386 Forensic dentistry
violations of the penal code, in the civil justice system, tort claims are made on
the basis of injury or harm. Based on this allegation of injury or harm, a claim
is made for damages. The remedy for these damages is monetary, unlike the
criminal justice system, where life or liberty is at stake. Only certain types of
damages are recoverable in the civil litigation system. Recoverable damages
include loss of earnings, reasonable medical expenses, pain and suffering,
and in some cases punitive damages.
Dentists may become involved in almost any type of civil litigation.
However, as health care professionals, dentists are more likely to become
involved in two types of civil litigation: standard of care (malpractice) and
personal injury. Dentists may become involved in these types of litigation
in many ways—often as a practicing dentist against whom malpractice is
alleged or as an expert witness testifying on behalf of the plaintiff or the
defendant dentist. A dentist may also be called to testify as a subsequent
treating dentist (one who cared for the patient after the alleged malpractice
occurred) or even as a dentist who cared for the patient prior to the incident
in question. In these situations the dentist plays a role similar to an expert,
from whom opinion testimony may be sought.
16.3.1 The Civil Litigation Process
As a defendant in a civil litigation matter, the process invariably begins with
a summons. This serves the defendant with notification that a claim (or suit)
has been filed. A legal answer to the summons or claim must be filed with
the court in a timely fashion or a default judgment may be issued in favor of
the complainant. Therefore, a dentist should immediately notify his or her
insurance carrier whenever a claim or summons is received. Typically, the
summons will be answered in writing and the response will trigger one of
three actions by opposing counsel: (1) dismissal of the suit, (2) settlement
of the suit, or (3) initiation of the discovery process. If either of the first two
responses occurs, the process is essentially concluded.
However, if the suit is not dismissed or settled, the evidence gathering
stage of the suit begins, and this process is called discovery. Plaintiff experts
often become involved prior to filing suit, in order to determine whether
a claim should be filed. However, defense experts usually do not become
involved until after a case is filed and discovery begins. The discovery pro-
cess allows evidence relevant to the suit to be gathered by both parties. This
process is controlled by the court and is meant to eliminate surprises in
court. By sharing information with both parties, settlement of the suit is
encouraged before trial. The discovery of evidence takes place by means of
subpoenas, interrogatories, and depositions. An expert witness must prepare
for deposition and related matters with the same degree of attention to detail
as if preparing for courtroom testimony.