Spring 2018 Dental Insights

Posted in Dental Insights on Tuesday, May 1, 2018

From Dental Insights, Summer 2018

By Linda J. Hay, HelplerBroom, LLC

Marisa Remi, a divorced mother of two, worked as a hostess at Aria, a popular high-end restaurant/bar. While at work, Marisa met Giulia Becker, the wife of local dentist Wayne Becker, DDS.

During one of her monthly book club gatherings at Aria, Giulia mentioned to Marisa that she was already a very pretty young woman and that improving her smile would further enhance her appearance. She recommended that Marisa see her husband, Dr. Becker.

Marisa had not been to the dentist in many years. She had badly stained teeth from smoking and a large gap between her two front teeth. Marisa decided she would see Dr. Becker, based on Giulia’s recommendations.

During Marisa’s first visit, she told Dr. Becker that the space between her front teeth always made her feel self-conscious. In addition, she shared her symptoms, which included TMJ-related complaints, muscle soreness, and headaches.

Dr. Becker examined her mouth and explained that although he could close the gap, he recommended scaling and root planing and treatment of her oral health issues first, including fillings and a root canal.

Dr. Becker told Marisa that while the large gap in her front teeth could be closed by orthodontic treatment, this would be time consumptive for Marisa and he’d need to refer her to an orthodontist because he didn’t perform that kind of dental care. Instead, Dr. Becker recommended crowns or veneers, advising that crowns were more expensive but would last longer. Dr. Becker told Marisa he could place the crowns for her and would give her a significant discount as a friend of Giulia’s. Marisa agreed to have crowns placed by Dr. Becker.

Dental Treatment Commences

Treatment began with Dr. Becker addressing Marisa’s oral healthcare while the crowns were prepared. Try-ins were done, and Marisa approved the shape and shading of the crown work. After permanents were placed, Marisa said she was very satisfied with the dental work. Marisa’s before and after pictures were striking. The appearance of her teeth pretreatment was unappealing, while the post-treatment photos showed a very pretty smile.

During follow-up appointments over the next two months, Marisa shared she was experiencing discomfort in her mouth. Consequently, occlusal adjustments were performed. No complaints of pain were noted in the records.

A couple of months later, Marisa called Dr. Becker’s office to complain that she had pain and sensitivity in many areas of her mouth, and she was unhappy with the large size of her front teeth. Marisa returned for more occlusal adjustments, but Dr. Becker could not pinpoint any particular problem or resolve Marisa’s complaints.

During this time, Marisa had only paid half of what she owed for her dental work, and Dr. Becker became angry with Marisa for failing to pay the balance. Marisa claimed the reason she hadn’t yet paid was that she was still experiencing pain and was dissatisfied with her teeth’s appearance. Heated text messages were exchanged, and Dr. Becker filed a collection action against Marisa for the unpaid fees.

Within the next few months, Marisa sought out care from Dr. Tanner, another general dentist. Dr. Tanner also frequented Aria and received a large number of patients from there.

Patient Sues Dr. Becker for Malpractice

Upon being sued by Dr. Becker for her unpaid balance, Marisa retained an attorney who asked Dr. Tanner to write a report detailing Dr. Becker’s (alleged) wrongful actions. The lawyer used that report as a basis for countersuing Dr. Becker for malpractice.

Dr. Tanner also recommended orthodontic care for Marisa, asserting her pain and related occlusal issue could be resolved through orthodontia, which Marisa proceeded to have the done by Dr. Tanner.  Dr. Tanner claimed that the orthodontia resolved Marisa’s issues, and Marisa seemed overall to agree that she was pleased with and pain free as a result of Dr. Tanner’s care.

About a year later, against Dr. Tanner’s recommendation, Marisa had Dr. Becker’s crownwork completely redone. This was almost a year after she left Dr. Becker’s care.

The collection and the malpractice cases progressed together in court. Over the next two and a half years, it became clear that Marisa’s counsel wanted to settle the cases. However, Dr. Becker did not.  

The plaintiff’s attorney did not retain a separate and independent expert to criticize Dr. Becker, instead relying on Dr. Tanner’s testimony.

Expert Defends Care

The defense team retained a general dentist, Dr. Addison, to defend Dr. Becker’s care. Dr. Addison testified adamantly that Dr. Becker acted within the standard of care in his pretreatment work up, his recommendation and his discussions about alternative types of care. Additionally, Dr. Addison testified that Dr. Becker acted properly and conservatively in treating Marisa’s oral health issues before proceeding to cosmetic issues.

As to cosmetic care, Dr. Addison emphasized that the patient had approved the try-ins and the final preparations, and she was initially satisfied with the aesthetics. He discounted some of Marisa’s complaints of serious pain by pointing out that she did not begin treatment with Dr. Tanner until almost a year after last seeing Dr. Becker.

The case then proceeded to trial on both the collection and the malpractice matters. At trial, the jurors were made aware that the case involved not only a malpractice claim but also a suit about unpaid fees. Marisa had only one lawyer for both portions of the case, but Dr. Becker had both a malpractice defense counsel and a collection lawyer.

Marisa cried when testifying about the pain she suffered as a result of Dr. Becker’s care. She was a fairly believable witness. The collections lawyer had to ask her questions about the unpaid bills, which was awkward since she had just cried on the witness stand.

Dr. Becker Testifies

In Dr. Becker’s testimony, he had to own up to his angry messages when he discussed the unpaid fees.

Although Dr. Tanner had pointed out Dr. Becker’s alleged failings, Dr. Becker was able to testify that Marisa was initially satisfied with the results, and he shared before and after pictures of the work. Expert dental consultant Dr. Addison emphasized the documented notes of satisfaction by the plaintiff, as well as the before and after photos.

In closing, the plaintiff’s attorney argued that Marisa’s treater, Dr. Tanner, believed Dr. Becker was negligent in his care, and he said Marisa’s unresolved pain was the reason she failed to pay the remaining fee. The plaintiff’s attorney pointed to Dr. Becker’s angry text messages to try to establish unprofessionalism and lack of caring by Dr. Becker. He asked the jury to award his client an amount in the six-figure range.

The jury deliberated for half a day before returning a verdict against Dr. Becker in a four-figure amount—essentially a return of the fees Marisa Remi had already paid to Dr. Becker. They awarded nothing to Dr. Becker on the collections action.

What Can We Learn?

Dental malpractice cases often arise out of disputes over fees. For this reason, it can be helpful to have the patient pay for the procedure at the time of delivery. When that is not possible, it may be advisable to waive the bill. When considering whether to waive a fee, the practitioner should always consider obtaining a release so as to prevent a later lawsuit. In Dr. Becker's case, it may have been better to consult with his carrier’s risk department or with counsel to assess whether obtaining a release was preferable, before the patient became angry and adversarial or after the counterclaim was filed.

One way to proactively address financial issues is to have a financial responsibility policy that pertains to all patients, including family, friends and employees. The policy helps create consistency and avoid surprises for the patient and staff. The policy may explain:

• When payments are due (usually the date of service unless prior arrangements are established)
• When copayments/deductibles are due (usually at the time of the visit)
• Confirmation that insurance quotes/copays, deductibles and coinsurance may be estimates only
• What payment means are accepted at your practice:
  • Credit cards (which ones), including flexible spending credit cards
  • Debit cards
  • Checks (for established patients only); cost for returned checks
  • Cash
  • Medicare/Medicaid
• Who is responsible for payment of fees
• What financial assistance you can offer the patient such as Care Credit or reduced fees for self-pay
• Your policy on collections (when accounts might be turned over to collections/additional costs that might be incurred due to collections, such as interest/handling/legal fees)
• If you charge for and the cost of missed appointments

A strong financial responsibility policy along with good documentation and an effort to build patient rapport might go a long way towards mitigating the success of these types of claims.

Additionally, discounts for patients with whom the dentist has no rapport or no positive treatment history is seldom advisable. Many dental cases also arise out of matters where the disgruntled patient is a family member or friend and discounts were given for treatment. These situations can result in angry feelings when an issue arises.

In this case, Dr. Becker strongly believed he acted above and beyond in the case and treatment of his wife’s friend. Likewise, Dr. Tanner had a vested interest in helping out a patient who worked in a place that was an important source of patient referrals for him.

One thing Dr. Becker did right was to address Marisa's other more pressing dental needs prior to providing the cosmetic crowns. He was also smart to get Marisa to sign off on the crown's esthetics prior to final cementation. However, he should have preauthorized Marisa's insurance to verify coverage and then made arrangements for her to pay any balance prior to final cementation. That way, there would be no outstanding balance and thus no need for collection proceedings. 

Another important component of defending a malpractice case is to present the practitioner as a caring and concerned professional. Evidence of anger and seeking payment on a bill can be counterproductive to a doctor’s defense as it’s often perceived negatively by a jury. Keeping a professional and neutral demeanor in all communications—by staff and the practitioner—is essential.

Along these lines, dentists should avoid texting to deal with any patient issues, especially for collections issues. Collection of fees should never be handled with hostility. If texting needs to take place, it is beneficial to have a policy that would include all platform safeguards necessary to maintain privacy.

What’s more, remember not to throw colleagues under the bus. In this case, Dr. Tanner’s actions directly supported the malpractice claim against Dr. Becker. Dentists can disagree with the previous dentist, present other treatment options, mention they would do things differently, but Dr. Tanner overstepped his bounds in this case. 

Finally, document, document, document. In this case, Dr. Becker failed to note in the record when the patient first reported discomfort. Had he done so, that documentation would have provided additional support for the defense of the case.

This case study was written by Linda Hay, J.D. All names used in Dental Insights case studies are fictitious to protect the privacy of the dentist and the patient.

Linda J. Hay is a partner in the Chicago office of HeplerBroom, LLC. Ms. Hay has practiced in the professional liability defense arena for more than 25 years and has tried numerous cases to verdict. She is actively involved in a variety of defense bar, professional liability and risk management organizations. Ms. Hay can be reached at Linda.Hay@heplerbroom.com.