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AAOIC eNews Fall 2019
Manage Malpractice Exposure in Orthognathic Surgery Cases
The number of lawsuits for mismanagement of orthognathic surgery cases against AAO members has been rising. As you know, surgery is expensive, so plaintiff attorneys are eager to file lawsuits due to potentially large settlements. What may be surprising is that the majority of the lawsuits against orthodontists are not for a poor outcome of performed surgery. They are primarily cases that are begun without plans for surgery and then require surgery to finish treatment successfully.
Lawsuits against you, in cases like this, will demand payment for retreatment from another orthodontist, payment for the surgery from a surgeon (likely chosen by the plaintiff’s attorney for their high fees), and additional payment for pain and suffering. There have been settlements greater than $500,000 just for indemnity with a significant amount for legal fees.
There are steps that every orthodontist should take to avoid this trap.
If you begin a Class III case on an adolescent, do not promise that your treatment will eliminate the need for surgery. The AAO informed consent form has a section that discusses untoward growth but it is wise to have the patient/parent sign an additional simple statement that orthognathic surgery may be necessary if the mandible experiences excessive growth. Telling the patient /parent verbally is not sufficient for a defense because they will deny later that they were informed that surgery might be necessary. Always document the possible need for surgery in writing before starting treatment.
All orthodontists have had potential patients present with existing skeletal malformations that would best be treated with a combination of orthodontics and surgery, but the adult patient or an adolescent’s parent refuses the surgery and consents only to orthodontics. They claim they will accept a compromised result. However, AAOIC sees claims where the orthodontist provided treatment for these patients only to have them sue when the outcome is not as they had unrealistically expected. A plaintiff’s lawyer will have expert witnesses who will testify that it was below the standard of care to attempt to treat these patients without surgery.
If you elect to treat a patient with obvious skeletal discrepancies without surgery, it is critical to go beyond the general informed consent form and have them sign a statement that they are declining orthognathic surgery. List what will not be corrected with orthodontic treatment alone. Document in writing because they will later deny that you mentioned orthognathic surgery.
There is a third category of cases, such as severe Class II cases, that would benefit from starting orthodontic treatment to possibly correct the malocclusion without surgery. With slow or no growth of the mandible these types of cases may be best finished with surgery. The answer to avoid being successfully sued in these types of cases is the same as the other examples. Have the patient sign a statement that they have been informed that lack of growth may require orthognathic surgery for a full correction.
Documentation requires a few minutes while a lawsuit resulting from a failure to document in writing that orthognathic surgery may become necessary means you will spend weeks or years in litigation defending your treatment. Lawsuits could result in a settlement or verdict against you which will be recorded in the national data bank and may result in a regulatory investigation by your state dental board.
Understanding Your Malpractice Policy Can Help Keep You Protected
Many of you have a malpractice insurance policy but may know little about it. It's critical to understand the basics of what your policy covers and the necessary requirements for coverage. Taking a few steps can help give you peace of mind about your protection and assure you comply with conditions to maximize your insurance benefits.
Get to know the declarations.
The declarations—or the first page of the policy—contain critical information: policy number, insured’s name (and corporation name(s), if applicable), dates of coverage, policy limits, premium, and any other fees as appropriate. Get familiar with this information, as well as the dates of coverage ("from" and "to" dates), so that if a claim is reported, you will know if the policy applies.
Pay attention to renewal notices.
Before your policy expires, the company will remind you to renew several times. About 60 days prior to expiration, AAOIC notifies its insureds of the upcoming policy renewal by U.S. mail and email. You will continue to receive reminders by email every 10 days until your policy is renewed.
If your policy is not renewed, the company will send a final notice of policy lapse to the insured listed on the policy via U.S. certified mail and email. At that time, the insured will have an additional 30 days to renew. A signed Warranty of No Known Loss will be required, and a $100 policy reinstatement fee may be assessed. If payment is not made within 30 days of the policy expiration date, an application for a new policy with a new effective date will be required and will be subject to underwriting review prior to approval.
AAOIC may not make exceptions to the underwriting requirements, so you may not receive special dispensation after discovering your policy has lapsed. Do not let that happen to you! If you ever have a claim, you'll need insurance.
To make the renewal process faster and easier for you, AAOIC now offers the ability to renew online. Simply log onto the secure AAOIC site and answer seven underwriting questions. Payment will be accepted electronically at the end. If you are making no changes to your coverage, online renewal is an effective way to assure your coverage remains intact with no lapses.
Pay your premium on time.
Once you've renewed, pay the premium on time. Too many doctors fail to pay their premium in a timely fashion. The problem with waiting is that a payment can be overlooked. If that happens, the policy can expire, and your malpractice coverage will end. If a claim occurs during the policy's lapse, you will be responsible for any losses. And, if there's a lapse in coverage, you may not be eligible to renew the policy and may be required to re-apply for an entirely new policy.
If you are required to re-apply and are approved for a new policy, it will be assigned a new effective date, which could leave you with no malpractice insurance coverage in the interim. If a claim develops during that time, you will be faced with handling it on your own. That means you'll have to pay a defense attorney if there's a lawsuit. And, if there are any settlements or judgments, you'll be required to pay those, too. Few doctors have the time, skills, or finances to handle their own claims.
Understand the benefits of your occurrence or claims-made policy.
Though you probably have a malpractice policy already, it's important you understand which type you have... and the benefits your policy offers.
AAOIC offers a choice of two different types of malpractice coverage—occurrence and claims-made. Before you buy, know the difference between the two and the requirements of each. Talk to the AAO Insurance Sales Representative or the AAOIC Underwriting Department to make sure you have the most appropriate policy for you.
If you are currently insured with another company, knowing the differences in these policies is still important. Understanding your coverage will help you meet all policy conditions and keep it working for you.
Our next article will address more of what you need to know about your malpractice coverage.
The AAO-Endorsed Insurance Program offers a variety of solutions to help provide the coverage needed for you, your family, and your practice:
• Group Disability Income1
• Group 10- or 20-Year Level Term Life1
• Group Term Life1
• Group Professional Overhead Expense1
• Long-Term Care
• Business Owner’s Package
• Employment Practices Liability
• Cyber Liability
Learn more at aaoicplans.com/Choices.
1Underwritten by New York Life Insurance Company (NY, NY 10010) on policy form GMR.
The More You Know…
Did you know that AAOIC Professional Liability Insurance is the most popular orthodontic malpractice insurance in the United States and that many AAO members consider it to be the greatest single benefit of membership? Did you know that over 50 percent of all eligible active AAO members are already insured through AAOIC?
A few additional facts about AAOIC:
• If you have a claim, that claim is reviewed by a committee of experienced AAO member orthodontists, not just an insurance claims processor.
• There is no settlement of any claim without your consent.
• The company is strong financially and is backed by Reinsurers with A.M. Best ratings of A, A+ and A++; therefore, AAOIC will be there when needed and for the long haul.
• AAOIC is the only professional liability insurance company endorsed by your association, the AAO.
A few additional facts about AAOIC:
Know the facts!
Our Quarterly Alert
♦ Address potential periodontal issues.
Patients with periodontal issues who are undergoing orthodontic treatment may lead to malpractice claims. We remind you that it is highly recommended that the periodontal health of every orthodontic patient be carefully evaluated before any orthodontic treatment is begun. If periodontal health deficiencies are discovered or suspected, it is recommended that a periodontal consultation be obtained before orthodontic treatment is initiated.
♦ Know who’s minding the store.
Did you know that whether you renew your coverage electronically or by paper application there is a fraud/misrepresentation warning? This means that we take seriously each response to every underwriting question that we ask you. If you delegate this important responsibility to someone else, be sure to check the responses before signing off. You are responsible for the answers!
♦ Do you have a part-time practice?
A part time policy is simply a limit on the number of hours that you actively practice in a given week, which from AAOIC’s perspective could decrease your risk exposure. Due to this possible decrease in risk, AAOIC provides a 40 percent annual discount if you consistently practice 20 hours or less per week in a combination of all office locations, which also means that your office is closed the remainder of the week and staff is not engaged in any patient care. If your office(s) is/are open 20 hours or fewer per week and you have not notified AAOIC, you may qualify for the part-time discount. Call us! We will let you know if you qualify.
♦ Help us save some trees.
When it is time to renew your professional liability policy, you will receive an email notice from our office. Renew your coverage online. Save paper, postage and time. Log onto https://www.aaoic.com and click the tab ‘Renew Online’. You may be required to enter your AAO member credentials. Next, respond to the seven brief questions, pay with a major credit card and you are done. It’s just that simple!
Your policy documents will be mailed to you the same day. If you need immediate proof of coverage following renewal, email us at www.underwriting@aaortho.org.
♦ Notify us if you move or change your email address.
If you move or change your email address, please let us know. If we can’t find you, we can’t notify you regarding important coverage information. In addition, if your practice status changes (such as becoming incorporated or you go to work for someone), it is critical you inform AAOIC.
Steps to Follow in the Event of a Patient Complaint or Claim
If you receive a patient complaint or claim, consider the following recommendations.
1. Call your insurance representative. If you have a conversation with a patient or a family member who has expressed dissatisfaction with the treatment, give your insurance representative a call to discuss what happened and what to do.
2. Have your information on hand. You will need to provide key information from the patient's record. Access to the file or computer record during the telephone call will save time.
3. Anticipate a return call. Make sure you leave telephone and fax numbers so that your insurance representative can contact you. If you are insured with the AAO Insurance Company (a Risk Retention Group) (AAOIC) and have encountered an incident or claim, contact AAOIC Claims Representative Jessica Kaesberg, Shannon Hall, or AAOIC Claims Manager Elizabeth Franklin at 401 N. Lindbergh Blvd., St. Louis, MO 63141-7816. The AAOIC hot-line number is 800-240-2650. You can also report an incident or claim through the AAOIC website (aaoic.com). The AAOIC welcomes the opportunity to work with you.