IZABELA HABUR/GETTY IMAGES. 42 December 2013 Trial

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1 42 December 2013 Trial IZABELA HABUR/GETTY IMAGES

2 Evils The of Corporate Dentistry Over the last few years, corporate dental chains have faced lawsuits for performing unnecessary procedures on children and putting profi ts ahead of patient safety. Holding them accountable for their actions involves learning about their practices, potential liability issues, and defenses that may get in your way. By James R. Moriarty and Patrick J. Higgins Posted with permission of Trial (December 2013) Copyright American Association for Justice, formerly Association of Trial Lawyers of America (ATLA ) The four-year-old child shrieks. A dentist has drilled into the nerves of his teeth. The anesthesia has not taken effect, so the child is in agony. He is strapped down from his neck to his ankles in a restraint known innocuously as a papoose. Two dental staff members further restrain him, while another called a header firmly holds his head still. The child soils himself, and the staff clean the dirty clothes in the dental clinic s washing machine; they dry him off with a hair dryer kept

3 Professional Negligence The Evils of Corporate Dentistry for that purpose. He is then returned to his unsuspecting parents. The dentist has performed two unnecessary pulpotomies (baby tooth root canals) in just one visit, and he will perform similar procedures on other children before the day is over. He has a daily production quota to meet. This is not an unusual scenario when a corporation illegally practices dentistry in this country. Often, the dental procedures performed are unnecessary. In some cases, consent forms contradict the American Academy of Pediatric Dentists (AAPD) guidelines for the use of restraints. 1 These unnecessary procedures often are performed on children dependent on Medicaid, resulting in millions of dollars of fraudulent Medicaid claims. The federal government and states have sought to hold the corporate dental entities accountable, but fines only go so far. Going to court is proving to be the best recourse for the injured children, but that route is fraught with peril. When evaluating a potential claim against a corporation illegally practicing dentistry, be aware of how these practices operate, what claims you can bring, and what defenses may block your path to justice. Over the past decade, two forces have driven the rise of corporate dental malpractice and fraud. First, the federal government has increased dental care for a large, underserved population of children on Medicaid, which allowed mass submission of Medicaid claims without adequate oversight. Second, corporations and private equity groups, many without experience in the dental industry, have indirectly or directly purchased dental chains. 2 The corporate chain s investors expect a return on their investment. This combination creates fertile ground for conflicts of interest and bad patient care. In some cases, boosting the bottom line has overridden patient care concerns. 3 This tension between the corporate drive for profit and patient safety is nothing new. Virtually every state recognizing that it cannot entrust corporations with patient safety either by statute or common law bars non-dentists from owning and operating dental offices. 4 Despite these well-established laws, corporations still practice dentistry and evade prosecution. They devise intricate schemes to transfer ownership to a straw man known as an owner dentist, who is listed on paper as the dental clinic s owner. The corporation, however, remains the true owner and controls the clinic, jeopardizing patient safety. A case in point is Small Smiles Dental Centers. In 2006, a private equity group purchased 50 Small Smiles dental clinics in 22 states. Following complaints and whistleblower actions, the U.S. Department of Justice (DOJ) and several states investigated Small Smiles. Their investigations revealed that the clinics performed unnecessary and unsafe dental procedures on young children and submitted Medicaid claims for the treatment they provided. 5 In 2008, a Small Smiles dentist and cofounder, and his partner, paid more than $10 million to the U.S. government and North Carolina for performing procedures without informed consent and subjecting their child patients to invasive and sometimes painful procedures, often for the sake of obtaining money from the North Carolina Medicaid program. 6 In 2010, the federal government fined Small Smiles $24 million for engaging in improper Medicaid dental Dentist performance reviews and personnel files may show that production, rather than quality of care, was the coin of the realm. 44 December 2013 Trial

4 treatment at its clinics. 7 Small Smiles also agreed to have the DOJ monitor its operations to prevent further abuses. It also paid New York $2.3 million under a similar agreement. 8 Small Smiles and other corporate dental chains also have come under fire from Congress. In late June 2013, the bipartisan joint Senate Finance and Judiciary Committee issued a 1500-page report condemning the corporate practice of dentistry and recommending that Small Smiles be ejected from the Medicaid program. 9 It also criticized the DOJ Office of the Inspector General for tolerating consent order violations by some corporate dental chains. 10 Litigation The mental and physical toll these abuses take on children is greater than the financial damage inflicted on U.S. taxpayers. In one case, the use of restraints during a routine treatment on a young child was linked to his death. 11 Parents have filed cases in Arizona, Colorado, New York, Oklahoma, and South Carolina to hold corporate dental chains liable for the children s suffering. 12 Additional cases against Small Smiles and other corporate chains are anticipated over the next few years. When commencing an action, you should determine whether to name the corporate dental chain, its owners, the straw man owners, dental management organizations (the label the private equity groups use to claim to be only a management service), the clinic s supervising dentists, and the dentists who treated the children. You also should consider naming the private equity firm, if the facts and controlling law present a solid legal basis. Liability theories. These cases are not typical dental malpractice cases because they primarily rest on fraud and deception grounds. While laws in each state vary, common causes of action include fraud; breach of fiduciary duty; violation of consumer protection statutes; battery; lack of informed consent; common law negligence; negligence per se; negligent hiring, supervision, training, and retention; intentional infliction of emotional distress; racketeering; and dental malpractice. Plaintiffs also have pleaded the doctrine of concerted action liability. That is, that the alleged parties formed and operated a common plan and can be held jointly and severally liable based on such conduct. Other causes of action may include conspiracy and Trial December

5 Professional Negligence The Evils of Corporate Dentistry aiding and abetting. An example of how the applicable state law may factor into your liability case can be seen in a recent decision and trial in the coordinated litigation against Small Smiles in New York state court. In September, the appellate court affirmed the validity of the majority of the plaintiffs claims engaging in deceptive business acts, battery, per se negligence, malpractice and negligence and also dismissed the plaintiffs fraud and breach of fiduciary duty causes of action as duplicative of the malpractice allegations. 13 A few weeks later, a jury handed down a defense verdict against an infant in the first of 33 Small Smiles actions proceeding to trial. But the day after the verdict, the trial court held a hearing after jurors reported to the court that an attorney retained by an insurance carrier involved in the case stalked them during trial. Motions to set aside the verdict on this basis are expected. During the trial, the trial court held as a matter of law that Small Smiles had violated New York law barring a corporation from practicing dentistry. 14 Initial discovery. While a complete discussion of discovery considerations is beyond the scope of this article, you should obtain information about the entire corporate structure and function, not just the clinic that treated the child. Expect substantial resistance on this issue. Argue that this discovery is relevant to show the overall scheme, corporate dental chain ownership and control of all the dental clinics, corporatewide practices and policies, and systemic clinical practice deficiencies. Dentist performance reviews and personnel files may show that production, rather than quality of care, was the coin of the realm. The dentists usually lack qualifications and training in pediatric dentistry, even though the corporate chain held them out as pediatric dentistry specialists. Some dentists If a corporate chain uses the production per dentist system, it is a red flag for improper corporate influence. It allows non-dentist managers to pressure dentists to treat as many patients and perform as many procedures as possible in a given day necessary or not. failed their boards multiple times, yet were offered positions far above their existing pay scales to work at the corporate dental chain. A review of their files should yield this information, but you should also question the dentists about their experience during depositions. Another critical document is the straw man owner contract, which usually shows payments of nominal sums of money, sometimes between $5 and $10, to purchase a dental clinic. As the Senate report indicated, some owner dentists have never visited clinics that they purport to own, are not allowed to make hiring decisions, and do not even control the scheduling of patients. 15 Federal and state government investigations and the recent Senate hearings and corresponding report also may support your liability case. The corporate chains under investigation may have provided documents under subpoena to government agencies. You should request such documents during litigation in the same format as they were produced to the government, which should narrow and simplify the search process. Subpoenas to the government often are fruitless. Defenses and Challenges In any corporate dental fraud case, you must overcome certain challenges and defenses. Causation and fraud. The corporate 46 December 2013 Trial

6 dental chains may argue that they cannot be held liable for fraud because they did not direct or control the dentists at the clinic level and that the dentists used their independent skill and judgment when treating the children. They contend that each dental clinic is a separate corporation and that the corporate owner merely manages services. The dentists state that they have never met the corporate chain owners or managers, they never intended to defraud anyone, and they used their best dental judgment, so they cannot be held liable. A well-constructed record based on thorough discovery can defeat these arguments. You must identify certain indicators that a corporate dental chain has focused on profits rather than patient care. To realize maximum profit, the typical business plan encourages performing many expensive procedures quickly. Management tracks every procedure by dentist known as production per dentist (PPD) or by patient. If a corporate chain uses the PPD system, it is a red flag for improper corporate influence. It allows non-dentist managers to pressure dentists to treat as many patients and perform as many procedures as possible in a given day necessary or not. Information related to PPD can illustrate the pressure the corporate chain exerted on the individual dentists to perform excessive and unnecessary procedures. During depositions, you should question the corporate chain s management extensively about the tracking system. Often, there is a disconnect between PPD tracking systems and patient safety tracking systems. In one case, a corporate dental chain did not have any quality assurance review protocols in place to measure whether dentists were properly treating children, but it religiously tracked each dentist s PPD using stateof-the-art software. The corporate chain may announce daily, monthly, and annual revenue targets to the dentists and staff at dental clinic meetings known as huddles, another indication that the chain is more concerned with its bottom line than patient safety. They routinely set daily revenue goals or expectations essentially setting a quota for each dentist. Spreadsheets and s quickly reveal the corporate demands for ever- increasing revenue. Whether the dentists ever restrained children at any previous dental practice is another potentially relevant issue to explore. If a dentist never restrained children in a New Jersey Referrals (973) Trial December

7 Professional Negligence The Evils of Corporate Dentistry papoose over many years of practice, and then started doing so immediately after starting work at the chain s clinic, a jury could infer that the dentist allowed his or her professional judgment to be influenced by corporate treatment mandates. Individual patient treatment profiles also may be informative. In the aggregate, they may show excessive rates of expensive procedures such as pulpotomies and crowns where only a filling was needed, or fillings on teeth that show no radiographic evidence of decay. You should retain qualified dental experts to evaluate these issues at an early stage. Blaming the parents. The corporate dental chain may make the parents the scapegoat for the child s suffering. First, it may assert the gummy bear defense: Because many children present for treatment with preexisting dental hygiene issues or advanced dental pathology, the corporate dental chains blame the parents for not taking their children to the dentist earlier, not teaching them good brushing and flossing habits, and allowing them to eat sweets. Plaintiffs can combat this argument by moving in limine to preclude evidence of parental negligence based on any state statutes and case law barring such claims. For example, in New York, a jury cannot decrease the damages awarded to an infant plaintiff because of the parents alleged negligence. 16 In this instance, such claimed negligence might include putting the child to bed with a milk bottle and other allegations discussed above. Make it clear that your clients seek compensation for unnecessary treatment, infliction of pain, and restraints not treatment needed to maintain dental health or fix problems. All evidence of poor dental hygiene or preexisting dental pathology may not be excluded at trial, because this may be a primary medical fact on which the treatment at issue allegedly rests. However, this should not open the door to the child s entire dental or medical history. If the corporate dental chain took only a limited history, then that is all that should be before the jury. Early, focused motions in limine should secure this ruling. The defendant may also argue that any reasonable parent would never have let his or her child go into the back treatment room alone and that the parents are at fault. Beat back this defense in three ways. First, a parent with a child on Medicaid must find a dentist that will accept the lower Medicaid payment rate. This can be difficult. Parents often discover this after they have called to get their child a dental appointment and have been repeatedly turned away. By the time the parent finds a dental chain that accepts Medicaid, walking out the door is not a realistic option. This is testimony that the jury should hear from the children s parents. The second answer to this defense lies within the deceptive consent forms and statements that some corporate dental chains have used. For example, some dental staff prevent parents from being present during the procedure with misstatements such as: HIPAA forbids you to be with your child and It s easier on the child if you stay in the waiting room and This dentist does not allow parents to be present. They also provide consent forms stating that restraining the child in a papoose has no known risks. Since 2005, the AAPD guidelines have said just the opposite. 17 Parents have testified that they never would have let their children undergo treatment if they knew about the AAPD s guidelines and that there were actual risks of physical and psychological trauma. The final response to the blame the parent defense is the parents trust in the dentists. Parents tell us over and over that they trusted the corporate dental chain to care for their children. Family doctors or general dentists often refer parents of Medicaid children to corporate dental chains, assuming they are pediatric dentistry experts, and the parents believe that they should trust these experts. Testimony regarding the parent s trust or doctor referrals will bolster this argument. Learning the roadblocks that may await you if you are presented with a corporate dental chain engaging in the illegal practice of dentistry and malpractice case is crucial. The more these practices are brought to light in the courtroom, the better chance that the federal and state governments will pass legislation to stop them. For a trial lawyer, there is no better calling than helping innocent children who have been harmed by corporate entities that disregarded their safety and well-being. James R. Moriarty is a partner with Moriarty Leyendecker in Houston. He can be reached at moriarty.com. Patrick J. Higgins is a partner with Powers & Santola in Albany, N.Y. He can be reached at Notes 1. Am. Acad. of Pediatric Dentists, Guidelines on Behavior Guidance for the Pediatric Dental Patient (2011), Policies_Guidelines/G_BehavGuide.pdf. 2. Arcapita and the Carlyle Group purchased 50 Small Smiles clinics from the DeRose family of Pueblo, Colo., for $435 million in Arcapita Bank, Affiliates Acquire Sanus Holdings, Khaleej Times (Jan. 16, 2007), ArticleNew.asp?xfile=data/business/2007/ January/business_January367.xml& section=business. 3. Sen. Comm. on Fin. & Jud., Joint Staff Report on the Corporate Practice of Dentistry in the Medicaid Program, Sen. Comm. Print at 7 8 (June 28, 2013) (hereinafter Sen. Comm. Rpt.). This report detailed the joint committee s findings following a two-year 48 December 2013 Trial

8 investigation of dental chains owned by private equity firms. 4. See e.g. Ariz. Rev. Stat. Ann (1996); Colo. Rev. Stat. Ann (1)(2004); Conn. Gen. Stat (1995), , (2005); Illinois Dental Practice Act, 225 Ill. Comp. Stat. 25 (2012); N.Y. Educ. Law 6507 (2007); Tex. Occ. Code Ann (1999); Wash. Rev. Code (1987). 5. Statement of Assistant Attorney General Tony West to Congress, Protecting American Taxpayers: Significant Accomplishments and Ongoing Challenges in the Fight Against Fraud at 5 (Jan. 26, 2011), civ-west-testimony-re-protectingamerican-taxpayers-significantaccomplishments-and-ongoing-challengesin-the-fight-against-fraud.pdf.; see also Sen. Comm. Rpt at Press Release, U.S. Dept. of J., North Carolina Dental Services Chain Pays $10 Million to Resolve False Claims Allegations (Apr. 9, 2008), forba/nc/news.pdf. 7. Press Release, U.S. Dept. of J., National Dental Management Company Pays $24 Million to Resolve Fraud Allegations (Jan. 20, 2010), January/10-civ-052.html. 8. Press Release, N.Y. Off. of the Medicaid Inspector Gen., New York State Medicaid Inspector General Announces Oversight Agreement With FORBA Dental (Jan. 21, 2010), news.pdf. 9. Sen. Comm. Rpt Id. 11. N.J. Dentist Investigated After Second Child Dies, USA Today (Feb. 15, 2012). 12. Gagnon v. Coon, No. CV (Ariz., Maricopa Co. Super. filed July 12, 2012); Morton v. DeRose Mgmt., LLC, No CV-3650 (Colo., Denver Co. Dist. filed Mar. 7, 2013); In re Small Smiles Litig., No , , (N.Y., Onondaga Co. Sup. filed Apr. 7, 2011); Meyer v. Forba Holdings, LLC, No. CJ (Okla., Okla. Co. Dist. filed Feb. 10, 2011); Richardson v. Forba, LLC, No. 2013CP400 (3684) (S.C., Richmond Co. Com. Pleas, filed June 24, 2013). One class action is also MORE ON DENTAL MALPRACTICE Visit the Web pages below for additional information. AAJ SECTION Professional Negligence AAJ EDUCATION PROGRAM 2013 Annual Convention: Professional Negligence Section CLE pending. Trieber v. Aspen Dental Mgmt., Inc., No. 3:12-CV-1565 (N.D.N.Y filed Oct. 18, 2012). 13. In the Matter of Small Smiles Litig., 971 N.Y.S. 2d 784 (N.Y., App. Div. 4th Dept. Sept. 27, 2013). 14. In the Matter of Small Smiles Litig., No , , (N.Y., Onondaga Co. Sup.) Tr. Transcr. [Bohn] p , (Oct. 7, 2013). 15. Sen. Comm. Rpt at See e.g. N.Y. Gen. Oblig. Law (1963); Holodook v. Spencer, 36 N.Y.2d 35, 51 (1974). 17. See Am. Acad. of Pediatric Dentists, supra n. 1. American Association for Justice Sections Join the American Association for Justice PROFESSIONAL NEGLIGENCE SECTION Get Started Today. Benefits include: List Server Professional Negligence Law Reporter Newsletter Document Library Call: or , ext Online: Trial December

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