Tlre

purpose of this section

is to provide important
iniormation
not only on patient
protection' but also
on malpractice
litigation
protection'
When I finishecl
orthodontic
specialty
training'
a
while back, the word "malpractice"
was not even itr
our vocabr.rlary.
Today it is a different
story' lt has been
a hobby
of mine to testify
in some of these cases;
I
finditexcitinganclchallengingbecausetheplaying
field is not level,
Ihe Unitecl
States is fertile for litiga-
tion. However,
other countries
are not necessarily
inrnrune.ln
the leacl article of the March
2001 issLre of
the World Jottrnal
of Orlhoclontic's'
Dorrald
Woodside'
eminent
Arnerican
Association
of Orthodorrtics
(AAO)
leaclerfrom-[oront0,reportsonalocal$4.4rnillion
case awarcl
in litigatiorl
involving
an orthtxlorrtist
and
nn orul surg,eon.r
Malpractice
litigatir:rr
has becorne
a
worlclwide
phenomenon
and continues
to
Erow'
Recently,
a Chlcago
I)r:nhr/
Revietr''rrlicle
crltitled
"[)clctor,
You Arr'' []t'ing Strt'rlr"
11'Jlrrrlrrl
thnl tht' tyt)i-
cal malpractice
suit in Chicago
lasts z ot more
\(-'ars
,trrd is trstrally
strttlt'rl
aftor sigrrificarrt
trial
pr('l)'lra-
tion.2 Since this article
'rppeared' 'he
risk management
cluicksand
has become
ntore treacherous'
Elizabeth
Franklin,
claims
rnanager
for tl^;e AAO
lnsurance
Company
(AAOIC), says that atrout half of the cases
filed are settled, ancl the other
half go to court' You
have about a 50% chance
of lefending
yourself in
such a suit because
the
jury is syrnpatlretic
to the
poor
patient, not the wealthy
doctor
and the successful
insurance
company'
Because
of poterrtial
jury bias'
attorney
David Tltomas
tells us elsewlrere
in this sec-
iion, tf,.
iob
of clefencling
someone
is rnore difficult
because
the
jLrry panel knows tlrat the insurance
com-
pony i, goin5', to take care of the cost' Mr Thornas has
been hig,hly successful
irr defencling
his clients'
but
nothing
can rePay
you for the psyt-hologic
trauma that
,o,
,rif., before,
cluring,
ancl after such an experience'
l(ule rrumber
1 abor'rt
choosing
your malpractice
insurance
compalry:
These
companies
have become
rlore cost consciclus
as zr result
of some
astronomical
awarcls,
so rnake sure
yoLl lrave
the ultimate
decision
to clefencl
or settle
yoLlr case'
lt is ofterr much cheaper
185
;i+:t:"'.;ti.;
.:l!;.-;l;tl
for the insurance company to settle the suit than to
fight it, but your name then appears on tlre National
Practitioner Data Bank, which should be avoided if at
all possible.
Until 30 years ago, lawsuits were a last resort' but
not anymore.
We've seen one danrage ceiling after
another shatterecl' A iecetrt Nevy Ytrrk Tlmes editorial
on silicone breast implants
("Trial by Science")
ancl
the class-action
lawsuit by Marsha Angell, former edi-
tor of the venerable Nerv Englan d
Jottrnal
of Medicine,
provided a wake-up c;,11.3 Tl-re eclitorial states, ""fhere
is no scientific evidence that silicone
implants cause
any diseases at all in women." Nonetheless, the man-
ufacturer
pairl out $2.5
billion dollars despite the
fact that there was no evidence! The spurious clainl
of causing cancer cculd not be valiclated, but the
jury
still awarded $2.5
billionl The New York Tintes
commentecl that this decision was a combination of
greecl, rnedia sensatiorralism,
iudicial
gullibility, and
the cleverness of lawyers. The fact that the contingency-
fee lawyers wort is a kind of legal confisc;ttion ancl
obfuscation ol several billion dollars, errgineerecl by zl
gullible media, and a relection of science.
For those of us in orthodontics, what we clo may not
be malpractice, but that does not mean a suit brought
against us is going to come out in our favor. This sec-
tion was written to let you know that there are ways
to defend
yourself. By the time you reaclr this part of
the book, you should lrave a good idea of the poten-
tial iatrogenic sequelae in orthodontics. lf you keep
good records, follow the laws, and uphold the stan-
dard of care, your chances of being sued are infinitely
reduced. As the Boy Scout motto says, "Be prepared!"
lf, after serving as a defense expert irr some
'l
50
cases, I seem a bit biased, it's because l've seen so
many things happen in which the dominant factor is a
5-letter word: money.
(Others would sLrbstitute the
word greed.) An extreme example is a recent tobacco
case in Wisconsin. The plaintiff lawyers billed for
24,733 hours, most of it done by paralegals, at a rate
of $3,782
per hour plus expensesla The irony is that
even the defense attorneys who lost the case were
amply paid, adding ttr the financial burden on the
insurance comPanies.
ln some of the cases in which I have been involved,
the massive files, records, and depositions are a foot
and a half thick, Too often, the records from many
orthoclontists
are not even half an inch thick' are
inconrplete,
and/or are harcl to decipher' Such
prob-
lems are a ntagnet for contingency-fee
lawyers' No
doubt
you've heard or seen their ads: "Sign
right here'
It won't cost you a penny' But if you win, you get two-
thircls." Of course, by the time
you pay the legal costs'
it is far less. But it is still a lottery awarcl for some
patients.
t
There are many examples
of this legal cancer, but I
will cite only a couple' A Long lsland hospital in New
York was orclerecl to pay
$40
million to a 39-year-old
wonr.rn who lost a hancl because of an lV needle that
was inrproperly inserted during lung srrrgery' Sad for
all roncerni:d, except the lawyers. ln Highland Park,
lllinois, $21
million was awarded to a fanrily because
tlre cloctor was late getting to the hospital when the
chilcl was being born and the child was later
judged
nTentally retardecl. The attorneys for the plaintiff
blarred the late birth as the cause' Was it tlre cause?
lnflation for a sirnilar problem resulted in a payout of
$35
rnillion by Northrvestern Memorial Flospit'rl in
e.rrly 2004.'r Ihc potlr patient, the rich cloctor, the
rir:h hospital! Tragically, the public ultinrately pavs the
cloctor, who passes on the huge nralpractice insurance
premium.s
Like doctors, orthodontists ltave an affluent image,
one that is likely to invite litigation' The public psy-
chology is against us,6 so you must protect yourself'
The popular press has exposed this legal obfuscation
lvith frequent articles, such as one that appeared in a
recent issue of the U.S. News and World Report' The
front cover showed the Statue
,rf Liberty, the torch
helcl high, with rats nibbling away.at the statue base.
As the legend below the figure stated, "The rats are no
longer nibbling. They are devouring our very founda-
tions!"7 I have qr-rite a collection of cartoons saying
rnuch the same thing.
As a result, malpractice
premiums have skyrocker
ecl, and insurance companies are suffering huge loss-
cs. ln 2002, ttine major companies stopped writing
malJ:ractice insurance because of their prodigious
costs. St Paul Federal alone lost $1
billion, and some
suits are still pending.s Ask any obstetrics/gynecology
specialist how many medics have quit the specialty,
not only because of the incredibly high insurance
premiums trut because of the psychologic trauma they
suffer from frequent suits. There was a bill before
e
)-
o
).
-1
I
I
Cong,ress, supported by President Bush,
'to
put a
$250,000 cap on awards for pain and suffering, but it
was opposed by the trial lawyers lobby, the ntr:st
powerful and well healed of all lobbies, ancl blocked
in the Senate after passing in the Flouse, Ilre bill was
defeated in late 2003. lt will be re-introduced in 2004,
but don't hold your breath. Ask your orthognarhic
surgery colleagues what their annual malpractice pre-
miums are-at least
$
1 25,000 and clirnbirrg. No w,on-
der so many are no longer doing orthognathic sLlrgery.
When I started in orthodontics, our malltractice fees
were
$72 annually. Now that is multiplied nrany times.
We must all take a proactive position to warcl off
the increasing financial burden that is being placed on
our shoulders. lt is no mere coincidence that the US
has 5% of the world's populatiorr but 70oh of the
world's lawyers. The prclblent, as I see it, is that the
lawyers make the laws, enforce the laws, ancl acl.iucli-
cate the laws in all three branches of government.
Among our representatives in Washington, how many
are not lawyers? Your chancr.s of lteing sur'rl are mtrch
lletter if you live in a lriq rilr th,rrr if \ou i.r,irr a srr.,rll
town, since the greatest conr.cntrltion of l,rrvyr:rs ls rn
the big cities.
The risk-managernent section of this hrok provirics
some of the basic ways to defend yourself in the fare
of the exponential increase in the number of suits and
the amounts paid out. ln
.1980,
in lllinois, the total
medical indemnitl, was
$11 million; by 1995, it rvas
$349
million; in 2000, it was
g4B5
million! The nunr-
ber of annual claims has risen frorn 620 k> 14,8261
Dentistry has seen similar increases. The insurarrce
companies are all very busy, though they are usually
making less, not more, profit. Many have either gone
out of business or stopped writing malpractice insur-
ance altogether.
Another problem is that when one health service
gets sued, it can have a machine-gun cffect on all
providers: Everyone is sued even if they have no direct
involvement in the case. For example, it is highly like-
ly for you to get sued in an orthognathic surgery case
even if the problem is surgery-related. l'he only way
to protect yourself is to keep com;:lete, comprehen-
sive written records of exactly what you have told
all parties and to get records fronr other providers.
Communication is the name of the game, as you'll
read in this sectiorr again ancl again.
lil?,[ntlar,,,r*?i]ik!.Hptwr+:i!i,]]
Contingency-fee lawyers have no rnonopoly on un-
ethical behavior, so we have to keep our own house
in order. 1bo nrany of our collr:ail,ues are ready tr_l
serve the ego-inflating role of "e\pert" in these cases.
Sorne of them will take eitlrer sic1e.
Justice
rnay not be
the deterr:rining factor; the pecLrniary reward is what
is important to the self-styled expert, sometimes criti-
cally referreci to in the press as "haclcs for hire." These
so-callecl ex[)erts are listecl in a book organizecl by
specialization.
-lhe
aclvertising for one of these books
trunrpets, "This is the one book rhat defense lawyers
do not want yctu to have!" I have faced one such
"orthodontist" testifying on both sides of a question
many times. We nrust protect
.Jur
own ethics, our
integrity, and our public image.
A recent Callup poll surveyed the public
on the rel-
ative honesty and integrity of various professions and
trades.6 Druggists werer ranked highest at640/o, clergy
at 56%, and college teachers and physicians
both at
55%. Dentists were rated at 53'lo. Further down the
list was lawyers al17ol-,, not far above used-car sales-
men, at B"/o. The public has an image of ethical
helravior, ancl ortlrr;clonlists rlo relatively well. BLrt on
a scale clf I to 100, shouldn't our reputation be rated
hrigher than 53%?
l'm not trying to argue that there is no rnalpractice;
of course there is malpractice. But sometimes we
think we see it rnuch easier in a cornpeting orthodon-
tist's patient who comes to us, though it is not mal-
practice, We tend to be
judgrnerrtal
when we do not
know all the facts. lt is vitally important to know what
has transpired. Why is it that clentistry is the most crit-
ical profession? I think maybe we sometimes have an
inferiority complex, because we use the term doctor
all the time, like podiatrists and chiropractors, in con-
trast to the rnedical profession, which instead uses the
MD degree. Regardless of the cause, we tend to be
too critical of our colleagues. Before delivering an
opinion, the very first rule is to look at the patient,
look at all the facts, know what has happened, deter-
mine the patient's level of cooperation. Review the
records.lt is amazing how fevr orthodontists ask tbr
the records from the prior treating orthodontist.
ln any event, "Do unto others as you would have
thern do unto'you." lf you have a patient who is
unhappy for one reason or another, you should try to
rnakr-, surc that paticnt is tal<en care of by taking the
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187
time to consult with a colleague. Try to see that all
the records go with the patient. The AAO can provicle
you with transfer or consultation fornrs. Call the sub-
sequent orthodorrtist ancl clo all you can to expeclite
the consLrltation ancl possible treatment. You and the
patient will benefit fronr those actions. This is stanclard
practice in medicine.
Make sure yoLr do a compreherrsive nredical and
dental history and functional and TMJ examinatiorr on
every patient, preferably Lrsing one of the many excel-
lent questionnaire sheets available. The AAO provicles
case history forms for patierrts unr.ler 1 B anrJ for ac1ults
(see
Appendix). I have been involved in at least 24
TMD cases, and yet we don't even have any proof that
TMD is a factor in orthociontics.s The 1996 National
lnstitute of Health conierence stated this categorical-
Iy.e,10 Nevertheless, the million-dollar Brimm case
cJecision galvanized h,"rndreds of copycat suits. The
record shows that Ms Brimm had two thircl molars
removed by the oral surgeon after orthodontics. lt
seems that her acute TMD synrptoms clevelopecl
afterwards.
'fhe
surgrron who renrovecl the third
molars settled for
$2,500, and the orthr:dontist got
clobbered for
$1
n'rillion. The orthodontist was a
member of a university faculty and did the'righr thing.
The so-called expert for the plaintiff was a general
practitioner as well as a non-lroardecl specialist who
I have faced a number of times in court. The expert
supporting tlre orthodontist was a professor in a great
university and a world-class orthodontist. None of us
is inrmune. Moreover, the AAO appealed and lost on
the appeal. Who says all decisions are fair?rr
your
records should reflect a functional exam, particularly
of the TMJ and neuromusculature, before, during,
and after treatnrent. Record nocturnal parafunctional
activity, which is a leaciing cause of TMJ problems, lf
present, consider incorporating an anti-bruxism, anti-
clenching modification in the patient,s maxillary
retainer, and instruct tl're patient about the probable
need for indefinite wear at night.
lf we get good records, it is harder for the plaintiff
attorney and easier for your defense attorney. The
AAOIC and other insurance companies work very
harcl to make sure you get the very best legal atten-
tion. ln tlre past, malpractice cases were assigned to
the junior
members or partners of the firm, but this has
changed. Now that more money is involved, the top
people in tlre firm are handling malpractice cases.
Retain the right to make a decision on court action in
your insurance policy.
lf you are a nrale dentist, you have a 2.Bo/o chance
oi lreirrg suecJ; fcnrale dentists get sued only 0.7'7o of
the time. Oral surgeons are sued much more often,ll
so you increasE your chances of being sued if you are
the orthodontist working on the case with the surgeon.
C-ommunication is the name of the game. You must
havc infornrerl consent forms signed by the patient or
parent of a rninor, Although the professional standard
of c are is the lrasis for judgrnent in rnany jurisdictions,
tlrere is a trend in this country to use what is known
as lhe nraterial-risk standarcl or the reasonable patient
standard, Courts are nrore and more protective of the
patient's rights and nrore hesitant about formulating a
conrprehensir e stanclarcl. The feeling is that the dental
ancl nredical
lrrofessions
should not be allowed to dic-
tate the stantlard for inforrned consent. The patient
Lrltirrr.rtely ouns the right to deternrine what is to be
ckin' rritlr I' ,rr ht,r ,uvrr ltorlr,. This doctrine pre-
vailt,tl iri
(,r, r(,rl)ur),
rs SPrnce.r. We need to make
slrre consent irirnrs arc. rea(i by the patient (or
parent
of a minor), cliscussed personally rvith the doctor, and
signed ancl even witnessed. After the patient (or
par-
ent) has read the informecl consent document, ask him
or her personally,
"Have you any questions?" Then,
have them sign and clate the signature at the bottom
of the document.lr The AAO informed consent form
(see
Appendix) is available upon request,
You need a proactive staff as well as a patient
ombudsman. The warmth of one staff person can be
critical. A friendly patient is less likely to sue you if
somethlng goes awry, Of course, if you're going to be
seeirrg B0 patients a day, it's more dilficult to establish
an optinral office rapport. You need somebocly to rep-
resent you and represent the patient. You need to cor-
respond with a referral source. Again and again, I
have seen cases in which there is no correspondence
with the referring dentist. There is no report letter to
the general dentist, sometimes no diagnosis or sum-
mary of the patient's problems. I have seen malpractice
cases with no models, no radiographs, no panoramic
radiographs, no progress records, and no cliagnostic
summary or treatment plan-often not even a report
letter to the patient. lt's surprising how man;'cliniciarrs
don't do what they should do. l'his makes it hard for
all members of our specialty.
ln this era of ntall;ractice ntani.-1, evt:rr tlte goorl
Samaritan Sometimes suficrs. lf an orthorlor,rrst does ,r
partial correction for an assistant, colleague, or rela-
tive of a referring dentist, it is often gratis or for a
nominal fee as an expression of appreciation. lf the
treatment result doesn't meet the expectatiorts of thc
patient, there is a distinct possibility that the ortho-
dontist will face a malpractice suit. So often in such
cases, full records are not taken, consent forms are
missing, treatment notes are cryptic. This makes per-
fect litigious fodder to present to a
jury. The experience
is traumatic to the orthodontist even if the case is ulti-
mately won and takes much time and money for the
defense. Very sirnply, treat all cascs with the same
practice management details and goals, with no cont-
promises at any level, Special "favors" can come back
to haunt you.r4
We need to follow these rules. ln professional conr-
munication, use written records rather than the tele-
phone, and always keep copies. Maintain continuous
written communication with the orthognathic surgeon
and with the general practitioner, not
.iust
with the
referring dentist. You are not an island unto yourself.
lf you send something to an orthognathic surgeon or
the pediatric dentist, stamp it on the records. lt's bet-
ter to send copies rather than originals. When you
send a bill to the patient, put "Please see your dentist"
at whatever interval you want-3 months, 6 months,
whatever you prefer. Then, have your staff check that
the patient followed through.
Use your trained auxiliary staff, but make sure they
are qualified to perforrn the services you ask of thern.
Sontetimes we have staff do things that are not legal.
Ms Franklin refers to such a case, and the insurance
company had to settle even though no',lrnlrg" *u,
done. You do notface a friendly environment in court.
I have been involved in a case where the auxiliarv
personnel took off the bonded brackets, polishecl the
teeth, and took the impressions for final study casts. ls
this legal in your state? ln how many states is this
legal? lf it is not, try to change the law. This was clone
recently in lllinois, for example. Defensive practice is
the name of the game for all health professions and
surely applies to orthodontics.
Consider referring. Referral is necessary when a
patient's treatment needs are beyond the ability of the
treating dentist's skill, knowledge, and experience. Dr
Vanarsdall stresses this again and again in his chapter
on periodontal ramifications. We know that there's
nothing wrong with referring. Have the patient get
second opinions before or during treatment. Why are
we so worried about referring to another orthodontist,
particularly when patients or parents question one-
phase versus two-phase treatment, extraction versus
nonextraction therapy, expansion versus nonexpan-
sion? Always say, "lf this was rny child, this is what I
would do, but I want you to be sure." Cet a second
cpinion if there is ever any question. Failure to refer is
a legal goldmine now. ln medicirre, if a patient has a
cardiac problem and you're treating the liver or some
other area, then you're in trouble.
One of the most onerous problems is the cryptic,
short-handed, inadequate, illegible written records that
we keep to support each visit. l've gone over these
records, and they look like hieroglyphics. Cet yourself
a little recorder or sonlething that fits in your jacket
breast pocket. When you've seen the patient, take
the recorder out of your pocket and record sonre
basic treatment notes: "Mary
Jo
Smith, 9-15-2003,
retie archwire, torque incisors," etc. "Next tinre check
mobility of incisors," etc. Have it typed into the
record. Look ati'some medical records and then look
at dental records. Ours are mediocre at best.
ln 1996, the AAO councils developed an excellent
statement of clinical practice. standards of care. Re-
quest a copy of this document,r3 As orthodontists, our
goal is well-aligned teeth, but that does not mean
typodont perfection. Normal is not an ideal, it is a
range based orr morphogenetic skeletal pattern, mus-
cle pattern, age, etc. Be sure to say, "Does this look
go-od to you?" Have patients initial their reply. Few
lawyers are going to accept a case vrith such evidence
against a likely success. Remenrber, the lawyer gets
nothing unless he or she wins'
-lhere
are controversial treatmen'| objectives, such
as canine-protected occlusion, that some clinicians
try to attain. As the Creek aphorism says, "Everything
in moderation." Lysle
Johnston
ccmments appropri-
ately, "Cnathology
is the science of how articulators
chew!"rs The jury is still out orr this goal from a legal
standpoint. Recording parafuncttonal habits is more
189
important and a proven cause of some TMJ conr-
plaints.
Much has been written by erninent authorities in
the first part of this book to enrplrasize r,r,hat our bio-
logic limitations are irr spite ot amazingly efficient
orthodontic appliances. The infornreci consent nrust
cover all potential iatrogenic sequelae ..is well as
changes that may occrrr post-treatment. Do we cause-.
damage? ls there something we can do? What price
orthodontics? Missteps are potholes along the ortho-
clontic highway, Ninety-nine percent of the cases that
we treat have at least some nrinuscule degree of root
resorption, according to a study from Ohio State Uni-
versity, although you may not see it on the periapical
films or the pan,tramrc radiogralth.i Moreover, we
lose some crestal bone with every extraction. We also
nrust monitor the pati:nt's periodontal response.
References
l. \Voociside t)C. lhe 94.4 rlillion case. World
J Orthocl
1001;2:10--10.
2. []or-tor, You Are Being Suerdl [eclitorial]. Chir: Dent Soc
tlulI Nlay'-lune 2002.
|, ,\ngell rVl. Trial by Science leclitoriall. NY Tinres, Decem-
lrt,r 9, l9(lB, p 29.
.l (
lricaBo liilrunc, IebrLrary 15, 200-1.
5. ADA News, February 1'2,2004.
6. llonesty and ethics poll. Available at htrp://www.gallup.
conr. Accessecl 1 4
January 2004.
7. [)ractice rVlanagenrent Fornrs. [Jpdated 200]. American
Association of Orthodontists, St Louis, Missouri.
fl. National lnstitute of Health. Technology Assessment Con-
ference: Management of
'Iemporomanclibular
Disorders,
Nlll, Bethesda, April2g-May 1, 1996,
9. Kim N,tR, Craber TM, Viarra MA. Orthodontics and tem-
poromanclihLrlar disorders. Am
J Orthod Dentofacial Orthop
)002;1 21 :4 38-446.
10. Egernrark l, Magnusson T, Carlsson C[. A 2O-year follow-
u1; oi sigrrs ;rntl symptoms of tentporonranclibular disorrJers
,rnri ntaItr-r lrrsions in subjects with anrl rvithout ortho-
tirrntir: treatrrrcnt in chilclhoocl. Angle Orthocl 2003;73:
r 09- 1 I 5.
Il .
(lraber
TN,1. Doctor, You Too Can Be Suedl American
,\:sociation of Orthociontics, Orlanclo, Nl,ry 4, 2004,
l.r,
(
,rrrlr,rlrrrry v Spr,rrt r',
,1(t,l
l. 2<l 77'2 D.(. Cir, l()7'1.
13, Anrerican Association of Orthodontists,40l N t-indbergh
Ulvd, St Louis, Missouri 63141. Http://www.aaomembers.
org.
1-1. Risk management review: Orthodontic
,,fayors,,can
result
irr rnalprat tir c t:laims. AAO Bullctin
f
antrary/Febru ary 2004;
22:1O-11 .
15.
Johnston l-. Serninar. Department of Orthodontics, Univer-
sity of lllinois, April 5, 2003.