by Laurance Jerrold, DDS, JD

How to deal with a malpractice claim

So you’re sitting in your office one day, and you get a letter from an attorney who represents one of your former patients. The letter is accompanied by a release and asks for a copy of all of your records pertaining to the patient’s treatment. Do you:

A) throw it in the wastebasket and forget about it because the claim is bogus;

B) contact the patient or the attorney to find out what’s going on and maybe to try and settle this before it goes any further;

C) immediately transfer all of your assets into your wife’s name and hope that she doesn’t have a boyfriend; or

D) notify your insurance carrier and follow their instructions.

I can tell you that I have seen all four things happen. The smart money rests with choice D.

Collect Your Records

Once you are aware of the potential for a claim against you, or you actually receive a summons, here’s what to do. First, make copies of everything, and get the originals and the copies out of the office. Place them in a safety deposit box or some other safe place that won’t be subject to a fire, a flood, or being eaten by the dog. As soon as you can, take a few minutes and write a longhand version of everything that occurred concerning this case. Who did what, who said what, who was present—I mean everything.

As soon as you have all of the records and your recollection of the events safely stored—and make sure that you do this as quickly as possible—contact your insurance carrier for instructions. What you have to remember is that you have a contract with your carrier. They agree to provide you with legal representation, and indemnify you for any losses suffered, up to your policy limits; but you have to timely and fully cooperate in your defense.

Do not attempt to settle the matter on your own. This could be construed as interfering with the carrier’s ability to adequately defend you. Therefore, if you take any action that interferes with their ability to represent you in a manner that they deem best, and which protects their financial interests, they may be able to reserve their rights relating to the indemnification portion of your contract.

Never, ever, ever alter your records. If you lose a malpractice case, so what? That’s the reason you carry insurance. If you get caught altering your records, you could lose your license and your ability to earn a living. Do not admit fault or guilt to anyone—no one. Also, do not talk about the case with other orthodontists who may have concurrently treated the patient; you do not want the opposition to be able to claim that you colluded in your testimony.

The Psychology of Lawsuits

Your carrier will assign an attorney to represent you; most of them are very good at what they do. Occasionally, though, be it chemistry or whatever, you may not be satisfied with the lawyer to whom they assign your defense. In that instance, here are the magic words that will get your carrier to assign a new attorney to you, since no carrier ever wants to face a bad-faith lawsuit: “I have lost faith and trust in my attorney; we can no longer communicate.” Do yourself a favor and memorize those words.

A lot has been written about the psychology that accompanies a lawsuit. Probably the two most important factors are, first, that jurors want to empathize with injured plaintiffs, and, second, that they want to trust and believe in physicians. It turns out to be a stalemate, and in the end it is not your suit to win; it is your suit to lose. Roughly 75% of all suits that go to trial against a single defendant are won by the defendant. Remember, the jury is the trier of fact. The members of the jury are the ones who will decide whether you were negligent or not. Everything you say and do will be scrutinized and evaluated by the jury. Therefore, desist from all behavior that is ostentatious, argumentative, arrogant, condescending, callous, or indifferent. Essentially, don’t engage in any activity that has the potential to turn someone against you from an interpersonal perspective.

One vitally important point is that, to a juror, image is everything. If jurors perceive you as possessing negative attributes to your personality, they may very well find against you merely because they do not like you. Unfair as it is, it is true. The converse also applies; if they like you, they will overlook a lot.

Think about it this way: If you had a choice, would you rather be perceived as a “Hawkeye Pierce” or as a “Frank Burns”? Show your humanistic side, show that you’re an integral member of the community, and show that you are the type of person who they want to cut some slack.

Answering the Summons

As a general rule, a lawsuit is started when you are served a summons and a complaint. These documents put you on notice that you are being sued for XYZ, briefly describe what you are being charged with, and tell you where the case will be tried.

There are many technicalities surrounding service of process, so make sure that you give all of the documents to your carrier, including the envelope containing the summons and a detailed description of how you received it. Sometimes, you can get lucky if there is some flaw early in the process.

You usually have to answer the complaint within a specified period of time—generally about 1 month—so make haste to provide your carrier with all materials and documents. Once you answer the complaint, which will generally include all affirmative defenses that you may be asserting, the suit has been joined and, as Sherlock Holmes would say, “The game is afoot.”

Discovery and Depositions

What follows is generally an interminable period of time known as discovery. It is during this time, often lasting years, that information, such as records and expert witness reports, are passed back and forth between the parties. Independent medical examinations are held, examinations before trial are held, and demands for all sorts of information are sought—some of which are germane, some of which are not. Requests for verified bills of particulars are commonplace, and spell out in detail exactly what you are being charged with.

Your responses may be critical, and your attorney should discuss this with you at great length.

In addition, requests for judicial intervention take place, and settlement negotiations might occur.

One of the most important things that occur during the discovery period are the examinations before trial, also known as depositions or interrogatories. They may be videotaped, or just transcribed by a stenographer. The parties to the action will certainly be deposed; however, in many states, the expert witnesses can also be deposed. This is an opportunity for both sides to really assess how weak or strong their cases are and to get a good feel for how the protagonists will come across at trial.

Be careful, because whatever you say at a deposition may be used against you at trial somewhere down the road.

Assuming that the case cannot or will not be settled, the next step is trial. The first question that defendants usually ask is, “When do I have to be present”? The simple answer is, “the whole time.” Why? Because you want the jury to see that you are interested in defending yourself.

Speaking of which, insofar as jury selection is concerned, do not expect to be tried by a jury of your peers—by which I mean fellow orthodontists. You will be very lucky if there is anybody who knows anything about orthodontics on the jury.

The Trial

The plaintiff will open first. The lawyers will present their case: Their expert will testify as to the type of butcher you are, the plaintiff will testify as to the type of nonresponsive animal you are—in short, you will not believe the negative picture of you that will be created.

Don’t worry, don’t get upset, and don’t get self-righteous. A little bit of professional indignation is all that is required of your demeanor.

After each party testifying for the plaintiff has concluded, your attorney will cross-examine that person and proceed to tear down his or her testimony. This is the game as it is played. Fine-line nuances, positive inferences, and some well-constructed admissions will serve to boost your stock at this point in the process.

The defense then presents its case. You get to testify about how you did nothing wrong, and that the patient never cooperated as instructed. Your expert will create a picture of you that you would like to frame and send to mom. Suffice it to say that the proponents on your side will be subject to the same cross-examination tactics by the plaintiff’s attorney that your attorney employed earlier.

Assuming that you have good evidence—records, records, and more records—you will be fine. If your evidence is weak, the decision will rest on whether the jury likes you or the plaintiff better.

The Verdict

After each side makes its closing argument, recapping its position, the jury will retire to deliberate. Sometimes it takes a few minutes, sometimes it takes a few days. It is a gut-wrenching time.

Once they have reached a verdict either way, it is very important to take away something positive from this process. Why did this whole mess occur? How could it have been prevented? If it could not have been prevented, what could you have done differently to ameliorate the situation? Did you have sufficient documentation to successfully defend yourself, or were your records deficient? What measures will you institute in the office to ensure that you will never fall victim to the same set of circumstances again?

I have seen physicians literally develop ulcers, lose weight, become zombies, and drive themselves crazy, all because of a stupid lawsuit. They tend to take it personally. They should not. Lawsuits are merely a part of doing business. Face it: If you never thought that this could happen to you, if you were convinced that you do not commit malpractice, then why in the world do you pay for malpractice insurance? For the same reason that you have automobile insurance and premises liability insurance: Accidents and errors in judgment happen. Accept that this is just another part of doing business, and do not take it personally.

Some dental societies have support groups; look into them. Maybe you need to see a shrink to get you over the hump; do it. Allow your staff and family to console you; it helps. Most important, learn from the experience.

And, oh yeah, keep those malpractice premiums paid up.

Laurance Jerrold, DDS, JD, is the interim dean and program director of the Orthodontic Residency program at Jacksonville University in Jacksonville, Fla. He has presented risk-management courses for six dental malpractice carriers and has presented or written more than 200 lectures, articles, and multimedia presentations dealing with risk management and ethics. He can be reached at (904) 353-0089 or [email protected].