1 Page 12 P R O F E S S I O N A L L I A B I L I TY D E F E N S E Q U A R T E R L Y W I N T E R D E N T A L M A L P R A C T I C E C L A I M C O N- T E X T S L E G A L S T A N- D A R D S A L L I E D C L A I M S 7 E V I D E N T I A R Y I S S U E S S T A T U T E S O F L I M I T A T I O N S C E R T I F I C A T E S O F M E R I T P U N I T I V E D A M- A G E S I N S U R A N C E F O R M I S C E L L A N E O U S P R O F E S S I O N S MPL Insurance, p. 10 Miscellaneous Professions, p. 10 Retain the BOP, p. 10 Expanded Liability? p. 11 By Jonathan S. Ziss and Sonia K. Dhaliwal O W N E R - C A U S E D C O N S T R U C T I O N D A M A G E S A N D D E L A Y S : A F O O T B A L L A N A L O G Y B Y : L A R R Y G. C A N A D A, E S Q. The Design Professional ( DP ) is generally thought of as the eyes and ears of the Owner on the construction Project. In fact, most construction documents memorialize that relationship, and in practice it usually works pretty well. When the Project is on time and under budget, life on the Project is good. We all have seen issues occur in a Project when errors of construction or design delay the Project and cause significant damages. But what happens when the cause of the delay and the resulting damages is the Owner? The answer to this question depends less on the Owner and more on the actions of the DP during the Project. Let me put it in terms of the latest Super Bowl. With a little over three minutes left in the game (Project), Manning makes a thirty-eight yard pass to Manningham (General Contractor). The official on the sideline (DP) calls the catch good (Change Order for damages and delay). The Patriots coach (Owner) throws the flag challenging the call (thinks it isn t Owner-caused delay). The replay (project documentation) clearly shows that Manningham had control of the ball and was in bounds. This play starts the drive that wins the Giants the game. The sideline official (DP) called the game according to the rules and was backed up on his call by the replay camera (project documentation). Establishing the rules at the beginning of the game, impartially enforcing them during the game, and being backed up by the instant replay means the game is fair. The winner is everyone who watches and plays the game. Likewise, establishing the requirements of the contract P H Y S I C I A N D U T Y E X T E N D E D T O B A B Y I N P R E C O N C E P T I O N T O R T P E N N S Y L V A N I A C A S E B Y : S T U A R T T. O N E A L, E S Q. A N D M A R C L. P E N C H A N S K Y, E S Q. Milan Matharu passed away two days after his birth in His parents believed that a negligent omission by the mother s doctor seven years earlier caused Milan s death. This factual scenario required the Pennsylvania courts to determine whether a child or his estate has a viable cause of action against his mother s physician for a tort which allegedly occurred before his conception but led to his death? The Superior Court sitting en banc and without dissent permitted Milan s estate to pursue such a claim against his mother s previous physician. See Matharu v. Muir, 2011 PA Super. 134, 29 A.3d 375 (2011). Routine blood work during Milan s mother s first pregnancy Larry G. Canada, Esq. documents at the beginning of the Project, enforcing them fairly during the Project and maintaining good documentation will help to manage everyone s expectations and thus reduce risk for the DP. Continued on page 2 showed that she lacked a specific protein on the surface of her red blood cells, thereby designating her as Rh-negative. See id. at 378. The father possessed the protein and was therefore designated as Rh-positive. See id. Neither parent s status caused them any health concerns, but if the unborn baby inherits the father s Rh-positive Continued on page 4
2 Page 2 P R O F E S S I O N A L L I A B I L I T Y D E F E N S E Q U A R T E R L Y Page 11 O W N E R - C A U S E D D A M A G E S A N D D E L A Y S, C O N T D I N S U R A N C E C O V E R A G E F O R M I S C E L L A N E O U S P R O F E S S I O N A L L I A B I L I T I E S, C O N T D Pre-game Warm Ups Getting the Program Right in the Beginning There are those Owners that you just can t deal with; they are the ones that make constant documentation and long contracts necessary. It is important to advise such Owners at the time of an addition or deletion from the design of the impact of such a change to the schedule. It is not enough to verify that the Owner wants to add an access ladder and safety railing to a piece of equipment on the Project; the additional costs, and impact on schedule need to be related as well (this information is often obtained directly from the GC in the form of a bid for a change to the contract, either through use of an addendum or Change Order). The Owner must fully understand that any such changes to cost or delay in completion will be the Owner s responsibility. Some Owners may respond that the option should have been offered before letting the contract and that such an omission is a design error. Therefore, it is important to document exactly what the Owner wants (the Program) in the beginning and the options offered to, and rejected by, the Owner. We litigated a case in Mississippi a few years ago that details this situation well. The Owner had a franchise to build and operate a hotel for a national chain. My client was the Architect who took the prototype hotel and adapted it to the locale. The Architect retained the services of a Mechanical Engineer to design the HVAC. During the design phase, it was recommended that air handling units be installed to provide a certain amount of makeup air into the hallways to maintain a positive air flow into the rooms, thus helping to prevent untreated air from coming into the rooms. Most people who live in the south know that humidity is a problem, and if not controlled, it can cause mold and mildew growth. The Owner, being from another part of the world, decided against the extra cost of the make-up air units and built the hotel with air flowing into the halls from the rooms only. Less than a year after opening for business, most of the rooms had mold issues. The Owner, as expected, sued everyone including the GC and the Architect. In this instance, the Mechanical Engineer had written a nicely detailed letter to the Architect advising that the failure to include the designed make-up air units would cause a negative air pressure in the hotel thus causing untreated air to flow into the rooms and a number of issues, including mold growth, would likely ensue. The Architect promptly conveyed that warning, along with his own, to the Owner. The Owner wrote back and advised that this was simply a maintenance issue and to proceed. The result of litigation was that the Owner was solely at fault. First Half - Delay Before Bid A change in the Owner s status can spell delay before the project is awarded to a GC. Financing is usually, but not always, at the heart of that change. Regardless of the actual cause, at the start of the delay, the event must be documented and the Owner s expectations must be managed. Let me use an example that came up with a client recently. The Owner was an industrial client who contracted with the DP to design a new gas processing unit for a portion of Owner s existing complex that was vacant. The area was previously used for rainwater runoff. The design was finished and the DP submitted a final set of contract documents to the Owner. The Owner, in the meantime, had a change in management and decided to table the Project for the time being, which was not a problem. Ten years later, after the market turned around, the Owner decided it wanted to build the Project as originally designed. In ten years, however, the cost to build the Project has likely changed, so any cost estimates are no longer valid. Even more troublesome are the likely changes in Code requirements, site conditions and general state-of-the-art for the equipment and/ or processes used in designing the Project. Finally, I asked my client if his rates had changed in the intervening years (which they had) and asked if he really wanted to redesign the Project for free or at the old rates; he did not. In this instance, when the Owner decided to resurrect the Project, a letter outlining these concerns was sent to the Owner. There were some tense moments and some posturing by both sides, but the lines of communication were maintained and the documentation as to the cause for the delay was sufficient such that the Owner, although not happy about the increased cost, ultimately understood and agreed to negotiate a new contract. The Project was redesigned and is being built today. What we learn from this example is that the wise DP should immediately send the Owner a letter once the delay is evident: 1) memorializing the Owner s choice to delay the Project for Owner s own reasons (state if those reasons are known), 2) stating that the services of the DP are no longer needed and the responsibilities of the DP under the agreement are at an end until such time as the Owner wishes to revive the Project, 3) warning the Owner that a delay in bid and construction could result in a change in site conditions, code requirements, state-of-the-art, and/or other unknown issues which would necessitate the redesign of the Project, 4) warning the Owner that delays in starting the Project can cause the cost of the Project to change, including but not limited to The Owner must fully understand that any such changes to cost or delay in completion will be the Owner s responsibility. many jurisdictions. As a result, lawyers, design professionals, accountants and other professionals, can be sued by non-clients in many states. The judicial philosophy underlying this expanded exposure of traditional professionals might not apply to the miscellaneous professional. We will have to see how the courts address this important issue. Another shield available to the miscellaneous professional is the contract for services. Clauses such as warranty disclaimers, damages caps and other favorable terms that do not appear (or would not be found enforceable) in traditional professional engagement letters might be effective in an MPL claim. Miscellaneous professionals are a large and fastgrowing segment of the economy. The insurance industry has taken note and has responded with a liability product that may soon eclipse all other forms of professional liability insurance in terms of number of policies written and premium dollars. This is one sidedish that is destined to become the main course. Reprinted with permission from the Winter 2012 issue of Litigation Management. For more information about the magazine or the Claims and Litigation Management Alliance, please visit Jonathan S. Ziss is a partner with Goldberg Segalla LLP, based in Philadelphia. Sonia K. Dhaliwal is an attorney and a Claim Manager in the Claims Unit of General Star Management Company, a Berkshire Hathaway Company. The views expressed in this article are those of the author and do not necessarily reflect the views of General Star Management Company, its parent or affiliates. SAVE THE DATE! SEPTEMBER 27-28, 2012 PROFESSIONAL LIABILITY DEFENSE FEDERATION S 2012 ANNUAL MEETING AND CLE /CEU PRESENTATION WESTIN MICHIGAN AVENUE CHICAGO, ILLINOIS The judicial philosophy underlying this expanded exposure of traditional professionals might not apply to the miscellaneous professional.
3 Page 10 Page 3 I N S U R A N C E C O V E R A G E F O R M I S C E L L A N E O U S P R O F E S S I O N A L L I A B I L I T I E S B Y : J O N A T H A N S. Z I S S, A N D S O N I A K. D H A L I W A L Question: What do these five job classifications have in common: credit counselor, interior decorator, answering service, ticket broker and auctioneer? Answer: In the eyes of the insurance industry they are all miscellaneous professionals. While there is no formal definition, in generally accepted parlance, miscellaneous professionals are those who provide services for a fee, subject to a standard of care. As the U.S. economy evolves away from labor and manufacturing, and toward services, this worker class is growing dramatically. In fact, the U.S. Bureau of Labor Statistics projects that by 2018, nearly 13 percent of the total work force will be professional service providers. Meanwhile, new professional service disciplines are emerging at a rapid rate. The insurance markets have recognized the exposure of miscellaneous professionals to claims of negligence in the performance of their services or malpractice. The industry has responded to this need with professional liability insurance for miscellaneous professionals (MPL insurance). Modeled on traditional professional insurance developed decades ago for doctors, lawyers, agents/brokers, accountants, architects and engineers, MPL insurance provides defense and indemnity for claims that careless or negligent performance of service has caused an economic injury. Claims against miscellaneous professionals have certain common attributes. These typically include allegations that the miscellaneous professional has breached or deviated from the standard of care, and that this error or omission has caused economic harm. Some examples of MPL claims include the following: A property manager is sued by a homeowners association for having negligently administered the association s contracts for snow removal. A subrogation lien collection agency fails to preserve rights to a future offset in connection with its negotiation of a third-party case, with an underlying workers compensation case still pending. A wine cellar consultant and fabricator fails to design the cellar to control moisture levels, resulting in inventory damage. A credit counseling agency dispenses advice that leads to deeper insolvency. A TPA fails to pay statutory interest on all claims paid after 30 days. Providers bring class action against workers compensation insurer, which looks to the TPA for indemnity. Note that MPL insurance policies generally exclude coverage for intentional wrongdoing and also exclude coverage for non-performance as opposed to defi- cient performance. Under a traditional business owners (BOP) policy, these scenarios would likely not trigger coverage. Traditional BOP coverage was developed to respond to property damage and bodily injury and not to pure economic loss suffered by a third party due to errors and omissions by a service provider. MPL policies, however, are drafted to respond to this very important and commonplace exposure. Of course, the modern professional service provider still needs the classic coverages afforded by BOP, and too, depending upon their business model, they might require other specialized covers such as media, technology, and/or cyber, which can address both first party and third party exposures. Given the vast and fast-growing need for MPL coverage, and its profitability when underwritten and priced with care, MPL provides a very appealing product line for insurers and brokers alike, with only growth in the foreseeable future. (It is estimated that less than 20 percent of miscellaneous professionals currently are insured against MPL risk.) There is of course an inherent challenge to underwriting this line. Many miscellaneous professional entities are new, small businesses, and have little or no programmatic sense of risk management. Moreover, perhaps the key feature of the insured the activities that are subject to coverage might be more fluid or mutable than meets the eye (or than meets the coverage application). So, for example, a realtor who dabbles in construction, or a bookkeeper who from time to time dispenses investment advice, can present some unanticipated risks for the insurer. Care taken with the applicable policy definition of the service(s) insured is the ounce of prevention. On the customer side, business owners benefit greatly from MPL protection. Increasingly, vendor contracts require that MPL coverage is procured, and stipulate terms such as maximum allowable deductibles and minimum liability limits. Access to skilled defense counsel is another advantage of MPL insurance. MPL claims often lend themselves to early resolution, unlike the bulk of traditional professional liability claims. There are some specific reasons for this. While the applicable laws may vary widely from state to state, certain defenses may have even more vitality for miscellaneous professionals than they do for lawyers, doctors, accountants and their ilk. For example, once upon a time, in order to sue a professional, one had to enjoy privity of contract with the professional that is, be his or her direct client. The requirement of privity has eroded in The [insurance] industry has responded to this need with professional liability insurance for miscellaneous professionals (MPL insurance). Defense Federation s Amicus Curiae Program: Look for opportunities to file friend-of-the-court briefs in professional liability appeals in your state. It may help the defendant, the industry, and your marketing return on investment. PLDF can pay costs associated with the effort! O W N E R - C A U S E D D A M A G E S A N D D E L A Y S, C O N T D material and labor costs, and 5) depending on the length of the delay, stating that new terms for the DP s fees may be necessary. If the Owner still wishes to proceed with the delay of the Project that is the Owner s choice. Another safeguard to minimize risk for the DP is to include a provision in the contract advising that the design is only good, and the services are only offered, for a specific period of time. That period of time will vary depending on the complexity and size of the Project. However, I suggest that one year is the outside time frame to issue the notice to proceed, and any stoppage in the construction over three months will require additional tests, services and fees. Taking care of the situation in the beginning is preferable to litigating it years later. Second Half - Owners Change Their Minds and Add or Delete Something Although this scenario can happen with any Owner, it more often occurs with the less sophisticated ones. A new homeowner, for instance, might not want to decide the color scheme or the wall covering until they have their friend/sister-in-law/mother visit the site. Such a decision is certainly within the purview of the Owner, but waiting can have an impact on the GC and its suppliers, resulting in a Project delay. Documentation of the timeline and any departure from same by the Owner is crucial. It is also advisable to remind the Owner, in writing, of the deadlines necessary to maintain the current schedule and advise the Owner when her/his actions or inactions impact that schedule. You know the GC will document all delays and seek to be compensated for them. Documentation of the actual cause of the delay, even if the Owner is your friend, is imperative. Another example occurred when a local couple hired an Architect to design their dream home. This home had everything, including solar power on the roof, oxygen stations in the house for the wife s medical issues, and other health related improvements. When the bids came in, the Owner decided that the cost was too expensive and decided to delete the solar power and certain medical improvements. During construction, the Owner continually visited the Project site and directed the Contractor to make certain changes and additions to the Project. The Architect was not aware of the Owner s changes until he received a change order from the GC. What should the DP do? Here, the Architect advised the Owner that his actions in directing additions to the work directly to the GC were in violation of his contract with the GC and the Architect. The Architect also notified the Owner that certain changes made by the Owner required redesign by the Architect and some of the Architect s sub-consultants, which would increase the cost of their professional services contract. Finally, the changes were so serious that the Architect advised the Owner that the Owner s changes may necessitate the withdrawal of the Architect s approval of the drawings and the notification of the local authority that the construction was not based on the permitted drawings. The Architect s recommendations were immediately reduced to writing to memorialize the conversations he had with the Owner. The reason for the initial conversation was an attempt to preserve the business relationship that the Architect had with this Owner; both belong to the same church. The follow-up in writing was necessary to document the situation and avoid the likely blame from the Owner that the inevitable cost overruns and delays were someone else s fault. Ultimately, the Owner continued on in his ways, the Architect continued to memorialize all the conversations and warnings issued to the Owner, and the Architect was finally forced to terminate the Contract because of the Owner s actions. An unfortunate result, but the actions were necessary to protect the Architect in a situation that the Owner caused. Postgame Analysis Most Owners just want a useable completed Project. It is the few that cause trouble because of the positions they find themselves in or the choices they make. It is for these individuals that the DP must always take certain precautions. In case I haven t been clear, it is important that the DP do the following on each Project: 1) establish the contractual relationship early on by having a written and signed contract, 2) understand and follow the contract documents, 2) be fair and impartial in enforcing the contractual provisions as to all parties, even the Owner, 3) prior to the design, clearly establish in writing the program for the Project and confirm all design recommendations and changes, along with the Owner s choices and decisions, and 4) document everything no matter how inconsequential it may appear at the time, because the one time you don t will be the one time you needed to! It s not just about winning or losing, it truly is in how you play the game. And because we don t always have instant replay on the Project, documentation of the DP s communications with the Owner is crucial. If you can t point to a document that reflects the decisions on the job and the choices made by the Owner, you have to rely on a jury. We use the following to describe a jury to our clients on the Gulf Visit the Professional Liability Defense Federation on: Documentation of the timeline and any departure from same by Owner is crucial.
4 Page 4 Page 9 O W N E R - C A U S E D D A M A G E S A N D D E L A Y S, C O N T D D E N T A L M A L P R A C T I C E D E V E L O P M E N T S, C O N T D Coast: go to your local football game, position yourself so you can see the exit after it s over, close your eyes and when you open them the next twelve people coming out will be your jury. If you don t want to have the fate of your firm and your practice in those people s hands, put everything down in writing! Officiate a good game, or leave it to the fans. It is your choice. Larry G. Canada is a director of Galloway, Johnson, Tompkins, Burr and Smith, PLC, at its New Orleans, Louisiana and Gulfport, Mississippi offices. After receiving his B.A. and J.D. degrees from the University of Alabama, Larry became licensed to practice in Louisiana, Texas, Mississippi, and Alabama. His practice focuses on the defense of construction design and other professional liability cases, products, toxic tort and environmental claims, and trucking and transportation law cases. Larry is accredited by the American Institute of Architects, and the Louisiana Board of Engineers and Land Surveyors to provide continuing education coursework to those professions. In addition to his state bar association memberships, Larry is a member of the Defense Federation where he chairs its Construction Design Committee. P H Y S I C I A N D U T Y E X T E N D E D T O B A B Y, C O N T D status it could have severe implications for subsequent pregnancies. See id. If the red blood cells from an Rh-positive fetus enter the mother s system, the mother s body may produce Rh antibodies that would treat the fetus like an unwanted intruder. This condition is known as becoming sensitized or isoimmunized. To prevent this serious condition, the mother is usually provided an injection of Rh immunoglobulin (RhoGAM) at the 28 th week of gestation and within 72 hours after birth if the baby is Rhpositive. See id. The mother was properly administered RhoGAM during her first pregnancy. See id. But she was not properly administered RhoGAM during her second pregnancy in See id. This omission may have had tragic consequences during the mother s sixth pregnancy. During that pregnancy, the mother was iso-immunized and the parents alleged that Milan passed away due to the doctor s failure to administer RhoGam during the second pregnancy. See id. at 379. Milan s parents sued the physician who cared for her during the second pregnancy despite the fact that he did not provide any care during her sixth pregnancy. See id. at When presented with a motion for summary judgment, the trial court determined that the executors of Milan s estate sufficiently established that the mother s physician owed a duty to the mother s children conceived after the omission. See id. at 384. The trial court certified the decision for immediate interlocutory appeal. See id. at 380. The Superior Court accepted the interlocutory appeal and the full court affirmed with some trepidation. The court noted that it was chary to subject a physician to third-party liability and therefore required compelling circumstances to do so. See id. at 385. Further, it acknowledged that permitting this cause of action would potentially subject physicians to lawsuits many years after the alleged negligence. But the court believed that any unfairness involved in this expansion of liability was an issue for the legislature to address. See id. at 384. Previously, the Pennsylvania Supreme Court had only extended physician liability to third parties when the physician failed to protect someone from the transmission of a communicable disease. The court reasoned that physicians must inform their patient on what measures to take, including quarantine or abstinence. See DiMarco v. Lynch Homes Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990). These measures do not protect the patient s health but rather protect the spread of disease to others. Consequently, DiMarco held that the physician s duty extends to third-parties who are brought within the foreseeable orbit of risk of harm. Id. at 562. The Matharu court found this situation essentially similar to the DiMarco rationale. The administration of RhoGAM was meant to protect future unborn children... and not provide any physical health benefit to the mother. Id. at 387. Milan was therefore in the class of persons who was likely to suffer harm from the physician s omission. Consequently, Milan was within the foreseeable orbit of the risk of harm and therefore the suit was allowed to go forward. The states that have considered the viability of preconception torts have not ruled uniformly. Many courts have been uncomfortable stretching the bounds of duty to accommodate preconception torts. For example, in Albala v. City of New York, 54 N.Y.2d 269, 429 N.E.2d 786 (1981), parents alleged that during an abortion for a previous pregnancy, the Contact PLDF Christine S. Jensen Managing Director Defense Federation 150 South Fifth Street #1750, Mailbox 25 Minneapolis, MN (612) [The court] acknowledged that permitting this cause of action would potentially subject physicians to lawsuits many years [later] JG VVP, 2010 WL (E.D.N.Y. Aug. 18, 2010) (involving ongoing course of treatment for malocclusion). The purpose of the rule is to prevent interruption of timely efforts at corrective treatment merely to ensure the timeliness of a malpractice lawsuit. Johanson v. Sullivan, 68 App. Div. 3d 1303, 891 N.Y.S.2d 184 (2009). Application of the continuous treatment rule may be tooth specific. Thus, the limitations statute was found to bar a claim as to tooth number 2 treatment, but not as to tooth number 18, because the former treatment was entirely separate from the latter treatment. See Meyers v. Frie, 2011 N.Y. Slip Op U (Sup. Ct., March 2, 2011). Mere routine scheduling of annual checkups will not extend the limitations period because such treatment is not continuous with respect to the specific treatment giving rise to injury. Schreiber v. Zimmer, 17 App. Div. 3d 342, 793 N.Y.S.2d 104 (2005). The statute of repose may also be tolled under the continuing course of treatment doctrine. Martinelli v. Fusi, 963 A.2d 640 (Conn. 2009) (involving surgical reconstruction to place implants into the patient s maxilla). Certificates of Merit As with limitations statutes, dentists generally receive the tort reform benefit of laws requiring filing of certificates of merit before patients may pursue claims. Recent case law has addressed this procedural prerequisite to suit. A certificate (or affidavit of merit) is not required under the common knowledge exception. i.e., when the error is so obvious expert opinion support is unnecessary. See, e.g., Hubbard v. Reed, 774 A.2d 495 (N.J. 2001) (involving dentist who extracted the wrong tooth). An affidavit not reflecting that the expert has personal knowledge of the dental malpractice facts may lead to claim dismissal. See, e.g., Paden v. Rudd, 669 S.E.2d 548 (Ga. Ct. App. 2008) (alleging negligent injection leading to facial swelling). The affidavit should "discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit." Walters v. Hudoba, No CV (Tex. App. Jan. 22, 2009) (involving errant administration of anesthesia for tooth extraction leading to death). Certificate omissions or inadequacies may have unhappy effects for both plaintiffs and defendants. Plaintiff s failure to include a merit affidavit with the summons and complaint (based on a claim of inadvertent neglect) may not suffice to set aside the resulting dismissal. See Cockayne v. Pilon, 114 Conn. App. 867, 971 A.2d 732 (2009). Failing to answer a complaint on grounds plaintiff s affidavit of merit was insufficient did not preclude entry of a default judgment. Saffian v. Simmons, 477 Mich. 8, 727 N.W.2d 132 (2007) (involving defense argument (in part) that the affidavit of merit was signed by an endodontist rather than a general dentist). A subsequent affidavit may amend a prior (and timely) but deficient certificate of merit. Wesely v. Flor, 806 N.W.2d 36 (Minn. 2011) (agreeing that an internal medicine physician may not opine on dental malpractice issues; Minnesota has a 45-day safe harbor period allowing for correction of certificates). Punitive Damages Egregious facts may make out grounds for the assertion of punitive damages claims in dental malpractice litigation. In Garber v. Lynn 79 App. Div. 3d 401, 913 N.Y.S.2d 175 (2010) an unlicensed practitioner fit, placed, adjusted and re-cemented plaintiff s temporary bridge leading to the need for up to 22 implants, 14 crowns and root canal work. A $260,000 punitive damages award was reduced, however, to $100,000. In Tookes v. Murray, 678 S.E.2d 209 (Ga. Ct. App. 2009) the court allowed the punitive damage claim to go forward where conscious indifference to consequences was established. Evidence revealed the patient required complete replacement of upper and lower restorations due to numerous problems including deficient marginal openings, excess cement, and a loose abutment. Other Authorities For helpful annotations regarding dental malpractice, see Annot., Medical Negligence in Extraction of Tooth, Establish Through Lay Testimony or Doctrine of Res Ipsa Loquitur, 11 A.L.R.6th 695 (2006); Annot., Dental Malpractice: Root Canal Procedures, 7 A.L.R.6th 357 (2005); Annot., Liability of Dentist for Extraction of Teeth Lack of Informed Consent, 125 A.L.R.5th 403 (2005); Annot., Liability of Orthodontist for Malpractice, 81 A.L.R.4th 632 (1990); Annot., Liability for Dental Malpractice in Provision or Fitting of Dentures, 77 A.L.R.4th 222 (1990). See generally NORMAN SCHAFLER, DENTAL MALPRACTICE: LEGAL AND MEDI- CAL HANDBOOK (3d ed. 1996). Thomas D. Jensen is a member of Lind, Jensen, Sullivan & Peterson, P.A., in Minneapolis, MN. Licensed to practice in Minnesota, North Dakota, and Wisconsin, Tom is certified as a civil trial advocate by the National Board of Trial Advocacy. Editor of the Quarterly, he can be reached at (612) Egregious facts may make out grounds for the assertion of punitive damages claims in dental malpractice litigation. Thomas D. Jensen, Esq.