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.
5 Page 8 Page 5 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 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 tremski, 84 App. Div. 3d 1069, 1071, 925 N.Y.S.2d 91 (2011) (affirming summary judgment based on defendant dentist s affidavit, and finding plaintiff s expert s counter-affidavit averments to be mere conclusory opinions ). In other words, the defense expert must make a direct evidentiary refutation of plaintiff s claims to prevail on summary judgment. See Koss v. Bach, 74 App. Div. 3d 472, 903 N.Y.S.2d 24 (2010) (allowing a claim of mercury poisoning to go forward where the plaintiff showed that the dentist s failure to use premixed amalgams caused high levels of gaseous mercury to be present in the patient s mouth). Ordinarily plaintiff must offer expert opinion testimony on both the breach of the standard of care and the causation elements to the claim. See, e.g., Palmer v. Fiume, No. A T3 (N.J. Super. Ct. App. Div., Aug. 31, 2009) (holding that an expert s personal opinion of the defendant s error, without testimony that the opinion was consistent with the standard of care, is insufficient to allow the dental malpractice claim to go forward). The rule is otherwise, however, when the issue involved is a matter of common knowledge. See, e.g., Robson v. Tinnin, 911 S.W.2d 246, 249 (Ark. 1995) (noting that changing of dental implants and the treatment of fractured teeth are not matters of common knowledge). Recent dental claims have addressed whether a proffered expert has sufficient foundation to be heard. A health care expert may be competent to offer opinions on the standard of care of another professional when the specialties overlap, provided the witness is sufficiently familiar with the issue involved. See, e.g., Rab v. Doner, No. A T3 (N.J. Super. App. Div., July 19, 2010) (holding that a New Jersey statute applicable to medical doctor specialists did not apply to dentists); Diel v. Bryan, 57 App. Div. 3d 1493, 871 N.Y.S.2d 517 (2008) (ruling that a medical anesthesiologist may offer opinions against dentists where patient s death caused by anesthetic administration). But the rule is otherwise if the specialties are insufficiently allied. See, e.g., Sherrer v. Embry, 963 S.E.2d 79 (Ala. 2007) (holding that a plastic surgeon may not support an extraction/infection claim against general dentist because the former was not a similarly situated health care provider). Evidence of an expert s personal practice in treating patients may be admissible to impeach the expert s opinion on the standard of care. See Griffin v. Bankston, 691 S.E.2d 229 (Ga. Ct. App. 2010) (allowing new trial when plaintiff s counsel was not allowed to impeach the defense expert who claimed no SOC breach by failure to prescribe preventative antibiotics, when the expert did do so for his own patients). Given that dentistry involves constantly repetitive practices in treatment, custom or habit evidence may be admissible when specific details are not recalled. Thus, a dentist s habit of injecting an anesthetic in a certain manner is admissible, when the dentist cannot remember the event in dispute, if it is shown the habit is a routine, deliberate practice. See Rivera v. Anilesh, 8 N.Y.3d 627, 838 N.Y.S.2d 478 (2007) (noting the dentist s injections of anesthetics on three to five patients a day in the same manner is relevant to show conformity with habit). Finally, evidence of a patient s poor dental hygiene may be admissible on the issue of causation. See Carlson v. Riemenschneider, A (Minn. Ct. App. Feb. 13, 2007). Statutes of Limitations Dentists, as with other health care providers, often are the beneficiaries of legislative shortening of limitations statutes as an element of tort reform. The shorter malpractice limitations statute may even apply to the actions of an unlicensed dental imposter. See Adames v. Velasquez, 19 Misc. 3d 881, 855 N.Y.S.2d 343 (Sup. Ct. 2008) (adding, however, that the state s longer fraud statute may apply). In a recent case mental incompetence was found not to toll the dental malpractice limitations statute notwithstanding a constitutional equal protection challenge. See Deen v. Stevens, 698 S.E.2d 321 (Ga. 2010) (involving an endodontist who prescribed insufficient antibiotics preparatory to re-doing a root canal; the infection spread to the patient s brain rendering him incompetent). In general, limitations jurisprudence in dental cases mirrors that affecting other health care professions. Thus the limitations period ordinarily incepts when symptoms of injury first manifest themselves to the patient in a misdiagnosis case. Brown v. Coast Dental of Georgia, P.C., 643 S.E.2d 740 (Ga. Ct. App. 2007) (involving failure to make study models preparatory to bridge work, failure to diagnose periodontitis, and failure to refer to orthodontist). In states where the limitations statute is tolled pending discovery of injury and causation, when a patient s injury and its cause are discovered or are discoverable is for the jury. Fine v. Checcio, 870 A. 850 (Pa. 2005) (involving wisdom teeth extractions leading to resection of the inferior alveolar nerve). The continuous treatment rule will toll the running of the limitations statute in a dental malpractice claim when the ongoing treatment relates to the original condition if it is shown the patient intended to rely on the dentist s oversight of the condition. Feuerring v. Golub-Evans, 2010 N.Y. Slip Op [U] (Sup. Ct. May 13, 2010); Grosso v. Buccigrossi, 08-CV- PLDF Committees The Defense Federation s nine substantive committees include: Medical Other Healthcare Legal Accounting Investment Corporate Governance Insurance Real Estate Construction Design evidence of a patient s poor dental hygiene may be admissible on the issue of causation. physician perforated the mother s uterus. They alleged that a subsequently-conceived child was caused to suffer brain damage, due to the perforation. The Court of Appeals of New York agreed with the parents that it was foreseeable that the mother would again conceive and that the health of that child could be affected by the damage to the mother s uterus. See id. at 273. However, the court noted that foreseeability is not the sole consideration. If forseeability were the sole test, courts could not logically confine the extension of liability. Id. Therefore the court concluded it must determine that a duty exists before looking to the foreseeability of the harm. Finding that the physician owed no such duty to the yet conceived child, the court held that to find otherwise would require the extension of traditional tort concepts beyond manageable bounds. Id. at 270. The Supreme Court of New Jersey in a case with facts similar to Matharu (i.e., failure to properly treat an iso-immunized mother), however, characterized the Albala decision as overstating the potential mayhem caused by recognizing a cause of action for preconception torts. See Lynch v. Scheininger, 162 N.J. 209, 233, 744 A.2d 113 (2000). The New Jersey court ruled that the state s proximate cause jurisprudence is sufficiently flexible to bar claims for injuries that are unreasonably remote in relation to the defendant's negligence. Id. It found that whatever the outer limits of preconception torts may be, the facts of Lynch clearly did not exceed those limits. See id. The determinative inquiry for each court appears to be whether the preconception tort can be reined in or whether recognition of the tort will lead to an uncontrollable barrage of cases. In Matharu and Lynch, the courts accepted preconception torts when they were presented with a factual scenario where the treatment that was omitted was to be performed for the benefit of the future child. These courts felt comfortable that this was workable distinction to draw. In contrast, the Ablala court was faced with a factual scenario where negligence during a treatment not intended to benefit future children nevertheless caused the injury to a future child. In that instance, the court could not see the limits of the tort and instead saw unlimited hypotheses accompanied by staggering implications. See Ablala, at 273. The New York court s forecast of unlimited hypotheses was evaluated in part during coverage of the Superior Court s opinion in Matharu. An article by Zach Needles in The Pennsylvania Law Weekly provided several hypothetical scenarios to show how the holding of Matharu could be extended to other situations involving third parties.¹ For example, if a psychiatrist was treating a patient with homicidal ideations, the doctor medicated that individual, sent the patient home and the patient killed his spouse, would the mental health provider owe a duty of care to the spouse that was killed? Id. What if the threat was not clear, would the murder still be reasonably foreseeable? Would the doctor have a duty to each person the patient encounters much like an infectious disease doctor owes a duty to any person the patient encounters? What if a physician is faced with the alternative of saving a patient's life by administering a treatment involving the possibility of adverse consequences to a later conceived child of that patient? Would that child be able to sue for a preconception tort when that treatment was necessary to ensure the health of the mother? See Ablala, at 274. Further, would the Pennsylvania Supreme Court find that a motorist could be liable for preconception torts if that motorist negligently caused an accident which injured the mother and led to injuries to children she would conceive in the future? See id. at 273. The defendants in Matharu have filed a petition for allowance of appeal with the Supreme Court of Pennsylvania (542 MAL 2011). At the time of the writing of this article, the Supreme Court has not decided whether to hear the case. Endnote 1. Zack Needles, Preconception Duty a Significant Step, Med Mal Lawyers Say, The Pennsylvania Law Weekly, Volume XXXIV, No. 29, July 19, Stuart T. O Neal, Esq. Marc. L. Penchansky, Esq. PLDF and Diversity The Defense Federation supports diversity in our member recruitment efforts, in our committee and association leadership positions, and in the choices of counsel, expert witnesses, and mediators involved n professional liability claims. the holding in Matharu could be extended to other situations involving third parties. Stuart T. O Neal is a member of Burns White LLC and is based out of the firm s Philadelphia office. He graduated from Villanova University School of Law, and is admitted to practice in Pennsylvania. Mr. O'Neal's practice focuses on the defense of long-term care facilities, hospitals, physicians and professionals of all types in civil litigation and administrative matters. He also manages a wide variety of commercial, employment and contractual disputes. Mr. O'Neal is President of PLDF. Marc L. Penchansky is an associate at McCumber, Daniels, Buntz, Hartig & Puig, P.A., practicing in the firm s Philadelphia area office. Mr. Penchansky concentrates his practice on the defense of civil actions and appeals. He received his J.D. from the University of Richmond, where he graduated magna cum laude. After law school, Mr. Penchansky clerked for the Honorable Thomas Ambro of the United States Court of Appeals for the Third Circuit. Mr. Penchansky is admitted to practice in New Jersey and Pennsylvania.
6 Page 6 Page 7 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 B Y : T H O M A S D. J E N S E N, E S Q. 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 Review of recent reported decisions involving allegations of dental malpractice reflects a plethora of activity. While many involve New York decisions (perhaps due to the number of courts there that report searchable decisions) we may extrapolate that similar activity is occurring in other states trial courts. This prompted the Quarterly to survey professional liability claim developments affecting general dentists and dental specialists that are summarized here. Although claims against dentists constitute less than 2% of all medical malpractice claims, the burgeoning trend in suits can be expected to continue. Douglas Danner, Larry Varn & Susan Mathias, General, in MEDICAL MALPRACTICE: CHECKLISTS AND DISCOVERY, 35:1 (3d ed. 2011). From 1990 to 2004, 47,441 reports were filed with the National Practitioner Data Bank relating to dentists. A total of 73.7% related to malpractice payments; the remaining 26.3% related to licensure or other adverse actions. Jay Shulman & James Sutherland, Reports to the National Practitioner Data Bank Involving Dentists , 137 no. 4 J. AM. DENTAL ASS N, p. 523 (2006). For cases of head and neck cancer ( HNC ) in particular, 50 such cases were resolved from 1984 to Data Bank research revealed that defendants won 42% of the HNC verdicts, plaintiffs won 32%, and 26% settled. Common allegations reported included failure to diagnose, failure to perform a biopsy, failure to refer, and surgical complications. The average award for HNC patients aged less than 47 years was $755,824. The average older patient award was $495,417. Joel Epstein, James Sciubba, Tammera Banasek & Linda Hay, Failure to Diagnose and Delayed Diagnosis of Cancer: Medicolegal Issues, 140 no. 12 J. AM. DENTAL ASS N, 1494 (2009) (citing D. Lydiatt, Cancer of the Oral Cavity and Medical Malpractice, LARYNGOSCOPE, p. 816 (May 2002)). Common Claim Contexts Claims against dentists may include wrong tooth repairs, crown problems, periodontal errors, prothodontic errors, orthodontic errors, oral surgical errors, endodontic errors, TMJ problems, anesthetic complications, lack of antibiotic administration, dental implant errors, infection complications, misdiagnosis, failure to diagnose, and dropped instruments (or instruments left in place). Douglas Danner, Larry Varn & Susan Mathias, General, in MEDICAL MALPRAC- TICE: CHECKLISTS AND DISCOVERY, 35:6 (3d ed. 2011). These types of claims are illustrated in recent case law. See, e.g., Brown v. Rainbow Dental Centers, A , 2011 WL (Neb. Ct. App. Nov. 22, 2011) (involving swallowed denture impression material that became lodged in the small intestine leading to emergency surgery); McGowan v. Hulick, 612 F.3d 636 (7th Cir. 2010) (involving a tooth extraction resulting in a sinus perforation; the pathway from the mouth to the sinus allowed mucus to drain into the mouth and food to pass into the nose); Sharp v. Weber, 77 App. Div. 3d 812, 909 N.Y.S.2d 152 (2010) (involving gauze that migrated from upper extraction site into sinus resulting in chronic sinus infections and vision loss); Fagan v. Panchal, 77 App. Div. 3d 705, 909 N.Y.S.2d 127 (2010) (involving a patient referred for a right tooth extraction; left tooth was extracted); Easterby v. Clark, 171 Cal. App. 4th 772 (2009) (involving a dental assistant who stepped on an x-ray wire attached to plaintiff s mouth, causing the patient s head to jerk resulting in neck surgery); Duracher v. Roy, (La. Ct. App. Oct. 31, 2008) (leaving pieces of dental instrument in the periodontal ligament space near tooth number 14); Murray v. Weisenfeld, 37 App. Div. 3d 432, 829 N.Y.S.2d 592 (2007) (failing to prescribe antibiotics after treatment of abscess leading to brain abscess); Ricketts v. Advanced Dental Care, LLC, 646 S.E.2d 705 (Ga. App. 2007) (involving failure to refer to an emergency room after patient swallowed dental impression material); Ritt v. Dental Care Associates, P.C., 199 Wis. 2d 48, 59, 543 N.W.2d 852 (App. 1995) (involving negligent extraction of teeth and fitting of dentures). Malpractice Legal Standards Professional liability claim practitioners will recognize the legal standards that apply to dental malpractice claims: The law does not make a dentist a guarantor that no harm or unfavorable consequence will arise from treatment. The obligation assumed is to exercise in the treatment of [the] patient the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in [the] field. Failure to have and to use such skill and care toward the patient as a proximate consequence of which injury results constitutes actionable negligence. A plaintiff who charges a deviation from such standard of skill or care must assume the burden of establishing facts showing not only the deviation but also a fact equally essential to recovery of damages, i.e., that the deviation was the reasonably probable cause of the injurious condition arising thereafter. Germann v. Matriss, 55 N.J. 193, 208, 260 A.2d 825 (1970). Stated more recently, the applicable standard of care requires a dentist to possess such skill and use such care and diligence in the treatment as PLDQ s Spring 2012 Issue We encourage member submission of articles pertinent to professional liability claims administration, defense trial advocacy, or professional liability substantive law. The manuscript deadline for the next issue is May 1, From 1990 to 2004, 47,441 reports were filed with the National Practitioner Data Bank relating to dentists. similar dentists would under similar circumstances. Corbett v. Kostas, 2008 Ohio 3967 at 11 (Ohio Aug ). Obviously these standard of care tenets are similar to those affecting other professionals. As with negligence claims generally, plaintiff must also show that a dental injury was foreseeable. See, e.g., Thompson v. Princell, 696 S.E.2d 91 (Ga. Ct. App. 2010) (approving jury charge stating a dentist is not bound to guard against incidents which are not reasonably to be expected or which would not occur except under exceptional circumstances). In addition to departure from the standard of care, a dental claimant must prove that such departure was a proximate cause of injury. See, e.g., Alvarado v. Miles, 9 N.Y.3d 902, 843 N.Y.S.2d 532 (2007) (affirming dismissal where failure to arrange for a substitute clinician to see patient, if true, would not be a substantial factor in causing injuries); Cohen v. Kalman, 54 App. Div. 3d 307, 863 N.Y.S.2d 63 (2008) (affirming summary judgment in part on grounds plaintiff s expert failed to refute defense expert s opinion that numbness after apicoectomy may occur in the absence of negligence). Causation is a key defense, not only as to negligent treatment, but also as to negligent non-disclosure. See, e.g., Amodio v. Wolpert, 52 App. Div. 3d 1078, 1080, 861 N.Y.S.2d 799 (2008) (involving a dentist who failed to inform patient of root canal risks but plaintiff s expert did not provide any opinion at all [about] causation ). Allied Claims Dental malpractice suit papers ordinarily do not limit the claim to a negligent treatment cause of action. Claims for negligent non-disclosure (informed consent), battery, breach of contract, res ipsa loquitur, and even fraud may be presented. Recent case law illustrates the potential scope of claims. A res ipsa loquitur instruction, for example, may be given when in the absence of direct evidence of negligence by a dentist, the type of injury alleged would not ordinarily occur. E.g., Kabalan v. Hoghooghi, 77 App. Div. 3d 1350, 908 N.Y.S.2d 299 (2010) (involving facial burn and scar resulting from the hot tip of the dentist s drill). When a doctor actively conceals his or her own malpractice by subsequently making a material and knowing misrepresentation to the patient, on which the patient relies to his or her detriment, the patient may assert separate causes of action to recover damages for malpractice and fraud, as long as the damages sustained as a result of the fraud are distinct from the damages sustained as a result of the malpractice. See Giannetto v. Knee, 82 App. Div. 3d 1043, 919 N.Y.S.2d 176 (2011) (involving dentists failure to inform the patient malpractice had occurred in cutting a tooth and performing bridge work). In Leighton v. Lowenberg, 2011 N.Y. Slip Op U (N.Y. Sup. Ct., June 30, 2011) the court denied a motion to amend the complaint to assert a negligent non-disclosure dental malpractice claim inasmuch as the motion came 4½ years after the surgery and relied preliminarily on the recollections of the parties and is a new allegation [that] would be hard for the defendant to respond to, and also noting the motion lacked expert opinion support. A dentist s use of an informed consent form as a risk management tool may not be effective to preempt a liability claim. An implied consent form describing infection, pain, rejection of bone graft, and possible need for more procedures was not sufficient by itself to preclude a trial when plaintiff s expert averred the bone graft and implant should not have been performed at the same time resulting in a more risky procedure that ultimately failed. Matta v. Anastassov, 2010 N.Y. Slip Op (Sup. Ct. August 27, 2010). Nor may a dentist ordinarily seek to release patient claims. This is so because doctrines of fraud, illegality, duress, or mutual mistake may operate to set aside the release. See Gibli v. Kadosh, 279 App. Div. 2d 35, 717 N.Y.S.2d 553 (2000) (involving a dentist who agreed to pay for the cost of an oral surgeon s repair of the patient s lingual nerve in exchange for a release). Evidentiary Issues Evidence admissibility issues presented in dental malpractice claims mirror those frequently encountered in other professional liability contexts. Questions of expert foundation, expert opinion specificity, applicability of the common knowledge exception, plaintiff s hygiene role in the dental outcome, and the like are addressed in the case law. With respect to experts, before trial in seeking summary judgment a defendant dentist may offer his or her own affidavit confirming compliance with the standard of care. Stancavage v. Mirman, 309 App. Div. 2d 918, 766 N.Y.S.2d 107 (2003) (averring that under the circumstances the only option was to perform the root canal). It is vital that defense summary judgment affidavits address the core elements of plaintiff s claim. Thus, a defense expert s conclusory affidavit stating the defendant properly recommended tooth extraction was insufficient to support summary judgment when the expert failed to address plaintiff s core argument that an effort should have been made to save the tooth via endodontic therapy, and that a fixed rather than a removable prosthesis should have been installed. See Terranova v. Finklea, 45 App. Div. 3d 572, 845 N.Y.S.2d 389 (2007); accord, Zito v. Jas- A dentist s use of an informed consent form as a risk management tool may not be effective to preempt a liability claim. Defense Quarterly Published by the Defense Federation 150 South Fifth Street #1750, Mailbox 25 Minneapolis, MN (612)