The Injured Dentist: Is Your Work Ethic Hurting You and Your Patients?
By: Edward O. Comitz, Esq. and Patrick T. Stanley, Esq.
Dentists are trained to work through hardship and to be at their best despite illness, pain, or injury. It is not uncommon to hear of dentists going to work even if they are under the weather, suffering pain, or worse. This is a practice that organizational psychologists term “Presenteeism,” and it becomes ingrained in many dentists, as patient demands and modern dentistry require long hours and largely inflexible schedules.
Dentists who develop chronic medical conditions, such as degenerative disc disease, nerve disease, or repetitive use injuries may be tempted to try to work through the pain. In many instances, dentists will reduce their hours or stop performing certain procedures in an attempt to continue practicing for as long as they can. Some will shift to performing more administrative work and spend less time on patient care. Disability insurers have long capitalized on dentists’ work ethic, marketing and selling policies to them with high monthly benefits at attractive prices.
However, continuing to work through adversity can frequently have unintended consequences, both professionally and personally. Many chronic conditions are also progressive, and the choices a dentist makes can have long-lasting repercussions on his personal and professional life. The issues we see with “Presenteeism” broadly fall into three categories: (1) dentists who continue to practice despite physical limitations; (2) dentists who alter their practices to accommodate their limitations without filing a disability insurance claim; and (3) dentists who alter their practices to accommodate their limitations and then file a disability insurance claim.
Pursuing any of these paths can lead a dentist to a place where he or she does not want to be: without the means to make a living and without disability insurance benefits. To understand why, let’s consider how going down each path typically plays out.
The Dentist In Denial
Unfortunately, many dentists may not realize the severity and scope of their limitations, and continue to practice as they always have, despite their deteriorating physical condition. If anything should happen to a patient under these circumstances, the results can be catastrophic, both for the patient and dentist. Regardless of whether the dentist’s medical condition played a role in the injury, the first argument a plaintiff’s malpractice attorney will make is that the dentist should not have been practicing because of his medical condition, an argument that will resonate with a jury.
In addition to the psychological trauma associated with injuring a patient, continuing to practice despite physical limitations can subject the dentist, his practice, and the office at which the procedure was performed to significant civil liability, including potential punitive damages for acting recklessly. It can lead to a dentist’s license being suspended or revoked, and it can lead to a dentist being fired from his position, essentially forcing him out of practice, whether he wants to leave or not.
Equally as frightening, though, is the possibility that the dentist will have no insurance coverage to pay the award. Malpractice policies and state laws frequently prevent insurers from paying awards of punitive damages or covering acts resulting from gross negligence or intentional misconduct. A malpractice insurer may deny coverage for a claim on the basis that the dentist knew or should have known that he was unfit to practice, and therefore his decision to operate on a patient was reckless, leaving the dentist exposed to personal liability.
Adding insult to injury, the dentist’s disability insurer will then argue that losing one’s license to practice is a “legal” disability, rather than a medical disability. The insurer will claim that the license suspension or revocation, rather than a medical disability, is what actually prevents the dentist from practicing, and deny the claim on that basis.
Therefore, a dentist who pushes himself or herself too far can end up in a situation where he or she (1) is personally liable to a patient, (2) has no financial means to pay the judgment, (3) can no longer legally practice, and (4) is not able to collect disability insurance benefits. This can obviously be financially and emotionally devastating.
The Dentist Who Changes His Occupation
Even when dentists can modify their practices or schedules so that they do not risk injuring themselves or a patient, the consequences can nevertheless be profound. The dentist may be physically forced to perform fewer procedures or to work fewer hours over time, until he or she finally reaches the point where there is no choice but to file a disability insurance claim. Unfortunately, modifying one’s practice over time can make it difficult, if not impossible, to collect disability insurance benefits at the time they are most needed.
One of several issues we frequently see with this course of conduct is that, by reducing hours and limiting procedures, dentists change their occupational definition. Most disability insurance policies sold to professionals are touted as “own-occupation” policies, meaning that a dentist is entitled to benefits if he is unable to perform the substantial and material duties of his occupation. However, those policies define a dentist’s occupation as “the occupation in which you are regularly engaged at the time you become totally disabled.” If a dentist has gradually wound down his practice, and is working a reduced schedule performing only certain procedures, he has effectively changed his occupational definition from a full-time clinical dentist to something less.
For example, a periodontist with degenerative disc disease may first stop performing sinus lifts because he or she does not have the ability to bend, flex and turn as necessary in order to safely finish the procedure. As the condition progresses, the periodontist may stop performing block grafts, then stop handling implant procedures, and so on, to the point where the only actual periodontics he or she is performing consists of examinations, occasional procedures and cleanings. By that time, the periodontist’s occupation may be changed to the following: “a periodontist who works part time, 3 days a week, largely performing examinations; responsible for overseeing associate periodontist, hygienist and staff; involved more as a practice owner/manager.” By gradually changing responsibilities prior to filing a disability insurance claim, the periodontist in the example above may find it very difficult to prove that he or she is, or ever will be, totally disabled from what now is less strenuous, part-time work involving non-clinical practice management.
The Dentist Who Trusts His Insurance Company
Some disability insurance policies also offer “residual disability” or “partial disability” riders. At first blush, this coverage seems like it would be well-suited for individuals with chronic and progressive medical conditions: the disability insurer will pay benefits if the dentist is unable to work full-time, allowing the dentist to limit his practice while preserving his pre-disability occupational definition. In practice, however, the residual disability benefit is not as attractive.
First, claiming disability benefits will give the insurer free reign to demand extensive financial records under the auspices of “investigating” the extent to which a medical condition has reduced a dentist’s income. Insurers will pore over CDT codes, profit and loss statements, employment agreements, balance sheets and similar documents to see if there is some reason, other than the medical condition, that could plausibly explain the drop in income. If so, they will often deny the claim based on an inability to prove that the condition caused the loss in earnings.
Even if the claim is paid, it is based on how much the insurance company thinks you can work, not on how much you are actually working. So if the insurance company thinks that you can work making 75% of your pre-disability earnings, but you are only making 50%, it will reduce your benefit amount accordingly.
The residual disability benefit is also often more attractive to a disability insurer because the maximum benefit period is often shorter for residual disability claims than it is for total disability claims. If an insurer can characterize a claim as residual rather than total, it may only need to pay benefits for 60 months or to age 65, whereas a claim for total disability benefits could be payable for life.
With this backdrop and scrutiny, it is not surprising that very few residual disability claims ever turn into total disability claims, even if the dentist stops working completely. The insurer will continue to pay a fraction of the benefits until the maximum benefit period has been reached, at which time the insured will be left without any coverage at all.
To complicate matters, we often see overlap between two or more of these categories. For example, a dentist will work too long and risk hurting a patient, then react by immediately limiting his schedule, and then at some point down the road look to his disability insurance policy for coverage. The dentist will often only seek legal help after a claim is denied or terminated, at which point the time, effort and expense of putting the claim back on track, as well as the risk of an unfavorable result, increase exponentially.
The best solution to avoiding these pitfalls is to engage experienced legal help early in the process, before a claim has been filed and before any work schedules have been altered. Although it can be a difficult pill to swallow for dentists who have been trained to push through adversity, it is necessary to understand and accept the limitations imposed by one’s condition, as well as the rights available under a disability insurance policy, as early as possible.
* Edward O. Comitz, Esq. heads the Health and Disability Insurance Practice Section at Comitz | Beethe, 6720 North Scottsdale Road, Suite 150, Scottsdale, Arizona 85253, (480) 998-7800. Mr. Comitz has extensive experience in disability insurance coverage and bad faith litigation, primarily representing medical and dental professionals in reversing denials of their disability claims. Comitz | Beethe has offices in Scottsdale (Phoenix), Tucson and Flagstaff, Arizona.
* Patrick T. Stanley, Esq. is a shareholder practicing in the Health and Disability Insurance Practice Section at Comitz | Beethe. He has worked with Mr. Comitz on a number of matters, representing medical and dental professionals in their struggle to obtain and secure disability insurance benefits.
The information in this article has been prepared for informational purposes only and does not constitute legal advice. Anyone reading this article should not act on any information contained therein without seeking professional counsel from an attorney. The author and publisher shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.