Patient Defends Herself in Dental Case After Becoming Dissatisfied with New Dentures

posted on Tuesday, November 10, 2020

women sitting in dental chair

Moore was a quiet, pleasant public aid patient who was happy to have found a practitioner to restore her dentition as she was self-conscious about her restorations and ill-fitting partial dentures. Her initial visit consisted of an examination and consultation about the options of full dentures.

During that first visit, Moore completed initial registration and history information. She entered no history of relevant medical conditions, denied being on any medication, and reported adverse reactions to penicillin and codeine. The sections on employment were left blank as was the past dental history section — including the section on her most recent dental care and previous complications. (A printout related to public aid coverage indicated that Moore had 21 teeth extracted two years earlier.)

Dr. Seif did not recall why sections on the history form were left blank but later testified that inquiring about blanks on forms was part of his regular practice. To him, the lack of details indicated that the patient was hesitant to share that information. Dr. Seif recalled Moore telling him she was unemployed and in school. He remembered the patient telling him she “just wanted to smile again.”
 

Initial Treatment

Initial treatment began about a week later with Dr. Seif performing a full examination and obtaining a panorex and the periapical. Moore wanted completely new upper and lower dentures.

During this initial visit, Moore’s only natural teeth were her lower anteriors. Dr. Seif’s office sought public aid approval for complete dentures, which was granted. The plan was to extract the remaining mandibular teeth at the next visit.

Moore paid a nominal portion of the cost of a film, which was not covered. She returned in early June 2015 for extraction of the lower anteriors, which proceeded uneventfully. Two weeks later, Moore returned as planned for initial impressions for the upper and lower dentures. The next visit involved final impressions and bite registrations. Dr. Seif used Artiste Dental Laboratory to assist in Moore’s denture preparations.

Moore returned for final impressions and bite registrations the first week of August 2015. She and Dr. Seif selected the shade and tooth mold and sent a laboratory slip to Artiste; a week later, Moore presented for try-in. The treatment note stated, “Patient is happy with fit and aesthetics.” Dr. Seif sent a work order to Artiste to finish the case and scheduled a visit with Moore for the denture delivery.

The final, complete dentures were delivered on September 18, 2015. Minor adjustments were made and the treatment note again stated, “Patient is happy with fit and aesthetics.” Dr. Seif recalled that Moore teared up with joy and hugged him and the staff. She was advised to return if she needed any further adjustments.

After the successful denture delivery, Moore set an appointment for October 7, 2015. The record didn’t include a reason for this visit, but Moore didn’t show up for it. After the no-show, Moore began calling the office. She demanded to know which materials were used for her dentures, as she was experiencing an allergic reaction.

Moore was told she needed to sign a release to receive her records, but she said just wanted the information by phone. Moore continued to call, becoming aggressive and demanding on the fourth call. Dr. Seif called Moore to discern her concerns and resolve the situation. He recalled her demeanor was different in that call, and she didn’t appear to have substantive dental concerns. Therefore, Dr. Seif encouraged Moore to sign a release so she could review the records and that they could speak again if needed.

On October 10, 2015, Moore showed up at the office to pick up her dental records. The office manager, Cecilia Amal, had Moore sign the release and gave her a copy of her X-rays and dental chart. She told Moore that if she had any concerns, she should schedule an appointment with Dr. Seif. Moore was neither angry nor friendly and did not respond to the invitation to reappoint.

Moore called the office on October 13, 2015, and spoke to Amal, who documented that the patient was extremely angry. She claimed she didn’t receive all her dental records to which she was entitled by law.

Moore said she was seeking insurance documentation and demanded Amal’s full name and title, alleging that she was legally entitled to this information. Amal asked the patient to return for her records when Dr. Seif was present, so he could make any adjustments. Moore responded that Amal was “making a big deal” of things and she would return whenever she wanted. She later spoke to another dental assistant, asking for the full names of everyone in the office and whether they attended dental assistants’ school.

On October 21, 2015, Dr. Seif authored a long chart note after yet another angry call from Moore. In that 20-minute conversation, Moore said she was upset that the office had not received a certified letter from her. Moore refused to say what the letter said or why she sent it certified — she said Dr. Seif would know when he got it. Dr. Seif offered to discuss Moore’s treatment in person, and the patient said she’d consider that after Dr. Seif received “the letter.”

As a result of this escalating situation, Dr. Seif sent Moore a letter informing her that he was terminating the dentist/patient relationship. The letter noted Moore’s refusal to discuss previous treatment issues and her refusal to return for follow-up treatment as the reason for the termination.
 

The Case

On August 25, 2017, Moore filed a 17-count, 31-page complaint against six defendants, including Dr. Seif, one of the assistants (not the office manager) and Artiste Lab. Her demand was for $70 million in damages.

Her case was filed pro se, meaning she was acting as her own lawyer. Her claims were lengthy and based on a variety of unusual, and sometimes unidentifiable, claims of wrongdoing. The allegations against Dr. Seif included improper dental care and treatment, violation of privacy, and actions that caused hallucination, hospitalization, and other mental and physical injury.

The claims against the other defendants were similar. They included harmful materials were used, privacy was violated and disparaging remarks were made about the patient’s appearance and mental capacity — all of which caused vague psychological and medical damages.

Although voluminous, the claim provided insufficient details. However, the document suggested some knowledge about pleading requirements set out in case law and statutes. In court, Moore dressed professionally and seemed somewhat knowledgeable about the legal process, having read a few cases, rules and statutes. Outside of court, she said she attended law school. Nonetheless, all efforts to draw out the lawsuit details were unsuccessful.

Dr. Seif’s counsel immediately filed a motion to dismiss because the complaint failed to provide a report by a dentist consultant affirming that there was reasonable basis for a malpractice claim based on the dental records. The strength and detail of Dr. Seif’s records, compared to the overblown pleading, made it a very strong motion. Additionally, although it is difficult for a pro se plaintiff to obtain such a report, most judges required it as a basic matter of law.

In the midst of this motion, Moore attempted to add more parties to the suit. She was also able to obtain more time to file the requisite report. Unfortunately, the case was transferred to a new judge, despite having been on file for 4-5 months.

The transfer to a new judge resulted in more time passing and required Dr. Seif’s attorney to take additional steps to properly set the motion to dismiss. As the time neared for a ruling on Dr. Seif’s motion, Moore attempted to again re-plead her case against Dr. Seif. Immediate objections stopped this attempt to avoid a ruling on Dr. Seif’s long-pending motion to dismiss.

Finally, 14 months after the initial complaint was filed, the judge dismissed Dr. Seif, as well as the assistant, from the case with prejudice. Despite the lengthy timeframe, there had been no discovery or substantive information to provide any basis for the claims. This helped the defense because discovery would have been time consuming and costly. However, the lawsuit was still frustrating for all defendants to deal with, especially since the liability, causation and damages against them were unclear.

Dr. Seif was fortunate that Moore could not meet the requirement of providing a report by a dental practitioner who supported the malpractice claim. The remaining defendants were not health care providers and did not have the benefit of that requirement. Therefore, their cases were not resolved for some time thereafter.

What Can We Learn?

This case exemplifies the difficulties and frustrations presented by pro se claimants. Litigants have a right to pursue their claims against another party without counsel. Depending on the judge, pro se litigants may be given extra leeway in pleadings, time to comply with the law, and in some instances, substantive foundations for their claims.

Often, defendants are successful in suits by pro se litigants by diligently and aggressively pursuing motions to dismiss on either procedural or substantive bases. However, those successful outcomes happen only after time, money and emotional energy are expended. A smart pro se litigant increases all of those unfavorable factors.

In this case, Dr. Seif did the right things and got the right result eventually. His records and documentation were a solid basis of strong support that allowed his counsel to push hard on the motion to dismiss with confidence. While the records were good, there are always ways they could be better.

For example, the records showed that the patient left parts of the health history form blank. It would have been helpful for the office to have a process by which staff would check the form for blanks, ask the patient to fill in all blanks, and if the patient did not, advise the doctor. The doctor could then discuss this with the patient, prompting completion of the form, a narrative if the patient refused or could not provide a complete history, or an explanation of why the care contemplated could be provided absent an incomplete history. This process and documentation would also serve as a basis for the practitioner to thoughtfully consider whether the patient was a good fit for the practice.

Additionally, and adhering to good office practices, a protocol for following up on patient no-shows would have potentially identified an issue with this patient earlier. Earlier intervention can often resolve issues when anger and emotion are not so inflamed.

In this case, the doctor was advised of the patient contact only after multiple calls. A better practice would have been for staff to advise the doctor sooner, allowing Dr. Seif to respond to the patient more quickly and with good documentation as support. If the case progressed, these actions would have served as evidence of Dr. Seif’s prompt and caring responsiveness to his patient.

The records request is one final area in which the matter could have been handled and dealt with more effectively. A specific and written policy, with a format for written authorization and conforming to all applicable rules, is exceptionally helpful to the practitioner.

Every practice should stay up to date on the applicable rules (including HIPAA) that govern how a release of records request is effectuated, including details such as who can sign for a release of records, the type of records that can or will be released, the timing of production and manner of delivery, the cost if any, and expiration of the authorization, among others.

This process often can be the first important notice that a patient is dissatisfied with the practitioner or practice, and so it is one that must be handled properly both according to the law, and as to the sensitivities. A written policy and process alleviates confusion among both the staff and the patient in this important process.

While most pro se cases assert smaller, simpler and less complicated claims, the cases can be just as frustrating for the practitioner. Despite the atypical pro se plaintiff, this case eventually went as many pro se cases do – with a dismissal. But the successful result didn’t come without a vehement and lengthy fight.
 

Linda J. Hay is a partner in the Chicago office of HeplerBroom, LLC. Ms. Hay has practiced in the professional liability defense arena for more than 25 years and has tried numerous cases to verdict. She is actively involved in a variety of defense bar, professional liability and risk management organizations. Ms. Hay can be reached at Linda.Hay@heplerbroom.com.

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