WHEN A PATIENT THREATENS TO SUE
Whenever a patient, the patient’s attorney, or any other representative of the patient informs the dentist that a malpractice suit is being considered, several precautions should be taken: First, all such threats should be documented and reported immediately to the malpracticEtinsurance carrier. The dentist should follow the advice of the malpractice carrier, institutional risk management team, or the attorney assigned to the case. These individuals will usually respond to the threat. Because the first indication of a. potential claim is usually a request for records, the
office should comply with state law regarding what must be provided (usually copies of care and treatment records, not the originals). Patients sometimes request the original chart and radio graphs for a variety of reasons. The law in many states indicates that the dental office owns the records and has a ‘legal obligation to maintain original records for a specified period. Patients are entitled to a legible copy, and dental offices are entitled to a reasonable reimbursement for the same. Patients do not own the records merely because they paid for care and treatment. Second, the dentist and staff should not discuss the case with the patient (or representative of the patient) once a lawsuit is threatened or made. All requests for information or other contact should be forwarded to the
carrier or attorney representing-the dentist. All arguments with the patient or representative should be avoided. The dentist must not admit liability or fault or agree to waive fees. Any such statement or admission made to the
patient or patient’s representative may be used against the dentist later as an “admission against the dentist’s interest.” Third, it is Imperative that no additions, deletions, or changes of any sort. be made }n the patient’s dental
record. Jtecords must not be misplaced or destroyed. The clinician should seek legal advice before attempnng to darly. entry. DwjDg the process of malpractice litigation, dentists may ~ called to give a Q&.posi,tion This may be as the defendant in a case or as an expert witness. Although this Is quite common for attorneys,. the procedure is often . – unnerving and emotional for dentists, particularly when testifying in their own defense.’ . The following are six suggestions that should be considered when giving a deposition related to a malpractice case: 1. The clinician should be prepared and have complete knowledge of the records. All chart entries,
test results, and any other relevant information should be reviewed. In complex cases, the clinician should consider reviewing textbook knowledge of the subject; however, an attorney should be consulted before anything other than the clinician’s own record is reviewed. 2. The clinician should never answer a question unless it is completely understood. The clinician should listen carefully to the question, provide a succinct answer to it, and ~top talking after the answer is given. A lawsuit cannot be won at a deposition, but it cari be lost. 3. The clinician should not speculate. If a review of the records, radiographs, or other information is necessary, the cltniciarrshould do so before answering a question, rather than guessing.
4. The clinician should be careful when agreeing that any ‘particular expert author or text is “authoritative.” Once such a statement is made, the clinician may be placed in a situation in which the clinician did something or disagreed with something the “expert” has written. In most states a clinician can be impeached by anything an author states, once the clinician agrees that the author is “authoritative. The clinician should not argue unnecessarily with the other attorney. The clinician’s temper should not be shown (this will only educate the clinician’s adversary as to what will upset the clinician in front of a jury, who will expect the dentist to act Professionally). – 6. The advice of the clini~ian’s lawyer should be followed. (Even if retained by the insurance company, the attorney is required to represent the clinician’s interests, not that of the insurance company or anyone else.) Most anx,iety related to lit.igation comes from the’ fear of the unknown. Most dental practitioners have limited or no exposure to itigation. It must be kept in mind that. dentists prevail in most cases. Only about 10% of cases go to trial, and dentists win well over 80% of these cases. Unfortunately, a malpractice trial requires a tremendous investment of time, energy, and emotion, all of which detracts from patient care. Most dentists have no choice; they must defend themselves. Dentists who are repared . and who possess reasonable expectations of each step the litigation process usually experience less anxiety.