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“Fifty Minute Law School”UMKC School of DentistryThursday – Nov. 29, 2012

Prof. Ann Marie MarciarilleUMKC SOL

marciarillea@umkc.edu

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Disclosures

• Nothing to disclose.

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Why Should Dental Students Go to Law School – Even for Fifty Minutes?

• Because dentistry, and all health care professions, are highly regulated. Health care is a highly regulated industry.

• Because a basic knowledge of the law of liability as it relates to practice error is essential.

• Because a basic knowledge of the law of contracts, particularly of insurance and employment contracts, is important for dental practice administration.

• Because the Affordable Care Act has something to say about dentistry.

• Because yours is a profession in transformation, even as we speak, and the legal and regulatory framework for your profession is part of the change.

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But How Do We Go to Law School in Fifty Minutes?

• After all, how fast can one person talk?

• http://www.youtube.com/watch?v=pKhUoFCBhNE

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Will Fifty Minute Law School Be Like This?

• http://www.youtube.com/watch?v=qx22TyCge7w

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Today’s Agenda

• One Topic: Professional Negligence• Teaching Methods: Lecture, small group

discussion• Objective: Introduce learners/students to the

law of professional negligence and consider its implications for dental practice and society.

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Our Fact Pattern: Sharp v. Weber

(NY, 2010) (ruling on def. MSJ)

• Plaintiff Heather Sharp sued defendant Dr. Frank L. Weber (attending oral surgeon at Westchester Medical Center) for damages for dental malpractice arising from the July, 2004 extraction of her wisdom teeth and follow up care.

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Sharp (cont’d.)

• On July 23, 2004, plaintiff went to defendant’s dental clinic to have her upper and lower right wisdom teeth extracted by Dr. Adam Arnoldt, a resident, in the clinic of Dr. Frank Weber, attending oral surgeon.

• On July 26, 2004, plaintiff returned with extreme pain at the extraction sites. Plaintiff alleges defendant packed her upper and lower tooth extraction sites with gauze. Defendant alleges he packed only her lower tooth extraction site with gauze.

• Plaintiff never saw the defendant again.

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Sharp (cont’d.)

• On July 30, 2004, plaintiff returned to the clinic and resident Dr. Anthony Alessi packed the lower socket.

• On August 4, 2004, plaintiff returned complaining of lower socket pain and Dr. Adam Arnoldt removed the packing but could not find upper socket packing to remove, despite the insistence of patient and patient’s mother.

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Sharp (cont’d.)

• Ongoing treatment of plaintiff for right maxillary sinus pain and earache at the dental clinic until September 1, 2004. Panoramic radiography and exploratory surgery found no evidence of packing in the upper socket.

• On August 23, 2004, plaintiff began to expel pieces of gauze from her right nostril. Defendant, at deposition, indicated the gauze was not the type he used for packing.

• On August 24, 2004, CT scan of sinus showed sinus obstruction.

• On October 8, 2004, an ENT performed surgery to remove gauze from her right maxillary sinus. Two subsequent sinus surgeries were also required.

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Sharp (cont’d.)

• Plaintiff alleged chronic sinus infections and loss of vision in her right eye as a result of the defendant’s negligence in inserting a piece of gauze into her sinus through a hole in the sinus floor above the upper socket and failing to remove it.

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What Must Be Shown for a Claim of Dental Malpractice

• Deviation or departure from accepted standards of dental practice.

• That such departure was a proximate cause of the plaintiff’s injuries.

• Best defenses: not a departure from good and accepted practice or, if it were, not a proximate cause of the plaintiff’s injuries.

• Contributory negligence is also a possibility, though not – apparently – on these facts.

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How Do You Do This?

• Through an expert.• But, didn’t Dr. Weber have an expert?– Yes, but the expert wasn’t able to say whether gauze

should have been inserted into the sinus during the July 23, 2004 upper tooth extraction.

– And, Dr. Anthony Alessi (resident, non-party plaintiff say on July 30, 2004) conceded the type of gauze expelled was used at the clinic and that gauze pads were not counted before and after the procedure.

– So, defendant’s MSJ was denied.

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Why Is Sharp An Interesting Case for Fifty Minute Law School?

• Teaches us the standard of care.• Gets us to think about the role of actions of non-parties

and residents vis a vis the consulting oral surgeon.• Gets us to think about quality and its cost.

– Do you count the pieces of gauze or sponges before and after a procedure?

– If not you, who does?– If no one does, should this be evidence of negligence per se?

• But 80% of retained object cases involve recorded counts of full sponge or object retrieval.

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Relationship Between Liability and Quality

• There are cool new devices to help providers keep track of surgical sponges.

• Sponges can be tracked with the use of radio frequency tags: http://well.blogs.nytimes.com/2012/09/24/when-surgeons-leave-objects-behind/

• But new cool devices add to the cost of care.– Est. $10 cost to the price of a procedure.

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Who Should Decide Whether An Additional $10 Cost Per Procedure is Justified?

• Individual dentists?• Professional dental societies?• The courts?• Individual dental consumers through the

process of informed consent?• The government?

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Health Care’s Iron Triangle