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Practice More Safely // Risk Tips // Negligence Leads to Aspirated Foreign Object and Lawsuit

Negligence Leads to Aspirated Foreign Object and Lawsuit

Case Study

Marc Leffler, DDS, Esq., & Mario Catalano, DDS, MAGD
June 18, 2024

Reading time: 9 minutes

A dental tooth model with metal dentistry tools.

Background Facts

Dr. H, a pediatric dentist in a rural area, saw a 13-year-old male patient whom she had treated since he was about 5. Over the years, his treatments consisted solely of periodic prophylaxis and a few sealants. At this visit, the patient’s mother recounted that he had been struck on the upper lip with a baseball several months prior. Although the lip had swelled at the time, no dental symptoms had occurred until a few days before the office visit, when tooth 9 — the upper left central incisor — began to hurt.

Dr. H updated the patient’s medical history, gathered more details about the baseball incident, took a periapical radiograph of the upper anterior region, and performed vitality testing of the upper incisors. The symptoms and examination results indicated that tooth 9 needed endodontic treatment. After Dr. H explained the endodontic process and what to expect following it (in terms of restoration and tooth longevity), the patient’s mother agreed to have Dr. H proceed.

Upon receiving the local anesthesia infiltration, the patient squirmed in the chair, but generally tolerated it. However, when Dr. H approached him with a rubber dam and began to place it, the patient became scared and pushed the dentist away. Dr. H explained to him why she needed to place the dam, and then she tried again. The patient continued to push it away and yell that he did not want it in his mouth. Dr. H tried a third time (while administering N2O/O2 by nasal hood), but was still unsuccessful. She then decided to go forward without a dam in place.

The patient became agitated as Dr. H gained access into the pulp, but she was able to complete that step. Once the filing began, the patient responded by moving around, flailing, and yelling. Dr. H lost control of the #10 file in her hand and dropped it into the patient’s mouth, where it traveled toward the oropharynx.

Dr. H firmly told the patient that he needed to stay still as she tried to grab the file with college pliers, but he continued his previous behavior and began coughing incessantly. Dr. H eventually lost sight of the file. She was able to calm the patient by telling him “I’m not doing it anymore,” which allowed her to place suction as far posteriorly as she could. Although the patient’s coughing subsided, Dr. H was unable to locate the file.

The closest hospital was about 40 minutes away, so Dr. H told the patient’s mother to take him to a free-standing medical office down the street. Dr. H did not call ahead to alert the medical office of the patient’s condition or imminent arrival. After a 30-minute wait at the medical office, a chest X-ray was taken that showed a foreign object in the right main bronchus. The physician was unsure about what he saw, so he sent the patient to the hospital and simultaneously emailed a digital version of the film to its emergency department (ED). When the patient arrived at the ED, another chest X-ray was taken that revealed the aspirated dental file in the right lung.

Once an appropriate amount of time had passed to ensure that the patient’s stomach was empty, the on-call pulmonologist performed a bronchoscopy under general anesthesia and retrieved the file. The patient remained in the hospital until the following evening and then regularly followed up with the pulmonologist. He reported shortness of breath, frequent coughing, and chest discomfort for months. The pulmonologist stated that no treatment was indicated and noted that the patient could potentially experience the symptoms indefinitely.

Legal Action

The patient’s family retained an attorney to seek compensation for what the patient had endured and for his ongoing symptoms, which did not seem to be improving. Before filing suit, the plaintiff’s attorney contacted Dr. H’s malpractice insurance carrier to discuss the situation, claiming that Dr. H was negligent in performing endodontics without a rubber dam (especially on a scared child), and in failing to take any other measures to protect against a swallowing or aspiration event.

The plaintiff’s attorney would not agree to any settlement until it could be determined whether the patient’s ongoing symptoms would be long-term or permanent. (The extended statute of limitations for minors in many, if not all, states allows more than ample time to take a “wait-and-see” approach regarding any longstanding effects.) Approximately 1.5 years after the incident, the patient was able to resume normal activities, and he voiced no further issues.

At that point, the plaintiff’s attorney filed a lawsuit. The malpractice insurance carrier obtained Dr. H’s consent to settle the case (an allowance that her policy contained). The plaintiff’s attorney then worked with the carrier’s claims representative to reach a settlement agreement that satisfied the patient’s parents as well as the court, the latter of which is frequently required in cases involving injured minors to ensure that settlement funds are appropriately set aside for the child and that the magnitude of the injuries is fully known to the extent reasonably possible.

Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

The first issue to consider in relation to this case is informed consent, the requirements of which vary among states. Generally, prior to invasive procedures, dentists are obligated to advise a patient (or a minor patient’s parent or legal guardian) of the foreseeable risks of the proposed procedure, its expected benefits, and any reasonable alternatives. This discussion should take place before obtaining consent or refusal to move forward with treatment.

An important consideration in this case is whether aspiration of a dental endodontic file is a risk that is foreseeable — a determination that dentists must decide for themselves. Traditionally, foreseeable risks are viewed as those that are known to occur in the absence of negligence; however, as with many legal concepts, the definition is not precise. Because of this, dentists often are left to determine whether such a pre-procedure warning is appropriate.

From a risk management perspective, providing more information to patients to help them make better decisions is generally recommended. However, obtaining informed consent does not absolve dentists from liability if they fail to comply with the standard of care, and patients cannot “sign away” their rights to have non-negligent treatment.

Another issue in this case was the rubber dam. Many dentists do not use rubber dams during root canal therapy or related procedures due to personal choice, impossibility in placement, or patient intolerance. However, experience shows that plaintiffs can easily find expert witnesses who will testify that the failure to use a rubber dam for endodontics is a departure from the standard of care. Defendant dentists, on the other hand, might face an uphill battle finding credible experts to testify in support of them, especially when no other protective measures were in place to counter the risks of swallowing/aspirating a foreign object or preventing potential infections.

In this case, Dr. H decided to proceed with treatment without a rubber dam in place, rather than deferring treatment until she could take a safer approach. Alternative approaches include pre-procedure sedatives, performing the treatment in a hospital under general anesthesia, performing the treatment in the office with a practitioner who is skilled in sedating or generally anesthetizing children, or employing some other means of mitigating the child’s intolerance.

Dr. H also did not use any other precautions, such as setting up a gauze barrier to catch a foreign object forward of the oropharynx, tying a piece of dental floss through the hole in the file’s handle to assist in easy retrieval should the file slip, or using one of the other protective devices available on the market. As such, Dr. H compromised her initial plan without considering her other options.

A final and important point relates to the personal relationship between dentists and patients — a critical part of dental practice. At a time when the patient and his mother were understandably upset, and the patient was in some degree of distress, they were left to travel to the local medical office and then to the hospital on their own. Had Dr. H or a member of her staff accompanied them, it likely would have had some calming effect, and it certainly would have communicated Dr. H’s concern for her patient. Whether that would have changed the family’s decision to retain an attorney and to proceed as they did cannot be known. However, dentists often can assuage situations when they demonstrate that they care about their patients by regularly communicating with them during treatment periods, especially when problems or complications arise.

Summary Suggestions

The following suggestions may be helpful to dentists seeking to minimize their patients’ risk of a swallowing or aspiration event:

  • Recognize that a variety of foreign objects can be swallowed or aspirated, including implant materials; tooth fragments; orthodontic wires, brackets/bands; crowns; repair materials; and pieces or the entirety of a bur. The potential for foreign object swallowing or aspiration affects nearly all types of dental practitioners.
  • Evaluate all patients to determine their appropriateness for treatment at the time of the procedure. Patients who are sedated and/or under general anesthesia lose their protective pharyngeal reflexes, so particular care should be taken to prevent objects from falling to the back of the mouth.
  • Follow simple safety precautions to prevent the swallowing or aspiration of a bur. First, never reuse single-use burs. These burs are not designed to withstand the temperatures associated with sterilization, which makes them more prone to breakage when they are reused. Second, be sure that the bur is fully seated in the handpiece prior to use and that the handpiece’s gripping mechanism is functioning properly. Run the bur briefly prior to entering the oral cavity, and away from the patient’s face, to make sure that it is not loose.
  • Use retrieval methods to assist in preventing the swallowing or aspiration of a foreign object. If the instrument you are using has a retrieval hole (e.g., on endodontic files and reamers) or a slot (e.g., on implant hand instruments), be sure to place a piece of dental floss through or around it to assist in retrieving the object if it slips. Crowns are smooth and can easily slip out of your fingers, and teeth are known to break during extraction or slip from forceps. Tying floss around crowns and teeth is not viable, so other protective means — such as oropharyngeal gauze barriers or rubber dams (when appropriate) — are critical.
  • Employ alternatives to rubber dams when patients will not tolerate them or other circumstances prevent their use. Understandably, rubber dams make many patients feel claustrophobic, which could result in irrational behavior or a medical emergency.
  • Keep MedPro’s swallowed/aspirated foreign object protocol close at hand in case swallowing or aspiration does occur (see appendix). A prompt and appropriate response to this event can be beneficial in minimizing the degree of injury.

Conclusion

Not all adverse events that occur in the practice of dentistry can be avoided. Yet, events that occur with regularity should be anticipated, and reasonable steps should be taken to prevent them. Similarly, when adverse events do occur, prompt and appropriate responses frequently minimize suboptimal outcomes. As with so many aspects of dental risk management, preparation is the key to the best possible result.

Appendix. Assessment Matrix for Swallowed/Aspirated Foreign Object

Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

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A teen patient’s persistent maxillary pain led to multiple root canal treatments, but the true cause went undiagnosed for months. The case highlights the risks of narrow diagnosis, missed referrals, and how treating a minor can extend malpractice exposure well beyond the expected timeframe.









Key Concepts





    

  • Malpractice risks associated with missed diagnoses
    • 




  • Minors and the statute of limitations
    • 




  • The importance of tail coverage
    • 










Background facts





Dr. S was a well-experienced dental practitioner who focused on the care of children, although not a pediatric dentist: she found the work challenging, yet rewarding, especially when those children later brought their own children to be treated.  R, age 16, was one such patient, whose father, as a teenager, treated with Dr. S when she was new to practice.  Severe, right maxillary pain, with persistent headaches led R to come to the office, outside of the routine of his usual 6-month recall visits.  By way of evaluating appropriate periapical films of the upper right molars and premolars, as well as a clinical examination with multiple dental testing modalities that demonstrated equivocal findings, Dr. S concluded that the problem was most likely originating with tooth #3 and/or tooth #4, as both had deep MOD restorations placed approximately 3 years prior.





The more likely offending tooth, in the opinion of Dr. S, was the first molar, so, with the approval of R's father, root canal therapy was completed on that tooth, without any apparent complication, and with the finding of a vital pulp.  Nearly a month later, R's symptoms continued as before the endodontic treatment, so, again with the father's agreement, Dr. S completed RCT on tooth #4, also without complication and also with a vital pulp.  Despite both teeth being subsequently restored, R's initial presenting complaints remained, and were even subjectively worse, now approaching 6 months later; additionally, R began to have right-sided sinus congestion.





R's parents arranged for him to see an ENT, who, after performing a limited clinical assessment, sent R for a CT of the sinuses.  The study clearly showed a well-circumscribed, lima-bean-sized mass in the right maxillary sinus, located seemingly entirely deep to the Schneiderian Membrane and just above the maxillary posterior teeth.  Because of its localized appearance, the ENT expressed to R and his parents that the lesion was likely benign, so a plan was developed to perform an exploratory surgical procedure, through a Caldwell-Luc approach, to excise the mass and examine it microscopically.  Surgery at a local hospital went forward under general anesthesia, with the lesion removed and the sinus debrided.  The biopsy report determination was that the lesion was a polyp which was, as anticipated, benign and in need of no further treatment.





Within 2 weeks, R was, for the first time in the better part of a year, free of pain and headaches.  The ENT concluded and stated to his patient and his parents that all of the symptoms were all along not due to any dental problem, but instead the sinus polyp.  It was not until over a year after the RCTs were completed that R's father questioned Dr. S as to why she failed to diagnose "something" abnormal in the sinus, why she failed to consider any source for R's complaints other than teeth, and why she performed root canal therapy on 2 teeth without any objective basis for doing so.  Although she apologized and expressed empathy for all that R had gone through, she was not able to provide any answers to the direct questions posed to her.





Legal action





R's father read online that teeth which have had root canal therapy are more likely to fracture, and therefore be prematurely lost, so he began to consider costs that would likely and unnecessarily need to be borne by R in the future, as well as the emotional distress he would endure if he had to go through multiple dental extractions and their replacements.  He sought out and retained an attorney to act on his son's behalf by suing Dr. S for dental malpractice.





When Dr. S was served with papers that had commenced a lawsuit against her, she was immediately faced with a practical reality that she was aware of but had not realistically considered would arise: she had recently changed malpractice carriers but had not purchased extended reporting coverage – a "tail" – for the first carrier's claims-made policy; because the treatment of R which was at issue took place during the period of the earlier policy, she had no insurance coverage, either for defense or indemnification (payment).  After looking at the legal costs she would have to personally bear as a result, she opted to represent herself – acting pro se – counting on some "unofficial" help from a close friend who was an attorney, although not one who had ever practiced in the professional malpractice arena.





Dr. S learned that the state in which she practiced dentistry had a 1-year statute of limitations period for dental malpractice cases, meaning, as she interpreted it, that no such suit against her could validly go forward if it had been started more than 1 year after the date(s) of the claimed negligent treatment, as this suit had.  She asked her attorney friend what she could do to stop the suit in its tracks because it was not timely begun: her friend said that the mechanism for doing that was to make a motion to the court for dismissal, on that specific basis.  With her friend unwilling to assist her beyond that sole piece of advice, Dr. S thoroughly researched how to place that before the court, realizing that this was her only true hope to be successful in defending the case, acknowledging that she had fallen short in diagnosing the actual problem R had, and instituting incorrect and unneeded treatment.  Dr. S's motion was quickly and decisively opposed by the lawyer for the plaintiffs, R and his father.





The opposition made it clear that Dr. S had relied on only a portion of the law which guided the statute of limitations, ignoring the critical part here, namely that R, as a minor, was entitled to an extension of that time period, such that he was permitted to file his case until 1 year after he reached the age of majority; given that R was well short of age 19, the judge denied Dr. S's motion and allowed the case to move forward.  This left Dr. S with 3 basic options: (1) hire a lawyer to represent/defend her (which she was not willing to do); (2) continue to represent herself through discovery and potentially trial; or (3) try to reach a settlement to end the case. She weighed the costs, likelihood of success, and an unknown amount of money to be paid out if R later prevailed, if she proceeded with her defense, versus taking the bitter pill right then and there, and resolving the case for a sum of money that would be acceptable to all involved. She opted for the latter, and was able to work with R's attorney to reach an amicable settlement amount, which covered out-of-pocket expenses and compensation for R's pain and suffering after Dr. S completed her treatment.







Takeaways





The statute of limitations is the amount of time a plaintiff has to initiate suit.  States differ as to whether that time clock begins at the time of the negligent action, or when the effects of that negligent action are discovered, or small variations on those themes.  But regardless of those differences, the amount of time allowed by each state is strictly fixed for the vast majority of cases.  The most frequent exception in nearly all, if not all, of the states is that minors are entitled to an extended amount of time within which to begin a suit in dental malpractice, with the exact length of that time extension also specific to each state.  As a tandem concept, many states also require that dentists maintain records for minors longer than for adult patients; practitioners need to be aware of these details, lest they destroy records prematurely, thereby setting up significant legal issues if they cannot produce records during litigation or in response to a Board complaint, at a time when they should still have been maintained.





This case speaks also to both the type and quality of radiographs.  Here, while Dr. S was able to radiographically visualize the entirety of the teeth she treated, which is a generally agreed-upon requirement in the dental community, she was unable to visualize the neighboring maxillary sinus.  While dentists might legitimately debate whether Dr. S should have taken or ordered a radiographic study (such as a panoramic or CBCT) that also captured the sinus, there is no such dispute that, regardless of how and with what diagnostics she went about it, it was her obligation to assure that she was treating the situation for which the patient was seeking treatment.  According to the ENT – by way of what might reasonably be viewed as a joust – Dr. S did not do so.  But whether a joust or simply a statement of symptom causation, it was that conclusion by the ENT which most prominently led Dr. S to settle the matter rather than fight it.





Finally, we address the factors which left Dr. S without professional liability coverage: her claims-made policy and her not having purchased a tail upon leaving that policy behind in favor of another.  While an occurrence policy will forever protect a dentist – whenever a lawsuit might be filed – if a negligent action took place while that policy was in effect, a claims-made policy will only provide coverage if it is in effect at the time a claim of negligence/malpractice is made, unless a tail was purchased to extend the coverage umbrella of a claims-made policy which is no longer in effect.  Some exceptions to the need for a tail – such as death, disability, or retirement – might exist, based upon the stated policy terms, but for the most part, it is the norm that a dentist will be left as Dr. S was if they close a claims-made policy without purchasing tail coverage.





Summary of takeaways:





    

  • Broaden the diagnosis: Persistent or unclear symptoms should prompt consideration of non-dental causes and appropriate referral.
    • 




  • Avoid unnecessary treatment: Repeating irreversible procedures without clear evidence increases patient harm and liability risk.
    • 




  • Know your legal exposure: Treating minors can extend the statute of limitations, and gaps in malpractice coverage can leave you personally liable.
    • 






Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.


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In this case study, we explore how a misidentified biopsy location – due to a miscommunication - resulted in wrong-site surgery and malpractice claims. The case highlights the importance of documentation accuracy in preventing risks.









Key Concepts





    

  • Preventing wrong-site surgery through pre-procedure precautions
    • 




  • Vicarious liability for documentation errors
    • 




  • Pure consent to settle clauses in malpractice policies
    • 










Background Facts





T, a 71-year-old man, was a retired carpenter, with a medical history of well-controlled hypertension and chronic, episodic sinusitis, and a social history of having smoked at various times in his life, as much as up to a pack of cigarettes a day. He visited his dentist, Dr. D, at irregular intervals and never wanted to establish a big-picture treatment plan. At his most recent visit, Dr. D noted a course, irregular white area at the buccal mucogingival junction around teeth #29-31. Not feeling comfortable making even a provisional diagnosis, Dr. D referred T to a periodontist, Dr. O, to evaluate the area and treat as needed. Dr. O performed an incisional biopsy of the area and sent it to an oral pathologist, Dr. H, for histopathological assessment. The lesion was read out provisionally as atypical epithelial proliferation, but Dr. H asked for a larger sample to be able to make a more definitive diagnosis.





Dr. O took a second specimen from an immediately adjacent site. Due to a clerical error, Dr. O entered into the chart that this specimen had been taken from the "lower left buccal gingiva," with her dental assistant repeating that error on the pathology request form that was forwarded to Dr. H with the tissue. After microscopically examining the specimen, Dr. H diagnosed it definitively. The report from Dr. H to Dr. O read "squamous cell carcinoma, moderately-to-well differentiated, lower left buccal gingiva," the latter aspect having been copied by Dr. H, exactly from the requisition provided by Dr. O's office with the most recent submission.





Upon seeing the words "squamous cell carcinoma," Dr. O immediately referred T to a double-degree oral and maxillofacial surgeon, Dr. M, who had head and neck surgery fellowship training, for evaluation and treatment, giving T a copy of the biopsy report to take with him. Dr. M reviewed Dr. H's report, examined T, noting a small lesion on the buccal aspect of teeth #30-31, and explained to T that he would need a PET scan to determine whether there had been any spread. Presuming no such spread, Dr. M advised T that the lesion could be successfully treated by surgery alone, specifically a marginal mandibulectomy and a limited neck dissection. The lesion had not spread, per the PET scan and other modalities, so the stated plan would go forward. T agreed and surgery was scheduled at a regional medical center.





On the day of surgery, T waited in a pre-surgery room, where his medical history was reviewed and identification was checked. A consent form stating the procedure to be "removal of portion of lower jaw, and neck dissection" was signed by T and witnessed by a nurse. Dr. M said a brief "hello" to T before changing into scrubs and entering the operating room, where T was already on the table. Dr. M asked the anesthesiologist to proceed.  





Dr. M had taped Dr. H's biopsy report to the OR wall, read it again, and prepared to make an extraoral left submandibular incision, through which he would both remove a mandibular segment and perform the limited neck dissection. Technically, the procedure went forward uneventfully, with T then transferred to the post-anesthesia care unit. T's wife was brought in to see her husband while Dr. M was still there, dictating his operative note. She was aghast to see that surgery had been performed on T's left side, when she knew that the cancer was on the right. When she confronted Dr. M on the spot, he said, "here's the biopsy report, read it for yourself."  





Shortly after T's initial surgical recovery, another surgeon treated T, this time correctly operating on the right side of T's face and neck. T suffered emotionally, to the extent that he sought and obtained psychological counseling, but he was never able to comfortably eat or drink, or otherwise normally function orally again. He required and received reconstruction bilaterally, but he always found it to be very compromised and esthetically unacceptable.





Legal Action





T retained a seasoned attorney, who collected all records and who obtained opinions from a general dentist (like Dr. D), a periodontist (like Dr. O), an oral pathologist (like Dr. H), and an OMS (like Dr. M). The general dentist saw no liability on Dr. D's part, as he had immediately made an appropriate referral. The oral pathologist similarly found no liability as to Dr. H, reasoning that oral pathologists in biopsy situations do not assess the patient clinically. They simply diagnose what they see microscopically, which he did accurately, and report the findings regarding the site that was conveyed on the requisition it had come from.  





The conclusions as to Drs. O and M were quite different. The expert periodontist stated his view of Dr. O's negligence succinctly: Dr. O's recording error which incorrectly stated the location of the lesion to be examined was inexcusable, and it served to set the entire cascade of events into action, resulting in wrong-side surgery having been done. The oral surgery expert was deeply critical of Dr. M, claiming that he failed to clinically correlate the location findings on a biopsy report with the patient's actual condition, and then compounded the situation by being unwilling to address his error, thereby violating his duties, both surgically and ethically. In short, said this expert, Dr. M failed to do the most basic tasks, namely double checking the intended surgical site before performing irreversible, life-altering treatments.





Substantial settlement amounts were paid to T on behalf of both Dr. O and Dr. M. Additionally, Dr. M was sanctioned by his State Board.





Takeaways





Wrong-site treatment, including surgery – whether, as here, relating to the side of the mandible to be removed, or extracting a first bicuspid instead of an orthodontically planned-for second bicuspid, or endodontically treating a healthy lower molar instead of the diseased tooth next to it – has permanent effects, which are virtually always preventable. Pre-procedure techniques can be, and routinely are, employed that will stop this type of error from ever taking place, such as taking a time out for confirmation, marking the side/site of surgery, having two people independently confirm what is to be done, clinically correlating a result document (such as a biopsy report) with an actual finding, and having an open, no-consequences policy that encourages office staff to voice any concerns before a potential untoward event begins. The old "a stitch in time" adage is never more applicable than in pre-procedure risk protection.





One of the most frequent case types now seen in malpractice claims is a practitioner performing treatment where it was not intended to be, and the trend appears to be growing. While the reasons for that are simply theories, a common-sense approach is that such events might well be driven by a focus on the number of patients seen and procedures performed. In reality, the amount of time needed before a procedure to assure correct patient, correct site, correct procedure is nominal in comparison to the amount of time that most procedures take. But even if a practitioner or an office is measurably slowed down to achieve those assurances, obligations to patient safety warrant those delays.





This case highlights the consideration of responding to patients and their family members when results are not as planned or expected, when complications come to pass, or, as here, when errors are immediately obvious. It would not likely have changed the ultimate course of legal events had Dr. M responded to T's wife differently, because the negligence was so clear and significant, but it might have reduced the likelihood of a Board complaint being levied against him. Evidence to support that theory lies with the fact that no Board complaint was filed against Dr. O.  





The pathology request form sent to Dr. H with the second specimen taken by Dr. O was completed by Dr. O's dental assistant, who wrote the requisition form. By way of a concept known as vicarious liability, what the dental assistant wrote is the functional equivalent of Dr. O having written it herself. The assistant's error, whether copied from Dr. O's own transcription error or not, becomes Dr. O's error as well. All that is delegated comes back to the delegator, so double-checking of even such a seemingly unimportant task is critical for liability protection and for patient protection.





As a background fact, both Dr. O and Dr. M had professional liability ("dental malpractice") policies with "pure consent-to-settle" provisions, meaning that no settlement could have been reached without their agreement to do so. Such a provision means that a practitioner can demand that a lawsuit brought against them be tried in court before a jury, regardless of how strong the evidence of wrongdoing might be. For every case, practitioners are counseled by their attorneys regarding the pros and cons of settlement versus trial, with the potential implications of both fully set out on the table.  





Finally, we note that, simply for purposes of brevity, some details, which were not relevant to the risk management issues discussed, were omitted. This is particularly the case regarding the pre-surgical work-up phase of care, secondary criticisms addressed by the experts, and the documentary and testimonial evidence before the State Board. Their absence should not be construed as necessary but missing pieces.





Summary of Takeaways





    

  • Wrong site surgery remains a leading and largely preventable source of malpractice claims.
    • 




  • Dentists are accountable for errors made by delegated staff, even when those errors were unintentional.
    • 




  • Simple confirmation practices before irreversible procedures can prevent patient harm and legal consequences.
    • 






Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.







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A fulfilling dental career is powered by passion. In this article, Dr. Shafa Nathani, a member of MedPro Group’s Dental Advisory Board, offers insight on staying motivated and shaping a career that you’re passionate about.









Key Concepts





    

  • Job satisfaction and preventing burnout
    • 




  • Continuing education for dentists
    • 




  • Mental health and work-life balance
    • 










Cultivating your passion as a dentist can boost your job satisfaction throughout your career. When you genuinely enjoy what you do, it's easier to feel fulfilled and eager to come to work each day. Maintaining enthusiasm at work also helps keep you motivated, especially during difficult periods.





In addition, your passion for your dental career can trickle down into your care. Your upbeat demeanor can be contagious, helping to build trust and a sense of safety with your patients. This often leads to fewer appointment cancellations and a stronger commitment from your patients to stick to their treatment plans.





Building a dental career you love begins with securing reliable dental malpractice insurance – so you can practice safely and confidently with protection against potential malpractice claims. With trusted coverage from industry leader MedPro Group, you’ll get the peace of mind you need to deliver the best care to your patients and focus on fostering a fulfilling career.





Read this article for tips on how to choose the right dental malpractice insurance policy.





Q&A with a MedPro Group Dental Advisory Board Member





We interviewed Dr. Shafa Nathani, DMD, a member of MedPro’s Dental Advisory Board, to learn how she maintains her enthusiasm for her practice.





What’s your favorite part about working with patients?





"Every patient who sits in my chair comes with a story, and that’s something I never take for granted. On most days, the office is busy and fast-paced, and I may only get a few moments with each patient. Still, those moments often carry the most meaning. Whether it’s meeting a new patient for the first time, delivering complete dentures to someone we’ve been caring for over months or years, or seeing a recall patient after a long gap and catching up on their life, those brief connections matter deeply to me. Outside of the technical side of dentistry, it’s these human moments that ground me. After a day that feels like a total blur, they remind me why I chose this profession in the first place and how privileged I am to be trusted with someone’s care, comfort, and confidence.”





How do you prevent burnout as a dentist?





"I’m a little over a year into my career, and I’m currently in a phase of saying ‘yes’ as much as possible, working hard to gain experience and take full advantage of the momentum from dental school. While that growth has been exciting, it also comes with physical and mental challenges.” 





“There are days when my back aches, the mental load of running a busy office feels overwhelming, and the idea of taking time off sounds incredibly appealing. Early on, my routine after work was to go straight home, sit on the couch, and try to decompress. However, I quickly realized that I was still waking up tired and feeling like my life revolved entirely around work.”





“Making intentional changes helped shift that mindset. I joined a yoga studio, spent time at the library, and found ways to stay mentally and physically engaged outside of dentistry. Even though I was still tired, I felt fulfilled. That sense of balance has been essential in preventing burnout and helping me remain enthusiastic, motivated, and present for my patients."





Learn more about recognizing and preventing burnout in this article.





Can you share a pivotal moment that reaffirmed your passion for dentistry?





"Within my first month of practicing as a dentist, I treated an older patient whose upper bridge and partial had completely failed. He required full-mouth extractions, but financial limitations prevented him from receiving care from an oral surgeon. I wanted to help him, but I also questioned whether I was capable of managing a case of that complexity so early in my career.” 





“I reached out to a mentor who guided me step by step through the surgical process and denture delivery. While he was incredibly grateful for the care, that wasn’t the moment that truly reaffirmed my passion for dentistry. It was everything that followed. Over the next year, I saw him regularly for adjustments and follow-up exams, and during those visits we shared life updates and built a genuine connection. On my last day at that office, we tearfully said goodbye, and he offered me his blessings.”





“That moment reminded me that dentistry is about far more than procedures. It’s about relationships, trust, and long-term impact. He will be attending my wedding later this fall, a testament to how meaningful patient relationships can become."





How important is continuing education to staying passionate about your career?





"Continuing education is incredibly important to me, both professionally and personally. Dental school provides a strong foundation, but it can’t possibly cover everything. Depending on how you want to practice, CE can help shape you into a well-rounded dentist or allow you to focus deeply on a specific niche. I identify strongly with being a well-rounded practitioner.” 





“I’ve discovered countless resources and taken courses that reignite my excitement for learning and push me to try new techniques that lead to better clinical outcomes and smoother recovery for patients. Dentistry is constantly evolving, and staying current isn’t optional, it’s a responsibility. Engaging in CE keeps me challenged, curious, and inspired, which directly translates into better patient care."





How do you stay connected to the dental community? How does that affect your passion for your work?





“Having a supportive dental community is vital to my success and longevity in this profession. I’m incredibly grateful for the friendships I formed in dental school. We often joke that between all of us, we somehow cover every time zone in the country. Even though we aren’t geographically close, those friends are the first people I reach out to because they truly understand the challenges, pressures, and victories that come with dentistry. It’s a judgment free space where I can ask questions, vent, or celebrate wins.” 





“Additionally, my current role allows me to work within a DSO alongside a strong group of dentists. Through monthly calls and in person collaboration, we’ve built relationships rooted in mutual support and shared growth. This community has been essential in keeping my passion for dentistry alive because I never feel isolated. Instead, I feel supported, encouraged, and reminded that I’m part of something much bigger than myself.”





Passion starts with security 





You're passionate about your patients. We're passionate about protecting your good name. With over a century of dental malpractice expertise, we'll protect your practice so you can focus on building a career you love.





To learn more, contact our team or get a quote today.


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A teen patient’s persistent maxillary pain led to multiple root canal treatments, but the true cause went undiagnosed for months. The case highlights the risks of narrow diagnosis, missed referrals, and how treating a minor can extend malpractice exposure well beyond the expected timeframe.









Key Concepts





    

  • Malpractice risks associated with missed diagnoses
    • 




  • Minors and the statute of limitations
    • 




  • The importance of tail coverage
    • 










Background facts





Dr. S was a well-experienced dental practitioner who focused on the care of children, although not a pediatric dentist: she found the work challenging, yet rewarding, especially when those children later brought their own children to be treated.  R, age 16, was one such patient, whose father, as a teenager, treated with Dr. S when she was new to practice.  Severe, right maxillary pain, with persistent headaches led R to come to the office, outside of the routine of his usual 6-month recall visits.  By way of evaluating appropriate periapical films of the upper right molars and premolars, as well as a clinical examination with multiple dental testing modalities that demonstrated equivocal findings, Dr. S concluded that the problem was most likely originating with tooth #3 and/or tooth #4, as both had deep MOD restorations placed approximately 3 years prior.





The more likely offending tooth, in the opinion of Dr. S, was the first molar, so, with the approval of R's father, root canal therapy was completed on that tooth, without any apparent complication, and with the finding of a vital pulp.  Nearly a month later, R's symptoms continued as before the endodontic treatment, so, again with the father's agreement, Dr. S completed RCT on tooth #4, also without complication and also with a vital pulp.  Despite both teeth being subsequently restored, R's initial presenting complaints remained, and were even subjectively worse, now approaching 6 months later; additionally, R began to have right-sided sinus congestion.





R's parents arranged for him to see an ENT, who, after performing a limited clinical assessment, sent R for a CT of the sinuses.  The study clearly showed a well-circumscribed, lima-bean-sized mass in the right maxillary sinus, located seemingly entirely deep to the Schneiderian Membrane and just above the maxillary posterior teeth.  Because of its localized appearance, the ENT expressed to R and his parents that the lesion was likely benign, so a plan was developed to perform an exploratory surgical procedure, through a Caldwell-Luc approach, to excise the mass and examine it microscopically.  Surgery at a local hospital went forward under general anesthesia, with the lesion removed and the sinus debrided.  The biopsy report determination was that the lesion was a polyp which was, as anticipated, benign and in need of no further treatment.





Within 2 weeks, R was, for the first time in the better part of a year, free of pain and headaches.  The ENT concluded and stated to his patient and his parents that all of the symptoms were all along not due to any dental problem, but instead the sinus polyp.  It was not until over a year after the RCTs were completed that R's father questioned Dr. S as to why she failed to diagnose "something" abnormal in the sinus, why she failed to consider any source for R's complaints other than teeth, and why she performed root canal therapy on 2 teeth without any objective basis for doing so.  Although she apologized and expressed empathy for all that R had gone through, she was not able to provide any answers to the direct questions posed to her.





Legal action





R's father read online that teeth which have had root canal therapy are more likely to fracture, and therefore be prematurely lost, so he began to consider costs that would likely and unnecessarily need to be borne by R in the future, as well as the emotional distress he would endure if he had to go through multiple dental extractions and their replacements.  He sought out and retained an attorney to act on his son's behalf by suing Dr. S for dental malpractice.





When Dr. S was served with papers that had commenced a lawsuit against her, she was immediately faced with a practical reality that she was aware of but had not realistically considered would arise: she had recently changed malpractice carriers but had not purchased extended reporting coverage – a "tail" – for the first carrier's claims-made policy; because the treatment of R which was at issue took place during the period of the earlier policy, she had no insurance coverage, either for defense or indemnification (payment).  After looking at the legal costs she would have to personally bear as a result, she opted to represent herself – acting pro se – counting on some "unofficial" help from a close friend who was an attorney, although not one who had ever practiced in the professional malpractice arena.





Dr. S learned that the state in which she practiced dentistry had a 1-year statute of limitations period for dental malpractice cases, meaning, as she interpreted it, that no such suit against her could validly go forward if it had been started more than 1 year after the date(s) of the claimed negligent treatment, as this suit had.  She asked her attorney friend what she could do to stop the suit in its tracks because it was not timely begun: her friend said that the mechanism for doing that was to make a motion to the court for dismissal, on that specific basis.  With her friend unwilling to assist her beyond that sole piece of advice, Dr. S thoroughly researched how to place that before the court, realizing that this was her only true hope to be successful in defending the case, acknowledging that she had fallen short in diagnosing the actual problem R had, and instituting incorrect and unneeded treatment.  Dr. S's motion was quickly and decisively opposed by the lawyer for the plaintiffs, R and his father.





The opposition made it clear that Dr. S had relied on only a portion of the law which guided the statute of limitations, ignoring the critical part here, namely that R, as a minor, was entitled to an extension of that time period, such that he was permitted to file his case until 1 year after he reached the age of majority; given that R was well short of age 19, the judge denied Dr. S's motion and allowed the case to move forward.  This left Dr. S with 3 basic options: (1) hire a lawyer to represent/defend her (which she was not willing to do); (2) continue to represent herself through discovery and potentially trial; or (3) try to reach a settlement to end the case. She weighed the costs, likelihood of success, and an unknown amount of money to be paid out if R later prevailed, if she proceeded with her defense, versus taking the bitter pill right then and there, and resolving the case for a sum of money that would be acceptable to all involved. She opted for the latter, and was able to work with R's attorney to reach an amicable settlement amount, which covered out-of-pocket expenses and compensation for R's pain and suffering after Dr. S completed her treatment.







Takeaways





The statute of limitations is the amount of time a plaintiff has to initiate suit.  States differ as to whether that time clock begins at the time of the negligent action, or when the effects of that negligent action are discovered, or small variations on those themes.  But regardless of those differences, the amount of time allowed by each state is strictly fixed for the vast majority of cases.  The most frequent exception in nearly all, if not all, of the states is that minors are entitled to an extended amount of time within which to begin a suit in dental malpractice, with the exact length of that time extension also specific to each state.  As a tandem concept, many states also require that dentists maintain records for minors longer than for adult patients; practitioners need to be aware of these details, lest they destroy records prematurely, thereby setting up significant legal issues if they cannot produce records during litigation or in response to a Board complaint, at a time when they should still have been maintained.





This case speaks also to both the type and quality of radiographs.  Here, while Dr. S was able to radiographically visualize the entirety of the teeth she treated, which is a generally agreed-upon requirement in the dental community, she was unable to visualize the neighboring maxillary sinus.  While dentists might legitimately debate whether Dr. S should have taken or ordered a radiographic study (such as a panoramic or CBCT) that also captured the sinus, there is no such dispute that, regardless of how and with what diagnostics she went about it, it was her obligation to assure that she was treating the situation for which the patient was seeking treatment.  According to the ENT – by way of what might reasonably be viewed as a joust – Dr. S did not do so.  But whether a joust or simply a statement of symptom causation, it was that conclusion by the ENT which most prominently led Dr. S to settle the matter rather than fight it.





Finally, we address the factors which left Dr. S without professional liability coverage: her claims-made policy and her not having purchased a tail upon leaving that policy behind in favor of another.  While an occurrence policy will forever protect a dentist – whenever a lawsuit might be filed – if a negligent action took place while that policy was in effect, a claims-made policy will only provide coverage if it is in effect at the time a claim of negligence/malpractice is made, unless a tail was purchased to extend the coverage umbrella of a claims-made policy which is no longer in effect.  Some exceptions to the need for a tail – such as death, disability, or retirement – might exist, based upon the stated policy terms, but for the most part, it is the norm that a dentist will be left as Dr. S was if they close a claims-made policy without purchasing tail coverage.





Summary of takeaways:





    

  • Broaden the diagnosis: Persistent or unclear symptoms should prompt consideration of non-dental causes and appropriate referral.
    • 




  • Avoid unnecessary treatment: Repeating irreversible procedures without clear evidence increases patient harm and liability risk.
    • 




  • Know your legal exposure: Treating minors can extend the statute of limitations, and gaps in malpractice coverage can leave you personally liable.
    • 






Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.


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Additional Risk Tips content

How Minor Patients Extend Dental Malpractice Case Timelines

A misdiagnosed teen patient undergoes unnecessary root canals, revealing key risks in narrow diagnosis, delayed referral, and extended malpractice exposure due to minor status.

Why Accurate Documentation Matters Before Referral and Surgery

In this case study, inaccurate referral information leads to wrong site surgery and a malpractice claim. Read the case to learn how to prevent errors.

How to Stay Passionate in Your Dental Career

Insights on sustaining passion in a dental career through education, community support, work-life balance, and meaningful patient relationships.

This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and/or may differ among companies.

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