May 2019 Volume LIV Number 3


Malpractice: Take a Second Look

November 2013 Volume XLIX Number 6

 Mary Taylor, RPLU Financial Services Associate Treloar & Heisel, Inc.

We have all heard the sensational and horrific dental malpractice stories: The $10.2M verdict awarded in New Jersey for a young man's death after an extraction, $14.8M in Washington for a cheerleader's disfigured jaw, and the latest $17.5M verdict awarded in a federal court to a plaintiff who suffered a stroke and subsequent car accident after seeing his dentist. Midwesterners also won't forget the famous Chicago chef with oral cancer who created a media stir when he lost part of his tongue and sued his dentists for alleged failure to diagnose (this lawsuit was later dropped).


Most specialists haven't personally experienced a lawsuit of such magnitude, and perhaps have trouble relating to them because of their sensationalism. The dental malpractice lawsuits that we hear about in the news seem to create an impression that it's only the "bad" dentists who are sued, and "it won't happen to me."


This logic is flawed. Many of the stories we don't hear about in the news involve the 'good guys' in unfortunate, yet common, situations. Patients with unrealistic aesthetic expectations, non-compliance that deters progress or results in additional work, and patients with poor health or drug addictions can put all specialists, no matter how "good" or "bad" in a difficult situation. If one of these difficult situations materializes into a dental malpractice lawsuit, no matter how trivial it may seem, it can have a serious impact on the specialist's career.


A malpractice lawsuit, assuming there is not a serious injury or death involved, may seem to some just an aggravation. Unfortunately, it can be much more than that:


Reputation: A specialist builds his or her practice on referrals and reputation. For this reason, there is often a special emphasis on making positive impressions at community events, networking with referral sources, and marketing promotions and gifts. The last thing a specialist wants is gossip about a malpractice lawsuit tarnishing the reputation you work so hard to earn.


License: Any payment made to a plaintiff for a dental malpractice lawsuit is filed with the National Practitioner Databank (NPDB). Your state licensure board has access to this databank, and will often hold a separate hearing after the malpractice case is closed for potential licensure actions.


Future Insurability: Your malpractice insurance company has the option to non-renew your malpractice insurance policy at any renewal period. They will do this if you stop paying your premiums, if you change something in your practice that does not fit within their underwriting guidelines, or for frequency or severity of claims. Notice that is frequency OR severity. A malpractice claim does not have to have a big verdict or settlement tied to it to result in a non-renewal. In fact, for most companies, having a couple of 'small' claims is just as bad for a dentist's insurability as one claim with a large payment. A specialist who has been non-renewed by his or her malpractice insurance company may be unable to secure coverage with other companies in the standard market, and may be forced to pay much higher premiums in the non-standard market (excess and surplus).


Studies show that on average, a specialist is named in a lawsuit once every 10-40 years. Although this is a wide range, the numbers represent that no matter who you are or what you do, the odds are that you will experience at least one malpractice lawsuit during your career. Two additional factors may help you determine your individual risk:


Specialty and procedures: In general, the more invasive and surgical procedures you perform, the higher your risk of a lawsuit.


Practice location: Insurance companies look at the state, metropolitan area, and organization of the your practice to determine projected risk of a malpractice lawsuit. For example, specialists in New York tend to be named in lawsuits more often than specialists in Georgia, and specialists at corporate offices tend to be named in more lawsuits than specialists at private offices.


Malpractice lawsuits are a real concern for all dental specialists today. Anyone can treat a difficult or finicky patient and find a malpractice lawsuit on his or her desk shortly thereafter. There are, however, a few things you can do to prepare for a claim ahead of time. We encourage you to re-familiarize yourself with your malpractice insurance company and policy. A few things to look for are:


Risk management services: Many malpractice insurance companies offer risk management services to help you minimize your risk of a claim. These services may include written educational resources, online and seminar courses, and one-on-one consultation on items such as (but certainly not limited to) informed consent, dismissing a patient, and how and when to refund a payment. If your company offers such services, it is strongly suggested to utilize them!


The policy's consent clause: Most malpractice insurance policies are similar in their language, except for one very important, and very impactful difference. The consent clause determines who has the right to decide whether a malpractice case is settled or not. It is of utmost importance for you, the insured, to maintain the right to decide, asit's your reputation, license, and future insurability at risk during a lawsuit. A "pure" consent clause will always give the insured the right to refuse a settlement if he or she prefers that the company defend the case in front of a judge or jury. A close review of your policy language before a claim is filed is advised to make sure your policy has a "pure" consent clause.


Company claims performance: A malpractice claim is never fun, but some are handled much better than others. Malpractice insurance companies differ in their experience and expertise, financial stability, and performance in the courtroom. Some companies have in-house malpractice claims experts that utilize a nationwide network of expert witnesses and malpractice defense attorneys, and win in the courtroom. Some companies do not have such a structure established. You deserve the best defense possible if faced with a malpractice claim, so a review of your malpractice company's claims structure and performance is advised ahead of time.


Although malpractice is a reality for dental specialists today, it does not have to be a source of fear. Simply arm yourself with a healthy amount of awareness and the highest level of confidence in your malpractice insurance company.


For more information on your insurance planning needs, contact Treloar and Heisel, Inc at (800) 345-6040 or