The Compliance Divas Podcast
Our podcast covers current topics such as infection prevention and control, OSHA and HIPAA compliance for dentistry. We discuss the latest regulatory information, answer frequently asked questions and give suggestions for dental practices to make compliance easy and sustainable. The Compliance Divas are a trusted source for consistent, accurate information based upon current guidelines, standards, science, and recommendations.
The Compliance Divas Podcast
#118 Conversations with a Dental Litigator - How not to get Sued!
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In this episode, the Compliance Divas interview the well-known dental litigator, attorney Ed Zinman. He was a former dentist, periodontist and highly successful litigator in California. You don't want to miss this segment to learn what caused dentists to be sued and how you can avoid these same blunders.
A Dentist's Guide to the Law: https://bit.ly/45jiQHk
Welcome. I'm Leslie Cannon. I'm Mary Gavoni.
SPEAKER_01I'm Linda Harvey. I'm Olivia Wann. And together we are the Compliance Divas. My name is Olivia Waughn, and I'm with the Compliance Divas. We're really excited to have Ed Zinnman with us. He's a highly sought-after attorney who works throughout the United States. He was also a periodonist, amazing presenter. We've had the opportunity to co-present several times and really enjoyed the mock trial at OSEP's meeting recently. So we look forward to interviewing Ed and gaining some pearls of wisdom from him as it relates to litigation, having these conversations with a dental litigator and how not to get sued. You know, as the Compliance Divas, we bring clarity and simplicity to compliance by navigating regulatory compliance to keep you on course. Please subscribe to the ComplianceDivas Podcast through your favorite podcast channel or on our website, thecompliancedevas.com. Any of the resources that we mention during the podcast will be available on our website. You may also submit questions to support at thecompliancedivas.com. So as I mentioned, Ed, we're so excited to have you on this episode so you can discuss with our audience things that you've gleaned over the years as a dental litigator. I compare ourselves when we're working together that you're the plaintiff attorney. So you're the one that's suing the dentist. And I'm on the other side trying to prevent this from happening. And of course, all the divas participate in risk management. So we truly appreciate this topic. But uh Ed, we want to jump right in here by asking you some questions, and we want Mary to kick us off.
SPEAKER_04All right, and again, thank you and welcome, Ed. There have been a number of, I would say, relatively high-profile cases in dentistry over the last several years, particularly about water quality issues. What can you tell us about those?
SPEAKER_00Well, these probably the most uh prominent one is a case out of Anaheim, California. And it was a dental clinic that primarily treated uh Medicaid uh pediatric patients, uh mostly uh Hispanic. And these were patients that uh they needed uh treatment, but what they did not need was over-treatment, and what we saw in that case was double jeopardy. First of all, they were doing polpotomies, many of which uh the evidence in the radio gap show were unnecessary, and secondly, they were not adequately treating their water lines, and as a consequence, these patients developed uh mycobacterium aesthetis infections. Uh, there were 202 uh patients who were joined in the lawsuit, and uh it probably will be settling in the next uh several months. It's been going on for a number of years, but because there are so many plaintiffs and so many defendants, uh this has taken considerable uh court time, and then the pandemic interrupted uh the litigation process. But what occurred there, and what was the primary cause of the mycobacterium abscessis? The dental clinic had never shocked, had never treated, and had never tested their dental unit water lines, and it was a disaster waiting to happen, which it did. And these young children, some of them as young as three, uh, some of them as old as 10, uh, they would lose uh not only their teeth, but they would lose a section of the mandible. They were treated with uh antibiotics, some of which would cause uh uh pigmentation of their skin. Uh they would be on pick lines for six weeks, and the it was really uh quite a travesty. And not only were they physically injured, but they were psychologically injured. And even the families, the siblings said, I want to go to a dentist. I saw what happened to my brother, I saw what happened to my sister, I don't want that to happen to me. You know, I'll let my teeth rot and fall out, don't take me to the dentist. And that's the the tragedy uh that uh unfortunately unfolded. And so there was a lesson you have to test and you have to um treat your dental unit waterline with the proper disinfectants. I would just add that I would just add that we also have now another pending case in another state, so it's not over. And uh, you know, it's unfortunate that these mycobacterium abscessis infections uh have occurred and are continuing to occur in various dental offices that are not following the uh OSAP guidelines and particularly the CDC guidelines that have been in fact since uh 2003.
SPEAKER_01So, Ed, obviously our audiences should pay close attention. If they want to avoid being sued, they need to be in compliance with CDC's latest guidance and also OSAP's position paper on um water monitoring. So this is a huge area of risk for dental practices. Uh, Linda, you wanted to inquire about a different area of litigation.
SPEAKER_02Yes, Olivia, I do. And as a risk manager, many times over the years, I've gone to risk management conferences and I belong to some different medical groups. And one of them is the Healthcare Compliance Association. And in their newsletter, print and email newsletter, they're always talking about fraud every week, whether it's a medical lab, a private medical practice, or pharmacy. So I was curious, what other kinds of lawsuits have you seen in dentistry? Have you seen fraud be a problem, or what other areas of litigation do you see a big issue for dentistry?
SPEAKER_00Well, fraud, fraud is a continuing problem, and it relates to primarily over-treatment and unnecessary treatment. And consequently, uh, the harm that results, uh all of which could have been avoided had the treatment not been done in the first place. And what we see is uh unfortunately, a lot of these hedge funds are taken over dental practices and with the interest of profit first and patient safety last. And that is not what dentists and hygienists and assistants have been taught. It's the primary obligation to always treat in the patient's best interest. People ask me, well, you know, how do you define malpractice? And I give you the legal definition, you know, saying it's what a reasonable and careful dentist would do under the same or similar circumstances. I mean, that's a legal definition. But a simpler definition is just to ask uh the treating uh dentist or hygienist the following question What is in the patient's best interest? You treat the patient's best interest and not the most profitable interest, then you can avoid uh being uh sued, particularly for fraud and unnecessary treatment. So uh that those are the kind of cases. And then what happens is the dentist not only is sued for fraud, that's just a civil case, but many times they can progress the criminal uh violations, and the criminal violations usually result in the dentist losing his or her dental license as the consequence. And then the other thing is even if they're disciplined and they don't lose their dental license, the insurance company will say, no, no, no, uh, you committed fraud, we're not going to insure you, uh, you're not a candidate for reinsurance uh and in our company. So there are many consequences. So fraud uh is something to be avoided. And if you are in an office that is committing fraud, then you you have an obligation to the patient not to be a participant and say that I'm not going to do this treatment because the treatment that you're suggesting be done is unnecessary, and I and my license were be at jeopardy. So those are the kind of cases that uh that we see in involving the uh the fraud and dentists uh have been criminally prosecuted and civilly prosecuted as well.
SPEAKER_01Interesting, Ed. I refer to fraud as you know one of those F words we never want to hear about because it certainly has uh uh legal effects on the doctor, the practice. What about your thoughts, Ed, on since you touched on if it if there were employees that knew that was going on, when you're litigating cases, can you describe how dental assistants or hygienists might be on the witness stand?
SPEAKER_00Sure. Uh and anybody that participates and treats the patient is a potential witness and even a potential defendant, because it's contrary to what they were taught in their training program and continued education. And this is something that uh they they can be uh sued and also be subjected to discipline by the respective uh dental board or the dental hygiene board. So I would I say if you're in that situation, don't walk away, run away, because you are a co-conspirator to the fraud that may be promulgated on the patient. And just think, what is in the patient's best interest? And if you do that, then you're you're on the right side of the law and the right side of patient care.
SPEAKER_01Those are some great tips for our audiences, and it's scary to think about litigation. Uh, Linda, did you have a thought to supplement?
SPEAKER_02I would, thank you. Um, and I've seen something recently, and you probably have too. It's been in the medical literature, just one brief article in HCCA, and that was where when you mentioned um investors and hedge funds, is that they actually have held at least one accountable by law because this investor knew because they were on the board with this DSO or dental group about how the billing was and coding was being done, and they didn't change it, they didn't correct it, didn't move in the right direction, and they were deemed just as liable as the medical professionals. So it's interesting how I think that tide is turning a bit, expecting compliance at all levels at the board and all the way down. And as more dental offices become involved with DSOs and different uh DPOs and so forth, it's something to be mindful of.
SPEAKER_00It's very serious. I would pass this on just being an office where the DSO stands for dental safety organization. That's the correct dental DSO.
SPEAKER_02I like that. I think that patient first, patient first, exactly. Thank you. That's a great acronym to use.
SPEAKER_00That's the wrong organization.
SPEAKER_01Oh, that's funny, Ed. Uh, but it does have a domino effect, and uh, as I mentioned, that could be scary when they're on the receiving end of a complaint. And so definitely information we need to take to heart. Uh, so we've talked about the litigation end of it. Leslie would like to ask some questions about how do we avoid it?
SPEAKER_03You know, Ed, I hear about these cases all the time, and I wonder what the best way for a dental practice to avoid litigation. Can you talk to us about uh if standard operating procedures should be written and training and continuing education? How does that all play in to help a dental practice fortify itself with the knowledge they need and the skills they need to avoid litigation?
SPEAKER_00Well, you you hit the nail on the head. It's the 3D of dental malpractice prevention, and the 3D is document, document, document. And it's fine that you have an SOP, but it's got to be documented. For example, on the water lines, you can say, Well, I disinfected the water lines. They say, Well, where's the evidence? So the evidence would be in a log that the person who did the disinfectation of the water line dated and time it and signed it. Uh, if there's a uh a third party involved, then that's going to be the best documentation because you've sent the water sample to a third party that that documents that you uh have now you know potable water. So these are all the things that can be done, and of course, you have to keep current with the training. Uh, you know, you may have had uh you know one year's uh training, but you have to update that training. You have to be current, you have to be current with the OSHA guidelines, you have to be current with any of the CDC guidelines, and above all, you know, you have to be honest uh with the documentation. Uh what you don't want to do is to falsify the documentation. If you falsify the documentation, uh the the credibility is not only gone, but for example, in dentistry, uh that's a separate offense that the dental board uh can actually discipline or revoke a dentist's license for falsifying the dental records with an intent to defraud. So again, keep current and uh you know OSAP is one of the best organizations uh for doing so and and keeping uh up to date with all the recommendations. And again, uh just think what is in the patient's best interest, and that's to be current and follow all of those guidelines.
SPEAKER_03Well, thanks, Ed. I think that you know documentation is important, but then also acting on the documentation. Uh I remember you shared with us that there was uh one facility that had 13 failed spore tests. But what did anybody do about it if they documented that the spore test uh revealed that the sterilizers weren't working, and there's no training on what the next step is. So I guess it it all ties into training, continuing education, having standard operating procedures, and then reinforcing that training to making sure that everybody uh is clear on what's expected of them and what's expected when things don't go right.
SPEAKER_00Yeah, well, I think you're correct. And the you know, the infection control coordinator uh has that responsibility of supervision and making sure that it's followed. And if there is failure, then your point is what is being done to correct it? Because otherwise, repeated failures, repeated failures, uh, that only uh emphasizes that there was no adequate monitoring and corrective steps. And your your point with the uh the sterilizers and the continued failed score test, uh, were they overloading the uh autoclay uh with the instruments? Were they not properly uh disinfecting the instrument with an ultrasonic device and having debris removed, all of those things you have to check why we are having a problem? And you know, you may have to consult with the manufacturer saying, Hey uh Houston, we've got a problem. So uh correcting the problem is is is part of the uh the process. Uh the fact that you follow the guidelines including uh corrective steps, make sure it doesn't happen again.
SPEAKER_03That's great information.
SPEAKER_01So conferences, you know, we're accustomed to lecture format, basic workshops, hands-on activities, but at the recent OSAP conference, we had this mock trial that Ed and I participated in. Uh, Mary, what questions can you pose to help us understand this different learning method?
SPEAKER_00Well, in the mock trial, but we had uh a situation where the dentist was found liable, but in a mock trial as a given hypothetical, but then the dentist said, Hey, I'm not responsible, it's really the manufacturer. And then the manufacturer, uh, according to CDC, should have been consulted, and then the manufacturer has to give instructions for the disinfection, the proper products to use with their equipment. All of that has to be done. So that that was one of the lessons, and and and then the manufacturer uh you know said, hey, you know, you're a sophisticated uh user of our product. I don't have to tell you, you should figure that out yourself. It's all there in the CDC guideline. Choose your own disinfectant, but in the case of not choosing any, then it goes back to the dentist as well. So I think I think the uh the the reasonable and prudent uh infection control coordinator and the dental office is to check with the manufacturer. That's part of the CDC guidelines and ask them how do I uh make sure that uh I'm delivering potable water, drinking water quality, and it's uh no more than 500 CFU, which is colony forming units per milliliter, and have that in compliance. And if it's not in compliance, then you have to take steps to make sure that you uh remediate uh to get back into a potable water levels.
SPEAKER_04Thank you, Ed, for um that great summary. And I think one of the things that I took away from the mock trial was um that ignorance is not a defense. And in in this case, with the the water quality, the um defendant in the in the case was saying that, well, I followed all the instructions, I used a waterline cleaner, but I don't remember that they talked about testing. So if I think I'm doing the right thing, then I'm treating my water because everybody's telling me I need to treat my water, but I don't even test to know if the treatment I'm using is working or where I started from, what's my liability there?
SPEAKER_00Well, exactly. Uh monitoring means to test. And you're if you're not testing at all, then you're failing the monitoring test. And that is uh we know that the water lines may not always, despite all the disinfectants, are 100% compliant. So you have to find out a particular unit or particular air water syringe, a particular dental drill, uh, may not be in compliance. So test, test, test, and and correct, correct, correct if the if there's any failure uh of those monitoring tests. And and the the dentist uh will not be able to prove that despite all the SOP for disinfection, if it was never tested, then you can't prove that it really was done A at all or B effectively and efficiently. So the test is the final uh decider. And that was certainly brought out in our mock draw at OSA.
SPEAKER_04Thank you for clarifying that, Ed. And I would direct our listeners to go to our July 3rd podcast from this year, episode number 113, which is titled, What Does a Successful Waterline Protocol Look Like? And I think that will be some very, very helpful information.
SPEAKER_01Thank you, Mary, for adding that. And I think what I enjoyed about the mock trial is that the audience served as the jury. And so, you know, you'd listen to the dentist's talk and people would feel sorry for her. She did so many things correctly, maybe a few things incorrectly, listen to the manufacturer, and he had his story, and then the the uh different experts. So it makes it very real what we experience in the courtroom, and it's been very beneficial to have Ed on our program. I do want to mention to for our listeners that a good publication to keep on your desk is one by the American Dental Association, a dentist guide to the law, 246 things every dentist should know. It's a great publication to review and help minimize your risk. And also, you know, having people like Ed Zinman as a resource, a go-to person, and different attorneys in your state that you work with to keep you out of trouble. So definitely Ed is one of my favorite attorneys. I I love talking with him and learning from him. He's had such a long, successful career as a litigator. And I really appreciate Ed that you spent time with us on teaching our audiences how not to get sued. You know, as the Compliance Divas, we bring clarity and simplicity to compliance by navigating regulatory compliance to keep you on course. You may submit your questions to support at the compliancedevas.com, and we will list any resources that we mentioned during this episode. Thank you for joining us, and thank you, Ed, for being on the show.
SPEAKER_00My honor and my pleasure.