I. A Malpractice Complaint
Once a doctor-patient relationship is established, both the dentist and the patient have specific roles and expectations. One underlying assumption is that the dentist will practice within the standard of care. Yet, who determines that standard? Moreover, is the standard always the same?
In our legal system, malpractice lawsuits are filed in civil courts. The purpose of civil suits is to resolve disputes between private parties by applying the standard of a "preponderance of evidence". What does this mean in real, tangible, terms? How is it quantified? Who measures?
The parties who play key roles in a malpractice lawsuit are the plaintiff, the defendant, the attorneys, the expert witnesses, the judge and the jury. The ultimate goal is to resolve the suit by deciding if monetary compensation is to be given to the complaining party, the plaintiff, and, if so, in what amount. In these lawsuits, there is no jail time punishment, no probation, no licensure penalty. The consequences of a civil lawsuit are monetary compensation to the injured party for the complained of injury, monetary compensations for pain and suffering, and payment for costs to correct substandard dental work. Also, civil courts may award money for future replacement restorations.
The malpractice complaint must meet a certain legal standard to survive. It must name the proper parties. It must plead in a manner that either gives notice to the defendant of the allegations being made, or it must plead with sufficient facts to support the allegations asserted. This can very from state to state. Further, the complaint must ask for the specific remedy being sought.
There is a phrase familiar amongst lawyers and law students - "think like a lawyer". What does this mean? How does understanding this thought process help to defend a lawsuit?
A lawyer thinks of a malpractice lawsuit in the following way: duty, breach, proximate cause and damages. All four of these elements must be present, and proven, in order for a plaintiff to prevail.
A lawyer also evaluates the evidence that is available. This equates to what is relevant? What is admissible? What will the witnesses be allowed to say during testimony? What business records are present? What evidence will be challenged?
In malpractice lawsuits dental experts are usually retained. Expert dental witnesses are other practicing dentists who have reviewed all patient records, past and present, and have formed opinions, to a "reasonable degree of dental certainty", on the standard of care rendered to a patient. These opinions will usually be presented at trial.
The pre-trial process will often include discovery which is a mandatory exchange of information by the parties, motion practice and depositions. The legal process and strategy employed can win or lose a case, and it can also try the patience of a defendant who only wishes for the nightmare to end.
For a busy practicing dentist, this process can cause much worry, create financial stress, disrupt patient care, and cause other kinds of personal angst. Advance preparation is always critical, and conducting your practice in a manner that anticipates complaints, with a clear insight into the process, can diminish or even avoid such lawsuits at an early stage.
So, what should a "risk aware" dentist do right now?
While laws vary from state to state, all malpractice lawsuits have these same basic elements. Your attorney can answer any specific questions you may have regarding your state's rules.
Lillian Obucina, Inc. is a resource for dental professionals on the law, regulations, and codes of ethics in dentistry. Education, information, insight, and motivation can avoid legal and ethical problems, and eliminate much uncertainty in dental office operations and patient management.