When dentists think of lawyers, many questions invariably arise regarding malpractice claims. The reality is, despite all reasonable opportunities for education and precaution, the inevitable occurs, and a malpractice lawsuit is filed. The purpose of this article is to guide the dental professional through the initial phase of litigation, that is, from receipt of the summons and complaint to retaining a lawyer to represent you.

First: Don't Panic
Remember, this is a lawsuit, and not a life or death situation. Irrespective of the outcome, you will survive and most likely prosper even under the most adverse conditions, and positive-thinking clients fare far better than their counterparts. Between now and trial, your practice will be affected only if you allow it.

The Complaint and Service of Process
A lawsuit is initiated by two events. First, the petition is filed with the court. The petition is the "complaint," and is a multi-page document containing the names of the plaintiffs (the persons suing you) and defendants (i.e., you, your business, your spouse, and possibly others), a brief recitation of the facts and law, and a demand for a remedy (usually money).

The United States and most state constitutions require that the complaint be timely issued to you, and that you receive a reasonable opportunity to defend yourself. Delivery of the complaint and another document called the summons to you is deemed "service. " Service is formal notice that you have been sued. You should be aware of certain laws regarding service and how it may affect the case. In Texas, you usually have until 10:00 a.m. on the Monday following 20 days from the date of service to respond with an "answer," which is usually a general denial of all of the claims made in the complaint, and is your "appearance" before the court in the matter. If an answer is not timely filed, then the plaintiff may take a default judgment against you, and you lose, and overturning a default judgment on appeal is not favored by the law. Therefore, because the date and time of service is so important, it is recommended that you immediately record, in pencil, the exact date and time of service on the summons itself, as process servers make human errors and it is best to independently record the facts surrounding service.

Report a Lawsuit to Your Carrier Immediately
Of all the litigation procedures applicable to you, one is more important than in the others- telephone your malpractice carrier the very day you are served! Not the next day, or when it is convenient, but the very day. This is important in avoiding a default judgment.

There is also a personal financial incentive to avoid a default. Most insurance policies contain a "cooperation clause.' As the name implies, the insured (you) is contractually bound to cooperate with the defense of the case. If you failed to timely notify the insurer, then you may have breached this provision. While an insurance company must pay any judgment within the policy limits, a carrier may not be liable to pay a default judgment. Inaction may transform your status from fully insured to uninsured. Once the insurance adjuster has been notified, then the burden falls on him or her to retain counsel and ensure that a default does not become reality.

Do Not Contact Other Treating Dentists
One of the most immediate and natural reactions to alleged malpractice is to seek exoneration/comfort from subsequent treating dentists. While it is true that this practitioner can be your best ally, this is not the time to garner support. All conversations with this dentist can be discovered later. Many times friends unwittingly produce unfortunate testimony. By initiating a telephone call to another practitioner, you take an unknowing risk that these private conversations will not be uncovered. When your colleague is compelled under law to reveal your conversations, any real chance of winning the case may be forfeited.

Selecting an Attorney
Once the carrier is notified, the next important event is choosing counsel to defend you. Your insurance company will pay for an attorney to represent you - a substantial benefit indeed! But who should defend you and will the selection be made by you or the carrier?

The answer may be found by simply reviewing your insurance policy. Many professional malpractice policies give the insured the right to select, or at least offer substantial input toward retaining an attorney. If you have contracted for this right, then many factors must be weighed to reach a proper decision. Even if you exercise this option, I always recommend that you seek the guidance of the insurance adjuster. From experience, he or she has valuable insights that you, as the novice, lack.

Another consideration may be whether or not you should consult or hire your own personal attorney. When determining who should represent you, explore (1) the number of civil (not criminal) cases the lawyer has tried; (2) how many he or she has tried to a jury as opposed to the "bench" trial (where the judge, not a jury, makes the ultimate determination); (3) how many cases he or she has tried by him- or herself; (4) how many cases involved health-related and hopefully dental malpractice; and (5) how many were tried to a conclusion, meaning the jury returned its verdict.

Counterclaim
Many malpractice lawsuits concomitantly involve unpaid fees on the patient's billing statement. Should a counterclaim be brought in response to the patients complaint? There are several considerations to this decision.

The law classifies counterclaims in two ways. "Mandatory" counterclaim arises from the same set of facts and must be brought in a single action or it is waived. Since payment of fees arises from the subject matter of the complaint, most financial counterclaims will be mandatory. "Permissive" counterclaims, on the other hand, involve an unrelated set of' facts and may be included in the malpractice action at the defendant's discretion. You should consult your attorney to determine whether a counterclaim may be brought.

Conclusion
Once again, the purpose of this article is to guide the dental professional through the initial phase of litigation. Remember, the most important things to remember are not to panic, and telephone your malpractice carrier immediately. The goal is to assess the nature of the complaint, and to assist your carrier and/or attorney in supporting your position and properly defending yourself to a successful resolution.

REFERENCES:
Jeffrey J. Tonner, J.D.: Malpractice: What They Don't Teach You in Dental School, 1996. Texas Rules of Civil Procedure.

Boyd W. Shepherd is licensed to practice law and dentistry in the state of Texas, and is a member of the GHDS, TDA, and ADA.