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June 2009 | dentalproductsreport.com
web exclusive

The process of litigation
and the dentist

Being prepared and choosing appropriate legal council for the case at hand can mean the difference between success and failure when a lawsuit against a dentist or practice occurs.

by Bruce Bryen, CPA

Photo: rubberball/Getty Images

Few lawsuits take place in which dentists are sued by their patients. Most of the legal cases involving dentists are self inflicted and involved dentists taking each other to court.

Dentists sue each other over employment issues with associates, conflicts within the meaning of ownership agreements and profit sharing language, retirement issues and management responsibilities of the dental practice. Another issue where prosecution in court is prevalent in the dental profession is divorce. Because of the constant stress relating to dentistry, the number of cases involving divorce seems to be rising. With the financial markets where they are today and dental practices struggling to retain income, additional problems start taking place at home as well as in the office. When the dentist goes to his or her house after work and discussions about lifestyle are on the agenda, matrimonial pressure builds.

How to prepare for a lawsuit
Many times litigation can not be helped. Even the most reasonable and compromising person can sometimes not give in enough to avoid litigation. A point can be reached where no more compromise takes place. When there is no other course of action to take other than a lawsuit, what does one do to prepare?

The most surprising point to see in preparation for a lawsuit is the choice of professionals retained by the dentist. When a dentist counsels a patient on oral hygiene, the steps outlined for the patient are usually meticulous with the emphasis on doing what is the best, taking no short cuts and consistently applying the proper approaches to good dental care. If a specialist is needed, the dentist will refer his or her patient to the best person in the field for the specific problem. The cost of the best care is discussed by the specialist and the patient and arrangements are normally made so the treatment plan can be implemented.

In lawsuits involving the dentist, typically the professionals the dentist retains are not specialists in the field that is being litigated. The dentist looks at the cost and forgets that a divorce attorney is not a specialist in litigating an employment agreement dispute. If a practice valuation is at issue because a partnership is in the process of dissolving, a mergers and acquisitions attorney and accountant who are experienced in the field of manufacturing are not needed. What is needed is an attorney with dental experience and an accountant who has expertise in professional practice valuations and experience as an expert witness in that particular area.

The best advice that can be given to a dentist is to retain the most able, experienced professionals in the specific field of litigation that is in process. Do not hire a general practice attorney or accountant with few professional clients. Besides the resume of each, which is critical to a judge and jury for credibility purposes, the knowledge of the particular nuances of dentistry is not known to those advisors who work extensively with non professional practices. It is important to find the most reasonable cost possible but the cheapest fees today may end up being the most expensive if the case is lost because of the lack of experience and credibility by those experts. When your advisors declare they have presented hundreds of cases involving dentists and the opposition reflects a resume with few professional clients, the judge will weigh that information heavily in your favor.

Preparing for the legal process
Meet with the experts and discuss the facts of the case. Be honest with your advisors. They will not be able to assist you if they do not know the full truth of the situation. If they do know, they may be able to turn a negative factor into a positive that will assist in winning the case or at least settling the litigation for less than what was previously thought. If they are surprised at a deposition or in the discovery process, there is little chance to recover.

The disputes involving litigation can seem over whelming. The amount of time and money involved takes a tremendous toll on emotions and on the dentist’s finances. During the discovery process an enormous amount of time is spent away from the practice in order to respond to data requests, attend depositions and meet with your own attorneys and experts. The best advice is to answer any document request as quickly as possible and to try to refrain from calling your advisors unless it is really necessary. Constant calling is a sure way to increase your costs.

Supply only what is requested. Your experts have probably narrowed the demand for the production of information from an original overly broad approach to a more specific information report that will assist them without any need for data that is not going to help. Supplying extraneous data may make you feel better because you are able to let out your pent up emotions, but it does not assist in prosecuting the case, and in fact, causes your professional fees to increase because your attorney and experts must review what is sent to them.

What happens next?
After the interrogatory process, the discovery, depositions and preparation for trial, there is usually at least another attempt at settling. After each party to the litigation has spent considerable sums in preparation for the trial, someone may be ready to compromise and resolve the issues prior to a court date in front of the judge or jury. Surprisingly, many cases settle on the doorsteps of the court room or even moments before a decision is about to be rendered. It is never too late to resolve the issues without a decision being entered by the judge. While the procedures are taking place and money is being spent, think about the cost of continuing the case compared to the cost of the settlement and the ability to continue an uninterrupted practice. It is usually cheaper in the long term to settle a case rather than to await the decision from the courts.

Bruce Bryen is a partner in The Snyder Group and managing partner for Bryen & Bryen LLP, Certified Public Accountants.  Based in New Jersey, Mr. Bryen specializes in deferred compensation such as retirement plans, income and estate tax planning, the determination of the proper organizational format, asset protection and structuring loan packages for presentation to financial institutions. Bruce is also experienced in providing litigation support services and has testified on numerous occasions as an expert witness.  Contact him at 800-988-5674, ext. 112.

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