Donald E. Machen, DMD, JD, on Legal Issues in Orthodontics

DR. RUBIN What actions or inactions trigger lawsuits against orthodontists?

DR. MACHEN Approximately 47% of lawsuits against orthodontists are based on poor interaction between the orthodontist and the orthodontist's staff and the patient or parent. Another 40% are initiated as a result of second orthodontist criticism. Approximately 6% are in retaliation for collection attempts, and only 3% or less, according to our statistics, are as a result of poor treatment results.

DR. RUBIN What is the frequency of malpractice actions against orthodontists?

DR. MACHEN Approximately one out of every 10 orthodontists will be involved in a malpractice case every year. These statistics, however, do not reflect that some orthodontists will have multiple suits filed against them.

DR. RUBIN What are the primary reasons for the interpersonal breakdowns that trigger 47 percent of the lawsuits against orthodontists?

DR. MACHEN The primary reason is failure to keep patients informed of progress or lack of progress--an unwillingness on the part of the orthodontist to speak with the patient or parent about various problems or concerns they may have, and a confrontational style rather than an accommodational one if problems do occur. It is important to sit down with these people, understand their concerns, and attempt to resolve the problems in a caring fashion.

As I mentioned earlier, fewer than 3% of the orthodontic negligence cases are initiated as a result of a poor treatment result. If a vast majority of orthodontic malpractice cases are initiated for reasons other than treatment result, then it is incumbent on the orthodontist to develop a style of interaction with patients and parents that demonstrates a concern for their care and their well-being. If this is done, patients will be substantially less inclined to file a claim.

DR. RUBIN Are there personality characteristics in patients who may be likely to sue that can be identified, so that one can avoid treating them?

DR. MACHEN I am not aware of any scientific studies that correlate various personality characteristics with the initiation of litigation.

DR. RUBIN Can an orthodontist refuse to treat a patient based on personality alone?

DR. MACHEN Health-care practitioners are permitted to refuse treatment to anyone providing the refusal is not based on race, religion, national origin, or disability--including someone who is HIV-positive. Personality characteristics and personality compatibility can most certainly be a basis for refusing treatment. Each orthodontist will determine which personality characteristics are unacceptable to them. I would suggest that each orthodontist reflect on those personality characteristics that they feel would cause them not to be able to be compassionate and caring and accommodating, and screen for them in attempting to evaluate patients.

DR. RUBIN What about the 40% of claims that result from second opinions?

DR. MACHEN These are easily avoided with a common-sense approach to second opinions.

DR. RUBIN You said that approximately 6% of malpractice suits against orthodontists are initiated because of aggressive collection attempts.

DR. MACHEN Yes. Orthodontists should be aware that such attempts can result in counterclaimsfor orthodontic treatment negligence.

DR. RUBIN Then how should non-payment be handled to avoid this possibility?

DR. MACHEN Instead of remedial types of collection procedures such as collection agencies, small claims courts, or local magistrates, better financial procedures should be in place prior to beginning treatment. First of all, perform a credit evaluation through a local credit bureau. Second, make intelligent credit decisions based on these credit reports. Next, increase the initial fee so that the monthly payments are decreased and made over a shorter number of months. If someone is not credit-worthy, don't offer credit. Suggest that other forms of payment be used, such as borrowing money from relatives or from a savings and loan or banking institution.

DR. RUBIN Should orthodontists write off delinquent accounts?

DR. MACHEN I advise orthodontists that attempting to collect a $200 or $300 or $500 or $1,000 delinquent account is fraught with danger and with the possibility that a counterclaim will be filed. Rather than invest the several hundred hours required to defend a malpractice action and rather than have adverse publicity with regard to this, it is better to write off these delinquent accounts and implement better financial procedures in the future.

DR. RUBIN My own opinion is that routinely writing off delinquent accounts is not good business practice, because it rewards poor behavior and increases overhead, requiring higher fees to those who pay their bills. You run the risk of developing the reputation that payment isn't essential in your office, which could be disastrous. Naturally, if there is a true hardship, the fee can be reduced or the terms made more liberal. To get back to claims against orthodontists, though, when an action for negligence is initiated, what are the chief bases for the claim?

DR. MACHEN TMJ dysfunction, periodontal disease, and root resorption play a major role in the majority of orthodontic negligence actions. However, several other areas appear with significant frequency, including wrong tooth extraction and orthognathic surgery problems. In the past several years, failure to provide antibiotic coverage for patients with various cardiac problems has been named on several occasions. These problems appear to be avoidable if the proper amount of time and care is taken in the initial examination and in preparing a diagnosis and treatment plan. Also of substantial importance is failure to obtain adequate informed consent. It is my opinion and that of other defense lawyers that careful informed consent will substantially reduce the incidence of orthodontic negligence cases.

DR. RUBIN The outcome of orthodontic treatment is highly dependent on patient cooperation. Youngsters today don't seem to be as cooperative as they used to be, which means we can have more compromised results than in previous decades. Do bad outcomes increase the likelihood of a suit?

DR. MACHEN It is important to remember that less than 3% of the negligence cases are initiated as a result of poor results. Nevertheless, it is important for the orthodontist to spend a great deal of time with the patient and parent prior to treatment indicating the importance of cooperation. Informed consent should be obtained from the patient and parent, and feedback should be provided to the patient and parent as treatment progresses. If treatment is not progressing as expected, progress reviews should be had with both patient and parent present, correspondence should be generated, and at some point, if cooperation doesn't improve, treatment should be discontinued.

DR. RUBIN What procedure should be followed for discontinuation of treatment?

DR. MACHEN Let me preface the topic with the thought that discontinuation should be used judiciously. As an example, it may be necessary for a child patient who has received several warnings regarding poor hygiene and in the orthodontist's opinion, continuing treatment presents the possibility of irreversible tissue damage due to poor cooperation.

The procedure I follow and recommend consists of at least two prior warnings, both orally and in writing to the parents, as well as a consultation to explain the deficiency and the potential problems that may arise. After these have been given, if the deficient cooperation continues and the judgment of the orthodontist is that continuing treatment under these conditions poses the risk of irreversible harm to the dental tissues, then a final correspondence is sent indicating that the patient or parent has the option of transferring to another orthodontist, or that they present for appliance removal, since the complications for continuing orthodontics under these conditions of non-cooperation are such that you will not do so.

I suggest sending this letter certified mail, return receipt. In this letter, it must be stated that the orthodontist will continue to treat the patient for a period of time--I suggest two to three months--or until another orthodontist's services are secured or the appliances are removed, whichever comes first. However, this must be confirmed with local counsel regarding abandonment in your jurisdiction.

Your procedure should be included with the material on informed consent that is both discussed with the patient and parent prior to treatment and included in the informed-consent letter sent immediately after the conference. At the end of the letter, the patient or parent should acknowledge acceptance of the terms and conditions of treatment by signing and returning a copy for the orthodontist's records. I further place the same termination information in the office policy manual given to patients. This manual also discusses how the office functions and other patient responsibilities.

DR. RUBIN Does the same apply if teeth have been extracted and extraction spaces still remain?

DR. MACHEN The identical analysis must be used, except now the decision as to which harm is greater--continuing in the face of non-cooperation or removing the appliances--has an added component of leaving some of an extraction space, if it has not yet been closed. It is my position that the only time treatment may be discontinued is to protect the patient's health, dental or otherwise, from irreversible harm. I suggest that this procedure is not to be used for non-payment of fees when the patient is a child.

DR. RUBIN What percentage of orthodontic malpractice cases are frivolous?

DR. MACHEN That is difficult to say. However, even cases that lack the necessary proof of orthodontic negligence, cases that could easily have been won, may be settled before trial because of failure of the orthodontist to have good diagnostic and treatment records.

DR. RUBIN What percentage of suits that go to trial are won by the plaintiff?

DR. MACHEN Of the cases that are taken to trial, the win ratio for orthodontic defendants is nine to one.

DR. RUBIN Are GPs who do orthodontics more likely to be sued for malpractice than orthodontic specialists?

DR. MACHEN General practitioners practicing orthodontics have a malpractice frequency similar to that of orthodontists.

DR. RUBIN Is the "standard of care" different for orthodontic specialists than for GPs doing orthodontics?

DR. MACHEN The standard of care for any particular procedure is that care that the average practitioner "in good standing in the community" would provide under the same or similar circumstances. Some states have a standard of care for general practitioners that is different from that for orthodontists. In those states, a general practitioner practicing orthodontics is held to the standard of care of the average general practitioner practicing orthodontics in the same or similar neighborhood. Whereas, in many jurisdictions, orthodontists are held to a national specialty standard. It would be the standard of care of the average orthodontic practitioner in the United States in good standing under the same or similar circumstances.

DR. RUBIN How is the standard determined?

DR. MACHEN The standard is derived in any particular case through expert witness testimony. Each side, plaintiff and defendant, will retain one or more experts to review the matter and offer testimony as to the standard of care, and as to whether a breach of the standard of care occurred in this particular circumstance. Although the average practitioner is a hypothetical construct, it serves the purpose of providing necessary information as to what the reasonable practitioner would do under the same or similar circumstances.

DR. RUBIN I am completing treatment on a case in which there is a suit against the previous orthodontist. I am told I will be called to testify as a witness. Can you give me advice on how to be a good witness?

DR. MACHEN Merely tell the truth and answer the questions as honestly as possible after carefully reviewing all the records that are available. You must understand that there are two types of witnesses. One is a fact witness and the other is an expert witness. A fact witness, as is often the case with subsequent treaters, is merely testifying as to his or her clinical examination findings, diagnosis and treatment plan, and treatment. The fact witness is not required to give expert testimony about negligence on the part of the prior orthodontist or the standard of care.

On the other hand, the expert witness is being retained and paid to provide testimony as to the standard of care with regard to this particular type of procedure, whether the first orthodontist breached that standard of care, and whether that breach was the cause of the damages to the patient.

DR. RUBIN On cross-examination, can I be required to give a "yes" or "no" answer to a question that requires amplification?

DR. MACHEN Depending on the fashion in which the question is asked, you may be required to give a "yes" or "no" answer. However, if the expert witness believes that an answer must be explained, the judge will usually permit the explanation to be made.

DR. RUBIN If I want to serve as an expert witness, what must I do to qualify?

DR. MACHEN If a subsequent treater wishes to testify as an expert witness on behalf of the plaintiff, this can be communicated to the patient and his or her attorney.

DR. RUBIN And if I wanted to volunteer as an expert witness for the defendant in other malpractice cases?

DR. MACHEN You could communicate with the claims supervisors at the local offices of the insurance carriers, advising them that you are available to review cases.

DR. RUBIN What should an orthodontist do when something adverse happens?

DR. MACHEN Professional malpractice insurance carriers more than likely require the insured to advise the company of "incidents". Incidents may be difficult to define in some cases, but one clear incident would be if a parent or patient said they were very dissatisfied with the work performed and that they intended to sue. The mere occurrence of a poor outcome doesn't necessarily rise to the level of an incident. Dropping an instrument on a patient, perhaps injuring an eye or a cheek, should be considered an incident to be reported. If the orthodontist is to err in any particular direction, err in the direction of reporting the incident to the insurance carrier so that you have complied with policy terms if, in fact, your policy requires reporting of incidents.

DR. RUBIN Is it best to inform the patient immediately?

DR. MACHEN It is the responsibility of the doctor to inform the patient and parent about any adverse occurrence. I advise orthodontists to take a few minutes at that visit, sit down with the patient and parent, and discuss the adverse occurrence.

DR. RUBIN How long does it take from the initial notification to the trial in most large cities?

DR. MACHEN In most large jurisdictions, three or four years is not uncommon from the time the plaintiff's lawyer requests records to the time a case goes to trial. Many times it may take longer. It is a long time, many years of considering all the various aspects of the case on the orthodontist's part. There are many hours or days of depositions, answering interrogatories, reviewing records, writing narratives, meeting with lawyers, attending pretrial conferences, trial dates scheduled and cancelled, and awakening every morning and going to sleep every night considering the problem. It is a stressful, ego-deflating, and difficult period. Therefore, every attempt should be made to avoid litigation.

DR. RUBIN What are the best ways to avoid litigation?

DR. MACHEN The extra time in preparing higher quality diagnostic records, in discussing informed consent, in documenting proper treatment records, and in talking to patients and parents is well worth it to avoid the monumental efforts that will be required if a lawsuit is filed.

DR. RUBIN How does one best cope with facing a lawsuit that has been brought?

DR. MACHEN First and foremost, collect all the records, and review them with your insurance-appointed counsel and your personal counsel in an unbiased fashion to determine precisely what happened to cause the patient to file a lawsuit. Next, with the assistance of both counsels, retain an expert witness, provide him or her with all the records, and obtain an opinion from the expert as to whether your treatment complied with the standard of care. Be sure that the attorney or attorneys representing you are people you can work with and for whom you have respect. If not, insist on a new attorney.

Orthodontists are taking these suits much too seriously. They are taking them as personal affronts to their professional ability, even though in the vast majority of cases they have nothing to do with treatment results. If stress levels become too high, it is important to seek the professional help of a psychologist or a psychiatrist. Peer groups and support groups are being formed and may be helpful.

One of the most successful ways of relieving the stress that builds up after a lawsuit is filed is to take the case to trial and win the case. The vindication and euphoria that is felt is unlike any other. However, it does take courage to do so. Frank consultation with both counsels will determine whether there is a good chance of success. If there is, and the records are good and the orthodontist defendant will make a good witness, and there is a good expert witness, in the vast majority of cases there is no reason not to defend the case. Too often, I have heard of orthodontists settling cases they should have taken to trial. This is not good for them and not good for the profession.

DR. RUBIN I assume that is because settlement of litigation is a reportable event to the National Practitioner Data Bank.

DR. MACHEN The National Data Bank does require that any money paid by or on behalf of an orthodontist in the settlement of a claim once a lawsuit has been filed or once there is written communication requesting money in settlement of a claim must be reported to the Bank. The fine for failing to do so is $10,000 per incident. With this in mind, if a case is one that can be defended, orthodontists should not agree to settlement.

DR. RUBIN Just to clarify a point, if money is voluntarily returned by an orthodontist to a patient in transfer cases or for any other reason, that is not reportable to the Data Bank, is it?

DR. MACHEN Many questions have been raised as to the specific requirements regarding reports of refunds to the National Practitioner Data Bank, which was authorized by the Health Care Quality Improvement Act of 1986. It is my understanding that so long as the request for refund is oral, as opposed to written, no report to the Data Bank is required. This is so regardless of the reason for the request. Once the request is made in writing, any refund, for whatever reason, must be reported. It is also my understanding that the ADA and the AAO have requested clarification, interpretation, or exclusion with regard to refunds unrelated to questions of quality of care. However, I am not aware that they have been successful in their attempts.

DR. RUBIN If the orthodontist believes the case can be won in court, can he or she refuse to agree to even a small settlement to avoid having a negative in the Data Bank?

DR. MACHEN In most insurance policies, the orthodontist has the right to refuse to settle the case and insist on going to trial. I suggest that each orthodontist review the policy annually with personal counsel prior to accepting coverage. It is important to have an adequate amount of the right kind of coverage, including an umbrella policy. Although at this time it is unclear what the various jurisdictions and dental boards in those jurisdictions will do with the information from the National Practitioner Data Bank, it is clear that it is preferable for an orthodontist to avoid having such a report to the Data Bank.

DR. RUBIN Will the insurance company cover an adverse judgment greater than the proposed settlement amount?

DR. MACHEN Once again, it depends on the terms and conditions of the policy. Most reputable companies will not limit its liability to the amount of the settlement. That would hardly give the orthodontist the right to refuse settlement, because the economic downside potential could be catastrophic. If there is such a limiting clause in one's policy, I would suggest that other insurance be sought.

DR. RUBIN In all events, should a defendant orthodontist employ his or her own counsel, in addition to the one supplied by the insurance company?

DR. MACHEN I suggest in every instance that personal counsel be retained on behalf of the orthodontist. The orthodontist needs someone solely looking out for his or her interests. Further, it is my opinion and the opinion of others that a substantial conflict of interest exists when an insurance company hires counsel to represent the insured. Since the insurance company is providing many cases to this attorney, the possibility exists that his or her judgment with regard to settlement or defense of a claim will be colored by the insurance carrier's desires.

DR. RUBIN How much malpractice insurance coverage should an orthodontist have, and what terms of the coverage are important?

DR. MACHEN Each individual orthodontist should evaluate his or her specific practice and personal situation with personal counsel in order to determine coverage requirements. Since premiums vary among the various jurisdictions, coverage levels vary in cost. There is no ideal coverage level for every orthodontist.

Several terms are important in a review, and again, personal counsel should be consulted to review the various policies under consideration. All policies considered should give the orthodontist the right to determine whether to settle or defend any negligence action, without the penalty of having to pay any amount over which the insurer would have settled. Also, it is important to feel secure that the insurer has in the past selected counsel experienced and competent with regard to the subject of the lawsuit. Further know the quality of the insurer and its ability to pay claims. In the past few months, several orthodontists have related stories about insurers that have been unable not only to pay claims, whether settlements or verdicts, but also to pay for legal fees necessary to defend cases brought. The burden then falls to the individual orthodontist to do both. Since personal counsel is often aware of which insurers are better choices due to previous legal work, I suggest working with personal counsel on such a major decision.

DR. RUBIN Don, thank you for sharing your experience with our readers.