Boars Teeth and the Practice of Dentistry
The Washington State Supreme Court issued an opinion today that is rocking the insurance coverage attorneys. The case is Woo v. Fireman's Fund Insurance Company and can be found here and the dissent here. Dr. Woo, a dentist, had a patient who was also an employee, under a general anesthetic while he extracted two teeth and replaced them with two temporary teeth on a device called a "flipper' (like a bridge). Before he did that however, he had a "flipper" with two boar's teeth or fangs if you will and he inserted those first. Then he had an assistant prop the patient's eyes open while Dr. Woo took a picture. Then he took the boars teeth out and finished the job with the real teeth. This was all done as a practical joke. The patient/employee raised pot-bellied pigs.
Later they gave the patient/employee a present. When she opened it she found the picture inside. Well, she freaked out. She went home and never returned to work and sued the doctor for emotional distress under a number of theories.
Fireman's Fund, Dr. Woo's professional practice provider, refused to defend Dr. Woo as they believed what he did did not constitute the practice of dentistry. He hired an attorney and ended up settling with the plaintiff for $250,000. Then the doctor turned around and sued Fireman's fund for bad faith and violation of the state's consumer protection laws. To define "the practice of dentistry" the policy referred to a state statute which defined the "practice of dentistry". In that definition was included the phrase "a person who owns or operates a dental office". The Court ruled that since, at the time he played the practical joke, he was operating a dental office they concluded that he was practicing dentistry. It is a bit more complicated than that and the opinion was 5-4 so read the case if you want to follow the ends and outs of the Court's reasoning.
I'm blogging about the case because Fireman's Fund was ordered to pay the dentist $250,000 as reimbursement for the money he paid the plaintiff and was further ordered to pay the dentist's attorney fees and damages for emotional distress which totaled $750,000 making his total recovery $1,000,000. So the victim gets $250,000 and the perpetrator gets $1,000,000! And now the good part. On the ballot in Washington this fall is a provision that would provide for treble damages against insurance companies for bad faith. It is being opposed by the insurance industry that is running the usual "greedy trial lawyers" advertisements on TV. If the proposed new law had been in effect Dr. Woo would have been awarded $3,000,000. My oh my that is going to get a lot of air time in the next few months.
