|
Legal Standpoint
The information presented on this site is of personal opinion and consequently is slanted and biased and not based on proper scientific research. The information presented is NOT written by a dental expert. Further the information presented has NOT been subjected to peer review by experts to verify accuracy and data integrity.
After talking with lawyers and dentists about wisdom teeth removal, complications are bound to happen. Lawyers tend to jump on a wisdom teeth removal case that caused serious complications if the patient is older than 40. This is because most oral surgeons and dentists recommend a conservative approach to patients who are over 40 years of age. This is because most of them feel that there is a much greater risk and chance of complications at this point.
So lets say hypothetically that you were instructed by your dentist at the age of 19 to have your wisdom teeth removed because they were impacted. However, you are not willing to take on the risks of surgery and decide to have him/her keep an eye on them. At the age of 42, you start to have an infection and a lot of pain on your lower wisdom teeth. Instead of trying to cure the infection and manage the pain, you see an oral surgeon who recommends the removal of the lower wisdom teeth. This ends up severing your trigeminal nerve and causing you extreme bouts of pain.
You decide to find a lawyer and of course one files your case right away. You are offered a settlement for a large amount of money out of court and decide to take it. While you are left with constant pain and a decreased quality of life for the rest of your life, you also recieved compensation. If you would have had the same complication occur at the age of 19 you would have likely not received settlement or not as likely to have received the settlement. In addition, you would have had to deal with the life altering complication for over 20 years more.
In the case of the website owner the complication experienced from getting my wisdom teeth out is not documented well in any literature. An expert reviewed the case who was selected by a lawyer. The expert concluded there were no grounds for malpractice because the constant chronic headache could not be tied to wisdom teeth removal. Thus no compensatation occured financially for constant pain, suffering, and loss of earnings.
Medically, there is no scientific evidence to support removing healthy impacted wisdom teeth. However, the current legal system is generally based on norms of practice or local or regional standards of care, ignoring any potential scientific evidence. If the expert oral and maxillofacial surgeon says the surgery is necessary, then it is necessary. Thus, the prevalent practice of healthy impacted wisdom teeth removal is the standard of care in America, even though that standard is potentially based on an erroneous evaluation of all outcomes and costs.
The state of California passed a law in 1975 known as the Medical Injury Compensation Reform Act (MICRA) which states that $250,000 is the maximum amount allowed for pain and suffering caused by a doctor. This damage cap was inacted in 1975 and has not been adjusted for inflation. $250,000 in 1975 adjusted for inflation by using the U.S. Consumer Price Index is equivalent to around $1.2 million in 2019 dollars. However, again $250,000 is the maximum awarded. Thinking about this slightly differently, around $52,500 is what the equivalent cap expressed in 2019 dollars would have been in 1975. [16] A similar damage cap of $250,000 for pain and suffering caused by a doctor was enancted in 2003 in Texas.
This is a small amount for young patients left with permanent pain and suffering, and anyone considering major surgery such as wisdom teeth removal should NOT have the surgery done in California and Texas and any other state with such a small damage cap. Other states in the U.S. also have so called liability caps, so please do your research on your state. For certain serious injuries occuring as a result of wisdom teeth removal the argument can be made that an award of $250,000 is extremely unfair, unjust, and ridiculous.
To complicate the matters even worse, each state in the U.S. has it's own amount of time before the suit has to be filed known as the statute of limitations. If the lawsuit is not filed within the time allowed it can never be. A document provided by the Medical Professional Liability Association shows (in 2013) U.S. state statute of limitations, medical malpractice non-economic damage cap which includes pain and suffering, and economic damage cap which includes medical expenses and lost wages https://www.mplassociation.org/docs/GR/State_Enactments_with_Citations_4-2013_logo_update.pdf. You can also visit the American Tort Reform Association's website at http://www.atra.org/issue/medical-liability-reform/ to look further into your state.
Damage caps and statue of limitations are efforts in response to malpractice suits that U.S. states have implemented in order to reduce the overall costs of malpractice litigation. Other forms of tort reform as it is known has also occured. Different arguments exist for the reason of implementing tort reform such as to punish greedy profit driven lawyers, stop defensive medicine, lower the high cost of medical liability insurance, increase access to care, corporations unable to defend frivolous suits, and corporations facing global competitive disadvantages due to litigation and insurance liability costs. [17, 23, 26]
Note that the American Medical Association, American Dental Association, and American Association of Oral and Maxillofacial Surgeons in the past have advocated for "...federal legislation [H.R. 5] based on proven MLR [medical liability reform] already working in states such as California and Texas to reduce health care costs and keep physicians caring for patients." Really? If physicians cared for their patients they would not want them to have a $250,000 award ceiling which especially for a young patient is simply too low if they are facing a lifetime of pain and suffering. This type of legislation is designed to substantially reduce the rights of patients and limit the accountability for doctors, insurers, manufacturers, and all in the medical industry. This type of legislation punishes those who have suffered from malpractice, faulty medical devices, dangerous drugs, and other harms. It allows for doctors without morals and ethics, drug companies, insurance companies, medical device companies, and others in the healthcare industry to continue to conduct business as usual and simply write off the cost of the damage award as a cost of doing business on their balance sheets. [17, 18, 22, 23, 30]
Therefore, from a legal standpoint there is a clear benefit in "watchful monitoring" of healthy impacted wisdom teeth.
For those interested, there are three categories of which tort reform falls into: [7, 21]
- implement barriers to limit the amount of suits being filed and prevent suits from reaching trial
- limit the amount the plaintiff (as in the patient suing) can be awarded
- change the way the damage awards are paid (to the patient suing)
Besides statutes of limitations those that fall in category 1 include limits on attorney contingency-fees which limit the amount the plaintiff's attorney can receive in the event of a successful (favorable) lawsuit. This is typically either a percentage of the award given or a maximum dollar amount. Also in category 1 is a pretrail screening panel which reviews a malpractice case in an early stage to determine if it has any merit to warrant trial. Also in category 1 is a certificate-of-merit requirement which requires that at the time of filing a malpractice claim or shortly after, an affidavit must certify that a qualified medical expert believes that there is a reasonable cause (merit) for the suit. [7, 21]
Besides damage caps tort reform in category 2 also includes collateral-source rule reform which eliminates a traditional rule that if an injured plaintiff receives compensation for her injury from other sources, such as health insurance, life insurance, worker's compenstation, and automobile insurance, that payment should not be subtracted from the amount (damage award) that a defendant who is found liable for that injury must pay. [7, 29]
Those in category 3 include periodic payment of future damages which causes malpractice awards to be paid over some period of time. In addition joint-and-several liability reform falls in category 3 which in cases where more than one defendant such as both a doctor and medical installation company are found guilty than the financial liability of each defendant is whatever percentage of fault the jury allocated. [7]
Updated May 30, 2019
References
1. Friedman JW. The prophylactic extraction of third molars: a public health hazard. Am J. Public Health 2007;97:1554-1559. http://www.ajph.org/cgi/content/full/97/9/1554
2.
Silvers, Langsam & Weitzman, P.C. May 24, 2011.
3. Fred J. Hellinger and William E. Encinosa. The Impact of State Laws Limiting Malpractice Awards on the Geographic Distribution of Physicians. July 3, 2003.
U.S. Department of Health and Human Services, Agency for Healthcare Research and Quality (AHRQ).
4. State enactments of selected health care liability reforms. Medical Professional Liability Association formerly Physician Insurers Association of America. Rockville, Maryland. April 29, 2013. Mirror: https://www.teethremoval.com/State_enactments_of_selected_health_care_liability_reforms.pdf
5. Fred J. Hellinger and William E. Encinosa. Review of Reforms to Our Medical Liability System.
December 31, 2009.
U.S. Department of Health and Human Services, Agency for Healthcare Research and Quality (AHRQ).
6. Non-economic damages caps. Wikipedia. http://en.wikipedia.org/wiki/Non-economic_damages_caps
7. Michelle M. Mello. Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms. The Robert Wood Johnson Foundation. Research Synthesis Report No. 10. May 2006.
8.
J. Robert Hunter, Gillian Cassell-Stiga, and Joanne Doroshow. True Risk: Medical Liability, Malpractice Insurance and Health Care. Americans for Insurance Reform, July 22, 2009.
9.
United States General Accounting Office (GAO). Medical Malpractice: Implications of Rising Premiums on Access to Health Care. GAO-03-836. August 2003. http://www.gao.gov/new.items/d03836.pdf
10.
Congressional Budget Office (CBO). Limiting Tort Liability for Medical Malpractice. January 8, 2004.
11. Protect Patients Now. http://www.protectpatientsnow.org/
12. William E. Encinosa and Fred J. Hellinger. Have State Caps On Malpractice Awards Increased The Supply Of Physicians? Health Affairs. W5 - 250-258. May 2005.
13. Kenneth E. Thorpe.
The Medical Malpractice 'Crisis': Recent Trends And The Impact Of State Tort Reforms. Health Affairs. W4 - 20-30. January 2004.
14. Nicholas M. Pace, Daniela Golinelli, and Laura Zakaras.
Capping Non-Economic Awards in Medical Malpractice Trials: California Jury Verdicts Under MICRA. RAND Institute for Civil Justice. 2004. http://www.rand.org/pubs/monographs/2004/RAND_MG234.pdf
15. David M. Studdert, Y. Tony Yang and Michelle M. Mello. Are Damages Caps Regressive? A Study Of Malpractice Jury Verdicts In California. Health Affairs. vol. 23. no. 4. pages 54-67. July 2004.
16. CPI Inflation Calculator. http://data.bls.gov/cgi-bin/cpicalc.pl
17.
American Medical Assocition. Medical Liability Reform Now! The Facts you need to address the broken medical liability system. 2013 edition.
18. Nancy Udell and David B. Kendall. Progressive
Policy Institute. Health Courts Fair and Reliable Justice for Injured Patients. February 2005.
19. Howard Mishkin. Doctors accountable for their mistakes? June 4, 2011.
20. David M. Studdert and et al. Claims, Errors, and Compensation Payments in Medical Malpractice Litigation. New England Journal of Medicine. 354. pages 2024-2033. May 11, 2006.
21. Allen Kachalia and Michelle M. Mello. New Directions in Medical Liability Reform. New England Journal of Medicine. 364. pages 1564-1572. April 11, 2011.
22. Christine Hines. H.R. 5: A Medical Industry Handout and a Theft of Consumers' Rights; Epidemic of Medical Errors Must Be Addressed. April 6, 2011. http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=3311 July 4, 2011.
23. Ken Connor. The GOP's Selective Consitutionalism. January 28, 2011.
24. Joan Claybrook.
The Inequitable Impact Of Non-Economic Damage Caps: Three Academic Studies Demonstrate Severely Injured and Female Patients Are Hurt the Most. Public Citizen. http://www.citizen.org/documents/HarvardRandFactsheet.pdf
25. David M. Studdert, Y. Tony Yang and Michelle M. Mello. Are Damages Caps Regressive? A Study Of Malpractice Jury Verdicts In California. Health Affairs. vol. 23. no. 4. pages 54-67. July 2004.
26. Lucinda M. Finley. The Hidden Victms of Tort Reform: Women, Children, and the Elderly.
Paper Delivered to Thrower Symposium, Emory Law School, February 19, 2004.
27. Aaron Carroll. Reader question - Doesn't Texas prove you wrong? February 5, 2010. http://theincidentaleconomist.com/wordpress/reader-question-doesnt-texas-prove-you-wrong/ Accessed July 9, 2011.
28. Margaret Carlson. Hot Coffee, Cold Cash and Torts. Bloomberg. July 13, 2011. http://www.bloomberg.com/news/2011-07-13/hot-coffee-cold-cash-and-the-tort-reform-con-margaret-carlson.html Accessed July 16, 2011.
29. Congressional Budget Office (CBO). Dear Senator Letter: Orrin G. Hatch. October 9, 2009.
30. Hot Coffee. HBO films. Aired June 27, 2011. http://www.imdb.com/title/tt1445203/
| |
