The Making of an Endodontic Expert Witness

By Marc P. Gimbel, D.M.D.

LegalPitfallsApproximately 10 years ago, I was approached by a close colleague of mine at the dental school where I work part-time. He had been consulting as an expert endodontic witness for four decades, and he offered me the chance to take on the defense of a coronal microleakage endodontic failure. It seemed like an interesting opportunity to both apply the literature I had just studied for my ABE exam, and to expand my knowledge, so I took the case, with the promise of mentorship from him.

Since that first case, I have learned a great deal about serving as an expert witness. First of all, it is a lengthy process. The process begins with a review of all records. You work on the clock; all time spent reviewing and researching a case is documented and charged. After a full records review and literature research, findings are reviewed with the hiring attorney, and an informal opinion or position is expressed. This opinion can, at the discretion of the lawyer, either be formalized as a report or dropped. If the report is accepted, the next stage is deposition with opposing lawyers, after which the case can be settled, sent to trial or dropped.

The circumstances of each case are unique and intriguing. My experience has shown that a number of these cases involve a family member who is a lawyer on the plaintiff’s side, potentially blurring the plaintiff attorney’s vision. For example, I was hired by a lawyer (and husband) of a plaintiff who had root canal treatment 10 years prior, with the tooth eventually cracking and requiring extraction. There was insufficient documentation in the charts and radiographs to substantiate the claim that the fracture was associated with a lapse in endodontic treatment. I urged the lawyer/husband not to pursue this matter any further; he followed my advice.

Paresthesia is another common indication for an endodontic expert witness. Paresthesia can be an unforeseen complication of conventional or surgical root canal treatment, and can be life changing for both the patient and the practitioner. In one case, I defended an endodontist who had treated a patient with a pre-existing paresthesia, which did not resolve after conventional endodontic treatment. In my report, I asserted that the defendant had not deviated from the standard of care.

Cases arise under surprising circumstances. In one case, I originally became involved as the treating endodontist; I was referred the patient for four retreatments. The patient had been injured at work and was originally treated by a dentist who participated in the state’s workman’s compensation program. The patient then started restorative work at a different state-sanctioned dental facility. The patient left that facility and moved through a series of dentists and treatment plans, eventually culminating in a multiparty lawsuit for failure to refer to an endodontic specialist as well as deviating from the standard of care. I was originally interviewed by the plaintiff’s attorney as the treating endodontist. After the interview, I was hired as an expert witness for the plaintiff, thereby blocking the defense attorneys from interviewing me. I reviewed the records and submitted a 16-page report, followed by a 7.5-hour deposition at my office with five lawyers and a court stenographer. The case was eventually settled with a $1,000 award to the plaintiff.

As an expert witness, you play an integral role in the development of a case. One case I consulted on involved defending an endodontist who had separated a file without notifying the patient. The patient proceeded to have a long span bridge placed, and eventually lost the tooth and the new bridge. Multiple experts from at least three different states were involved in this case. My opinion after the review of records and prior to any official report was to settle the claim – the cost of hosting the trial and paying the experts would more than surpass any settlement. The defense lawyer took my advice and the case was eventually settled.

As with endodontics, an important part of being an expert witness is case selection. For example, I was approached by an attorney to sign an affidavit of merit without seeing the case materials; I refused. I was asked to review a case of a general dentist attempting to sue the endodontist who had treated him. I refused this case as well.

I have found that serving as an expert witness is like solving a puzzle; you have pieces and perspectives from multiple sources, and putting everything back together again is an interesting challenge. My experiences have opened my eyes to another aspect of dentistry, and I encourage you to take on the challenge as well!

Interested in serving as an expert witness? Here are some things you need:

  • A current CV
  • The ability to stay calm and confident in a deposition/trial
  • Knowledge of the following:
    • Current and classic endodontic literature
    • Procedures, treatments and philosophies taught at your local postgraduate endodontic program
    • AAE and ADA guidelines, position statements, standard of care statements, and policies from the past and present
    • Local State Board guidelines and recent rulings

 

Dr. Marc P. Gimbel is in private practice in Montville, New Jersey, and is a clinical assistant professor at the Rutgers School of Dental Medicine. He can be reached at g2c2endo@optonline.net.