Conclusion to Bury Your Head in the Sand or The Default Judgment !

You will recall in the last issue of JW Dental Legal News I reported the case of Bernie, the  real estate agent who sued  Sam.  She alleged Sam was a negligent dentist who mistreated her or failed to recognize her dental problems. She left his care after 20 years of routine care.  She faithfully attended her  six month dental check-ups. However during the last year of care Sam was not reliable and missed scheduled appointments. Bernie was frustrated and consulted Joey, a new dentist.    Joey shockingly identified numerous untreated or mistreated dental problems. He  then referred Bernie  to specialists. They too confirmed that her mouth was in a shambles. 

Sammy for reasons unknown had not reported Bernie’s  claim to his insurer. Bernie  claimed  General Damages, compensation for pain and suffering, Special Damages including the cost to retreat or restore her mouth to optimal appearance and function and  income loss. Sam failed to enter a defense.

We rejoin Bernie and Judge Harry  at the trial against Sam. Bernie is seeking a  default judgment.

First Bernie’s lawyer  filed expert reports on her behalf.   Each one  detailed  the extensive restorative, periodontal and endodontic treatments  she underwent to put right her dental health.

Next Bernie took the stand. She  testified  she suffered considerable discomfort in the course of the dental procedures she had to undergo to right her mouth. As well she described  that the  aftermath of the treatment  caused her headaches, sore jaws, inability to eat solids for days, as well as she had to suffer with a  mouth packed with gauze used to abate bleeding. 

Finally, she told of one sleepless night.  Her testimony was compelling.  She did not exaggerate but addressed the unnecessary pain and suffering she underwent post Sammy’s care.   She said she lost a week from work to that point; however  she anticipated the loss of at least another 3 days off work to complete  the dental work that remained to be done.  

Bernie had young children. She estimated as well in consequence of the treatment she would require the services of a sitter,  to  pick up her children at school, for approximately 3 hours per day, for 5 days.  That service, she  estimated, would cost her a minimum of $25.00 per day; or $125.00 in total.

Judge Harry listened intently then retired for  his afternoon recess to consider  Bernie’s evidence. This was truly a one-sided case.  He told Bernie he would return to give his oral reasons in twenty minutes.

When he returned to the bench Harry J. delivered his decision. He looked thoughtfully at Bernie and decreed.

“Bernie has clearly established that Sammy was  liable on a balance of probabilities.  It remains therefore to determine what is the proper quantum of damages.  It appears from Joey’s evidence that the periodontal and endodontic treatment required by Bernie was attributable to Sam’s negligence.  Similarly the professional services that Joey himself was required to perform was substantially greater than would otherwise have been the case had Sam performed the services he was engaged to do in accordance with accepted professional standards.  Accordingly, I assess damages in the following amounts:

SPECIAL DAMAGES
incremental increase for Joey’s professional services over and above that required had Sam  honoured his undertaking in accordance with established professional standards (I base this  on Joey's sworn affidavit)	$1,000.00
endodontist work performed by Dr. Wiggle	$600.00
endodontist work remaining to be done by Dr. Wiggle	$1,200.00
periodontal work to be done by Dr. Gummy	$900.00
Dr. Joey’s report	$400.00
consult with Dr. Gummy, periodontist	$70.00
unrecovered deposit paid to Sammy on a/c	$600.00
child care based on 5 days at $25.00 per day	$175.00
estimated lost income of 1 week calculated on basis of commission earnings of $17433.53 for the income tax year ending December 31, 1986	$348.67
SUB/TOTAL	$5,293.67
GENERAL DAMAGES
For pain, suffering, etc.	$2,000.00
TOTAL	$7,293.67

Harry discounted the original claim. He stated: “Bernie your claim for full recovery of the cost of services performed by Dr. Joey cannot in my view be supported inasmuch as a portion of that would have been expended in any event had Sam done all those things that he ought reasonably to have done.

Bernie you are also entitled to  recover interest on the judgment in accordance with the Courts of Justice Act for which purpose the $600.00 originally paid to Sam shall be treated as a liquidated claim.  Bernie you shall also recover your costs of this action; to be assessed.”

So it was that Bernie succeeded in proving her case against Dr. Sam.

Since Judge Harry had no evidence from Sam. He assessed Bernie’s credibility.  He  found her a straightforward, no nonsense witness. He accepted the opinions of the expert reports provided and affidavit evidence. The allegation of negligence was deemed admitted since no defence was filed.

In a default hearing  Bernie, the plaintiff only needed to  prove her monetary damages.

JW’S LEGAL TIPS

THE "3 C'S" - PREVENTION OF LAW SUITS AND COMPLAINTS TO YOUR GOVERNING OR LICENSING BODY

COMMUNICATION, COURTESTY, COMPETENCY not necessarily in that order! Many lawsuits and most complaints can be avoided if you practice the 3 C’s.

1. Notify your errors and omissions insurer, in Ontario the PLP if you suspect a possible lawsuit. Consult with the practice advisor of your dental college.
2. Prior to negotiating a gratis payment contact your insurer. (Do not void your insurance by either failing to advise of a potential law suit or making a payment  without prior approval by your insurer.)
3. Seek help and confer with your colleagues if you are at all concerned with the proposed treatment or cannot quickly resolve a treatment problem.
4. Don't bring your personal problems to the office.
5. Don't treat a patient if you are stressed out or having difficulty remaining objective with the patient.
6. Assess the patient before you begin the proposed treatment. Use all reasonable / available diagnostic tools.
7. Don't proceed with treatment if the patient does not meet the minimum criteria for implants.
8. Be realistic about who is a good patient.
9. Establish a treatment plan. Provide treatment options and alternatives.
10. Provide materials risks.
11. Provide all proposed information personally to the patient do not delegate to staff members. You can use video's to supplement but not without reviewing the case with the patient.
12. Use communication techniques to confirm the patient understands your explanation of treatment plan, risks etc. INFORMED CONSENT MUST BE MEANINGFUL NOT A SCIENTIFIC DISCOURSE OR PERFUNCTORY. It must be appropriate for the age, level of sophistication of the patient. Have a question and answer period.
13. Send the patient home with written materials have patient back to review with you.
14. Have the patient sign and date the specific consent you provided in detail in front of you.
15. Be patient!
16. Don't warrant or guarantee your work. i.e. you will be able to chew a New York tenderloin, corn on the cob, delicious apples when I'm through with you.
17. Once you establish a treatment plan, collaborate closely with the oral surgeon and or the prosthodontist, technician whomever is in your team.
18. Once you open the surgical site don't drastically deviate from the surgical stent without consulting the prosthodontist or dentist fabricating the prosthesis.
19. Don't get too cocky even if you think you did a great job. Words such as I'm such a genius, I'm, thrilled this is the best job I've done to date can come back to haunt you.
20. Be careful about providing a formal written refund policy for failed implants, if risks are properly outlined unnecessary.
    
    
    

    AND if all else fails Call me if you suspect you screwed up!