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  • 1. Journal of Law, Medicine & Ethics Fall, 2000 28 J.L. Med. & Ethics 258 Excerpts from: A Survey of Physician Training Programs in Risk Management and Communication Skills for Malpractice Prevention Frank V. Lefevre, Teresa M. Waters, and Peter P. Budetti Malpractice lawsuits serve as a great source of pain, consternation and loss for physicians and patients alike, usually leaving all parties involved in the process with a sense of betrayal. A significant number of physicians will be sued at least once in their career, especially if they practice in some of the more vulnerable specialties. n1 In addition, there is some evidence that the threat of malpractice lawsuits changes the practice style of many physicians, leading to the practice of "defensive medicine" and raises the total cost of health care. n2 Clearly, the prevention of medical malpractice is an issue that deserves considerable attention from physicians and from those who train them. n1 F.A. Sloan et al., "Medical Malpractice Experience of Physicians: Predictable or Haphazard?" JAMA, 262 (1989): 3291-97. n2 D. Klingman et al., "Measuring Defensive Medicine Using Clinical Scenario Surveys," Journal of Health Politics, Policy and Law, 21 (1996): 185-217; R.R. Bovbjerg et al., "Defensive Medicine and Tort Reform: New Evidence in an Old Bottle," Journal of Health Politics, Policy and Law, 21 (1996): 267-88. Empirical evidence suggests that medical negligence may play a relatively minor role in malpractice lawsuits. As demonstrated by Localio, et al., one in thirty-five cases of negligence or incompetence actually results in a lawsuit. Conversely, the number of malpractice suits far exceeds the number of "true negligence" claims: only one in six malpractice claims involved negligence, as judged by disinterested analysts. Thus, while negligence or incompetence may be the source of a small number of suits, the data suggest that the majority of medical malpractice suits may not be driven by clinical quality of care, but by other factors. n3 n3 T.A. Brennan et al., "Incidence of Adverse Events and Negligence in Hospitalized Patients: Results of the Harvard Medical Practice Study I." N. Engl. J. Med., 324 (1991): 370-76; L.L. Leape et al., "The Nature of Adverse Events in Hospitalized Patients: Results of the Harvard Medical Practice Study II." N. Engl. J. Med., 324 (1991): 377-84; A.R. Localio et al., "Relation Between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard Medical Practice Study III." N. Engl. J. Med., 325 (1991): 245-51. Inadequate communication between physicians, patients, and the patient's family has emerged as one factor that is an important determinant of malpractice lawsuits. n4 Hickson, et al., n5 reported interviews with 127 parents who sued as a result of perinatal injury to their child. The authors found that 13 percent of these families reported "the physician would not listen"; 32 percent reported that the physician "would not talk openly;" 48 percent felt that the physician "attempted to mislead" them; and a full 70 percent complained that their physician "did not warn them of the long-term developmental problems" that they would face. Levinson, et al., n6 compared communication behaviors among physicians with two or more malpractice claims with physicians having no claims, documenting significant differences on several parameters. Physicians without malpractice claims spent more time with patients, oriented patients more frequently to the flow of the visit, and more often used humor and laughter during the encounter.
  • 2. n4 F.A. Sloan, P.B. Gibbons, E.W. Clayton, Suing for Medical Malpractice (Chicago: University of Chicago Press, 1993). n5 G.B. Hickson et al., "Factors That Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries," JAMA, 267 (1992): 1359-63. n6 W. Levinson et al., "Physician-Patient Communication: The Relationship with Malpractice Claims Among Primary Care Physicians and Surgeons," JAMA, 277 (1977): 553-59. Our data suggest that specialty societies, medical schools, residency programs and fellowship programs are training physicians in malpractice prevention, but that deficiencies may still be present. At the specialty society level these efforts are entirely voluntary, while medical schools, residency programs, and fellowship programs often require training of their students. Training in medical malpractice/risk management issues appears relatively common in residency and fellowship programs, with 74.9 percent of programs indicating that they require some training in this area. Training in physician-patient communication skills is less common, with only 43.2 percent of programs requiring training in this area. Our data indicate a relative lack of formal training programs in physician-patient communication skills. This highlights a potential area for educational improvement. Particularly for training programs in specialties most vulnerable to malpractice claims, the low rate of formal curricular components in patient- physician communication skills is striking. There may also be a lack of awareness of the need for more formal training in communication issues. Our detailed survey revealed that programs generally report that their trainees are moderately to extremely well prepared on issues of patient-physician communication, and better prepared than they are on risk management issues. This finding is somewhat paradoxical, given the fact that most programs are not actually providing training in this area. Educators may have the misperception that their trainees are well prepared in this area, or they may not consider this a skill amenable to formal instruction. Surveys of patients have supported the contention that physicians are not well trained, with more than half reporting that their doctors do not explain things well. n11 Additionally, doctors are often surprised when faced with objective evidence of poor communication skills, such as videotaped encounters. n12 n11 H. Beckman, "Communication and Malpractice: Why Patients Sue Their Physicians," Cleveland Clinic Journal of Medicine, 62 (1995): 84-85. n12 Id. Even if we accept that formal training will improve general communication skills, will such efforts alter behaviors associated with malpractice claims? It may be that specific aspects of communication concerning adverse events need to be taught in order to minimize the likelihood of malpractice suits. Qualitative research studies have identified specific themes that seem to be associated with such claims. n16 Patients who feel ignored, deserted, or who suspect that there is a 'cover up' by the medical profession, may be more inclined to sue. Failure to understand the patient and family's perspective and devaluing their point of view have also been identified as common triggers for lawsuits. It is crucial to understand further how and why these specific types of detrimental interactions occur, and [*266] whether greater awareness and avoidance of such behaviors among physicians will impact on malpractice claims. These are clearly empirical questions that should be addressed in future research. n16 S.L. Fielding, "When Patients Feel Ignored: Study Findings about Medical Liability," Academic Medicine, 72 (1997): 6-7; H.B. Beckman et al., "The Doctor-Patient Relationship and Malpractice: Lessons from Plaintiff Depositions," Archives of Internal Medicine, 154 (1994): 1365-70.
  • 3. THE REDWOODS GROUP INSURANCE PROGRAM FOR DENTISTS RISK MANAGEMENT EXAMINATION To qualify for a Risk Management Premium Credit, this completed test MUST be returned within 60 days of your policy or renewal effective date. Name________________________________ Effective Date of Coverage_________________ Address______________________________ Phone Number: _________________________ City__________________________________ State__________ Zip_____________________ E-Mail Address_________________________ Fax Number____________________________ The questions were taken from the Dentist’s Risk Management Guide published by the National Society of Dental Practitioners. The Guide may be obtained on request from the Society’s offices at 210 University Drive, Suite 600, Coral Springs, Florida 33071. Circle the correct answer. 1. If you receive papers that indicate that a patient has brought a suit alleging negligence against you, you should: A. Not tell anyone about it except the insurance company. B. Immediately inform your staff. C. Get in touch with the patient’s attorney and explain the circumstances surrounding the incident. D. Call the patient and offer to correct the situation that led to the suit. E. Offer the patient a monthly settlement. 2. If you wish to terminate the care of a patient you should do the following: A. Inform the patient that it is in his/her best interest to seek services elsewhere. B. Volunteer to provide emergency care for a reasonable period of time until a substitute dentist is found. C. Agree to cooperate with the new dentist by supplying copies of your records and radiographs. D. A, and C, above. E. A, B and C, above. 3. A patient’s medical history should be updated: A. At every recall visit. B. At least once a year. C. At every visit. D. When you feel it is appropriate depending upon the patient’s general health status.
  • 4. 4. The following relationship between practitioners offers the best protection for the innocent practitioner should a patient of one of the practitioners sue alleging malpractice. A. A professional Corporation. B. A partnership. C. Independent contractor. D. Sharing facilities only. E. None of the above. 5. The “old targets” of dental litigation include: A. Dentures that do not fit. B. Faulty crowns and bridges. C. Failure to diagnose caries. D. Infections following the extraction of teeth. E. All of the above. 6. New targets of dental litigation include: A. Failure to diagnose periodontal disease. B. Failure to diagnose problems associated with the temporomandibular joint. C. Paresthesia following the extraction of bony impacted lower third molars. D. Failure to obtain the informed consent of the patient before treatment is begun. E. All of the above. 7. A violation of a state’s dental practice act may result in the following: A. A money fine. B. Loss of the license to practice. C. A jail sentence. D. A, and B, above. E. A, B and C, above. 8. The “Dental Practice Act” is comprised of: A. The code of ethics of the state dental association. B. The code of ethics of the American Dental Association. C. The ADA’s Principles of Ethics and Code of Professional Conduct. D. The court cases that relate to dental malpractice. E. The state statutes and rules and regulations of the state’s dental administrative agencies. 9. A dentist is responsible to know all the laws that regulate dental practice without having been informed of them by the dental board. A. True. B. False.
  • 5. 10. One of the duties a dentist owes a patient is to participate in continuing dental education. A. True, but only if the state licensing agency demands it for registration of the license. B. False, because unless it is an express term of the agreement between the dentist and the patient, it is not binding on the dentist. C. True. 11. One of the implied duties a dentist owes a patient is not to use experimental procedures. A. True. B. False. 12. A dentist is required, as an implied duty to the patient, to be available to provide care, or make arrangements to have care provided, to a patient 24 hours a day. A. True. B. False. 13. A dentist may charge any fee he or she wants as long as the patient agrees. A. True, but only if it is in writing. B. True. C. False, because a dentist is only permitted to charge the average fee charged by other dentists in the community. 14. An adult brother of a minor may grant a valid consent for the care of the minor who lives with the brother if the parents are not available. A. True. B. False. 15. The minor lives with the grandparents who also pay for the minor’s dental care. The grandmother may grant a valid consent for the dental treatment of the minor in the absence of the parents. A. True. B. False. 16. If the dentist recommends a treatment that is invasive (The extraction of a bony impacted tooth), the law requires that for consent to be valid it must be in writing. A. True. B. False. 17. An emancipated minor is one who is below the age of majority and: A. Living outside the parent’s residence. B. Married. C. Pregnant. D. Self-supporting. E. Any of the above.
  • 6. 18. For consent to be valid, it must: A. Be freely given. B. Include the risks and benefits of the proposed treatment. C. Include alternatives to the proposed treatment. D. Provide the patient with an opportunity to ask questions and have them answered. E. All of the above. 19. If a patient refuses to follow your advice, it is best to: A. If you wish to continue with the care, have the patient sign a form that describes the advice and the risks of the refusal. B. Refund any money paid to you and terminate the patent’s care. C. Inform you insurance company that you may be sued. 20. The doctor patient relationship ends when: A. The patient goes to another dentist. B. The treatment is completed. C. The dentist decides to stop treatment. D. The dentist retires from practice. E. Any of the above. 21. Patient records should be retained: A. If possible, forever. B. Until the patient is being treated by another dentist. C. As long as the law requires. D. Until the dentist retires from practice. E. Only for as long as the patient remains an active patient. 22. In history taking, errors most commonly associated with medical problems are: A. Bleeding and healing problems. B. Failure to learn of drug allergies. C. Failure to discover drug incompatibilities. D. Failure to discover medical problems that may effect dental care. E. All of the above. 23. In history taking, errors most commonly associated with dental problems are: A. Failure to discover problems associated with TMJ. B. Failure to discover if the patient ever had an allergic reaction to drugs used in their dental case. C. Failure to discover problems associated with the patient’s periodontal status. D. All of the above. 24. Dental assistants are not permitted to make entries on the patient’s treatment record. A. True. B. False.
  • 7. 25. If an adverse occurrence takes place during the course of treatment, the dentist should: A. Notify the patient and make an entry on the patient’s treatment record. B. Make an entry on the patient’s treatment record, but it is best not to tell the patient for fear of being sued. C. Immediately notify the insurance company. D. Go on with treatment as if nothing had taken place. E. Attempt to correct the situation and not tell the patient if the correction is not successful, but to note it on the patient’s treatment record.
  • 8. Click here to close this window. Risk Management Failed implant: Report of a case By Richard C. Engar, DDS, FAGD A general dentist in his third year of practice placed an implant in the upper left quadrant to replace tooth No. 15 (Fig. 1), which manifested pathology per the pre-op panoramic X- ray. Although the dentist contemplated doing a sinus lift first, he decided to proceed with the implant for the middle-aged female patient. Fig. 2 shows the implant immediately after placement. The dentist reported that he placed it at the same time No. 15 was extracted to minimize bone loss. He had to place the implant against the sinus floor in an effort to have as much bone as possible for osseointegration and reported that the sinus floor gave way upon insertion. The dentist claimed that he had been taught to simply leave the implant in place as a plug in this situation as it was irretrievable without sinus involvement. He felt that osseointegration was still an option. One month later, the records state that the area was healing well. However, when examined five months later, the dentist noted that the implant had failed as shown in Fig. 3. The patient was referred to an oral surgeon who told the patient that the implant had no chance for success and should never have been placed. The dentist reported that the oral surgeon contacted him and castigated him for attempting a procedure where there was obviously insufficient bone and no chance of success. The patient had the oral surgeon remove the failed implant and in lieu of suing the dentist for malpractice, requested that he simply reimburse her for the cost of the original implant, cost of removal by the oral surgeon ($915), and three days of missed work. The dentist asked the malpractice carrier to evaluate the situation. He felt that he should be protected because the patient signed an informed consent. The malpractice carrier reviewed the case and came to the following conclusions after consultation with potential expert witnesses and legal counsel: 1. There was very poor quality bone in the area where the implant was placed. The consistency was compared to eggshells and there was little chance for osseointegration. 2. Pathology at the apex of No. 14 would hamper the success rate of an implant placed in that area. 3. There was no chance for circular osseointegration because the bone in the area was slanted. Even under a best case scenario the bone would soon crater around the implant. 4. The informed consent would not help here because no expert witness would testify that the standard of care was met. The implant should not have been placed. The best informed consent is still unable to excuse negligence.
  • 9. To avoid being reported to the National Practitioner Data Bank and paying a surcharge to the insurance carrier for sustaining a meritorious claim, the dentist provided the patient a check for approximately $2,650 in exchange for the patient signing a Release of All Claims form that was provided by the malpractice insurance carrier. The release stipulated that consideration was the money provided by the dentist and in exchange for this payment the patient would take no further legal action against the dentist. The dentist reported later that the patient had second thoughts about what she thought was too small an amount of settlement and may contemplate legal action, even though she accepted the check and signed the release. However, the insurance carrier assured him that the release would protect him should an attorney be retained and a lawsuit be instigated. No suit or further problems ever arose. Richard C. Engar, DDS, FAGD, is Attorney-in-fact (CEO) for Professional Insurance Exchange, a Utah-based, self-insured professional liability insurance organization. Address your risk management questions to Fig. 1: Would you place an implant in the area of tooth No. 15? Fig. 2: No. 15 extracted, implant in place Fig. 3: Five months post-placement AGD Impact, January/February, Volume 52, Number 7
  • 10. STATE OF WISCONSIN BEFORE THE DENTISTRY EXAMINING BOARD ------------------------------------------------------------------------------------------------------------- IN THE MATTER OF : DISCIPLINARY PROCEEDINGS AGAINST : FINAL DECISION AND ORDER : FREDERICK P. BALLERINI, D.D.S., : LS0501191DEN RESPONDENT. : ------------------------------------------------------------------------------------------------------------- The parties to this action for the purposes of § 227.53, Wis. Stats., are: Frederick P. Ballerini, DDS 630 N. 4th St. Milwaukee, WI 53203 Wisconsin Dentistry Examining Board P.O. Box 8935 Madison, WI 53708-8935 Department of Regulation and Licensing Division of Enforcement P.O. Box 8935 Madison, WI 53708-8935 The parties in this matter agree to the terms and conditions of the attached Stipulation as the final decision of this matter, subject to the approval of the Board. The Board has reviewed this Stipulation and considers it acceptable. Accordingly, the Board in this matter adopts the attached Stipulation and makes the following: FINDINGS OF FACT 1. Respondent Frederick P. Ballerini (dob 5/28/45) is and was at all times relevant to the facts set forth herein a dentist licensed in the State of Wisconsin pursuant to license #1854, first granted on 6/29/77. Respondent is an oral diagnostician. 2. On 10/10/2000, respondent signed a written prescription order for a controlled substance for a dentist-colleague, without entering the prescription into the dental chart. Respondent was a patient at the clinic which employed both respondent and the colleague, but respondent had never treated the colleague personally. The order was issued at the request of the colleague, who prepared the order for respondent’s signature. Respondent admits that there were also other occasions when this occurred.
  • 11. CONCLUSIONS OF LAW A. The Wisconsin Dentistry Examining Board has jurisdiction to act in this matter pursuant to §448.02(3), Wis. Stats. and is authorized to enter into the attached Stipulation pursuant to §227.44(5), Wis. Stats. B. The conduct described in ¶2, above, violated §447.07(3)(a) Wis. Stats., and § DE 5.02(6), Wis. Adm. Code. Such conduct constitutes unprofessional conduct within the meaning of the Code and statutes. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED, that the attached Stipulation is accepted. IT IS FURTHER ORDERED, that Frederick P. Ballerini, D.D.S., is REPRIMANDED for his unprofessional conduct in this matter. IT IS FURTHER ORDERED, that respondent shall FORFEIT $100, to be paid within 60 days of this Order. IT IS FURTHER ORDERED, that respondent shall pay partial COSTS of investigating and prosecuting this matter of $1,000 within 60 days of this Order. IT IS FURTHER ORDERED, that if the Board determines that there is probable cause to believe that respondent has violated any term of this Final Decision and Order, the Board may order that the license and registration of respondent be summarily suspended pending investigation of the alleged violation. Dated this 19th day of January, 2004. WISCONSIN DENTISTRY EXAMINING BOARD Bruce Barrette A Member of the Board
  • 12. STATE OF WISCONSIN BEFORE THE DENTISTRY EXAMINING BOARD ------------------------------------------------------------------------------------------------------------- IN THE MATTER OF THE DISCIPLINARY : PROCEEDINGS AGAINST : : LS0211064DEN LARRY NILLISSEN, D.D.S., : RESPONDENT : ------------------------------------------------------------------------------------------------------------- FINAL DECISION AND ORDER ------------------------------------------------------------------------------------------------------------- The parties to this action for the purposes of § 227.53, Stats., are: Larry Nillissen, D.D.S. P.O. Box 206 409A Main Street Birnamwood, WI 54414 Wisconsin Dentistry Examining Board P.O. Box 8935 Madison, WI 53708-8935 Department of Regulation and Licensing Division of Enforcement P.O. Box 8935 Madison, WI 53708-8935 The parties in this matter agree to the terms and conditions of the attached Stipulation as the final decision of this matter, subject to the approval of the Dentistry Examining Board. The Board has reviewed this Stipulation and considers it acceptable. Accordingly, the Board in this matter adopts the attached Stipulation and makes the following:
  • 13. FINDINGS OF FACT 1. Larry Nillissen, D.D.S., Respondent, date of birth October 3, 1956, is licensed by the Wisconsin Dentistry Examining Board as a dentist in the state of Wisconsin pursuant to license number 2723, which was first granted June 17, 1981. 2. Respondent's last address reported to the Department of Regulation and Licensing is P.O. Box 206, 409A Main Street, Birnamwood, WI 54414. 3. On July 19, 2001, Respondent was charged in Shawano County Wisconsin Circuit Court case number 2001CF000183 with violating § 948.02(1), Stats. (First Degree Sexual Assault of a Child), a Class B felony. The criminal complaint alleged that, between May 1, 1990 and September 1, 1991, Respondent caused a minor female family member (DOB 2/9/81), to touch his penis for the purpose of sexually arousing or gratifying himself. 4. On August 22, 2001, an Amended Criminal Complaint was filed against Respondent in the Shawano County criminal matter. The Amended Complaint alleged that Respondent had committed the following offenses against the minor female family member: a. COUNT I: Violating § 940.225(3m), Stats. (Fourth Degree Sexual Assault), a Class A misdemeanor, for having sexual contact, during the summer of 1990, with a person without the consent of that person. b. COUNT II: Violating § 940.225(3m), Stats., (Fourth Degree Sexual Assault), a Class A misdemeanor, for having sexual contact, during the summer of 1991, with a person without the consent of that person. c. COUNT III: Violating § 940.225(3m), Stats., (Fourth Degree Sexual Assault), a Class A misdemeanor, for having sexual contact, between the dates of June 1, 1990 and September 1, 1991, with a person without the consent of that person. 5. In addition to the counts stated above, the Amended Criminal Complaint also alleged, but did not charge, that during the summer of 1990 or 1991, Respondent caused another minor female family member to touch his penis without her consent. 6. On January 4, 2002, Respondent pled no contest and was found guilty of three counts of violating § 940.225(3m), Stats., (Fourth Degree Sexual Assault), a Class A misdemeanor, for having sexual contact with a person without the consent of that person on three separate occasions. (Summer of 1990, the summer of 1991 and between June 1, 1990 and September 1, 1991.)
  • 14. 7. Respondent was convicted on the three counts and sentence was withheld and Respondent was placed on 3 years probation for each count, concurrent. Other conditions of Respondent’s sentence or probation included: • A fine of $3,720 and $6,000 in restitution to the victims. • $5,000 to be deposited in an account for victims future counseling. If none required, the money to be returned to Respondent. • Any counseling recommended by Respondent’s probation agent. • Respondent’s wife and children be evaluated to determine whether they had also been victimized by Respondent. • No contact with victims unless waived in writing. 8. § 940.225(3m) is a crime the circumstances of which substantially relate to the practice of a dentist. 9. The minor female victims were not Respondent’s dental patients and Respondent’s conduct did not take place while he was practicing dentistry or in a dental office. CONCLUSIONS OF LAW 1. The Wisconsin Dentistry Examining Board has jurisdiction over this matter pursuant to § 447.07(3), Stats. 2. The Wisconsin Dentistry Examining Board has authority to enter into this stipulated resolution of this matter pursuant to § 227.44(5), Stats. 3. Respondent, by having violated, and been convicted of, crimes the circumstances of which substantially relate to the practice of a dentist, has committed unprofessional conduct as defined by Wis. Adm. Code § DE 5.02(15) and is subject to discipline pursuant to § 447.07(3)(e), Stats. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED: 1. That effective immediately, Respondent’s license to practice dentistry is limited to providing dental services to patients age 18 and over. 2. Respondent shall notify all staff in any location where Respondent practices dentistry that the Board has imposed the above limitation on Respondent’s license. 3. Respondent shall return his current wall and wallet registration certificates to the Department by mail or in person, and the Department shall then issue limited registration credentials to Respondent. 4. Upon Respondent providing to the Board, or its designee, an acceptable report or evaluation from a psychologist which indicates that Respondent is not a risk to
  • 15. sexually offend with minor males, the limitation in paragraph 1, above shall be changed to: Respondent’s license to practice dentistry is limited to providing dental services to female patients age 18 and over, and male patients of any age. 5. The limitations on Respondent’s practice shall remain in effect until such time as Respondent provides proof satisfactory to the Board that Respondent can practice dentistry with all minor patients with reasonable safety to those patients. 6. If Respondent violates any term of this Order, Respondent shall immediately notify: Department Monitor Department of Regulation And Licensing Division of Enforcement 1400 East Washington Ave. P.O. Box 8935 Madison, WI 53708-8935 Fax (608) 266-2264 7. Any request for modification of the limitations imposed by this Order shall be faxed, mailed or delivered to the Department Monitor. 8. If Respondent believes that the Board's refusal to modify any limitation is inappropriate, Respondent may seek a class 1 hearing pursuant to §227.01(3)(a), Stats., in which the burden shall be on Respondent to show that the Board's decision is arbitrary or capricious. The limitations on Respondent's license shall remain in effect until there is a final decision in Respondent's favor on the issue. 9. Within 30 days of the date of this Order, Respondent shall pay the costs of this proceeding, in the amount of $850.00 to the Department of Regulation and Licensing. 10. Violation of any term or condition of this Order, may constitute grounds for revocation of Respondent's license. Should the Board determine that there is probable cause to believe that Respondent has violated the terms of this Order, the Board may order that Respondent's license be summarily suspended pending investigation of and hearing on the alleged violation. The rights of a party aggrieved by this Decision to petition the Board for rehearing and to petition for judicial review are set forth on the attached “Notice of Appeal Information.” Dated at Madison, Wisconsin this 6th day of November, 2002. _____________________________ Bruce J. Barrette, D.D.S., S.C. Chair Dentistry Examining Board
  • 16. STATE OF WISCONSIN BEFORE THE DENTISTRY EXAMINING BOARD ----------------------------------------------------------------------------------------------------------- ------- IN THE MATTER OF DISCIPLINARY : PROCEEDINGS AGAINST : FINAL DECISION : AND ORDER PETER HEHLI, D.D.S., : LS0404271DEN RESPONDENT. : ----------------------------------------------------------------------------------------------------------- ------- Division of Enforcement Case No. 03DEN059, 00DEN003 The State of Wisconsin, Dentistry Examining Board, having considered the above-captioned matter and having reviewed the record and the Proposed Decision of the Administrative Law Judge, makes the following: ORDER NOW, THEREFORE, it is hereby ordered that the Proposed Decision annexed hereto, filed by the Administrative Law Judge, shall be and hereby is made and ordered the Final Decision of the State of Wisconsin, Dentistry Examining Board. The rights of a party aggrieved by this Decision to petition the department for rehearing and the petition for judicial review are set forth on the attached "Notice of Appeal Information." Dated this 2nd day of November, 2005. Nanette K Dreves Member of the Board Dentistry Examining Board
  • 17. STATE OF WISCONSIN BEFORE THE DENTISTRY EXAMINING BOARD IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST PROPOSED FINAL DECISION AND ORDER PETER HEHLI, DDS, Case No. LS0404271DEN Respondent. _______________________________________________________________________ _______ (Division of Enforcement Case File Nos. 03 DEN059, 00DEN003) For purposes of review under Wis. Stat. § 227.53, the parties in this matter under Wis. Stat. § 227.44 and Wis. Admin. Code § RL 2.037, are: Peter Hehli, DDS W. Patrick Sullivan (Attorney for Respondent) 200 North Jefferson Street Milwaukee, WI 53202 Division of Enforcement James E. Polewski (Attorney for Complainant) Department of Regulation and Licensing 1400 East Washington Avenue P.O. Box 8935 Madison, WI 53708-8935 Wisconsin Dentistry Examining Board Department of Regulation and Licensing 1400 East Washington Avenue P.O. Box 8935 Madison, WI 53708-8935 PROCEDURAL HISTORY This case was initiated by the filing of complaint dated April 26, 2004, before the Dentistry Examining Board, Department of Regulation and Licensing. An answer was filed on behalf of the Respondent on May 14, 2004. A hearing was held in this matter on June 30, 20 05, before Administrative Law Judge Colleen M. Baird. The Division of Enforcement appeared by attorney James E. Polewski. Attorney W. Patrick Sullivan appeared on behalf Peter Hehli, D.D.S. The record was complete on July 29, 2005, with filing of written closing statements. At the onset of the hearing, the parties indicated that they had reached a stipulation as to the Findings of Fact and Conclusions of Law. The parties’ stipulation was received and admitted into evidence and is incorporated into this Proposed Final Decision and Order.
  • 18. FINDINGS OF FACT 1. Peter D. Hehli, D.D.S (“Respondent”) was born on June 17, 1963, and is licensed to practice dentistry in the state of Wisconsin pursuant to license number 4059, first granted on July 31, 1989. 2. Between April 1991 and March 1999, Respondent was the general dentist for patient EVD, a female born July 1, 1984. 3. Patient EVD was also the patient of Dr. Karen Wedde, an orthodontist. 4. Dr. Wedde treated Patient EVD for malocclusion, with the additional goal of maintaining space for an implant or pontic for tooth #10, which was congenitally missing from Patient EVD. 5. On December 3, 1998, without the informed consent of the patient, aged 14, or her parents, Respondent prepared teeth #9 and #11 for a permanent fixed porcelain bridge. 6. At the time, the patient and her parents believed that Respondent was performing the necessary work for a bonded bridge, which would allow the patient to complete her growth and maintain a space for future implant of a prosthetic #10. 7. The actual preparation for the permanent fixed porcelain bridge required substantial modification of teeth #9 and #11, which were, at the time, virgin teeth. 8. The bridge which Respondent designed and installed was less than minimally competent dental work in that it had open margins, tissue impingement because of overcontouring, bridge margins short of the prepared margins on teeth #9 and #11, and esthetic errors of contour and shade. 9. Respondent did not recognize the deficiencies of the bridge which he designed and installed until after the patient and her parents had sought a second opinion of Respondent’s assurances that the bridge was technically acceptable. 10. Respondent designed and installed a second permanent fixed porcelain bridge. 11. Respondent treated Patient VH, a female born June 8, 1954, as her regular primary dentist between January 1992 and October 1999. 12. Respondent performed endodontic treatment on ten teeth for Patient VH, using the Sargenti method.
  • 19. 13. Respondent extracted tooth number 29 on May 22, 1998, and placed a two unit bridge on Patient VH on July 3, 1998, using tooth number 28 as an abutment; tooth number 30 was present, with a crown, but was not used as an abutment for the bridge replacing tooth #29. 14. Tooth number 28 required endodontic therapy on August 6, 1998, and Respondent used Sargenti technique in that effort. 15. On September 15, 1998, a different dentist checking Patient VH’s complaints of discomfort discovered that the endodontic treatment performed by Respondent on tooth number 28 on August 6, 1998, had been left with a short fill, and the subsequent dentist re-treated the tooth. 16. It was inappropriate to place a bridge for tooth number 29 with only a single supporting abutment. 17. The use of Sargenti technique and paste was below the minimally acceptable standard of practice for endodontic treatment during the period Respondent was treating Patient VH. 18. During the pendency of this proceeding, in consultation and cooperation with the Division of Enforcement and at significant personal expense, Respondent has successfully completed 35 hours of continuing dental education in endodontics in residence at the University of California Los Angeles, and 23 hours of continuing dental education in prosthodontics sponsored by the American College of Prosthodontists in Chicago, Illinois. CONCLUSIONS OF LAW 1. The Dentistry Examining Board has jurisdiction in this matter pursuant to Wis. Stat. §. 447.07. 2. Respondent’s treatment of Patient EVD with the first bridge constituted less than minimally competent practice of prosthodontics in that it altered teeth that could have been preserved by a bonded bridge, and in that the first bridge was deficient in technical considerations, and in that there was a lack of informed consent to the first bridge, all of which constitutes a violation of Wis. Admin. Code § DE 5.02(5). 3. Respondent’s treatment of Patient VH constituted a violation of Wis. Admin. Code s. DE 5.02(5) in the use of Sargenti technique and paste, and in using only tooth number 28 as an abutment for a bridge replacing tooth number 29.
  • 20. ORDER NOW, THEREFORE, IT IS ORDERED that the license of Peter Hehli, D.D.S., (lic. #4059) to practice dentistry in the state of Wisconsin, shall be, and hereby is, REPRIMANDED. IT IS FURTHER ORDERED that the license of Peter Hehli, D.D.S., shall be, and hereby is, LIMITED. The limitation shall permanently prohibit Dr. Hehli from using the Sargenti technique or paste in performing endodontic treatment in his dental practice. IT IS FURTHER ORDERED that Dr. Hehli shall pay the COSTS incurred in this proceeding in the amount of $4,618.83. IT IS FURTHER ORDERED that Dr. Hehli shall pay a FORFEITURE in the amount of $500.00 dollars. Payment of the costs and forfeiture shall be submitted within 90 days from the date of this order. Payment shall be made by certified check or money order, payable to the Wisconsin Department of Regulation and Licensing and sent to: Department Monitor Divisions of Enforcement Dept. of Regulation & Licensing, P.O. Box 8935, Madison, WI 53708-8935. IT IS FURTHER ORDERED that the Dentistry Board accepts the 35-hour Endodontic Continuum Course held on August 12, 2004 through August 15, 2004 at the University of California Los Angeles School of Dentistry and the 23-hour American College of Prosthodontics’ Prosthodontist Review Course held on November 18, 2004 through November 20, 2004 in Chicago, Illinois, taken by Dr. Hehli prior to the issuance of this order as appropriate continuing education to address his deficiencies in practice and unprofessional conduct. The continuing education taken by Dr. Hehli constitutes the type of education and clinical training that the Board would otherwise have ordered him to obtain. The courses were from American Dental Association (ADA) accredited providers of continuing dental education.
  • 21. OPINION Applicable Laws Wis. Stats. § 447.07(3)(a) provides that examining board may, without further notice or process, limit, suspend or revoke the license or certificate of any dentist or dental hygienist who engages in unprofessional conduct. Wis. Admin. Code § DE 5.02(5) provides that unprofessional conduct by a dentist or a dental hygienist includes practicing in a manner which substantially departs from the standard of care ordinarily exercised by a dentist or a dental hygienist which harms or could have harmed a patient. Analysis From the onset and throughout the course of these proceedings, the factual and legal allegations of unprofessional conduct have not been in dispute. Prior to the filing of the formal complaint, Dr. Hehli and the Division of Enforcement entered into a settlement stipulation, including agreed findings of fact and conclusions of law, in an effort avoid holding a hearing. Pursuant to the stipulation, Dr. Hehli agreed to take at his own expense, continuing education courses that were recommended by the Division of Enforcement in anticipation of the Board’s discipline. Unfortunately, the parties’ stipulation did not make it to the Dentistry Examining Board members. At the beginning of the hearing the parties indicated that they were still willing to cooperate in reaching a resolution and again stipulated to the operative facts and violations of law. This cooperation significantly reduced the time and expense that would have been required if the matters were contested. As a result, the only issue left to be decided at the hearing was whether, based upon the evidence received at the hearing, Dr. Hehli’s voluntary compliance with the Division of Enforcement’s recommended discipline constitutes an appropriate resolution of this matter. The dental practices at issue in this case occurred approximately 6-1/2 years ago. In his testimony, Dr. Hehli admitted that he made mistakes that many other young dentists could make or do make; that it was a matter of judgment and being less experienced. Dr. Hehli further explained that the situation involving patient EVD, and the placement of a permanent bridge, was in part due to a patient-communication problem. Dr. Hehli testified:
  • 22. This involved a 14 year-old child who looked like she was 18 and was a good patient of our practice for many, many years. And as the record states, there were several interviews with the parents and specialists. And when I did this first procedure, I thought it my mind that’s what the patient and the parents wanted. In fact, the patient’s father was in the room when I started the procedure. [Tr at pgs. 60-61.] Dr. Hehli further testified that if he had to do it over again now, he would not do that same type of bridge. Instead, Dr. Hehli would offer the patient other options such as dental implants. He further stated that he would not have recommended an implant in 1997, but dentistry and dental technology and dental science have changed a lot since then. Dr. Hehli’s demeanor at the hearing showed a sincere recognition of his errors and an understanding of his obligation to practice in competent manner. With respect to the treatment of the second patient, Dr. Hehli was also candid and forthright in acknowledging his deficiencies in treatment planning. Dr. Hehli also explained that much like the first case, technology has changed so much that the treatment options are now quite different. Dr. Hehli admitted that the treatment planning was not commensurate with the standard of care required in the dental profession. As to the Sargenti technique, Dr. Hehli testified that it was a recognized treatment in 1998 and that he learned the technique from his father. He explained that it was used at time when the technology was different and he worked in a managed care practice. [Tr. at pg. 45]. Upon further questioning, Dr. Hehli elaborated about the technique and explained that it was practiced by a very small percentage of dentists as compared to the American Association of Endodontics who practice the gutta-percha method: I guess that I mean that there’s a small percentage of dentists - - in fact they have their own group that practice the Sargenti method, but it’s a very small minority. And if you asked a hundred dentists, 99 of them would say that it’s not acceptable. [Tr. at pg. 66] Dr. Hehli’s view of the efficacy of the Sargenti technique as an endodontic treatment and his use of it has changed dramatically since this disciplinary process began. He testified that he stopped using the Sargenti method as soon as it was brought to his attention by the Division of Enforcement and he signed the stipulation agreeing to discipline. [Tr. at pg. 45]. Dr. Hehli also testified that he does not intend to ever use that technique in a root canal procedure again. [Tr. at pg. 46] Throughout the course of the hearing, Dr. Hehli demonstrated a remarkable level of candor and acceptance of professional responsibility for his actions. More importantly, the evidence submitted at the hearing supported Dr. Hehli’s contention that he has taken meaningful action to improve his diagnostic and clinical technique in the areas of endodontics and prosthodontics. In 2004, Dr. Hehli took an ADA accredited continuing education course in endodontics offered by the University of Southern
  • 23. California (UCLA). The UCLA course consisted of three and ½ days of instruction, including one-on-one participation with faculty and student, hands-on demonstration and practice. The course fee was $3,495.00. Dr. Bernice Ko, the Director of the UCLA Continuing Education Program, testified at the hearing that Dr. Hehli met the requirements of her course and that Dr. Hehli was competent as a general dentist in the performance of endodontic procedures. Dr. Ko testified that her program teaches to the standard of care as established by the American Association of Endodontics; that the goal of the program is to make general dentist more proficient in doing root canal treatment, but not to make them endodontists. [Tr. at pg. 39] Dr. Ko further explained that the UCLA course teaches the current technique for filling the root canal system, how to pick the appropriate length and size of the filling materials, proper working length and biomechanical preparation, disinfection, and mixing of agents and solutions. [Tr. at pg. 29-32]. Dr. Ko testified that she had a personal opportunity to work with Dr. Hehli. In her opinion, Dr. Hehli exhibited a keen interest and willingness to increase his knowledge and improve his skills; asking detailed questions and showing that he was eager to apply his training. Dr. Ko testified: Dr. Hehli stands out in the class. He asked very good questions. And that I remember. And in the laboratory he’s always next to me showing me what he’s done, how to critique, how to cement, how to do a better, you know, root canal treatment. And I like when the dentists are very inquisitive and like to prove themselves; especially in a course like this when there’s so much to learn.” [Tr. at 37] In November 2004, Dr. Hehli also completed a twenty-three hour Prosthodontics Review Course offered by the American College of Prosthodontists in Chicago, Illinois. [Tr. at 54-55]. This course was recommended to Dr. Hehli by the Division of Enforcement and was referenced in the stipulation which he entered into with the Division. At the hearing, Dr. Hehli submitted a list showing all of the continuing education courses that he has taken to improve his diagnostic and clinical skills. In 2004 alone, Dr. Hehli took 8 continuing education dentistry courses, including the etiology, prevention and management of post extractions; reliable techniques to prevent separation of rotary files; tooth surface loss; precision-based endodontics; restorative options and radiologic appraisal of abnormalities. [Res. Exhibit 2] From the year 2000 through 2003, Dr. Hehli took a total of 19 continuing education courses on various dentistry topics. Some of the courses involved as much as 16 continuing education credit hours. The substantial coursework which Dr. Hehli has taken in endodontics and prosthodontics should be considered sufficient to address and remedy the errors of judgment or deficits in technique that he made over six years ago when he was relatively new in his practice. No further continuing education is necessary. This result is consistent with the Board order in the Zollya Geller, DDS, (May 2004) where Dr. Geller completed a week long course at an ADA accredited school of dentistry before the disciplinary order was issued, and the order credited that course as the necessary remedial education. Continuing education has been routinely imposed by this Board as a facet of a disciplinary order in
  • 24. similar circumstances. James Michaels, DDS (May 2005); John Syverson, DDS (November 2004) and Eugene Weber, DDS (January 2004). Although it is generally preferable for a respondent to await the final decision of a Board before taking continuing education, there is substantial value to the public when such education occurs earlier rather than later as a respondent can make changes in his practice and avoid making the same mistakes with other patients. The overwhelming evidence received at the hearing supports the conclusion that Dr. Hehli has exhibited a genuine commitment to acquiring and or improving his knowledge and skills as a dentist, particularly in the area of endodontics and prosthetics. It is also reasonable to conclude that Dr. Hehli is now a competent practitioner in these areas given the additional education and training which he has taken. Dr. Hehli has been an associate member of the American Association of Endodontists since April 16, 2004. [Res. Exhibit 1] Additionally, in August 2004, Dr. Hehli was appointed by the Marquette University Dental School to serve as a preceptor for dental students at the Tri-County Community Dental Clinic. [Res. Exhibit 3] Dr. Hehli’s current competency and professional growth is further demonstrated by a review of his complaint track record with the Department of Regulation and Licensing. The Division of Enforcement confirmed at the hearing that there have been no other complaints filed against Dr. Hehli after the two complaints involved in this proceeding. The Division of Enforcement also confirmed that the only other consumer complaints filed against Dr. Hehli occurred between the time of the first and second complaint in this matter and were closed by the screening panel without any action. The recommendation that Dr. Hehli receive a reprimand for his conduct in this case is consistent with the objectives of professional discipline to promote the rehabilitation of the licensee, to protect the public; and to deter other licensees from engaging in similar conduct. State v. Aldrich, 71 Wis. 2d 206, 209 (1976). Punishment of the licensee is not an appropriate consideration. State v. McIntyre. 41 Wis. 2d 481, 485 (1969). Although Dr. Hehli has cooperated with the disciplinary authority in admitting his mistakes and obtaining continuing education to address his deficiencies and errors, the fact remains that his conduct was below the minimum standard of care and formal discipline is warranted.
  • 25. Costs and Forfeiture Under the law, the Board has the discretion to impose all, some, or none of the costs of the proceeding. Wis. Stats. § 440.22 (2). In addition, the Board has the authority to assess a forfeiture. Wis. Stats. § 447.07(7). The costs incurred in regulating a profession are primarily funded through the revenue received from licensee fees because the Department of Regulation and Licensing is a “program revenue” agency. Licensee fees are calculated based upon those costs. As a result, it would be fundamentally unfair to pass along to all of the members of a professions the regulatory costs incurred because of an individual member’s unprofessional conduct. However, the assessment and imposition of costs against a respondent should not include expenses which were incurred through no fault of the respondent. Therefore, it is recommended that only a proportionate assessment of costs be imposed against Dr. Hehli since he attempted in good faith to resolve this matter and avoid the necessity of a hearing. Accordingly, the recommended costs of the proceeding are capped in the amount which reflects the costs incurred by the Division of Enforcement at the point when the parties entered into a stipulation and attempted to present that stipulation to the Board. This result is fair to the parties and consistent with the applicable laws and previous decisions of the Board. Respectfully submitted, Dated this 29th day of September, 2005. Colleen M. Baird Administrative Law Judge P.O. Box 8935, Madison, WI 53708
  • 26. E PATIENTS HOME > Dentists' Corner > Case Studies in Risk Management VIP Dentists DentistFind Dental Advice Error! Unknown switch argument.Error! Un Patients' Corner Message Board Articles Dental Careers PROFESSIONALS Practice Listing Dentists' Corner Featured Products Industry Links Conferences Classifieds Advanced
  • 27. The Importance of Reviewing an Informed Consent Form With Your Patie The Facts Nancy Smith, a 50-year-old teacher, visited Dr. Johnson's office for complaining of a toothache. When she arrived for her appointment, sh a health history questionnaire and having X-rays taken. Dr. Johnson extraction on tooth #3. Nancy stated that Dr. Johnson extracted tooth #3 because her X-rays was not salvageable. During her initial appointment, Dr. Johnson dis comprehensive treatment plan which included upper and lower partial given an informed consent form to review and return at her next appo Nancy agreed with Dr. Johnson's treatment plan which also included e #28 and tooth #31, to accommodate her treatment plan for dentures. W the dental office for her second appointment, she met with Dr. Johns go over the informed consent form. She was then immediately taken ba where she was anesthetized and tooth #28 was extracted without compl Dr. Johnson then began to extract tooth #31. During the extraction, the gum line and Nancy had to be anesthetized again in order for Dr. the roots. This was a difficult extraction taking an exceptional amo That evening, Nancy encountered severe jaw pain. She followed up wit day. She told him that, in addition to jaw pain, she was experiencin from the mid-line of her lip to the bottom of her chin, and right li had numbness on her tongue along the right side beginning at the mid her it sounded as though he may have fractured her jaw during the ex Nancy to return to the office for X-rays. When Nancy arrived at the office, Dr. Johnson took X-rays of her jaw film, he told Nancy he did not see a fracture in her jaw. He then pr Darvocet and referred her to an oral surgeon. Nancy went directly from Dr. Johnson's office to the oral surgeon an her. The oral surgeon studied the X-ray and stated that, although th quality, it appeared as though Nancy might have a fractured jaw. The oral surgeon confirmed Nancy's jaw was fractured in a later appo subsequently, wired Nancy's jaw shut. The numbness in her tongue sub left with permanent numbness of the chin and lip. The Outcome Nancy's attorney produced treatment notes that confirmed Nancy's fac Nancy reported her eating habits had been adversely affected. She co though there was food left on her right lip and chin after every mea Nancy also stated she was unable to eat hard food and continually bi said kissing her husband felt awkward and clumsy because of the lack lip, and when she bit or chewed on the right side of her mouth, she
  • 28. Manage your risk Click here to close this window. Qualified A-Team can make difference in malpractice suits By Michael D. L. Weisenfeld A malpractice suit is an event dentists hope never to encounter. Most GPs take steps to prepare for the day when a patient suddenly becomes a plaintiff, such as choosing a reputable malpractice carrier or maintaining the option to determine whether or not the carrier settles the case. But these precautionary measures are not always enough to ensure victory in court. Any number of unforeseen events can radically alter the outcome of a malpractice case. A trial may focus on the wrong issues. A judge may make bad rulings. A witness may mislead the jury. If you're unhappy with the outcome of a case you have limited recourse after the verdict; an appeal may result only in the reduction of an award, not the total dismissal or a new trial. Dentist defendants should have their cases investigated, protected and defended by someone who is well versed in dental issues. General dentists who face a potentially damaging jury trial should consider hiring an independent consultant prior to the beginning of the proceedings. Dental consultants can provide information concerning dental treatments, protocols and standards that can help the attorney develop specific lines of questioning for witnesses. These three cases illustrate how things can go wrong in a jury trial, and how a consultant could have prevented these losses. Case No. 1 - Unprepared defense The defendant dentist was alleged to have improperly placed composite restorations-two occlusal fillings and three buccal fillings in lower molars. The malpractice carrier outsourced the case to a private practice attorney. As the investigation proceeded, it became clear that the plaintiff was expanding the case, alleging temporomandibular joint dysfunction (TMD) as a result of the restorations. The plaintiff's main witness was another dentist who testified that the plaintiff suffered extreme pain, serious life disruptions, and permanent harm from TMD. While under his care the patient lost a tooth, required endodontic therapy and was put on psychotropic medications. She also required an abortion due to the medications that she took for pain and alleged nerve damage. The defense was unprepared for the TMD claims and offered only testimony to support the placement of the restorations; defense counsel did not provide witnesses to refute the TMD claims nor was the plaintiff's witness sufficiently cross-examined. The defense disregarded the efforts of the insurance company claim examiner and its expert consultant, thinking that the case was a routine matter involving some fillings. The verdict was for the plaintiff in the amount of $3.1 million. The carrier evaluated an appeal and found that the defense attorney had not made proper objections during the trial and there were no legal grounds for appeal. The policy limit was $1 million, so the dentist ‫ص‬s personal assets were exposed for $2.1 million. During the evaluation process the
  • 29. carrier negotiated with the plaintiff and reduced the amount to be paid to $1 million, the policy limit, so that the dentist did not lose any of his personal assets. Case No. 2-Judge's errors unchallenged The allegations were improper root canal treatment by a general dentist, failure to diagnose a fractured tooth, and failure to refer to an endodontist for treatment in a timely fashion. The dentist defendant opened the tooth, a lower second molar, found that it had four canals, and referred the patient to an endodontist for treatment. After two visits and an infection, which required hospitalization for cellulites, the endodontist referred the patient to an oral surgeon who removed the tooth and found a split root. The defendant dentist did not deviate from the accepted standards of care and referred the patient in a timely manner. The infection the patient suffered came only after treatment by the endodontist; and dentists agree that the diagnosis of a split root is very hard to diagnose until the tooth is removed. The malpractice carrier referred the case to an outside defense counsel. In this case the defense counsel worked closely with the carrier's expert consultant. However, he was unable to get proper rulings from the judge as to the eligibility of the plaintiff's expert. The case went to trial and resulted in a verdict for the plaintiff in the amount of $750,000. Appeals were taken due to errors in the judge's rulings. However, in this case the pre-trial interest combined with the verdict would have totaled over $1 million. The carrier was able to bring the amount to $250,000 and all parties agreed to accept. Case No. 3-Unsupported evidence This case took place in North Carolina. A general dentist was removing third molars from a patient. She removed three of the four molars with relative ease, but had some difficulty removing the last lower molar. All of the third molars were fully erupted. The allegations were that the defendant dentist improperly removed the lower third molar causing permanent damage to nerves and TMD. One of the plaintiff's expert witnesses was a general dentist from Arizona. He testified as to the standard of care for a dentist in North Carolina, but because he did not know what North Carolina's standard of care was, his testimony should not have been allowed in the case. This either was due to ineffective objection by the defense or a bad ruling by the judge. The experts were impeached on cross-examination, but the testimony still hurt the defense. There is no relationship to placing a crown on tooth No. 14 and the removal of the third molars. The two procedures are discreet and unrelated, different in time and substance. Yet it was successfully argued on appeal of a summary judgment motion that the crown treatment was "continuous treatment" in order to "toll" the statute of limitations. The diagnosis of TMD was made long after the removal of the teeth in spite of testimony that there was no limitation of movement, and the MRI did not show any gross pathology. There was no claim of any nerve damage until after surgery on the bilateral arthroscopies. Yet the claim of trigeminal nerve damage was made pain mid-face. Using dental knowledge and logic, there is no rational explanation for the verdict of $5 million. Coverage was for $1 million. Summation In each case the assistance of an expert dental consultant could have made a difference in the outcome of the trials.
  • 30. In the first case, for example, a different outcome could have been achieved if personal private counsel had represented the defendant dentist, not someone hired by the carrier. Independent private counsel assisted by a professional consultant-a dentist -familiar with the legal process could have forced the trial counsel to prepare and accept the strategy proposed by the insurance company consultant. Expert consultants also can help attorneys prepare lines of questioning. Witnesses cannot simply tell their story. They must be "examined" by the attorneys. That means attorneys ask questions according to a prescribed form. If the right questions are not asked than the information will not get to the jury. A knowledgeable dentist expert consultant can suggest the proper questions to elicit the testimony desired. Many factors go into the make up of a dental malpractice suit. Not every case warrants the expense of private counsel or the employment of a dental consultant expert. Some complaints are of no merit and are quickly disposed of. However, when there are questions or bad outcomes, the use of a qualified expert can make the difference between a huge verdict and a defense verdict. AGD Michael D.L. Weisenfeld, DDS, is an independent consultant for practice and risk management cases. Dr. Weisenfeld was in private practice as a general dentist for 32 years. He is an Academy of General Dentistry past president and member. He can be reached at materials for Tuesday.EML/Dentistry_com - After 29 years in practice, a claim.htm/C58EA28C-18C0-4a97-9AF2-036E93DDAFB3/Dentistry_com - After 29 years in practice, a