e x p e r i e n c e d by the patient. He also believed that the p l a c e m e n t of appliances contributed to the gingivitis and periodontal disease. T h e records were unsupportive in that there was no signed i n f o r m e d consent form, and there was no d o c u m e n t a t i o n regarding i m p o r t a n t conversations that had occurred and t r e a t m e n t decisions m a d e between the doctor and the patient.
Risk Management Recommendations From the standpoint of m a n a g i n g an o r t h o d o n tic practice, it is imperative to obtain good records, including radiographs, before treatm e n t begins. O n c e t r e a t m e n t begins, one must also continue to maintain thorough, legible, a n d clear records. They not only facilitate good treatm e n t but also help discourage litigation in the first place. Finally, they are a primary source of
212
Elizabeth Franklin
defense in the event that a malpractice claim is made. Good c o m m u n i c a t i o n with the patient or family is a n o t h e r effective way a doctor can preclude a lawsuit. Listen to the patient. Is there pain, bleeding, a compromise in function? Address these issues satisfactorily and explain them fully. A patient who understands what is taking place, the reason why specific treatment or referrals are r e c o m m e n d e d , and believes that the doctor is c o n c e r n e d and sympathetic, is less likely to sue. Always have an informed consent discussion with the patient. Emphasize those risks that are most important to h i s / h e r particular treatment and repeat these concerns during treatment, r e d o c u m e n t i n g this discussion. Have the patient sign a form memorializing the conversation and keep it with the records. This process manages a patient's expectations and minimizes unpleasant surprises. A patient who realizes they have been clearly apprised of potential problems will have far m o r e difficulty suing should that problem materialize.
Case T w o Facts The patient in this case was a 10-year-old child at the start of treatment in 1992. The diagnosis was an anterior protrusion. His treatment lasted 5 years, and over that period of time, he presented with more than 60 instances of loose bands or broken appliances. He missed a significant nmnber of appointments. The doctor d o c u m e n t e d p o o r oral hygiene several times in the records. In 1997, a general dentist examined the patient and f o u n d extensive decay and demineralization in 50% to 80% of the patient's teeth. Most of this damage was visible to the naked eye. After the orthodontic appliances were removed, the areas of decay and lines of decalcification were consistent with the placement of the bands and brackets. The patient's current general dentist o p i n e d that this condition should have been obvious to any dentist, especially an orthodontist. He immediately cleaned the teeth and applied a resin to provide temporary relief in the sensitive areas. He anticipated that multiple units of restorations would be necessary in the future and that some root canals would also likely be required. The family filed a lawsuit against the orthodon-
tist and the general dentist who had seen the patient only a few times during that 5-year period. The dental records did contain a signed informed consent form. The expert witness who examined tile records on behalf of the doctor opined there was evidence of neglect and r e c o m m e n d e d the case be settled. He based this decision on several factors. First, the depth and degree of the decay substantiated its presence for a number of years. Secondly, because the caries was located under the bands, he believed that washout was evident and no amount of adequate tooth brushing would have prevented the damage; and the significant n u m b e r of replaced or recemented bands also indicated inadequacies with cementation. In addition, he also noted tlmt the records were written in code with very little detail. Notations of "poor oral hygiene" were not explained. The plaintiff also contended that much of the treatment was performed by staff rather than by the doctor. The expert also believed there was another significant issue that e n c o u r a g e d early settlem e n t o f this case. The patient had testified that late in 1996 he began taking Acutane (Roche Labs, Hoffman-LaRoche Inc., Nutley, NJ) for treatment of severe acne. This drug is known to cause xerostomia that can contribute to gingival inflammation and tooth decay. The boy said he apprised the orthodontist of this fact; however, the orthodontist disputed this. The expert believed that the presence of acne in a teenager should alert a doctor to the possible use of this drug. Although he opined that the orthodontist should have made an inquiry, because the damage was u n d e r the bands, he did not believe the Acutane was the primary cause of the decay. Until the time this case was settled, the patient's family had spent approximately $20,000 on restorations. The initial d e m a n d had been $350,000; the case was settled for $150,000. What went wrong here? The first issue appears to be one of office organization. The doctor reported that he was frequently absent from his office handling personal matters. He believed that it was his female partner who may have done some of the work; however, the plaintiff could not differentiate whether it was she or any of the dental assistants who was performing a significant a m o u n t of the treatment. The patient testified that the doctor was not paying sufficient attention to his care. The records did not reveal who p e r f o r m e d which procedures. In short, they
Why Orthodontists Get Sued
contained little detail and were incapable of providing m u c h s u p p o r t during the defense of the case. This was especially true regarding the docu m e n t a t i o n of p o o r oral hygiene. Those entries were not clarified, and the parents testified that they were never m a d e aware of any p r o b l e m s in that regard. H a d there b e e n details provided in the notes, p e r h a p s even initials f r o m the y o u n g m a n acknowledging these discussions, preferably with copies of the letters sent to the family apprising t h e m of the problems, there might not have b e e n a lawsuit. Better records would have at least m a d e the case easier to defend. T h e matter of the excessive n u m b e r of broken appliances was a shouting m a t c h between the patient and the doctor. T h e doctor believed the boy was to blame for eating inappropriate foods. T h e boy, of course, denied that he did so. T h e expert believed that the n u m b e r of repairs and replacements was far too extensive to be caused by anything o t h e r than p o o r b o n d i n g and banding technique. O n e very i m p o r t a n t point to be considered f r o m a review of this case is the possible n e e d for early termination of t r e a t m e n t secondary to n o n c o o p e r a t i o n . If the doctor believed there was p o o r oral hygiene and that too m a n y bands n e e d e d replacing, p e r h a p s he should have stopped the t r e a t m e n t when the problems continued. This would have p r e v e n t e d the exacerbation of the damages. Orthodontists are charged with the responsibility of recognizing and addressing (usually by referral to other specialists or general dentists) routine dental issues, such as caries or periodontal disease. Merely having a sign on the office wall advising patients to routinely see their general dentist for cleaning and examination does not insulate the orthodontist f r o m responsibility if the patient fails to comply. It is the o r t h o d o n fist's responsibility to d e t e r m i n e compliance when significant p r o b l e m s persist. C o m m u n i cate directly with referral doctors to ensure it is safe and a p p r o p r i a t e to continue orthodontic treatment. Refusal to continue t r e a t m e n t until there has been compliance must be seriously considered. T h a t may interfere with your projected t r e a t m e n t schedule, but it will possibly save you f r o m having to defend a lawsuit later after the d a m a g e occurs and the patient forgets that you told t h e m to have regular checkups. In the end, you will be held accountable. The issue involving Acutane provides a n o t h e r interesting observation f r o m a risk m a n a g e m e n t
213
perspective. It appears that information a b o u t the effects of this d r u g on dental health is commonly available. Because acne is a frequent teenage concern, a careful orthodontist needs to be proactive and m a k e an a p p r o p r i a t e inquiry, especially if decay seems to be a problem. Any change in the patient's complexion should be readily visible. In this case, the doctor s e e m e d to be unaware of m a n y details regarding his patient, p e r h a p s because of overdelegation. Better focus and attention to detail m i g h t have precluded the lawsuit.
Risk Management Recommendations Beware of overdelegation of duties to assistants as small but i m p o r t a n t details can go unnoticed. Regardless of the p r o b l e m , if a patient is not keeping appointments, has p o o r oral hygiene, is eating inappropriate foods, or has excessive d a m a g e to the appliances, the orthodonist should advise the patient and his parents of the consequences. C o m m u n i c a t e with the patient, and in the case of minors, at least occasionally with the parents. In addition, notify the general dentist of any p r o b l e m s with the patient's treatment. D o c u m e n t all of these communications in the patient's chart. Ensure that the patient is regularly visiting his general dentist for cleaning and checkups; d o c u m e n t this fact, as well.
Case T h r e e Facts In this case, the patient was a young adult female. H e r diagnosis was a Class III malocclusion secondary to a c o m b i n e d m a n d i b u l a r prognathism a n d slight maxillary retrusion. The examination revealed a facial asymmetry, abnormally shaped lower anterior crowns, a midline deviation, and partially impacted third molars. The t r e a t m e n t time was projected to last 2 to 21/2 years. T h e plan was to slenderize the abnormally shaped teeth. T h e doctor did not want to extract lower premolars because he believed that would flatten her profile and subject her to other dental p r o b l e m s such as root resorption or periodontal disease. H e anticipated extracting the third molars at the e n d of treatment, which he believed would allow for settling of the u p p e r and lower arches. After 3 years of treatment, the braces were removed, and the patient's maxillary anterior
214
Elizabeth Franklin
teeth were significantly flared and tipped labially. An anterior open bite was present, and lip closure was difficult. The patient alleged her dentition was deformed, and she was facially disfigured. W h e n she expressed consternation to the doctor, she said she was abruptly dismissed from the orthodontist's practice. At that time, he gave her a small fee refund of less than $500. She immediately saw another orthodontist who extracted eight teeth, retreated for 2 more years, and achieved an excellent final outcome. She then sued the first orthodontist. The plaintiff's expert alleged that the doctor failed to c o n d u c t a tooth mass to arch length analysis and that there was insufficient space without resorting to extractions. He also opined that 3 years of treaunent should have been sufficient time to achieve success of this patient's problem. The expert witness who reviewed the records on behalf of the doctor opined he was satisfied with the original treatment plan because he could see that the insured intended to extract the third molars at the end of treatment to add to the space. He agreed with the proposition that root resorption and periodontal disease could possibly be a problem for the y o u n g woman if the premolars were extracted. However, when he saw the plaster casts showing the severe flaring, he admitted that extractions did appear to be indicated. Nevertheless, he had no complaint with the length of treatment and believed that had the patient remained in the insured's practice, she would have achieved a good final result. Why then, did this patient sue? Was the initial diagnosis unsatisfactory? The allegation of the tooth m a s s / a r c h length discrepancy and the lack of such an evaluation was challenging to overcome. The records were devoid of such a computation. The doctor eventually p r o d u c e d one well after the records had been submitted to the plaintiff. It was written on a small post-it note, and was not impressive evidence. It had the appearance of having been created after the fact. That negative impression no d o u b t provided an incentive to the plaintiff to sue. In response to that allegation, the insured testified that he had always been aware of the tooth m a s s / a r c h length discrepancy. He characterized his treatment plan as conservative and appropriate, given the diagnosis. Even t h o u g h the insured made an adequate witness, the fact that he might have created evidence after the
fact would have diminished his credibility. The y o u n g plaintiff on the other h a n d was a sympathetic witness. She testified that when she expressed dissatisfaction with the outcome of her treatment, she was immediately dismissed from the practice. She felt a b a n d o n e d and very embarrassed by the condition of her teeth. The damages in this case were not significant; the plaintiff alleged expenses of $7,000, including subsequent orthodontic care and the costs for the extractions. She was upset at having to be in braces for a total of 6 years. She initially d e m a n d e d $125,000 to compensate her for the additional treatment, her embarrassment, pain, and inconvenience. After investigation, defense counsel seriously r e c o m m e n d e d settlement of this case before trial. Although both parties were g o o d witnesses, the post-it note a d d e n d u m to the records had a negative effect. In addition to that, once the expert witness testified that extractions were indicated, the fact that the teeth were badly flared at the end of 3 years became more difficult to defend. The dismissal of the patient from the practice was also a problem. The case was settled for $37,000.
Risk Management Recommendations From a risk m a n a g e m e n t perspective, records and their quality are once again seen as critical to the prevention of and subsequent defense of a case. As we have said before, incomplete or inadequate records provide little support against a plaintiffs allegations. Records that have an appearance of being altered are deadly. They create such d o u b t in the minds of jurors that they can erase any other good supportive factors in a case. Never engage in records alteration. As we saw in the other two cases, communication deficiencies appeared to influence this case. Was the treatment plan carefully explained so that the patient understood why the doctor chose to treat without extraction? Was a good informed consent discussion held, and did the patient sign a form to that effect? When the treatment time extended past the original estimate, was an explanation provided? What aspect of c o m m u n i c a t i o n broke down so unequivocally that the doctor felt compelled to dismiss the patient? It seems easy to understand in this case why the patient felt dissatisfied and a b a n d o n e d by the original orthodontist.
Why Orthodontists Get Sued
Tying It All Together We have now analyzed three very diverse cases. O n e occurred on the West coast, a n o t h e r on the Eastern seaboard, and the third h a p p e n e d in the South. O n e t r e a t m e n t period was extremely protracted; the o t h e r two were n o r m a l or close to normal. T h e patients were d i f f e r e n t - - o n e was a middle-aged adult female, a n o t h e r a male child, the third a y o u n g adult female. All of these patients sued their orthodontist. T h e r e are m a n y factors that go into the actual filing of litigation a b o u t which we c a n n o t be aware. It is c o m m o n l y believed that a conversation with a lawyer at a cocktail party or one living across the backyard fence may e n c o u r a g e some litigious behavior. Television and o t h e r m e d i a forms also frequently emphasize success in malpractice litigation and that motivates real-life litigation. In o t h e r words, some lawsuits will be filed, no matter what. Those of us involved in the handling of professional liability claims and lawsuits c o n t e n d that knowing the bases for some p r o b l e m patterns of behavior and interrupting t h e m can prevent some lawsuits f r o m occurring. This ultimately provides some protection to orthodontists. Let's review the most obvious forms of protection. O n e is to improve c o m m u n i c a t i o n skills. Listen to the patient or their parents. Speak to them, carefully explaining what is expected to h a p p e n , and what is actually happening. Explain negative behavior or other p r o b l e m s that are i m p e d i n g the success of the treatment. Continually c o m m u n i c a t e with referral doctors to be sure that the overall dental health of the patient is the primary focus, not just the orthodontic treatment. Focus on the treatment. If it is not progressing satisfactorily, take note. Is it taking too long? Is the occlusion not being corrected? Make changes if necessary. Focus on the patient. What issues a b o u t t h e m are occurring that m i g h t affect the success of the treatment? Empathize with the patient. Realize that each person has a different perspective to pain, motivation for treatment, and esthetics. Try to place yourself in their position and u n d e r s t a n d what they are experiencing. Let t h e m know that you u n d e r s t a n d and are concerned. Take g o o d records. Take e n o u g h radiographs
215
before, during, and after t r e a t m e n t so you know what is h a p p e n i n g physiologically. Record clearly and concisely all critical aspects of the treatment, p e r t i n e n t conversations, complaints, and occurrences. D o c u m e n t all instructions and advice that you give and keep copies in the patient record. Make it a habit to have an inf o r m e d consent consultation with every patient, tailored to their specific needs. Then, place a signed f o r m in the records as p r o o f of the consultation. Renew the i n f o r m e d consent if the t r e a t m e n t changes. If there is one thing that I have learned over the years of handling dental malpractice claims, it is that no dentist enjoys being sued. Some are m o r e willing than others to go t h r o u g h the trial process, but n o n e of t h e m enjoy it. It is time c o n s u m i n g at the least and antagonistic and offensive at its worst. It requires hours of answering written and oral questions a b o u t every detail of the office procedures, the diagnosis and treatment, the records, and the c o m m u n i c a t i o n or lack thereof. Doctors who are sued spend a significant a m o u n t of time working with an attorney to formulate and present a defense. They spend hours in preparation, pretrial settlement forums, a n d listening to constant accusations of wrongdoing. T h e trial itself is m o r e of the same, only m o r e intense, with one witness after ano t h e r alleging practice below the standard of care. If the emotional toll o f litigation is not bad enough, the financial cost is worse. Not only is defense expensive in terms of legal charges and expert witness support, but in addition, all of the time a practitioner spends defending a lawsuit is time away f r o m a m o n e y - m a k i n g practice. Most doctors I know object to that. As I speak with dentists, I find that the motivation to u n d e r s t a n d and make necessary changes to preclude or minimize exposure to lawsuits is generally high these days. O u r society has b e c o m e increasingly litigious in some areas of the country, with some cities being worse than others. Orthodontists must therefore be vigilant and recognize their own role in the process. They must m a k e a p p r o p r i a t e changes in their practice a n d in their relationships with patients to p r o t e c t themselves f r o m a malpractice lawsuit.
Copyright 2002, Elsevier Science (USA). All rights reserved.
S claims m a n a g e r for the American Association of Orthodontists Insurance C o m p a n y (a Risk Retention G r o u p ) , which writes professional liability insurance, I have h a d a detailed view into the lawsuits that are filed against orthodontists. During the handling of those lawsuits, I have b e e n able to look into the practices of the involved doctors and have m a d e some general observations a b o u t the causes and effects that most frequently a p p e a r to have contributed to the filing of the actions. Often, these patterns repeat themselves, notwithstanding major variations in a patient's diagnoses and treatment, the locations of the practices, and the doctors involved. W h a t are some of the major issues that I see? C o m m u n i c a t i o n breakdown is an i m p o r t a n t one. I am referring to listening and speaking skills, providing critical information to the patient, and the coordination, or lack thereof, with other health care practitioners. Secondly, g o o d initial records are obviously n e e d e d to formulate appropriate diagnoses and t r e a t m e n t planning; they are also the front line in the defense of a
A
From the American Association of Orthodontists Insurance Company, St Louis, MO. Address correspondence to Elizabeth Franklin, AAO1C, 401 North Lindbergh Blvd, St Louis, MO 63141. Copyright 2002, Elsevier Science (USA). All rights reserved. 1073-8746/02/0804-0005535.00/0 doi:l O.1053/sodo.2002.12786 7
210
lawsuit. Next is the securing of detailed inf o r m e d consent consultations with the patient a n d / o r family, followed by placing a signed ack n o w l e d g m e n t of this act in the patient's record. Finally, being able to empathize with the patient and focus on their t r e a t m e n t needs are also critical in this analysis. To illustrate these general observations, I will summarize the details of several actual lawsuits h a n d l e d through o u r office, minus, of course, any identifying information to protect confidentiality. The summaries will examine the nature of the patient's complaint. What did the doctor say a n d / o r do p r e c e d i n g the filing of a complaint? Were office staff m e m b e r s or office procedures involved and in what way? What treatm e n t was p e r f o r m e d , and what was the outcome? Was the o u t c o m e a surprise to the patient or family; was it a surprise to the doctor? What was the d e m e a n o r of the patient during the course of treatment? Were there signs of dissention, such as arguments with the doctor or staff, requests for records, or c o n c e r n s a b o u t fees? O n e d o c t o r told m e that o r t h o d o n t i s t s love to work o n teeth; the p r o b l e m is, he said, the teeth have h u m a n s attached. It is the b r e a k d o w n o f the h u m a n i t y i n h e r e n t within the r e l a t i o n s h i p that results in lawsuits. Let's look at s o m e r o u t i n e h u m a n p r o b l e m s to see if they can be t e m p e r e d e n o u g h to m i n i m i z e potential exposure.
Seminars in Orthodontics, Vol 8, No 4 (December), 2002: pp 210-215
Why Orthodontists Get Sued
Case O n e Facts The first claim involved inadequate t r e a t m e n t progress a n d exacerbation of periodontal disease in a 40-year-old professional woman. H e r t r e a t m e n t lasted 3 years. T h e initial problems included a ~ m m skeletal o p e n bite, with protrusion of the u p p e r central incisors. T h e orthodontist prescribed orthognathic surgery. T h e orthodontist's chart contained a referral to an oral surgeon, and there was also a letter to the surgeon in the records. T h e r e was no i n f o r m e d consent d o c u m e n t a t i o n present in the records; the doctor and the patient dispute w h e t h e r it was actually given. T h e patient declined the surgical option, and brackets were placed. R u b b e r bands and elastomeric chains were used to correct the malocclusion. As t r e a t m e n t progressed, the o p e n bite closed but then relapsed. T h e patient's gums b e c a m e inflamed and bled. T h e patient's general dentist sent her to a periodontist who diagnosed periodontal disease, and he r e c o m m e n d e d termination of the orthodontic treatment. T h e patient then sought a second opinion f r o m a n o t h e r orthodontist. T h e second doctor d e t e r m i n e d that, despite 27 m o n t h s of treatment, the patient was only biting on her molars. H e f o u n d the u p p e r central incisors to be "rabbited in," the u p p e r right canine and p r e m o l a r depressed, and an o p e n bite o f 4 m m e x t e n d i n g f r o m the u p p e r right central incisor to the u p p e r right first molar. H e observed that the patient h a d experienced serious root resorption, significant b o n e loss, and periodontal disease. Two years after these observations, the patient filed a lawsuit against the first orthodontist, asking for damages of $500,000. She alleged she would lose eight teeth because of root resorption and b o n e loss. She also alleged that the extraction of the left first bicuspid during the course of t r e a t m e n t was inappropriate, and the loss of that tooth was, therefore, also part of the damages. In addition, because a n u m b e r of teeth were no longer in contact, she n e e d e d multiple units of prosthefics to correct h e r occlusion. By the time the lawsuit was filed, the insured orthodontist had passed away. His office had closed; all employees had taken o t h e r jobs, and n o n e were available to testify on behalf of the
211
doctor. His estate was, therefore, unable to defend h i m during the p r o c e e d i n g beyond what was written in his records. T h e case went to trial. After 2 days of testimony, the jury returned a verdict in excess of $300,000 in favor of the plaintiff. Obviously, this was an adverse result. T h e plaintiff p r e s e n t e d evidence that root resorption was visible in the initial p r e t r e a t m e n t radiographs. This should have b e e n an indication to the doctor to m o n i t o r the teeth carefully during the t r e a t m e n t a n d carefully assess the forces used during treatment. During her deposition, the patient testified that given her periodontal problems, she believed she was not a good candidate for orthodontic t r e a t m e n t and that the doctor should have advised her of this fact. In addition, the patient's testimony indicated that the orthodontist's listening and e m p a t h y skills were lacking. T h e plaintiff indicated she continually c o m p l a i n e d of pain and discomfort, but the orthodontist did not seem to listen. She testified that the doctor was unsympathetic, unconcerned, a n d unduly critical of her because of her complaining. In addition to missing the root resorption on the initial radiographs, he was also accused of overlooking signs of b o n e loss and exacerbating periodontal disease as the treatm e n t progressed, and he missed the opportunity to m a k e an a p p r o p r i a t e referral to a periodontal specialist. T h e subsequent treating orthodontist testified that the power chains used by the insured were inappropriate and caused the unnecessary pain e x p e r i e n c e d by the patient. He also believed that the p l a c e m e n t of appliances contributed to the gingivitis and periodontal disease. T h e records were unsupportive in that there was no signed i n f o r m e d consent form, and there was no d o c u m e n t a t i o n regarding i m p o r t a n t conversations that had occurred and t r e a t m e n t decisions m a d e between the doctor and the patient.
Risk Management Recommendations From the standpoint of m a n a g i n g an o r t h o d o n tic practice, it is imperative to obtain good records, including radiographs, before treatm e n t begins. O n c e t r e a t m e n t begins, one must also continue to maintain thorough, legible, a n d clear records. They not only facilitate good treatm e n t but also help discourage litigation in the first place. Finally, they are a primary source of
212
Elizabeth Franklin
defense in the event that a malpractice claim is made. Good c o m m u n i c a t i o n with the patient or family is a n o t h e r effective way a doctor can preclude a lawsuit. Listen to the patient. Is there pain, bleeding, a compromise in function? Address these issues satisfactorily and explain them fully. A patient who understands what is taking place, the reason why specific treatment or referrals are r e c o m m e n d e d , and believes that the doctor is c o n c e r n e d and sympathetic, is less likely to sue. Always have an informed consent discussion with the patient. Emphasize those risks that are most important to h i s / h e r particular treatment and repeat these concerns during treatment, r e d o c u m e n t i n g this discussion. Have the patient sign a form memorializing the conversation and keep it with the records. This process manages a patient's expectations and minimizes unpleasant surprises. A patient who realizes they have been clearly apprised of potential problems will have far m o r e difficulty suing should that problem materialize.
Case T w o Facts The patient in this case was a 10-year-old child at the start of treatment in 1992. The diagnosis was an anterior protrusion. His treatment lasted 5 years, and over that period of time, he presented with more than 60 instances of loose bands or broken appliances. He missed a significant nmnber of appointments. The doctor d o c u m e n t e d p o o r oral hygiene several times in the records. In 1997, a general dentist examined the patient and f o u n d extensive decay and demineralization in 50% to 80% of the patient's teeth. Most of this damage was visible to the naked eye. After the orthodontic appliances were removed, the areas of decay and lines of decalcification were consistent with the placement of the bands and brackets. The patient's current general dentist o p i n e d that this condition should have been obvious to any dentist, especially an orthodontist. He immediately cleaned the teeth and applied a resin to provide temporary relief in the sensitive areas. He anticipated that multiple units of restorations would be necessary in the future and that some root canals would also likely be required. The family filed a lawsuit against the orthodon-
tist and the general dentist who had seen the patient only a few times during that 5-year period. The dental records did contain a signed informed consent form. The expert witness who examined tile records on behalf of the doctor opined there was evidence of neglect and r e c o m m e n d e d the case be settled. He based this decision on several factors. First, the depth and degree of the decay substantiated its presence for a number of years. Secondly, because the caries was located under the bands, he believed that washout was evident and no amount of adequate tooth brushing would have prevented the damage; and the significant n u m b e r of replaced or recemented bands also indicated inadequacies with cementation. In addition, he also noted tlmt the records were written in code with very little detail. Notations of "poor oral hygiene" were not explained. The plaintiff also contended that much of the treatment was performed by staff rather than by the doctor. The expert also believed there was another significant issue that e n c o u r a g e d early settlem e n t o f this case. The patient had testified that late in 1996 he began taking Acutane (Roche Labs, Hoffman-LaRoche Inc., Nutley, NJ) for treatment of severe acne. This drug is known to cause xerostomia that can contribute to gingival inflammation and tooth decay. The boy said he apprised the orthodontist of this fact; however, the orthodontist disputed this. The expert believed that the presence of acne in a teenager should alert a doctor to the possible use of this drug. Although he opined that the orthodontist should have made an inquiry, because the damage was u n d e r the bands, he did not believe the Acutane was the primary cause of the decay. Until the time this case was settled, the patient's family had spent approximately $20,000 on restorations. The initial d e m a n d had been $350,000; the case was settled for $150,000. What went wrong here? The first issue appears to be one of office organization. The doctor reported that he was frequently absent from his office handling personal matters. He believed that it was his female partner who may have done some of the work; however, the plaintiff could not differentiate whether it was she or any of the dental assistants who was performing a significant a m o u n t of the treatment. The patient testified that the doctor was not paying sufficient attention to his care. The records did not reveal who p e r f o r m e d which procedures. In short, they
Why Orthodontists Get Sued
contained little detail and were incapable of providing m u c h s u p p o r t during the defense of the case. This was especially true regarding the docu m e n t a t i o n of p o o r oral hygiene. Those entries were not clarified, and the parents testified that they were never m a d e aware of any p r o b l e m s in that regard. H a d there b e e n details provided in the notes, p e r h a p s even initials f r o m the y o u n g m a n acknowledging these discussions, preferably with copies of the letters sent to the family apprising t h e m of the problems, there might not have b e e n a lawsuit. Better records would have at least m a d e the case easier to defend. T h e matter of the excessive n u m b e r of broken appliances was a shouting m a t c h between the patient and the doctor. T h e doctor believed the boy was to blame for eating inappropriate foods. T h e boy, of course, denied that he did so. T h e expert believed that the n u m b e r of repairs and replacements was far too extensive to be caused by anything o t h e r than p o o r b o n d i n g and banding technique. O n e very i m p o r t a n t point to be considered f r o m a review of this case is the possible n e e d for early termination of t r e a t m e n t secondary to n o n c o o p e r a t i o n . If the doctor believed there was p o o r oral hygiene and that too m a n y bands n e e d e d replacing, p e r h a p s he should have stopped the t r e a t m e n t when the problems continued. This would have p r e v e n t e d the exacerbation of the damages. Orthodontists are charged with the responsibility of recognizing and addressing (usually by referral to other specialists or general dentists) routine dental issues, such as caries or periodontal disease. Merely having a sign on the office wall advising patients to routinely see their general dentist for cleaning and examination does not insulate the orthodontist f r o m responsibility if the patient fails to comply. It is the o r t h o d o n fist's responsibility to d e t e r m i n e compliance when significant p r o b l e m s persist. C o m m u n i cate directly with referral doctors to ensure it is safe and a p p r o p r i a t e to continue orthodontic treatment. Refusal to continue t r e a t m e n t until there has been compliance must be seriously considered. T h a t may interfere with your projected t r e a t m e n t schedule, but it will possibly save you f r o m having to defend a lawsuit later after the d a m a g e occurs and the patient forgets that you told t h e m to have regular checkups. In the end, you will be held accountable. The issue involving Acutane provides a n o t h e r interesting observation f r o m a risk m a n a g e m e n t
213
perspective. It appears that information a b o u t the effects of this d r u g on dental health is commonly available. Because acne is a frequent teenage concern, a careful orthodontist needs to be proactive and m a k e an a p p r o p r i a t e inquiry, especially if decay seems to be a problem. Any change in the patient's complexion should be readily visible. In this case, the doctor s e e m e d to be unaware of m a n y details regarding his patient, p e r h a p s because of overdelegation. Better focus and attention to detail m i g h t have precluded the lawsuit.
Risk Management Recommendations Beware of overdelegation of duties to assistants as small but i m p o r t a n t details can go unnoticed. Regardless of the p r o b l e m , if a patient is not keeping appointments, has p o o r oral hygiene, is eating inappropriate foods, or has excessive d a m a g e to the appliances, the orthodonist should advise the patient and his parents of the consequences. C o m m u n i c a t e with the patient, and in the case of minors, at least occasionally with the parents. In addition, notify the general dentist of any p r o b l e m s with the patient's treatment. D o c u m e n t all of these communications in the patient's chart. Ensure that the patient is regularly visiting his general dentist for cleaning and checkups; d o c u m e n t this fact, as well.
Case T h r e e Facts In this case, the patient was a young adult female. H e r diagnosis was a Class III malocclusion secondary to a c o m b i n e d m a n d i b u l a r prognathism a n d slight maxillary retrusion. The examination revealed a facial asymmetry, abnormally shaped lower anterior crowns, a midline deviation, and partially impacted third molars. The t r e a t m e n t time was projected to last 2 to 21/2 years. T h e plan was to slenderize the abnormally shaped teeth. T h e doctor did not want to extract lower premolars because he believed that would flatten her profile and subject her to other dental p r o b l e m s such as root resorption or periodontal disease. H e anticipated extracting the third molars at the e n d of treatment, which he believed would allow for settling of the u p p e r and lower arches. After 3 years of treatment, the braces were removed, and the patient's maxillary anterior
214
Elizabeth Franklin
teeth were significantly flared and tipped labially. An anterior open bite was present, and lip closure was difficult. The patient alleged her dentition was deformed, and she was facially disfigured. W h e n she expressed consternation to the doctor, she said she was abruptly dismissed from the orthodontist's practice. At that time, he gave her a small fee refund of less than $500. She immediately saw another orthodontist who extracted eight teeth, retreated for 2 more years, and achieved an excellent final outcome. She then sued the first orthodontist. The plaintiff's expert alleged that the doctor failed to c o n d u c t a tooth mass to arch length analysis and that there was insufficient space without resorting to extractions. He also opined that 3 years of treaunent should have been sufficient time to achieve success of this patient's problem. The expert witness who reviewed the records on behalf of the doctor opined he was satisfied with the original treatment plan because he could see that the insured intended to extract the third molars at the end of treatment to add to the space. He agreed with the proposition that root resorption and periodontal disease could possibly be a problem for the y o u n g woman if the premolars were extracted. However, when he saw the plaster casts showing the severe flaring, he admitted that extractions did appear to be indicated. Nevertheless, he had no complaint with the length of treatment and believed that had the patient remained in the insured's practice, she would have achieved a good final result. Why then, did this patient sue? Was the initial diagnosis unsatisfactory? The allegation of the tooth m a s s / a r c h length discrepancy and the lack of such an evaluation was challenging to overcome. The records were devoid of such a computation. The doctor eventually p r o d u c e d one well after the records had been submitted to the plaintiff. It was written on a small post-it note, and was not impressive evidence. It had the appearance of having been created after the fact. That negative impression no d o u b t provided an incentive to the plaintiff to sue. In response to that allegation, the insured testified that he had always been aware of the tooth m a s s / a r c h length discrepancy. He characterized his treatment plan as conservative and appropriate, given the diagnosis. Even t h o u g h the insured made an adequate witness, the fact that he might have created evidence after the
fact would have diminished his credibility. The y o u n g plaintiff on the other h a n d was a sympathetic witness. She testified that when she expressed dissatisfaction with the outcome of her treatment, she was immediately dismissed from the practice. She felt a b a n d o n e d and very embarrassed by the condition of her teeth. The damages in this case were not significant; the plaintiff alleged expenses of $7,000, including subsequent orthodontic care and the costs for the extractions. She was upset at having to be in braces for a total of 6 years. She initially d e m a n d e d $125,000 to compensate her for the additional treatment, her embarrassment, pain, and inconvenience. After investigation, defense counsel seriously r e c o m m e n d e d settlement of this case before trial. Although both parties were g o o d witnesses, the post-it note a d d e n d u m to the records had a negative effect. In addition to that, once the expert witness testified that extractions were indicated, the fact that the teeth were badly flared at the end of 3 years became more difficult to defend. The dismissal of the patient from the practice was also a problem. The case was settled for $37,000.
Risk Management Recommendations From a risk m a n a g e m e n t perspective, records and their quality are once again seen as critical to the prevention of and subsequent defense of a case. As we have said before, incomplete or inadequate records provide little support against a plaintiffs allegations. Records that have an appearance of being altered are deadly. They create such d o u b t in the minds of jurors that they can erase any other good supportive factors in a case. Never engage in records alteration. As we saw in the other two cases, communication deficiencies appeared to influence this case. Was the treatment plan carefully explained so that the patient understood why the doctor chose to treat without extraction? Was a good informed consent discussion held, and did the patient sign a form to that effect? When the treatment time extended past the original estimate, was an explanation provided? What aspect of c o m m u n i c a t i o n broke down so unequivocally that the doctor felt compelled to dismiss the patient? It seems easy to understand in this case why the patient felt dissatisfied and a b a n d o n e d by the original orthodontist.
Why Orthodontists Get Sued
Tying It All Together We have now analyzed three very diverse cases. O n e occurred on the West coast, a n o t h e r on the Eastern seaboard, and the third h a p p e n e d in the South. O n e t r e a t m e n t period was extremely protracted; the o t h e r two were n o r m a l or close to normal. T h e patients were d i f f e r e n t - - o n e was a middle-aged adult female, a n o t h e r a male child, the third a y o u n g adult female. All of these patients sued their orthodontist. T h e r e are m a n y factors that go into the actual filing of litigation a b o u t which we c a n n o t be aware. It is c o m m o n l y believed that a conversation with a lawyer at a cocktail party or one living across the backyard fence may e n c o u r a g e some litigious behavior. Television and o t h e r m e d i a forms also frequently emphasize success in malpractice litigation and that motivates real-life litigation. In o t h e r words, some lawsuits will be filed, no matter what. Those of us involved in the handling of professional liability claims and lawsuits c o n t e n d that knowing the bases for some p r o b l e m patterns of behavior and interrupting t h e m can prevent some lawsuits f r o m occurring. This ultimately provides some protection to orthodontists. Let's review the most obvious forms of protection. O n e is to improve c o m m u n i c a t i o n skills. Listen to the patient or their parents. Speak to them, carefully explaining what is expected to h a p p e n , and what is actually happening. Explain negative behavior or other p r o b l e m s that are i m p e d i n g the success of the treatment. Continually c o m m u n i c a t e with referral doctors to be sure that the overall dental health of the patient is the primary focus, not just the orthodontic treatment. Focus on the treatment. If it is not progressing satisfactorily, take note. Is it taking too long? Is the occlusion not being corrected? Make changes if necessary. Focus on the patient. What issues a b o u t t h e m are occurring that m i g h t affect the success of the treatment? Empathize with the patient. Realize that each person has a different perspective to pain, motivation for treatment, and esthetics. Try to place yourself in their position and u n d e r s t a n d what they are experiencing. Let t h e m know that you u n d e r s t a n d and are concerned. Take g o o d records. Take e n o u g h radiographs
215
before, during, and after t r e a t m e n t so you know what is h a p p e n i n g physiologically. Record clearly and concisely all critical aspects of the treatment, p e r t i n e n t conversations, complaints, and occurrences. D o c u m e n t all instructions and advice that you give and keep copies in the patient record. Make it a habit to have an inf o r m e d consent consultation with every patient, tailored to their specific needs. Then, place a signed f o r m in the records as p r o o f of the consultation. Renew the i n f o r m e d consent if the t r e a t m e n t changes. If there is one thing that I have learned over the years of handling dental malpractice claims, it is that no dentist enjoys being sued. Some are m o r e willing than others to go t h r o u g h the trial process, but n o n e of t h e m enjoy it. It is time c o n s u m i n g at the least and antagonistic and offensive at its worst. It requires hours of answering written and oral questions a b o u t every detail of the office procedures, the diagnosis and treatment, the records, and the c o m m u n i c a t i o n or lack thereof. Doctors who are sued spend a significant a m o u n t of time working with an attorney to formulate and present a defense. They spend hours in preparation, pretrial settlement forums, a n d listening to constant accusations of wrongdoing. T h e trial itself is m o r e of the same, only m o r e intense, with one witness after ano t h e r alleging practice below the standard of care. If the emotional toll o f litigation is not bad enough, the financial cost is worse. Not only is defense expensive in terms of legal charges and expert witness support, but in addition, all of the time a practitioner spends defending a lawsuit is time away f r o m a m o n e y - m a k i n g practice. Most doctors I know object to that. As I speak with dentists, I find that the motivation to u n d e r s t a n d and make necessary changes to preclude or minimize exposure to lawsuits is generally high these days. O u r society has b e c o m e increasingly litigious in some areas of the country, with some cities being worse than others. Orthodontists must therefore be vigilant and recognize their own role in the process. They must m a k e a p p r o p r i a t e changes in their practice a n d in their relationships with patients to p r o t e c t themselves f r o m a malpractice lawsuit.