Medical emergency in your office one year later

You’ve been served -What do you do now?

Here is the all-too-familiar scenario:
It’s just another ordinary Thursday at the dental office, and Dr. John Doe is seeing patients just as he would on any other day at the Doe Dental Clinic. While he is attending a patient, his office assistant suddenly appears and hands him a message that someone in the lobby needs to deliver papers directly to him. He does so and, to his complete shock and surprise, he is served with a Summons and a Complaint.

At the top of the papers, he reads: Smith v. Doe, Jury Trial Demanded, Complaint for Negligence, Wrongful Death and Other Relief. His heart races and his blood pressure skyrockets as he reads the allegations and sees the millions of dollars he now owes the plaintiffs. The Complaint outlines the events that Dr. Doe was sincerely trying his best to forget.

About one year earlier, Dr. Doe discussed with Mr. John Smith his routine wisdom tooth extraction using moderate sedation. After reviewing Mr. Smith’s interview questionnaire, Dr. Doe noted nothing unusual. Mr. Smith signed the consent documents, and he understood the doctor’s discussion of the extreme minimal risks of the procedure. Mr. Smith was then placed under moderate sedation when, suddenly and without warning, he suffered cardiac arrest. Panic ensued in the office. Dr. Doe immediately instructed his assistant to call 911. Mr. Smith was unresponsive and everyone waited for the paramedics to arrive. During that time, Dr. Doe and his assistant performed CPR on Mr. Smith. The ambulance arrived about 13 minutes later to pick up the deceased patient.

Dr. Doe had no medical emergency plan; neither he nor his staff had been trained in any type of emergency response except for BLS/CPR. The standard rationale for this lack of preparedness is, “These things aren’t supposed to happen in a dentist’s office!” Dr. Doe, aside from the office emergency drug kit, did not even remotely consider purchasing an Automatic External Defibrillator (AED) because, after all, they were very expensive and, more important, he was not required to have one in his clinic. Ironically, while recertifying for his BLS, Dr. Doe did learn about the uses and benefits of an on-site AED and, in fact, received training on its proper uses. Nevertheless, Dr. Doe sincerely felt that if he and his staff were trained in CPR, he had done all that he was supposed to do because, again, these situations happen to “other people.”

Sound familiar? This scenario, while extreme, occurs more times than any health-care professional would like to think. This is not a situation that should be taken lightly because it is not a matter of “if it happens” but rather “when it happens.” With the increasingly tenacious appetites of trial lawyers, all dental professionals must take seriously two basic absolutes in the business:

1. The paramount need for training and preparing for a medical emergency in their offices.
2. The need for thorough documentation, which must be obtained during the actual medical emergency.

Yes, any emergency is a stressful situation in the clinic. However, most serious problems can be avoided if some very simple steps are taken. Most important, these simple steps can save lives.

A dangerous trend

One doesn’t have to look far to see examples of this trend in the dental community. Take a look at the headlines from various articles relating to this subject:

"Dentists Face Disciplinary Hearing"
"Childs's Dental Chair Death Ruled Homicide"
"Criminal Probe Launched After Girl Dies While Getting Tooth Pulled"
Dentist has License Suspended"
"Anesthesia Caused Girl's Coma, Death"

These are the headlines we know about, but a medical emergency doesn’t always involve an eventual tragedy. What about emergencies that don’t make the headlines? What about the “near misses” we don’t read or hear about? These other, nonfatal situations often result in litigation against the dentist.

What can you do to reduce your risk? Do you know right now if your office is fully equipped to handle a medical emergency? Do you know right now that you feel adequately prepared? What about your staff? The following contains basic steps for keeping the patient alive and to help you keep your practice.

The evaluation

When a patient (or worse - the surviving member of his or her family) retains an attorney to handle a medical malpractice case, the attorney will evaluate the case using basic tort analysis. Any competent attorney represents a client with fierce loyalty and devotion. However, he or she also is in the business of earning a living.

Therefore, the evaluation process of the plaintiff’s attorney is crucial to his or her ability make a good living. Because medical malpractice cases are very expensive to litigate, attorneys must make a substantial return on their investment.

The fundamental outline of any tort lawsuit involves four elements: Duty, Breach, Causation, and Damage. Entire journals have been written discussing these elements in whole or in part. The purpose of reviewing this outline is to present a basic understanding of how these elements are utilized in evaluating a dental malpractice case.

Duty - First, the plaintiff’s attorney must show that the dentist owed a duty of care to the patient. Establishing a duty is typically a simple process, especially when a patient retains a dentist for assistance. From a proof standpoint, this element is very easy to establish. The dentist and his staff owe a duty to the patient to provide competent and effective service.

Breach - Second, the dentist must breach that duty in some fashion. There is some gray area in this element. When looking at the scenario at the beginning of this article, did Dr. Doe breach his duty to Mr. Smith by only being trained in the use of CPR and not having an AED on site which could have saved his life? That question is the crux of the suit against him.

Causation - Third, the breach of duty must proximately cause damages to the patient to which he complains. The causation issue is where juries can make plaintiffs and their attorneys very wealthy. If Dr. Doe’s breach of duty is found to be the proximate cause of Mr. Smith’s death, then Dr. Doe likely has some serious legal problems.

Damage - This element is usually computed by the legal system itself. Various tables - life expectancy, loss of income, etc. - are utilized to determine just how much Dr. Doe (or his insurance carrier) will pay.

The attorney will then seek the assistance of an actual dentist for further evaluation. These “hired guns” use their expertise to determine just how badly the dentist acted. His or her information is used to draft the complaint so that the process can begin.

The suit

Once the lawsuit is served on the defendant, a very large and expensive set of wheels begins to roll. The defendant embarks on a long and exhausting journey where he or she will be criticized, humiliated, embarrassed, and outraged - all at the same time. The job of the plaintiff’s attorney is to assign total and complete blame on Dr. Doe.

First, Dr. Doe will call his carrier and provide a copy of the suit together with his check for the amount deductible. The carrier then retains Dr. Doe’s attorney. Typically, Dr. Doe will not have a choice in selecting the primary counsel.

The defense attorney will begin to interview his client and all personnel with knowledge of what happened. The primary focus is on Dr. Doe’s documentation of the emergency. In this case, this will be easy. Aside from the routine items (i.e., interview documents, medical history, charts, etc.), little documentation exists - not good.

Dr. Doe will field questions regarding the training both he and his staff received in medical emergencies, such as: Do you have an AED? Why don’t you have an AED? Where is your emergency drug kit? What is in it? What is not in it? Are there any expired drugs? Where is your medical emergency plan? What about your documentation during the emergency?

The real problems arise when Dr. Doe states that he has never conducted a mock emergency drill in his office. Also, the discovery by the plaintiff’s counsel that not all employees have received emergency response training will significantly add to Dr. Doe’s growing list of problems.

His situation worsens when he describes the panic that ensued during the moments after Mr. Smith’s collapse. These items will provide fuel for his deposition. Package inserts included with all local anesthetics clearly state that resuscitative equipment, oxygen, and resuscitative drugs should be available for immediate use.

Once the discovery process begins, the entire professional life of the defendant will be exposed. Most questions are “fair game” and “discoverable.” While some of the questions will not be admissible at the eventual trial, many questions will most certainly not be comfortable to answer. The written discovery process will be followed by the most dreaded event aside from trial - the deposition.

The plaintiff’s counsel anticipates the deposition with great vigor and enthusiasm. It is where the defendant will, under oath and penalty of perjury, be forced to answer questions surrounding the event. The questions are difficult and will leave the defendant with the realization that he could have avoided this situation if he had only done something to save a life.

Once the attorneys have completed the discovery process, the case will proceed to a trial. The dentist’s career will be placed in the hands of 12 registered voters who will vote on if, or how much, Dr. Doe caused the death of Mr. Smith.

Be advised that most cases settle out of court. Nevertheless, once the insurance carrier pays a substantial claim (or any claim), the dentist will likely have a difficult time obtaining another errors and omissions policy.

How can dentists protect themselves?

The paramount concern to dentists is to limit their exposure in each of the tort elements as much as possible. Recall that Dr. Doe immediately instructed his assistant to call 911. Was that enough to limit his exposure? Was simply calling for help within the reasonable standard of care for a dentist?

The answer to these questions is likely “no” in that no medical training or expertise is needed to dial a phone number. However, suppose Dr. Doe and his staff had been trained in emergency preparedness.

Suppose also that Dr. Doe and his staff conducted extensive mock emergency drills on a monthly basis. Suppose Dr. Doe simply filled out a basic log of events that showed exactly what happened and how much time elapsed from start to finish of the emergency. An example of a simple log was developed by the Institute of Medical Emergency Preparedness (IMEP) and can be viewed in Figure 1. Click here to view Emergency Treatment Record form.

Be advised that the dentist should be primarily caring for the patient and a staff member should be documenting the emergency, but documentation is not enough.

Periodic, monitored mock drills are crucial. Again, IMEP has developed the only commercially available mock drill system, which provides crucial simulation practice and documentation of performance.

Even when the very best of care is delivered, a bad outcome can result. The key difference will be the practitioner’s state of preparedness. As the old saying goes, “Luck favors the prepared,” so would I prefer to represent a health-care practitioner who is adequately prepared.

Nonetheless, after an adverse event in your office, you will face the possibility of legal action against you. What can you do now to get ready for that event?

Jeffrey L. Hall is a partner with the law firm Johnson, Hall & Ratliff, PLLC in Hattiesburg, Miss., where his main areas of practice are commercial litigation, real estate, and risk management. Hall received his BA degree from the University of Southern Mississippi and his JD from the University of Mississippi School of Law. He has spoken for various professional groups on topics relating to his areas of practice. Hall is a member of The Mississippi Bar, American Bar Association, and the South Central Mississippi Bar Association. You may contact Hall by e-mail at [email protected].