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Special Report: The Life of a Case by Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA and Hollie A. Machen, Esq.

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Orthodontic Litigation: Root Resorption Case Composite
by Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA and Hollie A. Machen, Esq.

Two of the most frequently cited complaints in orthodontic litigation are root resorption and bone loss; specifically, treatment negligence and negligent informed consent. In many instances, these are cited in the same civil action for damages. In the following case composite, which includes three plaintiffs’ complaints against three different orthodontists, the anatomy of the lawsuits will be discussed. They are presented as a composite for several reasons, including the similarity of the complaints, the outcomes and the avoidance of embarrassment to the individual orthodontists.

Although most orthodontists with whom I have consulted believe that the beginning of the lawsuit occurs when the sheriff or other officer serves the complaint or legal notification of the lawsuit, in reality, it begins much earlier when the interpersonal relationship is irrevocably compromised. Until that point, no matter what has transpired, the relationship could have been salvaged and the lawsuit avoided.

Note: In my book, Managing Risk in Orthodontic Practice, and in my lectures and articles, I have repeated the central theme in risk management, which is that maintaining the relationship is the key aspect in eliminating negative patient comments and malpractice lawsuits. I have developed a system called EBRM, encounter-based risk management, which eliminates these two negative aspects from causing the devastation that I have observed during the past 25 years of consulting with orthodontists.

Root Resorption/Bone Loss Case Composite
Service of the lawsuit occurs when a uniformed officer, a sheriff, appears in your reception area, generally in late afternoon, your busiest time, and demands to personally hand the lawsuit to you with the not-so-kind-words “you have been officially served notice of the lawsuit against you.” This is said loud enough for both staff and patients to hear. Embarrassing, to say the least. Unfortunately, word spreads quickly especially with social media at its current level.

The orthodontists were shocked. One had been sued before, but the other two had not. They sat in their offices while patients were waiting impatiently and tried to review in their minds what caused the lawsuits to be filed. When they composed themselves, they contacted their respective malpractice insurers and relayed the events to the claims representative. They were advised to fax the paperwork that was served and discuss the cases with no one except the representative and the lawyers assigned for personal counsel.

From that time on, until after the lawsuits were resolved, much time and thought was devoted to this most unpleasant experience. In fact, orthodontic consulting clients have confided that the lawsuits were on their minds when they arose in the morning, they thought about them all day long and they were the last thoughts that they recalled before going to sleep. That’s a lot of mental anguish over an extended period of time. We will review the time period shortly.

In all three instances, notwithstanding that root resorption and some bone loss did occur, these lawsuits and the time and toll on the orthodontist, the staff and the families of all concerned could have been prevented and how to do this is one of the reasons for this article.

For the orthodontist, day one in the life of a lawsuit is when the lawsuit is served. Starting immediately there are phone calls, faxes, e-mails and letters with insurance carriers and defense attorneys. Prior to meeting with defense attorneys, you have to collect all of the records, which is sometimes difficult due to age of the records, loss, missing records and recovery from storage. In retrospect, some records were not very good. You might be tempted to alter the records but you don’t because you remember reading that this can be detected by experts and can add to a loss and large verdict. If you have been sued before, your records are a little better than they were the first time. Good records are only one aspect to avoiding a lawsuit. As mentioned earlier, interpersonal relationships are the key.

After several meetings with your lawyers, interrogatories that have been served on the defense need to be answered. These are voluminous pages of questions about professional and personal issues, some of them objectionable, but most need to be answered. You have more meetings with your lawyers. You try to schedule them for weekends and evenings so as not to take more time out of the office but you find that difficult to do. Your file is thick and your time involved mounts up. Eventually, you are noticed for your deposition, during which opposing counsel asks you question after question. Of course, your attorney is present to represent you. This deposition requires that you cancel patients for that time period or even the whole day. Frequently at the last minute, the deposition is canceled and needs to be rescheduled, and you lose that day of production. Your defense requires much preparation. Much time is spent both in preparation and in thought. It might seem that the process moves along quickly, but it doesn’t. It is not uncommon for the life of the lawsuit to be three to six years. Just imagine your life “on hold” for that period of time.

During the preparation, you and your lawyer discuss the use of an expert orthodontist to evaluate your treatment and hopefully be willing to opine that what you did satisfied the standard of care at the time the treatment occurred. (Note: I have written several articles that address the standard of care and the reader is referred to those for more information.) The defense expert agrees to prepare an expert report discussing what they have reviewed and his or her conclusion about your treatment. Of course, the plaintiff/patient has an expert who will opine that your treatment fell below the standard of care. There are many orthodontists who offer their services as experts for both the plaintiff and the defense. Expert fees range from $250 to $1,000 per hour or more and sometimes are given as a daily rate for depositions or trial. These fees can be in the thousands.

With this in mind, and with an understanding that defense attorneys are paid by the hour, whereas most plaintiff ’s attorneys are paid a contingency fee, (i.e. a fee based on the recovery of damages) generally 33-40 percent of the net jury verdict or settlement, it is not hard to understand why The Wall Street Journal once ran a cartoon which went something like this: one lawyer said to the opposing lawyer, “How can this be frivolous litigation, when we are both making money!”

After several years have gone by, your lawyer advises that you have a trial week set. You cancel your patients. The day before trial, your lawyer calls and tells you that something came up and trial is postponed for six months. All your preparation and worry and soon-to-be-lost production for naught, you will need to do it all over again in a few months. This scenario is repeated at least once more before your trial starts. In one of the cases of the composite, settlement occurred on the day of trial. The settlement was for approximately $600,000. In the other two cases, verdicts were returned for the plaintiff in the amounts of approximately $275,000 and $490,000.

Altered records played a part in one case which otherwise might have been defensible. Many orthodontic malpractice cases end with defense verdicts. However, winning the case after all that has been described is hardly a victory. The time and mental anguish that my clients have told me that they have gone through can change your life many times for the worse. The message is clear, good risk management is good patient care and the elimination of negative patient/parent comments and lawsuits. Yes, it takes a little extra time, but not much especially in a practice that has been optimized with the EBRM system. But, even if more time is needed, isn’t it worth it to provide better patient care, increase referrals, reduce practice stress and eliminate negative comments and malpractice lawsuits?
Author Bios
Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA, is the recognized authority on risk management in orthodontic practice having initiated the discipline in the mid-1980s. He developed, moderated and presented at the AAO’s first national risk management telecast to more than 2,600 orthodontists. He has represented orthodontists, dental specialists, general dentists and physicians in malpractice lawsuits and other legal matters as a trial lawyer and currently is a trial court judge in Pennsylvania, having served for more than 14 years. He is a board certified orthodontist maintaining a part-time practice and is on the orthodontic faculty of Case Western University Dental School and The University of Pittsburgh School of Dental Medicine. He is also an adjunct professor of Law at Duquesne University School of Law where he teaches malpractice litigation. Dr. Machen was the editor of the Legal Aspects of Orthodontic Practice column in the AJO, writing a monthly column and has authored columns in JCO and Ortho Tribune. He lectures extensively to orthodontic groups, both large and small, focusing on developing highly effective systems for eliminating lawsuits, optimizing patient care and increasing practice referrals. Dr. Machen is the author of Managing Risk in Orthodontic Practice and is managing director of Risk Management Consultants, LLC. He can be contacted at: drmachen@orthormc.com.

Hollie A. Bernstein Machen, Esq. – After graduating from the University of Pittsburgh School of Law, Hollie spent the early part of her legal career as a litigation associate and then partner of the Bernstein Law Firm, a multi-office firm specializing in creditors’ rights. After leaving that firm to raise her three children, Daniel, Lindsey and Roxanne, she began focusing on legal research and writing as a judicial law clerk in Pennsylvania and has remained active in that endeavor for more than 13 years. Additionally, she spent more than five years counseling clients on financial issues as a wealth management advisor at PNC Bank and National City Bank, earning various designations in the financial services profession including that of Certified Retirement Planning Counselor. Presently, in addition to working with clients at Risk Management Consultants, she spends time teaching online legal research skills to attorneys and judges as a research specialist for Westlaw and acts as practice manager for Dr. Machen’s part-time orthodontic practice.

Additional important material on managing risk in all aspects of orthodontic practice can also be found in Dr. Donald Machen’s book, Managing Risk in Orthodontic Practice and details about receiving a copy can be found at www.orthormc.com.
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