When speaking on medical emergency preparedness, one question is most often asked after the course, “What do I ‘really’ need to do to protect my practice from litigation following a medical emergency?”
First, let me emphasize, I am not an attorney and this not legal advice. Secondly, it is impossible for a dentist to prevent a patient from pursuing litigation. However, there are things that need to be understood by dentists with regard to malpractice.
When a serious medical event occurs in a dental office, the patient’s (or surviving family members) decision to pursue litigation will likely be driven by two questions.
- How unusual was the event?
- How serious was the consequence?
For example, for a patient to die in a dental office is both unusual and serious. Consequently, the family will likely conclude the dentist “must have done something wrong.” Therefore, they will likely speak with an attorney.
In many ways the plaintiff’s attorney is the gatekeeper to the process because he/she will solely be paid based on a favorable financial settlement. While it is popular to criticize our nation’s tort system because “anyone can sue anybody about anything,” what is often lost in the discussion is that for litigation to proceed, the plaintiff’s attorney must invest both time and money. In a sense, the attorney is betting on the outcome. If the attorney believes his/her chances of financial gain does not outweigh the potential loss of time and money to develop the case, then the attorney will advise plaintiff that the case is not being accepted.
Unlike the patient or surviving family, the plaintiff’s attorney is not governed by emotions but rather knows that four major concepts must be demonstrated. These are
If the attorney cannot prove all four, the case will be lost.
DAMAGE: Damage is the easiest to establish. While death is the ultimate loss; pain, suffering, financial expense for treatment, and loss of income are other examples.
DUTY: Duty means one party has a responsibility to the other. Clearly, a dentist has some type of duty to a patient experiencing a medical event. But what is it? It is not clearly spelled out in the dental practice acts of any state. However, it is widely interpreted that a dental team should respond as first responders commensurate with the knowledge of a typical dentist’s training. Note: courts traditionally hold dentists responsible for what they were trained in dental school to perform and what is taught in medical emergency courses, not what your colleagues down the street can do. For example, a dentist cannot use the excuse that nobody else in town has a glucose monitor when every dental lecturer on the subject recommends that dentists have one.
BREACH: Breach means the dentist failed his/her duty. It can mean either: doing the wrong thing (e.g. administering the wrong medication) or failing to do the right thing (e.g. not administering oxygen early in the emergency).
CAUSE: Cause means that the dentist’s breach of duty directly resulted in the damage earlier described. In many ways, this is the hardest for the attorney to prove. It is also the area where many dentists go astray.
Let’s say a patient has a stroke during a crown appointment and dies. The patient’s family will likely pursue litigation because patients typically do not die during a crown preparation. However, there is nothing inherent in a crown preparation that would cause a patient to have stroke. Hence, the dentist should be in the clear.
HOWEVER, the dentist needs to mindful of the legal concept, “mitigation of damage.” The dentist is responsible to not make a bad situation worse. In our hypothetical stroke situation, let’s further assume that the dentist does not administer oxygen while waiting for EMS. The attorney previously did not have a case because the dentist did not cause the stroke. However, a sharp attorney can now argue that perhaps the patient might have survived if their brain had been oxygenated in the pre-hospital period. They will concede the dentist did not cause the stroke. However, they will argue the dentist took a serious situation (consequences of a stroke) and made it worse (fatal). This is a far easier argument for the plaintiff’s attorney to make. Unfortunately, the actual cause of the patient’s death then is now attributed not to the stroke (for which the dentist has no responsibility) but rather to the dentist for having failed as a first responder and having made a situation worse.
So what’s a dentist to do?
Research indicates the public expects dentists to be prepared as first responders in the following areas. A good medical emergency course should address all six.
- The dentist should periodically take courses on medical emergency preparedness.
- The entire dental staff should be trained to assist the dentist to optimize the response.
- The office should periodically practice emergency drills.
- The office should be working from a manual that assists in diagnosis and provides treatment algorithms.
- The office needs seven basic medications.
- The office needs basic emergency equipment, especially an AED and supplemental oxygen for both breathing and non-breathing patients.
While litigation might not be avoidable, a dentist can mount a strong defense… and in the process better serve the need of a patient at a crucial point in time.
Larry J. Sangrik, DDS is a 1979 graduate of The Ohio State University College of Dentistry.
For over 20 years Dr. Sangrik has been a well-known national dental CE lecturer. His lecture topics include medical emergency preparedness, understanding dental fear, use of conscious sedation in dentistry and patient monitoring. In addition to two appearances at ADA Annual Sessions, Dr. Sangrik has been featured at virtually all of the nation’s major dental meetings and five US dental schools.
In addition to actively practicing dentistry, Dr. Sangrik has also conducted research and written for various dental publications on his areas of expertise.