This Suit Could Take You to the Cleaners
Many orthodontists are leaving themselves exposed to malpractice suits by not using procedures that have been proven to be effective defenses. It is folly to expose oneself--especially when the defense and avoidance mechanisms make so much sense. The cost of a lawsuit in money may be paid by the malpractice insurance company. The costs in time, stress, and damage to reputation are incalculable.
A prime factor in the loss of malpractice cases by orthodontists is failure to take and to maintain complete and sufficient records of diagnosis, treatment plan, and treatment. This means taking the customary diagnostic records, writing a treatment plan, and having a written record of treatment and of deficiencies in cooperation in treatment. An informed consent form appropriate to the state in which one practices is also important, as is timely referral to competent practitioners--especially in cases involving periodontal and TMJ problems occurring before and during treatment. Inattention to periodontal and TMJ condition in the initial diagnosis and during treatment has high potential for malpractice suits, even long after orthodontic treatment has been completed. (See Jones, C.L.: Long-Term Orthodontic Liability Problems, JCO 19:134, 1985.) It bears repeating that, because of this lingering liability, orthodontists must pay special attention to the terms of their malpractice insurance coverage; and they must be sure that current cases are covered against future claims. In addition, orthodontists should try to maximize their insurance coverage not only to cover current high awards, but also to cover future awards that may be considerably higher.
If it is known that it is important to take records and what those records are, it is then a question for how long must records be kept and in what form. Since a patient treated as a child may attribute a condition late in life to orthodontic treatment in childhood, there may not be a statute of limitations for orthodontics for all practical purposes. It has even been suggested that one's estate continues to be liable, so the most cautious approach would be to keep records indefinitely.
Twenty or 30 years of records become a burdensome storage problem. It may be solved by passing the practice records on to whomever takes over a practice upon death or retirement of the original orthodontist. Over time and with the survival of some practices through several generations of orthodontists, this could become a monumental problem. It is bad enough to try to cope with the growing pile of models, x-rays, slides, photographs, and treatment folders over the course of one practice life. In frustration, many orthodontists have simply thrown out early records. This could be a kind of orthodontic roulette, gambling that if suit has not been brought it will not be brought in the future. Most of the time this turns out all right. When it doesn't, a malpractice suit in the absence of records is likely to be lost.
As a compromise solution, many orthodontists have endeavored to reduce the mass of the records, while retaining the substance. This has been done by photographing models of completed cases, which are then discarded, and by photographing or microfilming written records. Video printing of models, photographs, and written records has recently been introduced and offers another way to reduce the sheer bulk of stored records. (See Burke, J.F.: Video Printing in Orthodontic Photography, JCO 21:118, 1987.) With the advent of computers, written records have been made even more compact. Without a doubt, x-rays and photographs will be stored by computer in the near future. However, there is an unanswered question about the acceptability of computer records in court, because they can be altered at any time without a trace.
Winning a malpractice suit is better than losing one, but not having one brought in the first place is best of all. While no one is immune to a possible suit, there are some sensible avoidance mechanisms. It has been said that people don't sue people they like. (See Editor's Corner, Building Friendships, JCO 20:661,1986.) It has been said that suing patients for unpaid bills is one of the best ways to trigger a countersuit for malpractice. Better to have an effective collection system and avoid the buildup of a large balance. A confrontational management style does not build friendships. A remote and unavailable doctor is not a friend. Viewing emergencies as unnecessary, burdensome, or even malicious is unkind and unfriendly. People--patients and orthodontists--have their limitations. If we don't promise perfection, most people realize that nothing in medicine is 100%. Further, if we do not accept the full responsibility for the treatment outcome--if patients are constantly aware that two people have to be 100% in order to achieve an optimum result--people are less likely to be dissatisfied. The best effort of a well-trained and knowledgeable orthodontist will suffice. If we have an appreciation for what patients do accomplish, they may be more cooperative and appreciative of what we can accomplish. If we are more understanding of patients' human frailties, they may be more understanding of ours.