Legal Vulnerability

October 2003

It is common knowledge that any professional committing a significant error may incur a lawsuit. Although the relationship with the patient can buffer legal problems, the diligent, caring, and knowledgeable professional is feeling more vulnerable every day.In the past, when we heard of a lawsuit, we felt it was a rogue, a “loose cannon”, a bad professional that was being sued. In 1970’s, congress saw fit to change the rules for suing to make it easier. By liberalizing the discovery rules, lawyers can now go on scavenger hunts when a person gets angry at his health care professional. Today, as we read the horror stories in our journals, newspapers, and insurance newsletters, we begin to get the feeling that the bad guy concept is not true anymore, especially when the bad guy is a friend, neighbor, or colleague. We are astounded at the high dollar amounts being awarded for a nebulous award of pain and suffering. These awards are for what appears to be normal procedures being blamed for pain and suffering. Even worse, it is not just malpractice vulnerability that threatens professionals, but also an array of watchdog agencies with new powers to punish health care practices.

Legal vulnerability for today’s practice can result from administrative, criminal, or malpractice issues. In the past, the threat of being sued was about the only area of concern for most health care providers, but the administrative area has grown very quickly. Furthermore, the administrative watchdogs have the broadest powers, covering a wide range of practice areas, and are the now the most lethal for health care providers. Each type of legal vulnerability poses unique threats to doctors, with the most well known threat being the malpractice area.

Health care practices are now under the watchful eye of financial, environmental, or professional agencies which have broad powers to investigate, rule, and punish practitioners. The financial threats involve the Internal Revenue Service, state revenue department, and Department of Labor (wage and hour division and unemployment division). Because these agencies have always been there, they are taken for granted by most health care providers. However, in their present form with more aggressiveness, new powers, new divisions, new penalties, new departments, and new tracking methods, they can be more harmful than ever before. They have the ability to shut your practice down, freeze your accounts, destroy your credibility, levy heavy penalties, stop building or remodeling progress, revoke your license, or show your practice in a negative light. Environmental issues are a fast growing area of legal vulnerability, especially with the upcoming waste treatment systems for amalgam, hazardous waste, and sharps disposal. This strict oversight will come from agencies like OSHA, as well as new sources like the waste treatment departments. Professional agencies such as DEA and state boards have always been a legal threat to doctors, but now they are more aggressive, more powerful, and more frequent used by the public. Anyone in the healthcare field who has been the target of a bureaucrat trying to make a name for themselves, a disgruntled employee who uses a bureaucratic agency to get even with a doctor, or a angry dysfunctional person who falls into power position in a bureaucratic agency attacks anyone at will is well acquainted with how much power these organizations have. Similarly, a doctor who faces a board charge for refusing a drug seeker is very aware of this threat. Besides the severe damage these agencies can inflict on a practice, the amount of evidence necessary for you to be found guilty is a lot less than in the malpractice arena. You are guilty until proven innocent. This means the burden of proving innocence is on your shoulders. Proving innocence is a lot more difficult than proving guilt. Many practitioners underestimate the power of these agencies, the impact they can have on a practice, and the weight of guilt defense with bureaucratic agencies. Your ability to appeal an injustice is severely handicapped by red tape, cost, and lack of remedies.

The criminal arena is becoming more prominent, especially in cases involving improper sexual conduct, children, and discrimination. The district attorney decides whether or not to pursue these infractions. The decision by the DA to prosecute seems to come from public outcry about injustices, social problems, and politics. Criminal charges can be stacked on top of a lawsuit and administrative violations. A somewhat common example of a criminal action is Medicaid fraud. The most destructive criminal accusation is sexual misconduct, which results in battery charges from the DA. Most malpractice insurance does not cover these legal problems.

Lawsuits were designed to protect the public from damaging errors by health care providers. In the past and in a few cases today, the healthcare practitioner makes a significant error and is held accountable for it; however, the landscape of the lawsuit is changing. In the past it was quite difficult to find a healthcare practitioner guilty of malpractice, but not today. In 1970’s, congress was inclined to weaken the legal doctrine of “assumption of risk”. This shifted the responsibility from the patient to the professional to be responsible for almost any risk which we all know is absurd, but the court system has followed the government in shifting responsibility to the deeper pocket. Malpractice may not even require error or proven guilt. Previously, the burden of proof was on the accuser (they had to prove the standard of care, breach of standard, and that the breach caused injury), but many judges today allow a lot less than this benchmark of guilt. The court system began to allow expert witnesses from any part of the country with hidden agendas, expertise, and training. The courtroom is now an arena where political agendas can be played out in a horrifying manner by so-called expert witnesses. The statute of limitations has been weaken or broaden to allow more cases in favor of the patient to create longer professional vulnerability. Dismissing patients in today’s world has become so complicated and convoluted that it makes doctors responsible for patient problems long after they cease to care for them. Many defenses available to the doctor in the past are no longer available today. Your shields have been weakened without much notice being provided.

The most familiar lawsuits today do not involve major errors but are made to look like they cause major impact to a patient’s life. Yes many of these are occurring each year. Most of these fabricated errors fall into the categories of intentional and unintentional. The intentional errors are assault (different than sexual battery), confidentiality, lack of permission, and slander. The new HIPAA laws pertain to the confidentiality area. Assault and slander problems are rarely seen in most professional lawsuits, but they have increased. Since most lawsuits include a communication problem, permission errors such as treatment consent and treatment refusals are common. In fact, the consent errors most are convicted of are discovered in the interrogatories and are not the nature of the initial suit. The unintentional errors are the most publicized problems in health care. These include misdiagnosis, activation of a latent pain problem, selling dental products as a cure, pursuing collections, failure to refer, and management of emergencies. The collection problem is indirect because it usually involves a dysfunctional patient using the legal system against you to stop you from collecting (a form of legal blackmail). In these lawsuits, they usually find one of the other errors to use as a basis to file the lawsuit. By far the most prevalent of these problems is failure to diagnose cancer, TMD/MPD, periodontal disease, endodontic problems, bite problems, or surgical problems. Inappropriate selling of a dental product is an interesting one and easy to fall into. For example, after attending a course on a NTI procedure, you come back excited and convinced that this procedure alleviates migraines. Unfortunately, you begin selling it with very little training or scientific proof to back you up. You give it to a patient who wears it 24 hours a day and now need orthognathic surgery. Another example is a dentists doing a weekend course on equilibration with little training in TMD or MPD, sets off a TMD/MPD with a mouth opening procedure or bite changing procedure. Still another example is when you trust your skills too far with a surgery and clip the lingual nerve and fail to refer the patient when common sense dictates a second opinion. Emergencies are mostly a problem because they often involve dysfunctional patients and drug seekers who have been kicked out of other practices. These patients are engaged in during rush or tired periods without the benefit of a full exam to diagnose properly and get to know the patient slowly in less invasive procedures. Most of our protection systems in health care are not available or accessible in emergencies situations. Any of these can be the basis for a lawsuit.

Unfortunately, many of the lawsuits today are minor errors or perceived errors highlighted by dysfunctional patients. This small group of “dental terrorists” (dysfunctional patients) are the patients who accept no responsibility for their condition or outcome regardless of their lack of compliance, contribution, hidden agendas, delays, or inability of science to make them perfect, back to way they were, or provide guarantees to biological creatures. They have only two modes of feeling toward health care professionals: love and hate. When ignited they will use any legal means to get even and have no remorse in attacking, regardless of whether the merit. They forget (even we sometimes forget), that the pathologies we are treating are mostly self-inflicted and we are trying to help patients have a better life, free of pain and disease. The legaland bureaucratic systems are being used as weapons by these dental/medical terrorists to take advantage of health care professionals. Sadly, some even use the legal system as a lottery ticket for wealth without considering that they are abusing professionals, increasing the cost of medicine for all, and decreasing public availability of medical services. You are even more vulnerable if the perceived error lies in the gray zone between generalist and specialist.

Because we are more vulnerable as doctors, we must begin to practice defensive health care. With regard to legal problems created by dysfunctional patients, we must become proficient at detecting these patients. The responsibility lies with each professional to reduce the risk of exposure to all kinds of legal problems. We can no longer wait until a legal case is brought against us and then try to defend. We must be proactive. Most legal cases go away on the first review if you have the proper offense in place (excellent records). To mount a great defense, you must study the weak areas in your practice, systems, delivery, records, communication, consent forms, product knowledge, and patient management. You must prepare detection systems for dysfunctional patients and prevention systems for the practice. You must prepare for the worst and hope for the best.

Here are the top ten prevention ideas:

1. Relationships are key to prevention
2. Records are the key to defense
3. Pursuing bad debt invites lawsuits
4. Ownership of the disease is the patient’s responsibility
5. Second opinions are the second best defense
6. Dysfunctional patients’ lack of responsibility is key to detection
7. Use legally-prepared forms in your practice
8. Hire your own lawyer to assist with malpractice cases
9. Avoid diagnosis problems:
   1. Failure to refer atypical toothaches
   2. Selling dental products as “cures” for TMD
   3. Know standards of care for cancer, TMD, and periodontal disease.
   4. Setting off hidden TMD/MPD
10. Education is the third best defense

In addition, be familiar with your insurance policy and understand what areas are not covered (criminal or administrative situations).