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A Sympathetic History and the Importance of Contracts

Robert McNeal was long overdue due for dental work when he visited Dr. Daymond Knight. After three years of treatment, Robert sued. Find out why he took the case to court.

In April 2016, Robert McNeal visited Dr. Daymond Knight at Community Dental Group (CDG) seeking a second opinion and new treatment plan to address his overall dental health. Robert was a Medicaid and disability recipient who suffered from chronic headaches following a traumatic brain injury he sustained in a car accident. He also suffered from post-traumatic stress disorder (PTSD) after his wife and children were killed in that car accident. He had not been to see a dentist for several years.

Dr. Knight started working at CDG in 2013, pursuant to a one-page agreement with the previous owner that stated that independent contractors must have their own malpractice insurance policy to practice.

Dr. Knight purchased the practice in 2014, and four other independent contractors transitioned over to his ownership, under the same terms as with the previous owner. Dr. Knight understood that the other independent contractors had similar written contracts that would protect the practice and the doctors in the event of a malpractice claim because of this required insurance coverage.

Three Years of Treatment

On Robert’s first visit to CDG, Dr. Knight knew he’d had a host of medical issues—including occlusion — but limited financial means. The primary dental issues that needed to be addressed included some possible root canals, crowns and, to Dr. Knight’s recall, a unilateral open bite on the right side of his dentition.

Dr. Knight took x-rays, examined Robert, and presented him with a treatment plan. The plan included root canal therapy on teeth #4, 7 and 8; crowns on teeth #4, 5, 7, 8, 28, 30 and 31; and an occlusal guard. Robert agreed with the treatment plan and signed off on it without learning how much it would cost. The other independent contractors at CDG began that care per the plan.

From April 2016 to July 2016, the treatment to teeth #4, 5, 7, 8 and 28 was completed by independent contractor, Dr. Marshall Green. In August 2016, Dr. Green had a detailed conversation with Robert regarding his unilateral open bite and whether to make the planned crowns at #30 and 31 in line with his current arch to resolve the open bite as much as possible. Ultimately, Robert advised Dr. Green that he wanted his crowns longer and understood that there still could potentially be an open bite. Dr. Green suggested a redo of crown #28 and preparation of crowns at #28 through #31 to establish a proper occlusal relationship. Robert agreed.

In November 2016, Dr. Green placed crowns at #28 through #31 and noted that Robert was satisfied with the results. Robert specifically reported being happy that he was able to chew better and only had slight pain. Dr. Green then adjusted the occlusion on #31 for that slight pain and that resolved according to Robert. Another note shortly thereafter also indicated Robert was satisfied. In March 2017, Robert was also provided with a soft night guard.

Throughout 2017, 2018 and 2019, Robert continued to treat at CDG. The dentists there performed cleanings, a few fillings and a crown on #28 was replaced after it fell off twice. The treating dentists periodically noted discussions with Robert as to his continued bite issues, ongoing occlusal adjustments and recommendations that he use his night guard regularly.

Financial concerns were also noted during this timeframe. Throughout the three years that Robert was treated at CDG, he was given a discounted rate several times and treatment was even free-of-charge on some occasions. Those discounts were authorized by Dr. Knight, as the practice owner, and in to accommodate Robert’s struggles on this issue.

Over the course of treatment, Dr. Knight recalled specific discussions with Robert about the option of seeking treatment with a specialist—whether an orthodontist or an oral surgeon—and referred him to a local university for assessment. Unfortunately, Dr. Knight understood from Robert that his finances could not support specialist care.

The Referral

In April 2019, Robert developed severe pain to percussion and hot/cold at #18 and Dr. Knight referred him to an endodontist. Again, due to financial limitations, as well as his complicated dental and medical history, Robert struggled to find an endodontist who could treat him. He then reached out to his primary care physician, who referred him to Neighborhood Dentistry.

Robert had a root canal at #18 done at Neighborhood Dentistry, at a discounted rate. He continued to treat with Dr. Corey Deck at Neighborhood Dentistry. Initially, Dr. Deck advised that all nine crowns placed at CDG would have to be redone in order to address his open bite. Dr. Deck also mentioned a referral to an orthodontist, but Robert advised he could not afford it.

Over the next several years, working within Robert’s financial restraints, Dr. Deck attempted to address his open bite with use of a night guard and by redoing the work done at CDG. Dr. Deck was never able to completely correct Robert’s open bite.

A Lawsuit is Filed

Robert filed a lawsuit naming only Dr. Knight and Community Dental Group as defendants. He alleged that CDG was responsible for all of the treatment provided by Dr. Knight and the various other dentists, as well as the redo of the work done by Neighborhood Dentistry.

As discovery began, Robert claimed that the bite issues he was experiencing caused him additional and exacerbated pain related to his traumatic brain injury and PTSD, which included treatment for chronic headaches that went back over 15 years. For defense counsel to evaluate Robert’s claimed injuries in light of his history of chronic pain and headaches, potentially tens of thousands of pages of medical records would need to be obtained and reviewed.

Records of Dr. Deck clearly suggested he would criticize the work done at CDG. Dr. Knight was confident in the work done at CDG by him and the independent contractors, some of whom had left CDG. All of those independent contractors who parted ways with CDG on a favorable note.

The jurisdiction where suit was filed had very strict case law that would not allow defense counsel to speak with anyone who treated Robert. Since all the CDG dentists, other than Dr. Knight were independent contractors, neither Dr. Knight nor defense counsel was able to communicate with them directly regarding Robert’s care outside of a formal deposition.

As the case moved forward, defense counsel learned that the previous owner of CDG had a “handshake relationship” with some of the other independent contractors. Their agreements—like Dr. Knights’— were limited and failed to provide important language ensuring that the practice would be indemnified if sued for work performed by the independent contractors’.

The law of the state where the suit was filed allowed a jury to find that an agency relationship exists and holds a principal liable for the acts of an agent regardless of independent contractor agreements or manner of payment. In this case, despite the understanding between CDG, Dr. Knight and the other dentists that they were “independent contractors,” they could have been held responsible for the treatment the other dentists provided in the lawsuit that was filed. Because there was no indemnity language in the contracts, or no contract at all, and Robert did not name any of the other dentists as defendants, the malpractice insurance of the independent contractor dentists was not triggered. This potentially left CDG and Dr. Knight exposed for dental care performed by these independent contractor dentists.

Defense counsel had the case reviewed by a consulting dentist. That dentist was able to defend the care, but there were a number of weaknesses—the most significant involved a lack of documentation as to the consent process for the treatment plan, the revisions to the treatment plan and the details of Robert’s dental condition on the first visits. Failure to parse out the medical complaints with dental complaints also proved difficult to identify.

Dr. Knight, the carrier and counsel all agreed to resolve the matter for several reasons:

  • The extensive amount of time and funds that would have to be spent exploring Robert’s health history, and its interrelationship with the alleged causative damages,
  • The sympathy a jury would have for Robert given the traumatic backstory that gave rise to his chronic headaches,
  • The restrictive case law which precluded communications with the CDG independent practitioners that treated Robert outside of formal sworn testimony.
  • The complicated issues surrounding the employment/agency relationships between CDG and its various treating dentists that affected the available insurance monies for the defense; and the likely factual dispute on standard of care, causation and damages between opposing dental experts, given the defense review.

Ultimately the case was resolved for a confidential amount.

What Can We Learn?

If a practice is structured such that independent contractors are providing treatment to patients of that practice, it is important that all the agreements be in writing and reviewed periodically, for all practitioners, by an attorney who is familiar with the laws of the jurisdiction where the practice is located. While it was common practice in the past to base such professional relationships on a handshake, in today’s litigious society informality is fraught with many pitfalls. In some jurisdictions, as was the case here, the question of whether someone is considered an independent contractor goes beyond what would be considered by the IRS for tax purposes. Prudent practitioners should seek counsel to assure clear terms, expectations and delineation of risk and coverage, along with more standard items such as the terms of the agreement and compensation. 

The history of the patient can greatly affect the value of the claim and the decision to settle. Sympathetic plaintiffs can drive up the value of a case. In the jurisdiction of this case, the law allowed for a plaintiff to be compensated for injuries that arose from an aggravation of a pre-existing condition. In other words, “you take your plaintiff as you find him.” When a plaintiff has an extensive medical history that can be related to the injuries claimed in the lawsuit, an abundance of time and effort goes into evaluating that history and its relationship to the allegations of the case. Detailed and updated histories will always serve for a stronger defense of the case.

Documentation is always critical, and even more so on important issues such as the prior condition, the condition on the first and last visits, and patient-practitioner communications, especially as to a plan of care and its attendant risks, benefits, and alternatives. Records are most always the lynchpin that forms the foundation of the case. 

About the Authors

Tammera BanasekTammera Banasek, JD, Partner HeplerBroom, LLC, focuses her practice on the litigation of professional and general liability cases, with an emphasis on the defense of complex medical, dental, and nursing home issues. She regularly speaks and publishes in the areas of medical and dental malpractice, including in claims, risk, and employment matters impacting health professionals. She has tried numerous cases to successful verdict and handled several cases through appeal. Before joining HeplerBroom, Ms. Banasek was a senior associate with the Chicago firm of Hay & Oldenburg LLC (formerly known as Alholm, Monahan, Klauke, Hay & Oldenburg, LLC). Prior to becoming an attorney, Ms. Banasek had eight years of experience as a senior litigation paralegal.

Chelsea CaldwellChelsea Caldwell, JD, Senior Associate HeplerBroom LLC, focuses her practice on the defense of professional and general liability cases, including individual healthcare practitioners and institutions. She has extensive litigation and trial experience, including first and second chair verdicts in Cook and its collar counties. Before joining HeplerBroom, Ms. Caldwell practiced plaintiff’s personal injury law. She represented individuals in a wide range of cases, including medical malpractice, wrongful death, car accidents, premises liability, construction negligence, and product liability. Previously she served as a Law Clerk for the Honorable Gwenn Rinkenberger of the Porter County Juvenile Court, a Certified Legal Intern at Valparaiso’s Civil Clinic, and a Law Clerk for the Federal Civil Rights Litigation Division of the City of Chicago’s Department of Law.

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